THE VIEW FROM HERE - Once, I thought that Judge J. Michael Luttig and Prof. Lawrence Tribe were correct that the 14th Amendment §3 bars Trump from the Presidency. I retract my agreement based on the following reconsideration.
The 14th Amendment’s Disqualification Clause states;
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. (Bold added)
Striped to its bear bones and arranged in modern grammatical order, it says: “No person, who has engaged in insurrection or who has given aid or comfort to insurrectionists, shall hold any office, civil or military, under the United States.”
Because §3 applies to all persons, it includes the President and the Vice-President.
Issue: Did Trump engage in an insurrection?
This question provokes disagreements. The law has a divide between substantive law and procedural law. The word insurrection involves both.
The 14th Amendment is silent on procedure (except its last sentence), leaving people to ask what is the burden of proof to determine if the President engaged in or gave aid or support to insurrections? Some people will claim that violating the Constitution is not criminal, and thus, the burden of proof would be preponderance of evidence (51%, more likely than not). Others will claim that insurrection should always be a criminal, and thus, the beyond a reasonable doubt standard of proof applies. No court has resolved this issue. There are additional problems.
Who has standing to sue to determine if the President had violated the 14th Amendment?
Here we arrive at a unique situation. Luttig and Tribe believe that the 14th Amendment has no procedure because it requires no one to file a lawsuit, but rather that whoever is responsible for placing people’s names on the ballots in each state has to duty to disqualify any person who violated the 14th Amendment. According to Luttig and Tribe, no factual determination by any court or other official body is required before the state official refuses to place a candidate’s name on the ballot. In saying that the Disqualifying Clause is self-executing, Judge Luttig’s analogizes to the age requirement to be President, which is 35. If a 32 year old man wants to be placed on the ballot, the state official has the duty not to add the man’s name. He need not seek court permission to omit the name.
I have not seen a discussion that the 14 Amendment’s Disqualification Clause was written right after the Civil War when half the country had seceded from the Union, starting the Civil War. Can there be any reasonable doubt that this clause was directed at those who joined the Confederacy?
Just as a person’s age is a fact of public record, whether some former official of the US government had joined the Confederacy would be a documented fact and the state official’s omitting his name from the ballot would not be relying on his opinion, but official records. If a 32 year old wants to run for President, the state official may not let him run because official believes the man satisfied the age requirement any more than he could bar a 40 year old man because he looks to be 28 years old.
Another facet which I did not see Luttig and Tribe discuss is that the 14th Amendment does not bar one from running for office, it only bars them from holding office. The 14th Amendment’s last sentence states, “But Congress may by a vote of two-thirds of each House, remove such disability.” It would be an unreasonable judicial procedure for Congress to vote on each and every Confederate who wanted to run for some public office in order to have the disability lifted. The prudent process is to wait until someone is elected, and then see if Congress waives the disability by a 2/3 majority. How Luttig and Tribe confused running for office with holding office is a mystery.
May A court Adjudicate the Issue Now?
If a court is presented with the 14th Amendment Disqualification issue now, its proper decision is to reject the case as it does not apply to running for office. Thus, it is not ripe for determination, since Trump may not win. Prior to the election, no court may speculate whether 2/3 of Congress would lift the disability if Trump should win. After Trump’s winning, under the 14th Amendment the only procedure is in Congress, not the courts.
Additional Serious Problems with a Court Trial on the 14th Amendment
The Senate had two opportunities to convict Trump on Articles of Impeachment; the second set of impeachment articles is relevant at this point. The second Articles of the Impeachment expressly incorporate the 14th Amendment §3 as one of the basis of the 2021 impeachment trial in the Senate.
Further, section 3 of the 14th Amendment to the Constitution prohibits any person who has "engaged in insurrection or rebellion against" the United States from "hold[ing] and office ... under the United States.' – For full text of the January 13, 2021 articles of impeachment.
The Senate voted 57 to convict and 43 voted to acquit; a 2/3rd majority was required to convict. Trump has been tried and acquitted of 14th Amendment § 3 charges.
5th Amendment states “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”. It would be ludicrous in the extreme to have a President expressly acquitted by the US Senate and then to allow the state election officials to impose the punishment because they personally disagree with the Senate’s verdict. The Double Jeopardy defense appears to be legitimate in any lawsuit which alleges that Trump violated the 14th Amendment §3.
While Trump may be tried for crimes other than violation of 14th Amendment §3, The 5th Amendment’s Double Jeopardy protects any and all Americans from facing the same charges after an acquitted. Because the second Senate trial was expressly based on the 14th amendment § 3, that acquittal bars any criminal trial based on it.
If anyone is interested the real reason Trump was not convicted in either Senate trial, I suggest reading Nancy Pelosi is the Most Dangerous Person on the Planet, with its gazillion hyperlinks, and the final chapters of Unchecked, The Untold Story Behind Congress’s Botched Impeachment of Donald Trump, by Rachael Bade, and Karoun Demirjian.
(Richard Lee Abrams has been an attorney, a Realtor and community relations consultant as well as a CityWatch contributor. You may email him at [email protected]. The opinions expressed are those of the author and not those of CityWatchLA.com.)