In his latest Washington Post column, George Will, never a Trump supporter, cautions against trying to block Trump’s candidacy for the presidency in 2024 using the 14th Amendment:
Leave aside (as a court will be unable to do) the fraught questions about what causal connections there were between Trump’s rhetoric before and on Jan. 6, 2021, and the actions then of his acolytes: They, after all, had agency. And never mind how to calibrate “aid or comfort.†Just concentrate on “insurrection.â€
The Confederacy — the attempted secessions of 11 states; rebel cannon firing on federal installations; armies on the march against U.S. forces — was unambiguously an insurrection. A riotous rabble — whatever its motivations and delusional aspirations — on a January afternoon? Rather less so. They were criminal and disgusting, but closer to vandals than to the Army of Northern Virginia.
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People advocating a 14th Amendment solution to the problem of Trump are spreading the acids of cynicism and suspicion that are corroding trust in institutions. And some states’ election officials — watch Colorado — are apt to seize this occasion for grandstanding, trying to keep Trump’s name off their ballots. This will thicken his armor of martyrdom.
The problem that I see with the push to disqualify Trump from running based on novel and strained interpretations of the 14th Amendment is that I don’t believe they as much a principled arguments as opportunistic ones. The rationale appears to be that Trump is such a threat to democracy that any action is justified in preventing it. That the views of those who rioted on January 6 are the mirror image of that does not seem to occur to them.
It’s all very post-modern. Like burning the village in order to save it.
To the best of my knowledge no one has been charged with insurrection in the January 6 riots to date. Or rebellion or giving aid and comfort the enemies of the U. S.
In some ideal world where people are held accountable for their actions Trump isn’t allowed to run. This isn’t that world. If he is nominated, surely the case, he should be allowed to run.
Steve
Trump was impeached for “incitement of insurrection,” and the 14th Amendment was referenced obliquely in the articles without committing to it as an alternative ground from impeachment.
The Volokh Conspiracy has two regular conspirators that have written lengthy papers on either side of the legality of this course of action. I don’t think I will have the time to read them, but seems like there are a lot of issues, and whether or not it was an insurrection may not even be the most important one. Whether or not the President is covered by the 14th Amendment and whether or not Congress needs to have passed implementing legislation loom pretty large.
Dave Schuler: To the best of my knowledge no one has been charged with insurrection in the January 6 riots to date.
Several, including Proud Boy Joe Biggs, have been convicted of seditious conspiracy, which has harsher penalties than insurrection under U.S. law.
I presume that what PD Shaw is referring to is the matter of whether the president is “an officer of the United States”. The case law suggests that he or she is not.
Section 3 of the 14th Amendment is pretty restrictive. Interpreting it broadly as covering a wide range of offenses not included in the language of the statute itself may have run-on effects.
The doom loop would be if Biden’s polls keep getting worse, the more the 14th amendment is seen as the only solution to keep Trump from office, the more vigor it is pursued, the more it increases Trump’s support from Republicans, independents, and the apathetic, and so on.
Nothing gets people going like when they are told they can’t do “X”.
Dave Schuler: Section 3 of the 14th Amendment is pretty restrictive. Interpreting it broadly as covering a wide range of offenses not included in the language of the statute itself may have run-on effects.
One doesn’t have to be convicted of a crime for the clause to apply. For instance, Jefferson Davis would be excluded even if not brought to trial. The clause is self-executing. However, there should be some sort of due process and a procedure devised to avoid chaos. (We don’t support its application to Trump for this reason.)
See section 5: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.â€
The argument that the President is not an “officer of the United States” derives primarily from the text of the Constitution. When “officer” is used in the Constitution it’s not referring to the President. The Constitution describes the President’s powers, responsibilities, and how they are elected. When officers are mentioned, it’s usually how their office is created and how they are to be appointed. Notably, Congress has the power to remove by impeachment only “the President, Vice President and all civil Officers of the United States.”
The Fourteenth Amendment doesn’t mention the President. It applies to anyone “having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
Note that it doesn’t apply to all insurrectionists. The farmer who joined the Confederacy isn’t excluded because he wasn’t an oath-breaker. Jefferson Davis was a Congressman among other things, so he falls within the scope. President John Tyler joined the Confederacy, but was dead by 1862, and in any event he had also been a U.S. Representative. Vice President Breckinridge joined the Confederacy, but he had been a U.S. Senator.
The drafters probably weren’t worried about the Presidency anyway, as they would have to face a national election. I think their goal was not to punish oath-breakers, so much as to help promote loyal Southerners in their respective states. They would not have to face disloyal elites in elections or compete with them for appointments to office (important for party-building).
PD Shaw: The farmer who joined the Confederacy isn’t excluded because he wasn’t an oath-breaker.
However, many Confederate officers, such as Lee and Jackson, had previously taken oaths to the United States. The General Amnesty Act of 1872 removed the restrictions for all but a few. Lee and Davis didn’t have their rights restored until the 1970s.