Democrats, Seeking To Disqualify Trump, Eye an Arcane Article of the 14th Amendment
Democrats are preparing to keep President Trump from even contemplating another run for the White House — by any means necessary, starting with President Biden’s claim that Mr. Trump was “singularly responsible” for the “chaos and carnage” of January 6. They failed twice at impeachment, but their January 6 committee is contemplating criminal accusations. The Attorney General is warning of possible charges.
The most startling scheme to run Mr. Trump out of the 2024 campaign, though, comes from those who want to revive a tool that was added to the Constitution in 1868 and hasn’t been used since 1919. It’s the Fourteenth Amendment’s Disqualification Clause, a Reconstruction-era ban on ex-Confederates holding elected office never intended for events like January 6.
The clause bars from serving in office anyone who, having “taken an oath” as an officer of the United States, engages in “insurrection or rebellion against the same.” A former campaign lawyer for Senator Clinton, Marc Elias, recently predicted that there will be “a serious discussion” over whether some House Republicans will be “disqualified by Section 3 of the Fourteenth Amendment from serving in Congress.”
The legal sages of the Lawfare blog published a lengthy “how-to” disqualification guide following January 6. Those who view the event as an insurrection think they have a case. Attorney General Garland’s remarks today also suggest possible legal trouble for government officials with ties to that day’s protest. Mr. Garland warned that he would hold “all January 6th perpetrators, at any level, accountable under law.”
General Garland said his investigation would encompass all those involved, “whether they were present that day or were otherwise criminally responsible for the assault on our democracy.” Even so, while more than 725 people have been charged for their actions during the events of January 6, none — yet — are office holders. Moreover, none face charges of insurrection, rebellion, or treason.
The most common charge, according to the Justice Department, is “entering or remaining in a restricted federal building or grounds” — not exactly Fort Sumter. The Democrats’ real reason for talking about the Disqualification Clause, and their ultimate target, is Mr. Trump. Hence the allegations that Mr. Trump supported the January 6 “insurrectionists.”
The January 6 committee may make criminal referrals to the Justice Department, raising concerns about an unconstitutional bill of attainder. Liberals may not need to go that far. Richard Painter, an ethics lawyer in the White House of Bush ’43, argues Mr. Trump is disqualified automatically for supporting the January 6 protesters. He favors appointing a special prosecutor so “we should not have to deal with his candidacy in 2024.”
What a shock that would be for the post-Civil War authors of the Disqualification Clause. The last time it was invoked was in 1919, when the House refused to seat a socialist congressman, Victor Berger of Wisconsin. Berger had been convicted under the Espionage Act for anti-war statements during World War I, and the House used this as a pretext to declare him ineligible to serve. Berger eventually prevailed at the Supreme Court.
The authors of the Disqualification Clause — who lived through an actual insurrection — understood that it would be little used. Congress was empowered to lift the disabilities of banned persons by a two-thirds vote of both houses, and in almost every case they did. Hundreds of former Confederate soldiers and politicians served in Congress, including Alexander Stephens, Jefferson Davis’ vice president.
Allowing the Confederates to return to public service was testament to “a liberality and large-mindedness and magnanimity and mercy such as has not been shown in the world’s history by the conqueror to the conquered,” said James G. Blaine of Maine. As deplorable as the events of January 6 were, they hardly warrant reviving an arcane article of the Constitution to prevent voters from being free to decide whether to return an ex-president to office.
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Image: Drawing by Elliott Banfield, courtesy of the artist.
