Opinion | Why law, not jail, might be the best way to keep Trump out of the Oval Office

Much of the discussion surrounding the January 6 special committee’s current work has focused on whether its investigation will lead to the prosecution of Donald Trump for his role in instigating the attack on the Capitol.

But recent remarks by a key committee member, Rep. Liz Cheney, R-Wyoming, indicate that the committee has a primary purpose – to ensure that Trump never takes over the Oval Office again – and this can be achieved in other ways.

CBS’s Margaret Brennan recently asked Cheney if it was “the committee’s consensus” that “the president could be criminally liable”?

“I think one of the really important things our committee has to do is bring these facts to the American people,” Cheney replied. they inform us about our future legislative activities(emphasis mine).

Cheney’s reference to “legislative activity” is indicative. While many have expressed disappointment that Attorney General Merrick Garland has yet to indict anyone who might have provoked unrest within the government, Cheney’s remarks remind us that Congress has a powerful tool at its disposal to hold former officials like Trump accountable. … And that may prove to be more effective than any potential criminal prosecution. This is legislation.

Perhaps Cheney and her congressional colleagues are referring to the 14th Amendment, which was ratified in 1868 after the Civil War to prevent former Confederates from holding government or federal offices and thereby undermine fragile Reconstruction efforts.

Cheney’s fellow committee member, MD Jamie Ruskin, made a special reference to the 14th Amendment in the notes for POLITICO this week, calling its use a “living proposal.”

This idea appeared earlier. Soon consequences of terrorist attacks, scientists and lawyers put forward an idea use this part of the Constitution to do what impeachment ultimately failed to do – permanently ban Trump from holding elected office. But the option seemed to have lost some of its appeal as Republicans and Democrats resumed their party squats, and major domestic legislative initiatives came to the fore.

Now that the Jan. 6 committee plans to hold a series of public hearings in the spring – and even some GOP members appear to be open to some aspects of electoral reform – it is worth rethinking that legislative path to see if there have already been incriminating revelations. discovered in the course of the committee’s investigation, have changed the political landscape in Congress so much that the passage of such a law is now possible, and perhaps even preferable.

in fact there are two sections in the 14th amendments that come into play.

The first, section 3, reads: “No one can … hold any office, civil or military, in the United States or in any state that, having previously taken an oath … to uphold the United States Constitution, is not entitled to participate in an insurrection or revolt against them. ”

The second relevant part, Section 5, reads: “Congress has the power to enforce, through appropriate legislation, the provisions of this section.” It is important. This gives Congress to express the constitutional right to enact legislation prohibiting insurgents from holding office, rather than requiring Congress to resort to other powers, such as its interstate commerce powers, which are more general and therefore less focused on the task at hand. For example, the powers of Congress to collect information within the framework of its legislative activity are not expressly expressed, but are implied in the Constitution, which opens up the opportunity to discuss the powers of the Committee on January 6 on subpoena. But Section 5 is clear: Congress can pass legislation prohibiting anyone who has participated in a riot or insurrection from holding public office.

The tough question to Section 3 of the 14th Amendment concerns implementation: what kind of legislation could Congress pass that Cheney said could work successfully by “ensuring that Donald Trump is not a Republican nominee and that he certainly is not coming to the Oval “. Office ever again “?

The most notable option would be to enact a law creating a civil action allowing, say, a rival candidate to sue Trump for an injunction if he chooses to run. In this lawsuit, Trump’s role on January 6 appears to be challenged according to criteria that Congress will set in legislation. Hypothetically, for example, Congress could allow any registered candidate for state or federal office who has reasonable grounds to believe that a competing potential candidate was involved in any act of insurrection or insurrection against the United States to file a civil injunction … a remedy (including a preliminary or permanent injunction) to deter a person from running for the same office.

Congress had already taken a similar step by passing the Civil Rights Act of 1870 (also known as the Enforcement Act or the First Ku Klux Kan Act), which qualifies to run for office if it is not eligible to do so under Section 3. a criminal offense, and allows federal prosecutors to forcibly remove offenders from office. However, it was rarely used. In 1871 g. federal court in North Carolina assessed the indictment against a defendant who took over as sheriff after the Civil War but served as a district constable during the uprising. The question for the jury was whether he subsequently participated in a riot or insurrection? The defendant argued that he did not voluntarily join the Confederate army, but “was defeated by a force that he could not resist.”

In theory, the Ministry of Justice could to make such an accusation against Trump (if he is indeed running for president), but this will not help to delay his nomination in advance. And, as evidence, it is relatively easy to document the Confederate military conscription. Prosecutions will not provide a threshold injunction, that is, an order barring Trump from holding a higher office and allowing a rival Republican to gain party support early in the process. What’s more, given the sheer number of Justice Department cases against insurgents, not to mention the potential to prosecute conspirators or obstruct a formal trial against people in the government on January 6, it is unlikely that dusting off a mysterious criminal remedy after the Civil War will be a priority. federal prosecutors.

University of Chicago Law School Professor Daniel Hemel has argued that congressional adoption of an alternative civil remedy to criminal that already exists under the Civil Rights Act for the purposes of Section 3 implementation could fail as “the process will take time, possibly years,” while the courts will consider the legality of the law.

Hemel correctly points out that any new law is likely to be challenged as an unconstitutional “divestment bill”. Article I, Section 9 of the Constitution prohibits Congress from effectively condemning a person for crime and imposing punishment by law – this is the role of prosecutors and judges in the executive and judicial branches of government, respectively. The same constitutional provision prohibits so-called “ex post facto” laws that retroactively criminalize behavior. Trump could argue that any law passed by the committee on January 6 influencing his candidacy for office is a retroactive punishment for bad behavior that unfairly distinguishes him – and therefore unconstitutional.

But the success of such an argument is hardly guaranteed. As Hemel notes, the adoption of the 14th Amendment “took place eight decades after the adoption of the original Constitution” and thus should perhaps be interpreted as acting in accordance with Article I, which prohibits bills of arrest and ex post facto laws, and not in breaking this. It can’t be any the law passed to keep Confederates from office for past conduct is unconstitutional – this would automatically invalidate Section 3, which would be contrary to the intentions of the creators after the amendment was ratified.

The question, again, is what Congress could do to address concerns about the record of achievement and ex post facto, but also lead to what Cheney seems to envision: Donald Trump, who remains a free citizen without a spot. crime. what would stain the president’s office itself, but reliably separate it from the White House?

Another obstacle to legislation implementing Section 3 of the 14th Amendment is the obstruction of the Senate, which under parliamentary procedure (not the Constitution or other applicable law, mind you) still requires a 60-vote qualified majority to pass a regular law – with the exception of budget reconciliation bills, trade agreements, and other discrete issues such as closure of military bases or arms sales. Senate Majority Leader Chuck Schumer recently proposed another filibuster exemption for legislation enhancing voting rights such as John Lewis Voting Rights Expansion Act 2021 – an attempt to amend the Voting Rights Act of 1965 after the Supreme Court overturned a key provision in 2013 – and Freedom to vote law

Of course, the legal nuances and obstacles of potential legislation cannot be investigated in the abstract, and judicial challenges to any legislation will certainly follow. Moreover, Congress must be extremely careful not to develop legislation that can be used as a political weapon to prevent legitimate candidates from running for the presidency.

But as we celebrate the January 6th anniversary, it seems that Cheney has struck a possible sweet spot for accountability and national healing: Congress (theoretically the most representative body of the federal government) adopts rules to keep serious constitutional criminals like Donald Trump from borrowing and enjoying privileges of the highest official of the country. After all, no one has the right to be president by birth. This is something to be earned – or lost.

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