Congress Contemplating Counter-Insurrection
A truly insane proposition.
In “How Democrats Could Disqualify Trump If the Supreme Court Doesn’t,” Atlantic staff writer Russell Berman makes an incredibly dangerous argument.
Near the end of the Supreme Court’s oral arguments about whether Colorado could exclude former President Donald Trump from its ballot as an insurrectionist, the attorney representing voters from the state offered a warning to the justices—one evoking the January 6 riot that had set the case in motion.
By this point in the hearing, the justices had made clear that they didn’t like the idea of allowing a single state to kick Trump out of the presidential race, and they didn’t appear comfortable with the Court doing so either. Sensing that Trump would likely stay on the ballot, the attorney, Jason Murray, said that if the Supreme Court didn’t resolve the question of Trump’s eligibility, “it could come back with a vengeance”—after the election, when Congress meets once again to count and certify the votes of the Electoral College.
Murray and other legal scholars say that, absent clear guidance from the Supreme Court, a Trump win could lead to a constitutional crisis in Congress. Democrats would have to choose between confirming a winner many of them believe is ineligible and defying the will of voters who elected him. Their choice could be decisive: As their victory in a House special election in New York last week demonstrated, Democrats have a serious chance of winning a majority in Congress in November, even if Trump recaptures the presidency on the same day. If that happens, they could have the votes to prevent him from taking office.
So, let me get this straight. The United States Senate has already acquitted Trump of insurrection-related impeachment charges. The United States Supreme Court will have ruled that the Insurrection Clause of the 14th Amendment does not apply to Trump. The American voters will have chosen at least 270 Trump Electors. And Democrats in Congress are then going to say, “Nope, he’s an insurrectionist so he doesn’t get to be President!”
That would spark rioting that would make January 6 seem like a peaceful protest.
Thankfully, most elected Democrats seem to understand that:
In interviews, senior House Democrats would not commit to certifying a Trump win, saying they would do so only if the Supreme Court affirms his eligibility. But during oral arguments, liberal and conservative justices alike seemed inclined to dodge the question of his eligibility altogether and throw the decision to Congress.
“That would be a colossal disaster,” Representative Adam Schiff of California told me. “We already had one horrendous January 6. We don’t need another.”
Quite right.
Like it or not, if Trump is on the ballot in November and wins, he’s the next President. Given that it’s really unlikely that the courts will keep him off the ballot, the thing to do is defeat him at the ballot box.
The justices could conclude definitively that Trump is eligible to serve another term as president. The Fourteenth Amendment bars people who have “engaged in insurrection or rebellion” from holding office, but it does not define those terms. Trump has not been convicted of fomenting an insurrection, nor do any of his 91 indictments charge him with that particular crime. But in early 2021, every House Democrat (along with 10 Republicans) voted to impeach Trump for “incitement of insurrection,” and a significant majority of those lawmakers will still be in Congress next year.
So, look, I think Trump was guilty of incitement of an insurrection—at least in a political sense, if not technically in a criminal sense. But “impeachment” by the House is merely the formal bringing of charges. Like it or not, the Senate is the trier and they acquitted him.
Yes, that was because all but a few Senate Republicans were spineless. But this has been the history of presidential impeachments. Indeed, neither of the two pre-Trump Presidents to have been impeached, Andrew Johnson and Bill Clinton, received a single guilty vote from a co-partisan Senator. It’s a political process but, alas, it’s the one written into our Constitution.
If the Court deems Trump eligible, even a few of his most fervent Democratic critics told me they would vote for certification should he win. “I’m going to follow the law,” Representative Eric Swalwell of California told me. “I would not object out of protest of how the Supreme Court comes down. It would be doing what I didn’t like about the January 6 Republicans.” Schiff, who served on the committee that investigated Trump’s role in the Capitol riot, believes that the Supreme Court should rule that Trump is disqualified. But if the Court deems Trump eligible, Schiff said, he wouldn’t object to a Trump victory.
Because to do so would be insane. Democrats could certainly deliver speeches saying Trump is an insurrectionist and should be ineligible. But, the Supreme Court having ruled otherwise, they are obligated to follow the mandate of the voters. Indeed, doing otherwise would itself be at least as much an insurrection as the one Trump tried to lead.
What if the Court declines to answer? “I don’t want to get into the chaos hypothetical,” Schiff told me. Nor did Representative Jim Clyburn of South Carolina, who served in the party leadership for two decades. “I think he’s an insurrectionist,” he said of Trump. Minority Leader Hakeem Jeffries, who would become speaker if Democrats retake the House, did not respond to questions sent to his office.
That, of course, is a different scenario but only marginally so. If Trump is on enough ballots to win the Presidency and then does so, he’s the President.
Even as Democrats left open the possibility of challenging a Trump win, they shuddered at its potential repercussions. For three years they have attacked the 147 Republicans—including a majority of the party’s House conference—who voted to overturn President Joe Biden’s 2020 victory. More recently they’ve criticized top congressional Republicans such as Representative Elise Stefanik, the House GOP conference chair, for refusing to commit to certifying a Biden win.
The choice that Democrats would face if Trump won without a definitive ruling on his eligibility was almost too fraught for Representative Jamie Raskin of Maryland to contemplate. He told me he didn’t know how he’d vote in that scenario. As we spoke about what might happen, he recalled the brutality of January 6. “There was blood all over the Capitol in the hypothetical you posit,” Raskin, who served on the January 6 committee with Schiff, told me.
It’s a nightmare scenario. But, again, there’s simply no viable choice in the event Trump wins the election.
Theoretically, the House and Senate could act before the election by passing a law that defines the meaning of “insurrection” in the Fourteenth Amendment and establishes a process to determine whether a candidate is barred from holding a particular office, including the presidency. But such a bill would have to get through the Republican-controlled House, whose leaders have all endorsed Trump’s candidacy. “There’s absolutely no chance in the world,” Representative Zoe Lofgren, a California Democrat who also served on the January 6 committee, told me.
Correct.
In late 2022, Congress did enact reforms to the Electoral Count Act. That bill raised the threshold for objecting to a state’s slate of electors, and it clarified that the vice president, in presiding over the opening of Electoral College ballots, has no real power to affect the outcome of the election. But it did not address the question of insurrection.
As Republicans are fond of pointing out, Democrats have objected to the certification of each GOP presidential winner since 2000. None of those challenges went anywhere, and they were all premised on disputing the outcome or legitimacy of the election itself. Contesting a presidential election by claiming that the winner is ineligible, however, has no precedent. “It’s very murky,” Lofgren said. She believes that Trump is “clearly ineligible,” but acknowledged that “there’s no procedure, per se, for challenging on this basis.”
While I believe the Insurrection Clause is active law, it was clearly designed to address the very specific instance of the Confederate leadership. Otherwise, it would have had some language about how to go about determining who was an insurrectionist.
Regardless, we seem to be testing the “how” right now. At least two states have declared Trump ineligible after legal proceedings on the matter. The Supreme Court has agreed to hear appeals. We’ll see what they do but I would be very surprised if they allowed the bar to stand.
In an amicus brief to the Supreme Court, a trio of legal scholars—Edward Foley, Benjamin Ginsberg, and Richard Hasen—warned the justices that if they did not rule on Trump’s eligibility, “it is a certainty” that members of Congress would seek to disqualify him on January 6, 2025. I asked Lofgren whether she would be one of those lawmakers. “I might be.”
The scholars also warned that serious political instability and violence could ensue. That possibility was on Raskin’s mind, too. He conceded that the threat of violence could influence what Democrats do if Trump wins. But, Raskin added, it wouldn’t necessarily stop them from trying to disqualify him. “We might just decide that’s something we need to prepare for.”
Quite possibly at considerable scale: another civil war.
Ugh, that’s it. I’m going back to bed and pulling the blankies over my head.
Which, in the end, means that yet another part of the 14th Amendment is a dead letter.
It also means that the unthinkable – a President attempting a coup after losing an election – is now normal political practice [a president did it, the Senate refused to convict, the DOJ refused to prosecute and that President has the full backing of his party, and will be nominated to run again]
I wonder what our so-called ‘Originalist’ Justices think of the 14th Amendment now? I’m pretty sure Alito can dig up something from British Legal Archives that invalidates or eviscerates it.
So much for that tired expression ‘Wisdom of The People’
It comes and goes, and right now it’s out to lunch.
“So, let me get this straight. The United States Senate has already acquitted Trump of insurrection-related impeachment charges. The United States Supreme Court will have ruled that the Insurrection Clause of the 14th Amendment does not apply to Trump. The American voters will have chosen at least 270 Trump Electors. And Democrats in Congress are then going to say, “Nope, he’s an insurrectionist so he doesn’t get to be President!””
No… Democrats are NOT going to do that.
But let’s not forget what many Republicans DID do…
American voters chose 300 Biden Electors and certain Republicans in Congress did say, “Nope, he’s… um… a Democrat… so he doesn’t get to be President.” Fortunately, they were unsuccessful in their attempt.
ETA:
Here again:
“Because to do so would be insane. Democrats could certainly deliver speeches saying Trump is an insurrectionist and should be ineligible. But, the Supreme Court having ruled otherwise, they are obligated to follow the mandate of the voters. Indeed, doing otherwise would itself be at least as much an insurrection as the one Trump tried to lead.”
Were Republicans obligated to follow this mandate? Because many of them did not. And why would the Democrats at least seeking to use a legal means of blocking Trump based on their interpretation of law be “at least as bad” as Trump leading a violent insurrection based on lies? Or the submission of fake electors?
How are you even comparing these two things?
Surely the missing part of the argument is Trump’s pending trial for conspiracy to prevent votes being counted? The verdict could well be handed down too late to allow him to appear on the ballot, but before the electoral college meets. If he is found guilty but has a majority of EC votes, are Democrats in Congress supposed to supinely vote to confirm his election?
It would be a crisis. There would be no easy ways forward. But to say “Oh well, Trump won the election, better not object because his fans will turn violent” would be an abject surrender to the forces of militant Christian nationalism.
If Congress votes that a President-elect is disqualified, then the 20th Amendment would probably kick in:
Of course, there would probably be a court challenge to that, and SCOTUS might say the President-elect is qualified – especially if they’ve already – as expected – ruled on the topic. And then Trump would be President. And even if it somehow succeeded, it would just mean that Trump’s VP would be President who would probably just do whatever Trump told him/her to do anyway.
It’s obviously a bad idea for all the reasons James cites, but it’s also a dumb idea since it’s very likely to fail to achieve the ostensible goal of keeping Trump out of office. And depending on who Trump picks as VP….
@Andy:
While I understand the urge to “do something, anything, dammit” it’s simply a bad idea.
Breathe, Mr. Berman, just breathe. Or better yet, STFU about such idiotic idiocy.
I can’t help laughing when presented with the notion of “defying the will of the voters” as something unprecedented, when the electoral college system has done just that twice in the past 24 years.
While drafting and ratifying the 14th amendment, the language in this portion that explicitly referenced the Confederacy and the civil war was removed. It was very clearly intended to address Confederate leadership and any similar problems going forward.
They obviously didn’t anticipate Trump, or a large Trumpist party backing an insurrectionist, but it was not meant to be limited to the Confederacy.
@Barry: I don’t think it’s a dead letter so much as something that needs to be legislated. And the DOJ decidedly did not refuse to indict Trump: he has in fact been indicted and a trial is pending.
@al Ameda: While I don’t have trust in some of the more right-wing Justices, I don’t think either Original Intent or Textualism has an answer for this case. We’re just in uncharted territory here.
@Kazzy: Republican lawmakers who failed to punish Trump acted shamefully, as I noted at the time and multiple times since. But, at the end of the day—literally THAT DAY—the duly-elected President was certified by the Senate as President and he was inaugurated at the stroke of noon on January 20, as the Constitution prescribes. The column is advocating that Democrats simply declare Trump the loser after winning the election. If successful, yes, that would be worse.
@Kathy: Our system is our system. George W. Bush and Donald J. Trump won the 2000 and 2016 elections under the extant rules. While I’ve come to believe the rules are increasingly unjust, there’s no inherent reason that federalism can’t be weighted in an election for President of a federal republic.
@Gustopher: We’re not in disagreement. It’s just that the Clause was easily self-executing in the immediate case of the Civil War. Absent implementing legislation, we’re left to figure out how to implement it for this situation. And the fact that it’s the de facto Republican nominee in question makes it incredibly fraught politically.
Fair enough. But comparing some columnist’s navel gazing with what actually happened is silly.
And they wouldn’t just declare he wasn’t the winner. They would do so on the basis that he was ineligible to hold the office based on their understanding of the Constitution.
What about Jim Jordan et al? The 14th amendment explicitly applies to them.
While I agree that this seems far fetched, its also useful to keep in mind that if democracy and the rule of law is to be preserved, and one by one the moderate and peaceful measures are struck down or left unused, then increasingly radical and harsh measures will become necessary.
if democracy and the rule of law is to be preserved
Spoken by the side trying to bankrupt and imprison their chief political opponent.
Orwell must really be dizzy.
@TheRyGuy: Spoken by the hypocrites who spent all of 2016 screaming “Lock Her Up!” over emails.
Thugs never like it when karma grabs them by the pussy.
@TheRyGuy: Impressive. Every word you just said was wrong.
You don’t seem to get that Jack Smith is, in fact, a Republican. Not a political appointee at all.
And that guy Hur, who wrote the report that mentions Biden’s age and bad memory there’s been so much complaining about? You know what else he wrote in that very report?
That’s from Hur, clearly not a Democrat, but a career prosecutor at the DOJ.
Since Congress has the sole power of impeachment it is a political process. Therefore he was found not guilty in a political sense. Conviction is limited to removal from office. Therefore impeachment is not a criminal process because it doesn’t affect life, liberty, or property. (similarly getting fired from a job is not a criminal process)
If it was easily self-executing then what makes it not so now? There is no question Jan 6 was an insurrection, even Trump said so (although his version blames it on Pelosi). Why would they go to the trouble of adding an amendment to the constitution if it was only intended for those involved in the Civil War? Surely they anticipated the threat of another rebellion. Self-executing then, self-executing now.
And btw this rebellion is not over as he continues the disinformation campaign. Will we fail to act again when he loses in November and incites his militia to overturn the results? In his mind he never ever loses.
On one hand, we had Congressional members objecting on the basis of questioning Biden’s election victory based on dubious claims of “election fraud” – none of which stood up in ~70 or so court cases with two months of time to provide any evidence they had – which was zero.
On the other hand, we have the prospect of Congressional members objecting on the basis of Trump’s proven and documented and court-verified participation in a coup attempt – a literal insurrection against the United States – and the 14th Amendment of our Constitution clearly preventing such a person from holding office.
To equate these situations requires bumper-sticker-level reasoning.
The states ruled he was part of an insurrection and the 14th amendment is clear. Many other states were unsure they could make such a ruling, so everyone is waiting on the Supreme Court. It seems likely states will not be permitted to make the ruling due to the Supremacy Clause. If so SCOTUS must, but may decline to, decide the insurrection question. In my opinion that’s the best way to avoid a civil war at this point since waiting until after November is more dangerous no matter the election result.
@D Wieb:
Yes, but the problem there is that the Constitution explicitly leaves the conducting of elections, including federal elections, to the states. The federal government is not empowered to legislate matters of ballot access in, for example, Colorado (or Maine, or Illinois, or wherever else), so we have a situation where the Constitution is colliding with itself and the states are left to resolve that.
Now, mind you, lack of a federal issue has never served in the past to deter SCOTUS from plowing ahead anyway when it wants a specific outcome, so we will have to have for the creative imagination in the eventual opinion.
@HarvardLaw92:
I think most of us would hope SCOTUS does not want an outcome that encourages politicians and candidates to violate the Constitution. I fear they are set to provide just such encouragement and set a terrible precedent.
Apparently states are limited in how they administer ballot access (for example by the 14th Amendment), and states can’t set federal candidate qualifications different from those specified in the Constitution. So the threat by some to take Biden off the ballot if Trump gets removed is empty.
I’m not sure Section 3 of the 14th Amendment defines a qualification per se because it says “No person shall be…” and goes on to declare it a “disability.” That seems more forceful than a qualification.
I just learned that Hitler was arrested and convicted of attempting a coup before he rose to power. This is easily verified through many respected sources. For me, any thought that comparing Trump to former dictators is hyperbole has vanished. The risk is too great.
We should be grateful for the constitutional foundation our forefathers established. Section 3 of the 14th Amendment gives our country the opportunity to avoid repeating history we have all been taught should never happen again. The lesson here is even if voters reject Trump again he should still be ruled unable to hold any office of public trust.
Well, the verdict is in and to my surprise I have no issue with it. What I missed seeing is that Section 5 of the 14th Amendment is very clear: it’s up to Congress to enforce the provisions. Therefore this whole issue of the insurrection is completely political. And that’s why it’s all up to voters. This time we are forewarned of the subversive tactics Trump is employing.