Two prominent members of the conservative Federalist Society contend in a lengthy new article in the University of Pennsylvania Law Review that former President Donald Trump disqualified himself from running for a second term due to his actions on Jan. 6, 2021.
Donald Trump Should Be Worried…At Least a Little
Professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas studied the issue for over a year. Both are known for their textualist approach to constitutional issues, meaning they defer to the framers’ intent.
Paulsen previously wrote in a 2018 article that appeared in the Harvard Law Review that he supported the idea of impeaching and removing Trump from office for unspecified high crimes and misdemeanors.
Baude similarly has an established history of animus against Trump, noting in a Nov. 8, 2016 tweet that he voted against Trump.
Trump Led Insurrection
The professors contend that Trump’s actions amounted to an insurrection even though no evidence has materialized showing that the former president played an active role in orchestrating the Capitol riot. They argue that Donald Trump’s actions run afoul of Section 3 of the Fourteenth Amendment which was crafted to keep former Confederates from holding federal office after the Civil War.
“It takes little imagination to describe the efforts to maintain Trump in office, notwithstanding his defeat, as an attempted political coup d’etat. These actions culminated in the incitement and execution of a violent uprising at the Capitol on January 6, 2021—an ‘insurrection’ aimed at preventing Congress and the incumbent Vice President from performing their constitutional responsibilities to count the votes for President and Vice President in the 2020 election,” the professors write.
“Several of the people involved in these events—most notably the defeated President, Donald Trump—had previously taken oaths to support the Constitution. If they engaged in or gave aid and comfort to an insurrection against the constitutional government, Section Three would appear to bar them from holding office again.
They continued: “Section Three is not limited to the circumstances of the Civil War and Reconstruction, even if the meaning of its terms may be illuminated by that experience and history.”
Fourteenth Amendment Trumps First Amendment
The professors contend that the Fourteenth Amendment trumps Donald Trump’s First Amendment rights. They, however, concede that the legal definition of an “insurrection” is not cut and dry.
“It is a more difficult question of law because we must plumb the meanings of “insurrection” and “rebellion” and so on—and these meanings are not quite as self-evident as “thirty-five years of age” (at least until this article is widely read and accepted),” the professors write.
They contend that a president would be disqualified from further officeholding.
Conclusions Disputed By Turley, Dershowitz
The main weakness of the professors’ claim lies as to whether or not Donald Trump participated in an insurrection.
The Capitol rioters largely were not organized.
Although they may have been inspired by Donald Trump’s call to Washington, no evidence exists that Trump either gave them material assistance or otherwise.
Trump made repeated calls for a peaceful protest against the election results.
“I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard,” Trump said during his speech before the riot.
George Washington Law Professor Jonathan Turley argued against the “insurrection” rhetoric in a February 2022 blog, “I still believe that Jan. 6 was a protest that became a riot. That is not meant to diminish the legitimate outrage over the day. It was reprehensible — but only a ‘rebellion’ in the most rhetorical sense. More importantly, even if you adopt a dangerously broad definition of ‘insurrection’ or ‘rebellion,’ members of Congress who supported challenging the electoral votes (as Democrats have done in prior years) were exercising constitutionally protected speech.”
Former Harvard Law Professor Alan Dershowitz, who represented Trump in the first impeachment trial, likewise wrote in January 2021 that the claim that the former president engaged in an insurrection was hyperbolic.
“That is why the Supreme Court has repeatedly rejected efforts to circumvent the First Amendment by accusing advocates of ‘incitement,’ ‘sedition,’ ‘insurrection,’ ‘treason’ and other loaded but vague phrases and words. Even when a speaker’s advocacy is the ‘but for’ cause of the resulting violence—as it was on Wednesday—the First Amendment protects it unless the speaker expressly incited the violence that immediately ensued. That is not what President Trump did,” Dershowitz wrote.
“Those who would compromise our hard-earned constitutional rights for short-term partisan expediency are ignoring the big picture. Weaponizing the Constitution as a political sword has consequences. Today it is being wielded against a Republican president. Tomorrow it may be wielded against a Democratic president.”
John Rossomando is a defense and counterterrorism analyst and served as Senior Analyst for Counterterrorism at The Investigative Project on Terrorism for eight years. His work has been featured in numerous publications such as The American Thinker, The National Interest, National Review Online, Daily Wire, Red Alert Politics, CNSNews.com, The Daily Caller, Human Events, Newsmax, The American Spectator, TownHall.com, and Crisis Magazine. He also served as senior managing editor of The Bulletin, a 100,000-circulation daily newspaper in Philadelphia, and received the Pennsylvania Associated Press Managing Editors first-place award for his reporting.
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