Tuesday, September 12, 2023

Trump and the 14th Amendement

This is Joseph. 

This clause in the constitution is getting a lot of attention with respect to Donald Trump:

Section 3 Disqualification from Holding Office

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.

See this and this, for example. 

However, there is an important section in clause 1 of the same amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

And herein lies the problem. How do you enforce section 3 in view of section 1? Well, obviously there needs to be a legal process and it is not encouraging that these challenges, to date, have not had a great record of success. Look at Marjorie Taylor Greene who has already faced such a challenge and survived it given Jan 6th. 

Further, do we really want such challenges? See, I remember the 1990's where such rhetoric was deployed against Bill Clinton. This isn't a joke or a crackpot, Orange County Rep. Robert K. Dornan really did accuse Bill Clinton of this as part of his political resistance to the Vietnam war. Similarly, a sitting president leveled these accusations against Barack Obama. Now maybe Donald Trump is an outlier but there really is a good question as to what counts here. 

Josh Marshall is right that there are issues here:

Did Trump commit insurrection or rebellion under the terms of the 14th Amendment? Who says so? He hasn’t been convicted of anything. He was impeached over his actions on January 6th and the Senate did not convict him. Indeed, not only has he not been convicted of anything a federal prosecutor who did indict him for his actions on and leading up to January 6th did not charge him with seditious conspiracy, the crime most proximate to the 14th Amendment’s criteria.

 Like he was actually tried by the US Senate and not convicted. I know that this was a political result, but it does complicate matters. I think that the short answer is that we probably need either an admission or a conviction to make this one work. After all, look at this (performative) congressional resolution about Joe Biden. The real issue is what counts as triggering the amendment and it needs to be a universal standard that we can apply to all future politicians. 

Conviction is a very clean standard. We routinely remove rights from convicted persons (e.g., the right to vote) and, while I may not love it, it is a known feature of the legal system. The problem is that Donald Trump has not been convicted of anything yet. Maybe he will be but it is concerning to let the emotional want for justice to overturn the process of justice, which is flawed enough when done slowly and carefully. 

The worst threat to Donald Trump of being convicted of this right now is the RICO charge, but I worry about that as well, given other ways that statue has been used recently. 

No, I think that this particular question is best approached with care and not passion, no matter how much we might not like where care leads us. 

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