Former President Donald Trump is cruising easily toward the Republican nomination for the presidential race in 2024.
Briefly, Florida Governor Ron DeSantis looked like he might be a real competitor. But that is fading. Trump even skipped the GOP’s first presidential debate last month with no negative impact on his polling. With the first primaries in just a few months, the window for a break-out by one of Trump’s challengers is closing.
Trump will almost certainly be the nominee.
This has generated a tricky new debate on whether Trump is legally permitted to run due to the events of January 6, 2021. The Fourteenth Amendment to the U.S. Constitution permanently bars those who have ‘engaged in insurrection or rebellion’ from seeking elected office. The Amendment stems from the U.S. Civil War. When that conflict concluded, the Union sought to prevent ex-Confederates from returning to positions of authority.
The Confederate elite had committed treason, using force to seek secession. The price of re-unification without permanent Northern occupation of the South was that the South find new leaders.
Is Donald Trump Guilty of Insurrection?
The Fourteenth Amendment was intended to be used to address those who took up arms against the country and has rarely been needed since that time. But Trump’s effort to overturn the election result of 2020, including inciting the violence of January 6, has provoked a debate about whether it might apply to him.
The legal debate is slippery. It relies upon whether Trump’s actions against the 2020 outcome reach the level of insurrection or rebellion, particularly the events of January 6. Rebellion is probably too strong a word to use. That implies the widespread use of force to displace the U.S. government. Trump has not done that. And Trump’s pre-January 6 activities against the election in the courts and social media are difficult to classify as rebellion or insurrection.
That leaves the events of January 6. While they are not a rebellion, they might be an insurrection. That term has been widely used to describe January 6 for more than a year. But that phrasing is not ubiquitous. January 6 is also called a riot or attack.
Most importantly, the U.S. Congress’ investigation of January 6 refers to it as an attack. So there is not a shared or consensual view of what exactly January 6 was.
This makes it difficult to disqualify Trump. Confederate officers were very obviously engaged in revolt. Terms like sedition, insurrection, or rebellion fit their behavior with little dispute. January 6, by contrast, is harder to be definitively described as an insurrection led by Trump.
The militias involved in the attacks probably were engaged in insurrection; judges have found them guilty of sedition. But it seems unlikely that many of the other rioters actually sought something as dramatic as overturning the government. And Trump was not on site.
Trump incited the fervor behind the attack, but it is unclear if he actually expected the attack to occur, and if he hoped it would lead to an overthrow of the government. Trump’s behavior, like much of the crowd’s, was arguably criminal. But insurrection implies a greater level of malevolence – conspiratorial political intent, which is far harder to prove than in the case of Confederate succession.
In short, disqualifying Confederates for insurrection was unambiguous. Applying that to Trump is more debatable. It is more a judgment call than a widely shared interpretation.
The Answer to Donald Trump is Political, Not Legal, Defeat
The legal debate sketched briefly above is not definitive enough for an uncontested application of the amendment. Were a U.S. attorney to attempt to enforce it, there would be a predictable explosion of indignation from Trump supporters, Republican officeholders, and conservative media. Even if the legal reasoning could be stretched to accommodate Trump, politically it would be very contentious. It might even provoke a violent reaction.
Trump has long traded on oblique threats of violence, and he would no doubt raise that specter here.
This is not a reason to avoid enforcing the law, but the ambiguity is enough to suggest caution. The law is not public opinion, and right now, a lot of Americans like Trump – whether Trump’s opponents like that or not. It is astonishing – given his record of criminality, sexual assault, disdain for democracy, and so on – but this seems to be the state of American democracy. If the voters want Trump, despite his record, the law is a weak reed to deny them that choice.
The better, more definitive, way to defeat Donald Trump is politically, by the vote. His loyalists will perceive a legal solution – jailing or disqualifying Trump – as cheating. They will agitate against it, and a ‘Trumpist’ similar to Trump would almost certainly arise to fill his shoes.
Ultimately, Trump and Trumpism must ultimately be defeated at the ballot box. American voters must choose against him. And they have repeatedly. So this should inspire confidence that Trump cultism is not winning the national formula. Trump is indeed a threat to the Constitution, but the way to beat him is to outvote democratically, again and again.
Dr. Robert E. Kelly (@Robert_E_Kelly; RobertEdwinKelly.com) is a professor in the Department of Political Science at Pusan National University and 19FortyFive Contributing Editor.
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