Congress Failed
There were lots of opportunities to stop Donald Trump. He is the only President to be impeached twice by the US House of Representatives. Had the Senate convicted either time, they could have banned him from serving in public office. Even while he was still serving as the President, the Senate could have convicted him of corruption in office. They had him dead to rights, the “perfect” phone call to Ukraine’s President Zelenskyy, where he asked Zelenskyy to investigate Joe Biden in return for US military aid. The House impeached Trump, and the Senate held a trial. But they failed to convict him, on a near straight party-line vote.
And in the second trial, after the insurrection and with Trump no longer in office, the Senate could have convicted him again. Even though he was out, they could have taken that step to bar him from future office, ending his MAGA “revolution”. But instead, they “passed the buck” to the judicial system. As Mitch McConnell so eloquently put it, Trump could be brought before the Courts and held civilly or criminally responsible for his actions. Fifty-seven Senators voted to convict, ten short of the needed two-thirds. So while Trump was out of office, he was, and is, a threat to return.
And there was even conversation in the Democrat controlled House and Senate of passing a resolution, declaring that Donald Trump committed insurrection. They could have put the “sense of the Congress” imprint on the man. But, they didn’t.
Justice Failed
The Biden Administration came into office committed to a return to “politics as usual”. Biden, reasonably, did not want to be the President who prosecuted his predecessor. That would be a “Banana Republic” thing to do, not the “shining city on the hill” example of American democracy. Merrick Garland was taken from the Federal Appellate Court bench to lead the Justice Department, as a sign of fairness and neutrality. The entire momentum was to put the Insurrection “behind” us, and get back to the “old days” of political congeniality.
It was a laudable goal, but one impossible to achieve in our divisively partisan environment. It took the prodding of the Democratic controlled House of Representatives with the January 6th Committee hearings, to get Garland to appoint a Special Prosecutor, Jack Smith. And in less than a year, Smith brought criminal charges against the former President. But instead of happening at the end of 2021, it’s now the middle of 2023. We are four months from the Iowa Caucuses, and fourteen months from the 2024 general election. Trump is running again.
Add to that, Jack Smith did not use “magic words” in any of his Federal charges against Trump (at least, so far). Nowhere in the indictments are the words “sedition”, or “treason”, or “insurrection”. Those charges carry a lifetime ban from public office. So even if Trump is convicted of ALL of the Federal charges now levied against him, they don’t legally bar him from holding office. Here’s a vision: the “President” behind bars, waiting to be sworn into office (in the prison lounge?) and then “pardoning himself” – if that’s possible.
14th Amendment
So there were four possible chances of barring Donald J. Trump from a future Presidency. We didn’t do it, either through the Congress or the Department of Justice.
So now here come the academics, college law professors and some members of Congress (including the bête noire of the MAGA movement, Adam Schiff) saying the 14th Amendment to the US Constitution can be used to “rid us of this turbulent Presidential Candidate”. Conservative and Liberals all (including conservative retired Judge Luttig and most liberal Harvard Professor Tribe) are signing onto the proposition.
They are all using the “language” of the six Federalist Society members of the US Supreme Court. They claim that the “plain meaning” of the 14th Amendment can be used to ban Insurrectionists and those who gave “aid and comfort” to them. And further, that the plain actions and words of Donald Trump makes him, if not an Insurrectionist himself, then someone who gave them aid and comfort. They want to disqualify him from appearing on 2024 ballots.
And since the individual states, not the Federal government, run the election process of the United States; the “14th Amendment-ers” are going from state to state to bar Trump from the ballot. But the State courts, where this will start, are likely to move the case into the Federal Court system. It clearly is a Federal case. And the Supreme Court would be required to rule on the issue in some way.
We the People
My best guess: despite the wishes and desires of conservatives and liberals alike, I cannot imagine the US Supreme Court, six conservatives or even the three liberals, agreeing to the premise that Trump is a “defined insurrectionist”. On whose definition? No court has adjudicated him an insurrectionist. The Department of Justice dodged even using the term. The Congress had the opportunity to weigh-in on the issue at least three times and failed to do so. Why in the world would the Justices of the Supreme Court take it upon themselves to make the factual determination that Trump is an insurrectionist, and then apply the 14th Amendment to him?
They won’t.
I think Donald Trump led an Insurrection. I think he led a plan to throw out the legitimate election results of 2020 and keep power. Larry Tribe of Harvard, Congressman Adam Schiff and even Judge Luttig think so too. But what we think, what we believe, even what we know; really doesn’t mean much. This is the United States, and embedded in our foundation is the concept of innocent until PROVEN guilty. We must prove that Trump was an insurrectionist, and there is only one place to PROVE it – in the Courts.
Alas, there is no case, either Federal or in Georgia (or Arizona, Pennsylvania or Michigan) that will present the proof. Trump hasn’t been charged with that “high” crime. And since that isn’t going to happen – neither is this 14th Amendment gambit, the “easy way out” of our national crisis created by Donald Trump.
It’s too bad. But the only way is through the crucible of another election. Like it or not, We the People will determine the outcome with our votes. That will be the true test of whether our “American Experiment” will survive.
