As Congress prepares to fulfill its duty of certifying the Electoral College vote and declaring Donald Trump the 47th President of the United States, the bitter supporters of the discredited slogan “Trump is an insurrectionist” are making a final attempt to assert their to enforce strange theory is taken seriously. The latest version of this nonsensical drivel was published in The Hill in “Congress does not have to accept Trump’s electoral votes.”
The theory goes like this: Trump is an insurrectionist. The Constitution bars insurrectionists from holding office, so Trump cannot become president. With the right airy and the right amount of psilocybin, it makes perfect sense.
To the extent that reasonable people believe there is one, the controversy begins with Section 3 of the 14th Amendment.
No person shall be a Senator or Representative in Congress, or elector of the President and Vice President, or hold any civil or military office in the United States or in any State, having previously taken an oath as a member of Congress, or as an officer of the United States, or as Member of any state legislature, or as executive or judicial officer of any state, in support of the Constitution of the United States, engaged in insurrection or rebellion against the Constitution of the United States, or gave aid or comfort to his enemies. However, Congress may repeal this obstruction by a two-thirds vote of each House of Representatives.
The He’s a Damned Insurrectionist argument is that the section is “self-exercising,” meaning that neither a definition of insurrection nor proof is required. To disqualify someone from office, all it takes is for someone somewhere to accuse someone and it’s game over.
The authors of the post claim that Trump’s guilt has been proven three times.
Impeachment proceedings
The first case to be fully challenged was Trump’s Second impeachment trial. On January 13, 2021, then-President Trump was impeached for “incitement of insurrection.” At the Senate trial, seven Republicans joined all Democrats in forming a majority for conviction, but fell low of the two-thirds majority needed for impeachment. Incitement to insurrection includes “taking part in an insurrection” against the Constitution “or giving aid and comfort to the enemies thereof,” the grounds for disqualification set forth in Section 3.
This is obvious nonsense**. No matter what was said in the House impeachment trial, Trump was acquitted. The fact that some Republicans voted to convict is meaningless. Since this is the only time the matter has been heard in anything approaching a judicial setting, this should have closed the book on the whole ridiculous issue.
Trump vs. Anderson
The second process challenged was the five-day due process in Colorado hearing where the court “found by clear and convincing evidence that President Trump committed insurrection within the meaning of the use of those terms in section three.” The Colorado Supreme Court confirmed. On further appeal to the U.S. Supreme Court, the court held that states do not have the authority to disqualify candidates for federal office and that federal law is necessary to enforce Section 3. The court did not address the finding that Trump participated in an insurrection.
This case was an exercise in judicial trolling that was unanimously dismissed by the Supreme Court.
The court found that states can disqualify state candidates based on Section 3, but cannot disqualify federal candidates. The authors then claim, without evidence, that the Supreme Court’s finding that Congress must establish a procedure under Section 5 of the 14th Amendment to enforce it is irrelevant. The court says“The Constitution authorizes Congress to prescribe how these decisions should be made. The relevant provision is Section 5, which allows Congress to pass—subject to judicial review, of course—“appropriate laws” to “enforce” the Fourteenth Amendment. It goes on to show how Congress had previously addressed this issue within the Congress Enforcement Act of 1870which has now fallen into disrepair. As you know, the Supreme Court turned the “self-executing” argument on its head by saying that a process was required to enforce Section 3.
The authors claim:
First, lawyers cite the majority’s suggestion that there must be modern implementing federal laws passed pursuant to the enforcement authority set forth in the 14th Amendment dictation. Dicta are considerations of an opinion that are not necessary to decide the case. The view that Section 3 is not self-executing may be an alternative view, but considerations about the type of implementing regulation required are simply self-evident.
All of this is a waste of time because the Colorado case does nothing to support the idea that Trump is guilty of “insurrection.”
Committee of January 6th
Finally there is that cross-party investigation of the House of Representatives Special Committee to Investigate the January 6 Attack on the United States Capitol. More than half of the witnesses whose testimony was given at the nine public hearings were Republicans, including members of the Trump administration. The inescapable conclusion from this evidence is that Trump committed an insurrection against the Constitution.
While the committee issued a criminal referral to Trump for “insurrection,” it is notable that that charge was not accepted by Merrick Garland’s Justice Department, which appointed a special counsel on January 6 to investigate other committee referrals. This is what the FBI office calls a tip. If the same people who want to put Trump in prison for storing documents at Mar-A-Lago aren’t investigating the “trumped-up” insurrection charge, that suggests they don’t think it’s provable.
The bottom line is that there is no evidence that there was any trial anywhere that found Trump to be an “insurrectionist.” Faced with this hurdle, the same people who are terribly worried about the fate of our “democracy” (FACT CHECK: We don’t have a democracy, but you are you) want to undermine the will of the majority of American voters and operate chicanery to get Trump elected to prevent.
Solution: Damage the vote counting process
The irony of the authors proposing to do what they accuse Trump of doing in 2020 is sweet.
The law provides two grounds for an objection to an elector’s vote: if a state’s electors were not lawfully certified or if the vote of one or more electors was not “regularly cast.” A vote for a constitutionally disqualified candidate is clearly consistent with the normal operate of the words “not regularly cast.” Disqualification for participation in an insurrection is no different than disqualification for other constitutional requirements such as age, citizenship by birth, and 14 years of residency in the United States.
Instead of a fraudulent vote count, they want to operate a fraudulent charge of insurrection. As damaging as this move may be for the nation, this strategy is open. All it takes is for 20 percent of members of the House and Senate to sign a petition to trigger a vote. If a majority of both houses vote to exclude votes, this is possible and the Supreme Court has no role in this process. Their conceit is to believe that once their side does this, everyone will forget that an undeniable election victory is being undone by backroom dealing. This is the quickest way for armed men to take control of the process and make us Pakistan. But that’s exactly what the authors seem to want.
