Banning Trump From Office
The January 6 Committee recommends invoking the Insurrection Clause.
WaPo (“Jan. 6 report recommends Congress ban Trump from running again“):
The House select committee investigating the Jan. 6, 2021, attack on the Capitol released its final 845-page report Thursday, the culmination of an exhaustive 18-month investigation into the violent insurrection and President Donald Trump’s role inciting it.
The report finds that Trump actively inspired his supporters to commit violence in his name as he attempted to remain in office despite losing the 2020 election. It comes nearly two years after a pro-Trump mob of supporters stormed the Capitol to stop the counting of votes for election winner Joe Biden, and follows a unanimous vote by the committee Monday to refer Trump to the Justice Department for criminal investigation.
The report, released as Trump begins his bid for reelection, recommends that Congress consider banning the former president from holding office again, citing the 14th Amendment, which bars those who have “engaged in an insurrection” or offered “aid and comfort to the enemies” of the Constitution. It also details how ahead of the Jan. 6 attack, red flags about potential deadly violence were ignored. The committee behind the report will disband within days.
We’ve discussed this possibility before. I’m skeptical it can be enforced absent a criminal conviction.
The 14th Amendment was, of course, passed in the aftermath of the Civil War and that provision was rather clearly a direct response to that conflict. Whether someone who had previously taken an oath to the US Constitution participated in that insurrection was cut and dried. (And a blanket amnesty for all Confederate soldiers was passed in 1872, so the ban didn’t last long even in the original instance.)
It seems rather obvious, though, that to apply the ban to subsequent insurrections would require conviction of a related crime. Otherwise, an act of Congress banning a specific person from office would seem to be an unconstitutional Bill of Attainder. While some might argue that disqualification from office isn’t a criminal punishment, it has the effect of branding people criminals without a trial. I don’t see how that would be legal. (A POGO op-ed disagrees.)
Writing on various attempts to bar Republican Congressmen who egged on protestors from office, Harvard Law professor Ronald Sullivan argues “lawyers seeking disqualification have a steep hill to climb in all of these cases – especially when their arguments based on the 14th Amendment collide with the First Amendment and its protection of free speech.” Judges hearing those cases apparently agreed.
A FindLaw explainer declares that “legal scholars are split on whether the disqualification clause applies to the presidency.” A plain reading of it would seem to answer that in the affirmative:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, 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. But Congress may by a vote of two-thirds of each House, remove such disability.
But Josh Blackman, for example, argues that the President, as an elected official, is not an officer of the United States.
Now, it’s likely a moot point, anyway, given that Republicans will have a majority in the House starting January 3rd. While there are surely some number of Republican Representatives who would like to be rid of Trump, I can’t imagine man—if any—would go along with a controversial ban.
Sadly, the impeachment hearings were likely Congress’ last bite at the apple. It’s now up to the Justice Department and, most likely, the voters to decide if Trump gets to be President again.
I don’t recall that anyone was charged or convicted simply for having been a Confederate officer, soldier, or government official, only for specific criminal acts. So I don’t know where we get any precedent for a conviction being required. But it’s a moot point. Ain’t gonna happen.
Like impeachment, neither Congress nor the Supremes are going to go along with barring him absent overwhelming public sentiment to do so. IMHO he’s going away anyway, not with a bang but a whimper. NYT et al will go through his taxes and declare his net wealth is << a billion. GA will drag out an election interference case. The MaL papers will drag on. He’s descending into powerless self parody. And he’s got a special prosecutor hovering over him
Ummm, he’s the chief officer as the ultimate head of the armed forces and he takes the Oath of Office. Just because he’s a civilian doesn’t mean his authority over the Army, Navy, etc is any less according to the Constitution so why would not being an official officer by their standards matter? His election grants him a title, office and all the powers and duties that go along with it. POTUS is a sworn officer for 4 years (albeit a unique and ceremonial one) as the Oath of Office contains language similar enough to that of joining the armed forces to count.
“We’re a (weak) constitutional monarchy aspiring to be absolutist, not a democracy!”
There was no appetite to do so. But the ban in Section 3 was specifically intended to prevent those who served as officers in the Confederate Army from serving in political office. As noted in the post, though, public sentiment quickly changed and a blanket amnesty was issued under President Grant. Only a handful of top officials, like President Jefferson Davis, continued to be barred.
I think your interpretation is reasonable. It just makes sense that the President isn’t and shouldn’t be above the law. The case law on this is decidedly mixed. There are laws that apply to Cabinet officials and general officers that don’t apply to POTUS and VPOTUS. There are many who argue that even the Emoluments Clauses don’t apply.
I’m of two minds on which is better for the end of Trump – whimper or bang?
On one hand, I believe the country really needs catharsis, so the national drama of the last several years calls for Trump to go down with an emphatic defeat. A Trump in Handcuffs moment, especially if the charges stem from his incitement or the theft of secret documents, would go a long way in setting some restoration in motion and it would signal that authoritarianism is inherently criminal in a democratic state.
But on the other hand, I must admit getting some pleasure imagining Trump being reduced to a pathetic figure undeserving of pity. Trump would hate being ignored as inconsequential and I suspect a steady and slow hollowing out of his mythic persona would somewhat defang the militants who support him.
How about an ironic bang? Like, say, if he were shot dead on 5th Avenue.
More seriously, you sold the case for the bang when you said “it would signal that authoritarianism is inherently criminal in a democratic state.”
@gVOR08: This is a bit OT, but I’ve been doing a bit of research on what NYTimes calls his best performing asset: His partial ownership of 555 Cslifornia in SF. This is a marquee building, and I know someone who works in there (she’s in the financial industry).
I guess that Trump’s share of it (30 percent) is probably worth a billion or maybe 1.5 all on its own. That’s a SWAG, not an analysis. The same deal gives him 30 percent of a similar building in NYC.
And then there are all those other assets, the ones that show operating losses. So the assets he controls is easily 5 billion, maybe 8. The question is now just what his liabilities are. He’s leveraged to the hilt, because that’s what real estate developers do. They look less to have operating profit and more to realize gains via price growth of highly leveraged assets.
That’s how that business works, and the simple fact Trump does it doesn’t make it a bad idea. Of course, that doesn’t mean he’s doing it well. He probably isn’t, but that’s going to be a sophisticated argument to make.
Also, he’s under investigation for defrauding banks with inflated statements of value for properties he’s borrowed against. Meanwhile, I am well familiar with the notion that banks do their own appraisals on properties they are going to make loans on. But maybe they are still vulnerable to bad information from owners.
Given that, he could have liabilities which more than zero out his assets. Either that, or he’s been defrauding the IRS, which is a distinct possibility.
The Rule of Trump is that the dumbest reason is probably the correct one. I think that armed with his tax return, it is possible to make any real estate developer look like a failure, even if they are doing good business, and Trump was afraid of looking bad.
The language itself though is clear and very deliberately does not limit itself to the Civil War. It’s pretty obvious the intent was for it to apply to future insurrections as well.
While I understand the topic leads to a constitutional discussion…
It’s sad that anyone would WANT to have Trump as president again, based on the obvious data of 4 year’s performance.
His most stellar accomplishments: Space Force, and lowering the corporate tax rate to 21% (while raising the taxes on the middle class).
But cognitive dissonance and the desire to win at any cost blinds many in this country.
Senator Susan Collins no doubt believes Tramp learned his lesson and won’t try to overthrow the government again.