Opinion | Why a Law, Not Jail, Might Be the Best Way to Keep Trump Out of the Oval Office

“I think one of the really important things our committee has to do is present these facts for the American people,” Cheney replied, “… so … they inform us about our future legislative activities“(Emphasis added).

Cheney’s reference to “legislative activity” is instructive. While many have expressed frustration that Attorney General Merrick Garland has not yet charged anyone who may have instigated the insurgency from within, Cheney’s remarks are a reminder that Congress has a powerful tool to hold former officials like Trump accountable. And it could be more effective than any possible law enforcement. It’s legislation.

What Cheney and her congressional colleagues may have in mind is the 14th Amendment, ratified after the Civil War in 1868 to prevent former Confederate state or federal office from disrupting fragile reconstruction efforts.

Cheney’s colleague on the committee, Maryland Democratic Rep. Jamie Raskin, explicitly invoked the 14th amendment in comments to POLITICO this week, calling its use “a live proposal”.

This idea has come up before. Close Aftermath of the attacks, scholars and legal experts came up with the idea of ​​using this part of the constitution to do what impeachment proceedings ultimately failed – to permanently prevent Trump from holding elected offices. But that option seemed to lose some of its appeal as Republicans and Democrats resumed their partisan squat and major national legislative initiatives took center stage.

Now that the committee is aiming for a series of public hearings this spring on January 6 – and even some GOP members seem open to some aspects of electoral reform – it is worth reconsidering this legislative path and see if the devastating revelations Already available, as revealed by the committee’s investigation, have changed the political landscape within Congress to such an extent that such a law may now be possible – perhaps even preferable.

There are actually two sections in the 14thChange that comes into play.

The first section 3 states: “No person may … hold any civil or military office under the United States or under any state which, having previously taken an oath to support the United States Constitution, participate in insurrections or rebellions against same involved.

The second relevant part, Section 5, says, “Congress has the power to enforce the provisions of this article through appropriate law.” This is important. There is Congress to express Constitutional power to pass laws that implement a ban on insurgents, rather than forcing Congress to use other powers – such as its power over interstate trade – that are more general and therefore less focused on the task at hand. For example, the power of Congress to collect information as part of its legislative endeavors is not expressly contained in the Constitution, which opens the January 6th committee’s power of subpoena for debate. But Section 5 is crystal clear: Congress can pass laws to keep anyone involved in insurrection or rebellion out of office.

The tricky question for Section 3 of Amendment 14 concerns implementation: what kind of legislation Congress could imagine that could, in Cheney’s words, work successfully “to ensure that Donald Trump is not the Republican candidate and that he is certainly not around of the oval is? Never again in the office ”?

The most conspicuous option would be to pass a law that creates a civil cause of action that would, for example, allow a competing candidate to file an injunction against Trump if he chooses to run. In this lawsuit, Trump’s role would presumably be tried on January 6, according to criteria that Congress would set in law. For example, hypothetically, Congress could allow any registered candidate for state or federal office, if there is reasonable cause to believe that a competing potential candidate has committed an act that would constitute an uprising or rebellion against the United States, a civil injunction issue an injunction (including any injunction or injunction) that prevents the person from running for the same office.

Congress has already taken a similar step by enacting the Civil Rights Act of 1870 (also known as the Enforcement Act or First Ku Klux Kan Act), which makes it a criminal offense to run for office if in accordance with it Section 3 is not possible, and enables federal prosecutors to forcibly remove offenders from office. However, it was rarely used. 1871, A North Carolina federal court ruled on an indictment against a defendant who accepted a post as sheriff after the Civil War but served as a district police officer during the rebellion. The jury’s question was, “Was he subsequently involved in rebellion or insurrection?” The defendant alleged that he did not join the Confederate Army voluntarily but that he was “overwhelmed with violence which he could not withstand”.

In theory, the Department of Justice could bring such an indictment against Trump (if he is actually running for office), but that would not prevent his candidacy in advance. And to prove it, documenting conscription in the Confederate Army is relatively straightforward. Prosecution would not secure an injunction on the threshold – an order that prevents Trump from holding higher office and allows a rival Republican to gain early support for the party. In addition, given the DOJ’s extensive record of existing insurgent cases, not to mention the prospect of pursuing a conspiracy or obstruction of formal proceedings against individuals within the government on Jan. 6, it is unlikely that an obscure criminal record will follow the Civil war dusting would be a priority for federal prosecutors.

University of Chicago Law School Professor Daniel Hemel has argued that the adoption by Congress of an alternative civil remedy to the criminal remedy already under the Civil Rights Act to implement Section 3 may fail because “this process would take time – possibly years” while courts grapple with legality deal with the law.

Hemel rightly points out that any new law would likely be challenged as an unconstitutional “contract of success”. Article I, Section 9 of the Constitution prevents Congress from effectively convicting a person of a crime and imposing a penalty by law – that is the role of prosecutors and judges in the executive and judicial branches, respectively. The same constitutional provision prohibits so-called “ex post facto” laws that retroactively criminalize behavior. Trump could argue that any legislation that comes out of the Jan. 6 committee Impact on his candidacy for office is a retrospective penalty for bad behavior that unjustly – and thus unconstitutionally – weed out.

But the success of such an argument is hardly guaranteed. As Hemel notes, the 14th Amendment was “eight decades after the original constitution” and should therefore be interpreted to be consistent with, not opposed to, Article I of the prohibition on inheritance and ex post facto laws violates. That can not be any Laws passed to keep Confederates out of office for past conduct are unconstitutional – this would automatically override Section 3, which would contradict the intent of the Designers in ratifying the change.

The question is, once again, what Congress could do to satisfy aspirants and ex-post facto concerns, but also to achieve what Cheney apparently envisions: a Donald Trump who remains a free citizen without the stigma of crime? that would sully the presidency itself, but safely separated from the White House?

Another obstacle to legislation implementing Section 3 of Amendment 14 is the Senate filibuster, which continues to require a majority of 60 members under the parliamentary procedure (not the Constitution or any other law in force, mind you) to pass routine laws . with the ecxeption of Budget reconciliation bills, trade deals, and other discreet matters such as military base closings or arms sales. Senate Majority Leader Chuck Schumer recently proposed creating another filibuster exemption for voting rights laws such as: John Lewis Voting Rights Act of 2021 – An attempt to fix the 1965 Suffrage Act after the Supreme Court overturned an important provision in 2013 – and the Freedom of Choice Act.

Of course, the legal subtleties and hurdles of potential laws are beyond scrutiny, and legal challenges to any laws would certainly follow. In addition, Congress must be extremely careful not to draft laws that could be used as political ammunition to deter legitimate candidates from the presidential election.

But on the occasion of the one-year “anniversary” of January 6th, Cheney seems to have found a possible sweet spot for accountability and national healing: Congress (theoretically the most representative body of the federal government) enacts rules that must be observed to prevent serious constitutional offenders like Donald Trump from doing so to populate and exercise the privileges of the highest office in the country. After all, it is not everyone’s birthright to be president. There is something to be earned – or something to be lost.

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