How Trump was able to win the election, only to be disqualified — or charged — as an insurrectionist

Efforts to expel President Trump from the White House under Section 3 of the 14th Amendment could enter a new phase if Democrats capture the House and hold the Senate. If Trump wins — or if he loses — Democratic lawmakers could try to expel the 45th president.

This section of the parchment bars former government officials from holding office if they took an oath to support the Constitution but then betrayed it by insurrection. Democrats have long sought to expel Trump because of his role in trying to overturn the results of the last presidential election.

One Democrat, Rep. Jamie Raskin, told the Daily Beast: “We will not agree to any fraud. We will, as always, fight for a fair and honest election.” Mr. Raskin told CNN last year that “of all the forms of disqualification we have, the one that disqualifies people from participating in an insurrection is the most democratic, because people choose to be disqualified.”

Mr. Raskin was the lead impeachment manager for Trump's impeachment trial on January 6 and has warned that the former president is “setting the stage” for “the big round of lies 2.” His comments came after Congressman Hakeem Jeffries vowed in September that “House Democrats will do whatever is necessary to protect our democracy, defend the transfer of power and ensure that the winner of the presidential election on January 6th is elected without drama or.” Consequences will be announced.” ”

The Colorado Supreme Court affirmed this position when it ruled that January 6, 2021, amounted to an insurrection and that the 45th President was sufficiently responsible to trigger the disqualification provision. The text of the amendment was adopted with reference to the Confederacy after the Civil War. After the Colorado verdict, President Biden claimed that there was “no doubt” that Trump committed insurrection.

However, a unanimous Supreme Court issued a repeal by Rocky Mountain Trump vs. Anderson. The justices concluded that the Centennial State exceeded its authority in barring Trump from the election because states cannot unilaterally disqualify federal officeholders. A narrow majority – five justices – went further and ruled that only Congress can enforce Section Three. This means that not only state courts, but also federal courts cannot enforce the clause if there is no corresponding law.

Justice Amy Coney Barrett agreed that Colorado went too far, but said the Supreme Court should not have “arrived at the complicated question of whether federal law is the exclusive tool by which Section 3 can be enforced.” The liberal justices went even further, accusing their conservative colleagues of deciding “novel constitutional questions to protect this court” and shield Trump from further scrutiny.

One means of disqualification would be a conviction under the Insurrectional Penalty Act. This law requires that “whoever incites, abetts, or participates in, or gives aid or comfort to, any rebellion or insurrection against the authority of the United States or the laws thereof, shall be fined or not under this title.” shall be punished with a prison sentence of more than ten years or both; and is unfit to hold office in the United States.”

However, special counsel Jack Smith did not accuse Trump of the insurrection. The Justice Department failed to bring those charges against more than 1,000 defendants in the Jan. 6 case, and no federal court has found it related to the Capitol insurrection Was a riot. Andy McCarthy speculates in National Review that if Democrats win control of both chambers of Congress, they could “try to push through legislation that would set in motion a process” to disqualify Trump.

Crafting such legislation could be challenging, even without taking into account the task of securing sufficient majorities to get it to a potential President Harris' desk. A law specifically targeting Trump could violate the Constitution's absolute ban on assassination attempts. The Supreme Court defines it as “a device commonly resorted to in 16th, 17th and 18th century England to deal with persons who had attempted or threatened to overthrow the government.”

Another possibility is that Democrats could forego disqualification in favor of impeachment. Trump has vowed to fire Mr. Smith within “two seconds” of taking the oath of office if he wins. Special counsel rules require that Mr. Smith can only be fired by an attorney general and for “cause,” which must be set forth in writing. If Democrats control the House of Representatives, they could – for the third time – initiate impeachment proceedings against Trump.