Donald Trump is back, baby. Notwithstanding that Rupert Murdoch has reportedly told him he’s not allowed to be president again, The Donald is on a mission for redemption.
The inconvenient fact that a large majority of American voters kicked him out two years ago is only inconvenient — if it even is a fact, which of course Trump maintains it is not. But it is in the analysis of what he did in pursuit of that insistence, between November 2020 and January 6 2021, that the answer to a legal question without precedent lies.
Is Trump eligible for office at all? The issue is the 14th Amendment to the US Constitution, section three, which says:
No person shall be president, who, having previously taken an oath as an officer of the United States, to support the Constitution, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.
The 14th Amendment was passed in the aftermath of the US Civil War, and the few times section three has ever been used mostly related to that conflict. The point, originally, was to disqualify Confederate rebels who had fought against the winning side — and therefore, by definition, the Constitution — from holding any office ever again.
The section gave US Congress an out, however, providing that a vote of two-thirds of each house could remove the “disability” from anyone affected. In 1872 they did just that, passing the Amnesty Act which allowed most Confederates back into public office and drawing a line under all the unpleasantness.
Section three was last used federally in 1919 to unseat a socialist congressman who was accused (falsely) of aiding Germany in WWI.
Naturally, after the January 6 “events” at the Capitol, attention turned to whether section three might be engaged, given that the invaders and their supporters included more than a few public office holders. This has triggered a lot of legal argument, and there are no clear answers, but the question is more than just academic now that Trump is back having a serious tilt.
Was January 6 an insurrection or rebellion? According to a single New Mexico State Court judge, it was. In September, he ruled that a county commissioner who had directly participated in the breach of the Capitol must be removed from his office and barred for life from holding any public office.
In doing so, the judge expressly ruled that the riot and the planning and incitement that led to it constituted an insurrection under the 14th Amendment.
That’s the only judicial precedent so far, and may not be followed in other state or federal courts. But the argument is powerful. One legal theory has it that the definition of insurrection can be taken from an existing federal law, the Insurrection Act, which empowers the president to call up the military against “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States [that] make it impracticable to enforce the laws of the United States”.
Well, that was both the express purpose and practical effect of January 6. It was intended to, and for a time did, prevent Congress from ratifying the presidential election result. It was a violent and direct assault on the law-making branch of government. If that’s not both a rebellion and an insurrection, I’m not sure what would be.
As for Trump’s culpability — whether he “engaged” in the insurrection — that seems unarguably so from the evidence uncovered by the January 6 congressional committee, quite apart from what was obvious all along on the public record. There’s no controversy about the fact that a person can be criminally responsible for an attempted coup just as much if they were involved in its planning or incitement as if they performed the physical acts.
One thing that isn’t clear is whether section three is self-executing — that is, whether it operates automatically to disqualify a person from office, or it requires a court order or act of Congress to crystallise that outcome. I’d say the former, but I’m not an American constitutional lawyer and I do know that the law is very often not what it seems over there.
Is the US Senate’s refusal to convict Trump when he was impeached by the House of Representatives relevant? Probably not; at least, it’s unlikely any court would say that that (obviously politicised) decision has foreclosed the operation of section three on Trump if it applies to his actions at all.
It may not matter, whether because Trump fails to get the Republican Party nomination or the question gets to the US Supreme Court and it votes on party lines.
Or, if the stars align, it might just provide the platform for a genuine legal reckoning for what happened on January 6 and whether Trump can continue to escape its consequences.