Insurrection, Resurrection
Trump's Disqualification Must Be Pressed Now!
This is a new take on a previous post that outlined the case for considering the impeachment findings of Trump’s incitement of insurrection as disqualifying him from office by the terms of the 14th Amendment of the Constitution. “Last Exit Before Autocracy!”
Donald Trump incited an insurrection on (and before) January 6th, 2021. Although the Department of Justice has failed to bring him to trial before the election, we as a nation of laws still have the obligation and opportunity to hold him to account for these actions. The time to do so is now, before the certification of his victory establishes him as officially elected. The exact mechanism is unclear and unspecified—perhaps the Attorney General Merrick Garland can bring forth a case, he owes us that much—but a case must be brought that gets before the Supreme Court to establish that Trump has already been disqualified from the presidency based upon the 14th Amendment, Section 3, of the U.S. Constitution.
The 14th Amendment disqualifies from office anyone who "engages in insurrection" against the United States and/or its Constitution. When Trump was impeached for "inciting insurrection" a majority of the House voted that he had so done and sent the case to the Senate for trial. At the Senate trial, a majority of the Senate also voted that Trump had incited insurrection. This meets the necessary standard set by the Supreme Court in Trump v. Anderson (the Colorado ballot case) that "the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates."
The terms of the 14th Amendment are that "no person" shall hold federal office who "has engaged in insurrection or rebellion against the same," that being the United States and/or the Constitution. It is indisputable that a majority of both chambers have found that Trump had so engaged. There is no provision in the Amendment for any further action to effectuate the disqualification once the fact of insurrection is established. The Supreme Court ruling has added clarification that only Congress can make this determination. And so it has already. That no further action is necessary by Congress is evident in that the Amendment does not specify any, whereas it does so explicitly to describe how a disqualification can be removed. It says, "but Congress may by a vote of two-thirds of each House, remove such disability." There is no corresponding language requiring Congress to explicitly vote to disqualify. Had they desired this, we could have expected language such as, "and Congress shall so disqualify them by a majority vote in each House." It did not. The fact of engaging in insurrection is sufficient, therefore, to disqualify.
Although the Amendment did not specify that only Congress could make this determination (after all, in states, disqualification from state office has many times been effectuated by state court proceedings, not the state legislature), this is the recent interpretation by the Supreme Court. Since the court has so limited the responsibly to that body, we know that a simple majority vote is sufficient to establish the disqualification by two measures: 1) the Amendment specifies a 2/3 vote to remove a disqualification, which is logically a higher standard to overrule a previous finding to so establish it; and that it is specified at all implies it's meant to be different than any such prior vote; and 2) after an impeachment conviction, an optional vote may be taken to disqualify the party from future office, is specified in Senate rules and practice to only be a simple majority vote.
That Trump was not convicted at impeachment is not to be confused with an invalidation of the finding by Congress that Trump did engage in insurrection (that bar is met through the simple majority). Nor should we look to the fact that the Senate had opportunity to vote to disqualify Trump and did not take it, because they did not in fact have that opportunity, based on the Senate rules governing when this vote is taken (only after conviction). The simple majority establishes his guilt as to engaging in insurrection. Period. The 2/3 majority for conviction that was not met is calibrated by the Constitution to be a supermajority because the typical use of and real power of impeachment is not to establish just guilt on the facts, but most importantly to remove from office a sitting president or other office holder. The high bar is appropriately set in order to overturn the will of the people’s vote (or other appointment).
The Senate impeachment trial was in fact a trial with facts presented by both sides, arguments made and heard and finally considered and judgement rendered. It is worth noting that at the time of the impeachment, Trump was already out of office. In fact, several Senators who voted to acquit specifically stated at the time that they agreed Trump was guilty but felt that Congress did not have the constitutional power to hold impeachment hearings for someone already out of office. Some of this is excuse making for not voting to convict when clearly, he was guilty; which we can surmise by the simple facts that 1) the Senate itself had already voted that they did have this constitutional authority prior to the trial and 2) the Senate in 1876 did in fact impeach and try former U.S. Secretary of War, William Belknap, despite his having previously resigned. The vote margin to convict was just one vote higher than the vote to grant the authority, which strongly implies of those voting to not convict all of them had also voted they didn't have the authority to try him. While this isn't legally binding, it is indicative that the assessment of his guilt was even higher than expressed in the final vote.
The upshot of all of this is that the case should now be brought forth that Trump is not eligible to be seated as president despite he having won the votes needed. The constitution says he is disqualified. That doing so would no doubt unleash a tempest among the people who voted for him, this is a tempest the Supreme Court created by allowing him on the ballot in the first instance. They were given the opportunity to act in advance and head off this nightmare, by the Colorado case. They chose to ignore the lower court's factual findings that Trump had engaged in insurrection and allowed him on the ballot, which set a train running down the tracks to an election with a 50:50 chance of derailment. The most important consideration now is not the reaction, it's not the trainwreck they've set in motion; it is that the laws of this country be followed, that no man is above those laws and that the Constitution is our highest authority of law and must be respected, obeyed, and applied no matter the political implications or impending civil unrest. An insurrectionist in the office of the president is the worst of all possible outcomes.