Senate: Trump Incited Insurrection
We've Had a Legal Finding by a Co-Equal Federal Branch for 3 Years
The U.S. Supreme Court is poised in the next weeks to consider the disqualification of Donald Trump from Colorado’s election ballot. All such ballot eligibility challenges—be it Colorado,1 Maine,2 or the recent effort in Washington state3—rely upon a finding that Donald Trump engaged in insurrection, both through his actions and inactions on and around January 6th, and through his involvement in multistate conspiracies to overturn the election results.4 Once a former office holder, who has sworn to support the Constitution, is shown to have so engaged they are automatically disqualified. That is the sweeping power of the 14th Amendment Section 3, the “Disqualification Clause”, which sets these terms.5 A presidential candidate has never been disqualified in this way. To make the necessary compelling case requires summoning all available findings, including what is a presently overlooked but substantive finding from almost three years ago: the second impeachment trial of Donald Trump.
The justices in Colorado ruled based upon the evidence developed through witness testimony, five days of hearings, and public sources such as the January 6th Committee Report.6 What they didn’t have was a weighing of evidence by a jury in a trial. Advocates of the decision contend that there is no need for it. But even the U.S. Supreme Court is not inured to the weighty prospect of telling supporters of a major political candidate that he’s not eligible for office. A determination that Trump engaged in insurrection would best be offered not just from an evidentiary hearing in any one state with evidence weighed by any one individual—a judge in Colorado or a Secretary of State in Maine—but rather a finding in a trial. In the second impeachment of Donald Trump we have such a finding of fact—a determination—made by a jury of the Senate, and thus Congress, a co-equal branch of the federal government. This offers the heft the Court may need.
During the second impeachment of Donald Trump, he was charged with “Incitement of Insurrection,” evidence was examined, due process was given, a full and fair trial was conducted, advocates on both sides made considered arguments, and evidence was assessed by a jury of sitting Senators.7 Each senator weighed the evidence according to their own standards, be it from the typical preponderance of evidence standard (more than 50% true or likely) of a civil trial up to the beyond a reasonable doubt standard of a criminal one. In the end, a bipartisan majority of Senators voted to affirm 57-43 that Trump had incited insurrection.8 In the context of an impeachment trial, where the usual stakes are whether or not to remove from office a sitting president—in a sense overturning the prior expressed will of the people—the appropriately high standard of a 2/3 supermajority applies. In this impeachment, with this president, however, none of that was going to happen, because by then Trump was already out of office. That fact was foremost in the minds of many senators voting to acquit, as they doubted their own authority to try a former president. After a thorough analysis, Just Security, found, “as a matter of law, it is technically inaccurate to call many of these 43 senators’ decisions a vote to ‘acquit,’ at least not on the question of guilt or innocence.”9 In this light, 57-43 is a stunning condemnation and an unreached supermajority is merely a red herring.
While removal from office of a sitting president or other officer is the main flank of the impeachment process, the Constitution also allows for disqualification from future office. Since 186210 the Senate has relied upon a separate simple majority vote for disqualification, following a decision to remove. Given the impeachment trial voting record by these self-same Senators, it was more than enough to have disqualified Trump from future office had that been the question before them. Alas, this was not possible because of the strictures imposed by the Constitution, designed around removal. That’s not to suggest Trump is directly disqualified by the Senate vote; only that the Senate vote establishes a finding of fact that he incited insurrection. Unfortunately for Mr. Trump, the thing he was found to have done by the Senate is also, separately, subject to the Disqualification Clause of the 14th Amendment.
The Disqualification Clause does not indicate any mechanism or voting threshold in any body to disqualify someone. It’s considered by scholars to be self-executing,11[xi] thus not requiring any legislation to enact it. The only thing it has to say about voting is in regard to undoing a prior disqualification by its tenets: “But Congress may, by a vote of two-thirds of each House, remove such disability.” Supermajorities in the Constitution are required for the most important decisions and usually have the effect of undoing or overriding the status of a previous condition, as we have here. Examples include overriding a presidential veto; overriding an election or appointment (e.g. impeachment, expulsion from Congress, invoking the 25th Amendment); or overriding a filibuster. Intrinsic to the notion of overriding a condition is that it requires a different and higher standard than was required to establish it. From this we can surmise that the framers would have been quite satisfied to have disqualification rely upon a simple majority of Congress to effect it, had they sought to require implementing legislation.
Given the tradition of the Senate in how it handles disqualification during impeachment trials, using only a simple majority vote, and given how overriding a disqualification by the 14th Amendment requires a higher 2/3 threshold, we have good evidence that the strong simple majority of Senators at his second impeachment is sufficient to establish a basis for disqualification by the 14th Amendment Section 3. Let’s remember too that no liberties are denied by disqualification; only the privilege of public service is forfeited. Nevertheless, disqualification of a candidate should require a high bar, it mustn’t be reduced to a political stratagem. Using a simple majority doesn’t mean it’s a low bar; the height of this bar is not the vote count, it’s the unusually heinous and dangerous behaviors necessary to invoke it: insurrection, rebellion, or aid and comfort to our enemies.
Donald Trump is the only president to have ever attempted to thwart the peaceful transfer of power. His actions on January 6th, 2021, where he levied an army of supporters to attack Congress was insurrection. So were the myriad elements of his greater conspiracy, across multiple states and agencies, to overturn the 2020 election. Only he has met this high bar of un-American antidemocratic behavior. The framers of Reconstruction provided the Disqualification Clause as an inoculation from insurrection—and most assuredly from an insurrectionist president. If a bipartisan strong majority of Senators telling us this is what the former president did isn’t enough, then nothing will be.