As much as it may appear obvious that Trump engaged in a months-long strategy to overturn the results of the 2020 election, and incited his followers who stormed the Capitol in attempt to stop the certification of the Electoral votes, the law isn't always as clear cut as we think it should be. I've thought all along that these attempts to get him off the ballot were based on flimsy reasoning, and that there's some question whether the Fourteenth Amendment even applies.
The first weak point is whether or not what happened on January 6th was an insurrection. Well, there's no doubt the crowd, in some inchoate and disorganized way, wanted to stop the certification of the Electoral votes and prevent President Biden from taking office on January 20th. There's also no doubt that Trump, in his signature Henry II manner Trump incited them, notwithstanding his "patriotic and peaceful" line. There's no doubt that January 6th was the culmination of months of purposeful attacks by Trump on the reliability of the election apparatus in the country and two months of frivolous lawsuits and yes, incitement, based on nothing more than a refusal to accept his loss. So what's the problem? The United States criminal code does have a law that criminalizes insurrection:
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.
Seems pretty clear, but no one has been charged with insurrection. No one. Sure, plenty of people have served or are serving prison sentences, but the most serious charges were for seditious conspiracy:
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.
Similar, but not the same. I would guess that Jack Smith thought it more likely that he could get convictions under the seditious conspiracy law than for insurrection. At first glance it seems like seditious conspiracy is broader and less likely to suffer from alternate interpretations. Who knows? At any rate, no one, including Trump, is facing a charge of insurrection.
Other weak points is the question of whether the president is "an officer" under the meaning of the amendment. Common sense would suggest that he is, but there's enough ambiguity about that to enable the Supreme Court to gain cover for giving Trump a pass. There's also the question of whether a President takes an oath to "support" the Constitution. Most would think that's a stupid question. Of course he does. Most of us would be wrong, he takes an oath to "preserve, protect and defend" it. Same thing? Probably not to a legal nitpicker looking for an excuse to rule in favor of their patron. The fact that there is absolutely no precedent to remove a former president from the ballot, allows the Court to set the precedent (not that this court majority care a whit about stare decisis).
Trump sycophants have plenty of illogical and irrational reasons why Trump should be on the ballot:
- It couldn't have been an insurrection, he was president; was he trying to overthrow himself?
- Nancy Pelosi (or was it Nikki Haley?) was the insurrectionist on January 6th
- He was simply exercising free speech
- The election was stolen, he was saving democracy (or the Republic, or freedom...or something)
- It was Antifa,,,it was BLM...it was the FBI...they were tourists
- BLM burned down cities, what's the big deal?
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