by John P. Flannery
Can a person who swore to preserve and protect the Republic plan a coup and still hold public office?
The 14th Amendment to the Constitution says no.
Let’s consider how we may invoke the 14th Amendment after the insurrection of January 6, 2021 and in what venues to have the most effect to contain the challenge to our Republic.
First off, we should review a few facts to establish the context.
Former President Donald Trump said at the Republican convention last year that the only way he could lose would be if the election was “rigged.” He said he believed that but we suspect he knew his base wasn’t large enough on this second go round to win even an electoral win.
On the night of the election, when Trump lost, beaten like a drum, Rudy Giuliani’s advice to Trump was four words; he told him, “Just say we won.”
Trump did exactly that — no matter how false and misleading it was.
On December 2, 2020, Trump said there had been “tremendous voter fraud and irregularities” — none of which was ever proven; he claimed that it was “statistically impossible” he lost.
On December 19, Trump tweeted, “Big Protest in DC on January 6th. Be there, will be wild.”
On New Year’s Day, Trump tweeted, “The Big Protest rally in Washington, DC will take place at 11 AM on January 6th. Location details to follow. Stop the Steal.”
On January 2, 2021, Trump urged the secretary of state of Georgia, Brad Raffensperger, to “find’ enough votes to overturn the Georgia Presidential election results, given him just one vote more than the margin by which Biden actually beat Trump. Trump threatened Raffensperger if he failed to do so.
Trump made a run at conspiring with DOJ Deputy Jeffrey Clark in the civil division to replace the Acting AG Jeffrey Rosen who refused to be part of Trump’s effort to lie to the nation about the presidential election.
Trump wanted to use Clark to replace Rosen and use the Department’s power to force Georgia state lawmakers to overturn its presidential election results.
Rosen flat refused to do what Trump wanted. Other DOJ officials threatened to resign if Trump implemented his plan.
Trump ultimately incited a mob of thugs to storm Congress to prevent Joe Biden from becoming President even though Joe won the election. Fortunately Trump failed.
Some said they were brought to DC by “direct orders from Trump. … I thought I was following what we were called to do. He asked us to fly there. He asked us to be there. So I was doing what he asked us to do.”
Other rioters have said, “I thought I was following my President.”
Trump’s own words on the day of the riots, consisted of a 70 minute screed, Castro would be proud, is among the strongest evidence against Trump, his false declaration that “we won this election, and we won it by a landslide,” and “our country has had enough, we will not take it any more, and that’s what this is all about. To use a favorite term that all of you people really came up with, we will stop the steal,” he said, “all Vice President Pence has to do is send it back to the states to recertify, and we become president, and you are the happiest people,” but, if Pence allowed the vote to go forward, Biden would become President, he said, “we’re just not going to let that happen,” inciting the crowd, in the strongest terms, saying, “you’ll never take back our country with weakness, you have to show strength, and you have to be strong,” and “if you don’t fight like hell you’re not going to have a country anymore.”
He said he’d march with them but — true to his false form — he didn’t.
Rogue Rudy Giuliani, Trump’s lawless mouthpiece, willing to do whatever Trump wants, said, “let’s have trial by combat.”
The mob set out to hang Pence (so they declared) and to kidnap the Speaker of the House (so they claimed).
Trump had his allies in the White House, at a command center in a nearby hotel, and on the Hill, on the Senate side and on the house side.
Senators Hawley and Cruz objected to counting the electors to confirm former VP Joe Biden as President and Kamala Harris as Vice President.
Hawley, Cruz and more Senators favored a coup, an unconstitutional seizure of the presidency by the man, Trump, who plainly lost the presidential election.
Little wonder that past memories of a Reichstag fire signaling a shift in power in Germany passed through the minds of many observers.
Our fundamental belief as a nation is for a democracy not an autocracy and the question was on the lips of many, whether this nation could endure as a nation if not united and as a democracy.
Abraham Lincoln once famously stated that a House divided cannot stand.
President Joe Biden has been fighting for unity.
There is, however, a chasm dividing the Republican Party from the rest of the nation.
It is on the hill top of democracy we must plant our flag and defeat the enemy within who has a fractured vision of America.
We suffer a far right coalition of domestic terrorists who will say and do anything to overthrow democracy as the ground of our national political being and they are aligned and allied with those in the White House and on the Hill.
What reckoning is right and just for those who would undermine our government?
Censure is not nearly sufficient.
Expulsion is a step in the right direction.
Prosecution as well.
But we cannot ignore they have denied the basic premise of our democracy and betrayed their oath to preserve and protect our democracy from all foes foreign and domestic.
There were Republican Senators who objected to certifying electors for Biden.
In the House there were 121 Republican members who objected to certification.
After the riot, there were 8 Senators who stood steadfast in their false objections even after the rioters were pushed back.
They were Ted Cruz (TX), Josh Hawley (MO), Cindy Hyde-Smith (MS), Cynthia Lummis (WY), John Kennedy (LA), Roger Marshall (KS), Rick Scott (FL), and Tommy Tuberville (AL).
Kennedy’s runs for re-election next year 2022, there is only one of this group of Senators up before the presidential elections in 2024.
It is possible that Cruz and Hawley and Scott may run for President in 2024, no matter what Trump may decide to do.
At one point 121 House members objected to counting the electors for Joe Biden.
Every one of the House members are up in the mid-terms.
We must challenge the right of Members and Senators to participate in our Congress if they favored overthrowing the government.
We must also challenge their right to run for office.
We can’t ignore this betrayal of their oath.
We should invoke the prohibitions set forth in the 14th Amendment, Section 3 to the Constitution.
That section provides
“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.”
This amendment was ratified in 1868 , just after the civil war ended, and this provision was written to bar confederates from holding office.
These members in the Senate and House may be thrown out of the Congress.
These members in the Senate and House may be barred from running for Congress.
Trump plans to come back and run in 2024.
Senator Tim Kaine, earlier this year, reportedly stated that the 14th Amendment could be pursued to bar Trump before or even after an impeachment trial.
Some doubting Democrats scratched their collective heads and reportedly asked “how do you determine whether someone participated in an insurrection.”
For one thing, we have a Select Committee gathering evidence on that issue.
Another approach, long past due, is to have the AG appoint a prosecutor to investigate and prosecute the insurrectionists.
There are questions how one may invoke the 3rd section of the 14th Amendment.
I say it is a self-executing provision.
Section 5 does empower the Congress to enact “appropriate legislation.”
There has been some question whether this action would be prohibited as a a bill of attainder.
Article I, Section 9, clause 3 states that “no bill of attainder or ex post facto law shall be passed.”
There’s no possible ex post facto violation here, as the 14th amendment was law long before the actions that we insist violate section 3 of that amendment.
But what about the bill of attainder objection.
There are several characteristics for a bill of attainder — that there’s a taking of property or punishment or a violation of the separation of powers, one department doing something, another department is exclusively empower to do.
It’s somewhat ironic that language in a case involving Nixon may partly answer the question.
In Nixon v. General Services Administration, 433 US 425 (1977), the main question was about the extent of any presidential privilege, but there were other question including whether the law that Nixon was challenging about the handling of presidential papers was unconstitutional because it was a bill of attainder.
The Supreme Court did not find any violation of the Bill of Attainder clause because the Act at issue did not punish the former president, it did not convict the former President of a crime and did not expose him to prosecution. Nor did it take property from him.
How much more civilized than Henry the VIII who used bills of attainder to execute certain unfavored persons.
When the 14th amendment was added to the Constitution, shouldn’t we presume as a starting point that it was intended to read consistently with the provisions that already made up the constitution including the prohibition against a bill of attainder.
I don’t think it’s an over-simplification to compare the workings of the impeachment process with this provision in Article XIII that authorizes bar a public official for engaging in insurrection.
It’s well established that impeachment is about removal from office, not about punishment.
Prosecution is about punishment.
Thus, an impeachment, to remove one from office, doesn’t bar a prosecution afterwards.
The 14th Amendment, Section 3, is about removing or barring one from office, and thus does not contradict the prohibition against a bill of attainder involving a prosecution or confiscation of property.
We must seek to bar Trump from running for public office. At first blush, I would propose seeking to bar him in the several states based on his violation of the 14th Amendment, Section 3.
I would contemplate a similar approach to members of the Senate and the Congress implicated in the insurrection.
We should bar the mess of them from the ballot for their violation of the 14th Amendment, Section 3.
It must be obvious that the scrutiny of elected officials is a necessary predicate to a fair and just and constitutional government that supports our historic democracy.
Fortunately, the Constitution provides us with the tools to thin the herd of enemies and traitors within our nation, holding public office, who supported the insurrection ands who prefer autocracy.
I first made these observations last November.
I’m glad to say in recent days that there is one challenge based on this reliance on the 14th Amendment.
It may serve as a template in other races across the nation.
I sure hope so.
On to the mid-terms.