What began with the second House impeachment of Donald Trump will culminate in his indictment this week for the offenses he allegedly committed on and before January 6, 2021. His conduct on January 6 and before then, the indictment will allege, amounted to his engaging in an insurrection against the United States.
That allegation in the coming indictment is singular in its possible effect because Section 3 of the 14th Amendment says that anyone who has held federal office and taken an oath to support the Constitution and has thereafter engaged in an insurrection or rebellion against the United States cannot serve again in federal or state office. (READ MORE: Why the Trump Indictment Is About So Much More Than Trump)
If Trump is convicted of having engaged in an insurrection against the United States, and the conviction stands against his appeals, he cannot again serve as president even if he is elected to that office. The only way to remove that disability is for both houses of Congress to, by a two-thirds vote, remove it. (READ MORE: Three Basic Truths Behind the Trump Indictment)
Needless to say, Trump will never get enough votes in either the House or the Senate to remove that bar from office in that eventuality.
Nancy Pelosi tried the same tactic to get Trump banned from office in her second impeachment of him.
The articles of impeachment in that proceeding said in part:
On January 6, 2021 … [s]hortly before the Joint Session [of Congress] commenced, President Trump, addressed a crowd at the Ellipse in Washington, DC. There, he reiterated false claims that “we won this election, and we won it by a landslide.” He also willfully made statements that, in context, encouraged — and foreseeably resulted in — lawless action at the Capitol, such as: “if you don’t fight like hell you’re not going to have a country anymore.” Thus incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session’s solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts.
Trump’s defenses to the charges that will be brought this week will be important because they will try to prove that his statements, on and before January 6, 2021, were permissible free speech. If he is convicted on the charge of insurrection and his appeals are unsuccessful, the decision will establish a new limitation of the First Amendment.
On January 6, 2021, as I wrote five days after the event, an insurrectionist crowd stormed the Capitol and, for a few hours, prevented Congress from performing the Constitutional function of certifying the electoral ballots that elected Joe Biden president. (READ MORE: There Was No ‘Insurrection’)
To say an insurrectionist crowd stormed the Capitol and succeeded in preventing a Constitutional function from proceeding for several hours is not to say that Trump incited the crowd or himself engaged in an act of insurrection. A jury will have to decide the facts.
The odds of a Washington, D.C. jury finding Trump innocent are minuscule. A D.C. jury would probably convict him of assassinating President Kennedy and robbing banks with Bonnie and Clyde.
Trump’s trial in the classified documents case is already set for May 2024. It this trial is set after that, the two trials could prevent Trump from campaigning during much of 2024.
The facts of the insurrection — and Trump’s lawyers will argue that it wasn’t one — are unclear.
Trump’s conduct leading up to January 6 will be recited in the new indictment. He filed legal challenges to several state votes and failed to prove his case in any court. He allegedly tried to interfere in the counting of votes in Georgia, for which he may soon be indicted separately.
On December 12, Trump tweeted:
Wow! Thousands of people forming in Washington (D.C.) for Stop the Steal. Didn’t know about this, but I’ll be seeing them! #MAGA.
He said, several times, that his supporters in Congress should rebel against the certification of the electoral votes. On December 18, 2020, he tweeted:
.@senatemajldr and Republican Senators have to get tougher, or you won’t have a Republican Party anymore. We won the Presidential Election, by a lot. FIGHT FOR IT. Don’t let them take it away!
On December 19, in response to a statement by Peter Navarro, one of his advisers, that there had been election fraud, Trump Tweeted, “A great report by Peter. Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!”
On January 1, 2021, Trump Tweeted, “The BIG Protest Rally in Washington, D.C., will take place at 11.00 A.M. on January 6th. Locational details to follow. StopTheSteal!”
At his January 6 rally before the riot, Trump repeated his claims that the election had been stolen. During his seventy-minute-long speech, he said, “Our country has had enough,” Trump told his supporters. “We will not take it anymore 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 stealing.”
He also said, “We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.”
Trump’s lawyers will rely on the part of his speech that the demonstration at the Capitol should be peaceful. He said,”I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
But in the paragraph before that statement, he said, “Because you’ll never take back our country with weakness. You have to show strength and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated.”
Trump told the January 6 crowd that Vice President Pence should “do the right thing” and deny certification of the electoral ballots. He asserted that Pence had the Constitutional right to do that. Pence certainly didn’t. His job to certify the electoral ballots was a ministerial duty, nothing more.
There is a boatload of reasons — independent of his legal troubles — why Trump should not receive the Republican nomination for president in 2024.
Trump told the crowd, “We want to go back and we want to get this right because we’re going to have somebody in there that should not be in there and our country will be destroyed and we’re not going to stand for that.” He promised the crowd that he’d be with them when they marched to the Capitol.
To those in Trump’s corner, his statements don’t read like a call to invade the Capitol and prevent the certification of the electoral ballots. But Trump’s statements and conduct before and during his speech will probably be more than enough to convince a DC jury that he incited and engaged in an insurrection against the Constitution he had sworn to protect.
Trump’s only chance to remain eligible for reelection will be to demand a speedy trial and rely on expedited appeals of any conviction of engaging in an insurrection.
There is a boatload of reasons — independent of his legal troubles — why Trump should not receive the Republican nomination for president in 2024. There are several better candidates who have no such problems and could easily beat Joe Biden. Trump’s legal problems take the heat off Biden for his — and his family’s — corruption.
Whatever else happens, the trial on charges of engaging in an insurrection under the 14th Amendment could be Trump’s last hurrah.
via spectator