Con Law

Law School

I spent a semester at the University of Cincinnati Law School.  It was one of those things I had to know.  After graduating from college and three years of high school teaching, I still had to find out if Law School was for me.  I don’t regret a second of that semester.  I worked hard in school and also managed a political campaign in Cincinnati.  But in the end, buried away in the Law Library, I figured out that while the law fascinated me, teaching was my calling.  It didn’t help that the UC track was right down the street from the Law Building.

So when my old boss, superintendent Pete Nix, interrupted studying for my final Torts exam and asked if I wanted to be an eighth-grade history teacher and the high school boys track coach, I didn’t hesitate.  I said yes.  The hesitation came when I had to call Dad and tell him what I was going to do.  It took several months to win him over, though once he came around, he supported me throughout my career.

I don’t claim expertise in the Law.  What I have is twenty-eight years of explaining the Constitution to eighth graders through seniors.  They asked all of the easy questions and most of the hard ones, and fact-checked my answers year in and year out.  So while my advanced degree is a Masters in Education, not a Juris Doctor, I do have some understanding of the United States Constitution.

A Clock and A Calendar

Today’s essay isn’t really about politics.  It’s about the United States Constitution, and the how it applies to the Congress and the President of the United States today.  Time is running out for the Trump Administration, with only eight days to go before the clock runs out at noon on Wednesday, January 20^th.  That, by the way, is a Constitutional mandate, specified in the 20^th Amendment, the one that moved the Inauguration from March 4^th to the January date.  Think about how much happened from November of 1860, until March of 1861.   Multiple states seceded, Ft. Sumter was under threat, and the incoming President Abraham Lincoln could do nothing about it for four months.  And it took more than seventy years, until Franklin Roosevelt’s second term, for the date to be changed.

Impeachment

Yesterday a resolution to impeach Donald Trump was introduced in the House of Representatives.  The House has the sole power to impeach a President, that is, to bring charges against him.  It takes a simple majority vote.  And this time, unlike a year ago (seems like a lifetime), there won’t be long involved hearings and legal testimonies.  

The House will bring the Impeachment Resolution directly to the whole body for a vote, probably tomorrow, bypassing the usual Committee process.  Their argument:  the actions of the President are so apparent, inciting the “sacking” of the US Capitol to stop the Electoral ballot count, that the committee hearing process isn’t necessary.  As Donald Trump would say, he literally stood in the middle of Fifth Avenue and shot someone.  There isn’t really a whole lot to argue about those facts.

Why Impeach

The question is, with only a few days to go, why Impeach the President at all?    First, if the Senate was willing to act with the same alacrity, Donald Trump could be removed from office within the week.  He wouldn’t be able to use the Presidency to further damage the nation.  But we all know, the Senate, controlled by Mitch McConnell and the Republicans, won’t do that.  

Second, impeaching the President will give Donald Trump an American “first”.  He’ll be the only President to be impeached twice, a dubious honor.  And the word “impeach” has greater historic weight than the other House option, a “censure”.  Several Presidents have been censured, but even I had to go back to the “books” to remember who they are.  But Andrew Johnson, Bill Clinton and Donald Trump are the only Presidents to be impeached.  (No, Nixon resigned before the impeachment resolution was passed by the House).

It would tell future President’s that Donald Trump’s actions were unacceptable.

Conviction

For the Senate to convict on the impeachment, it requires a two-thirds majority vote (sixty-seven Senators). There are two Constitutional penalties that can be applied.  The best known, is that the President is immediately removed from office.  But with the this timetable, Donald Trump will already be gone before an impeachment trial starts.  In fact, Leader McConnell’s plan would have the entire trial occurring in the new Democratic controlled Senate, after the Inauguration of Joe Biden.  

It is the second lesser-known penalty that would be applied.  The Democrats will control the Senate, but only by the tie-breaking vote of the new Democratic Vice President Kamala Harris.  Conviction of impeachment would require all of the Democrats and seventeen Republican Senators to agree.  But if they did, the second penalty can be imposed by simple majority vote.  And that penalty is disqualification from ever running for Federal office again.

That’s what the true penalty would be.  Donald Trump could never run for President again. 

Insurrection

And there is another, lesser thought-of Constitutional process that could be applied.  A strong case can be made that Donald Trump incited insurrection. The law, 18 US Code §2383 defines insurrection as:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

That’s the legal definition, to be applied by a Court if somehow Donald Trump is charged with the crime of incited insurrection.  And if that happens, and Trump is convicted, he is barred from running for office.

The Congress has another way to approach the insurrection question.  It all goes back to the end of the Civil War and the series of Amendments called the “Reconstruction Amendments”; the 13th, 14th, and 15th.   The major reason for the 14^th Amendment was the Southern invention called the Black Codes, laws that treated the newly freed slaves as a second and lesser form of citizen, with fewer rights and more legal restrictions.  The 14^th defined and required a single class of citizenship for all those in the United States.

The 14^th

That was in the first clause of the Amendment.  But in the second and third clauses, the Amendment dealt with the issue of the citizenship rights of the defeated Confederates.  The critical phrase that applies today is in the third clause:

“No person shall…hold any office, civil or military, under the United States…who, having previously taken an oath… to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.”

On January 20^th, 2017, Donald J. Trump made the following oath:

“I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

So if he incited insurrection on January 6^th, 2021, then he technically violated the 14^th Amendment, Clause 3.

And Clause 5 of the Amendment states who decides whether insurrection was committed:

“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article”.

So the House and the Senate could, by majority vote, determine that Donald Trump committed incitement to insurrection, and bar Donald Trump from running from office.  It circumvents the need for conviction on impeachment, and it also would bypass immunity from Court action as a result of Presidential pardon.  

If the Congress did this , it certainly would result in an appeal to the Courts, as some legal scholars claim that would be a “bill of attainder”, banned by the Constitution. It would end in the Supreme Court, with an uncertain outcome.  But it’s the third option.

Open Discussion

If you were ever in “Dahlman’s Class” maybe the best part was “open discussion” days.  And this would have been the perfect topic for an open discussion, though it might have gotten too deep for some.  But it has it all:  current events, Civil War history, intricate Congressional maneuvering, and, of course, that favorite history phrase, “what if”?  So, I hope you enjoyed our open discussion today. My best advice: avoid the Mexican pizza in the cafeteria, it smells like my running shoes. Stick to the peanut butter and jelly “Lunchables”.