Trump May No Longer Be President

If Donald Trump did foment insurrection on January 6, 2021, neither impeachment nor the 25th Amendment is necessary. His presidency ended automatically that day under the 14th Amendment to the Constitution. That means nothing he did or does after the 6th has the force of law, including pardons.

disqualified -- no need to impeach
Disqualified

Section 3 of the Fourteenth Amendment reads:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

History and Role of the 14th Amendment

The 14th Amendment was ratified in 1868, in the wake of the Civil War. Sections 1 and 2 guarantee equal rights to all citizens, including voting rights. They codified protection of the freed African Americans, among others. That’s why the 14th Amendment serves as a cornerstone of civil rights to this day.

Section 3 is above. It disqualifies insurrectionists from serving in any government post if they’ve previously sworn to support the Constitution. Many Confederates had taken that oath, so they were disqualified. President Trump took that oath when he was inaugurated in January of 2017.

Instant and Automatic Disqualification

The 14th Amendment does not require a vote or judgment. It’s automatic and instant. The moment Trump “engaged in insurrection or rebellion” or gave “aid and comfort” to enemies of the Constitution, he ceased to be President. Any orders or pardons he gave or gives after that moment are invalid.

the attack on the capital may disqualify Trump, w/o impeachment
Tear gas at the Capitol, 1/6/2021

The same amendment also disqualifies members of Congress who foment insurrection. Representative Mo Brooks told the insurrectionist rally, “today is the day American patriots start taking down names and kicking ass.” So he may have been disqualified on January 6, along with many others.

Section 3 of the 14th Amendment has an exception: “But Congress may by a vote of two-thirds of each House, remove such disability.” Fat chance.


See also:

Images:

  • The Fort Pillow Massacre, Slavery Images: A Visual Record of the African Slave Trade and Slave Life in the Early African Diaspora 1892
  • Tear gas outside the United States Capitol on 6 January 2021, byTyler Merbler, licensed through Wikipedia via the Creative Commons Attribution 2.0 Generic license

© 2021 by David W. Tollen

History Tells Us Congress CAN Impeach the President After His Term

The Constitution says nothing specific about whether Congress can impeach an official after his or her term. That didn’t stop the House of Representatives from impeaching the Secretary of War in 1876, after he left office — or the Senate from trying him. And history tells us Congress got it right that year, just as they apparently will again in 2021. The Framers based the impeachment process on the English Parliament’s power to impeach. And English impeachments could start after the official left office. In fact, Parliament impeached an official named Warren Hastings in 1787 and tried him between 1788 and 1795 — though he left office in 1784. The Hastings impeachment battle raged while the Framers wrote the Constitution, and it played a central role in their thinking.

The House of Commons, where they impeached Hastings
The House of Commons, Late 1700s

Continue reading “History Tells Us Congress CAN Impeach the President After His Term”

History Tells Us the President Cannot “Self-Pardon”

The Framers of the Constitution based the presidential pardon on the English monarch’s power to grant pardons. And the monarch could not pardon himself — could not use executive power to escape the judgement of the courts. Parliament established that principle during the century before the Constitutional Convention, when it tried and executed King Charles I. To the Framers, then, “pardon” meant legal forgiveness granted to another. The authority they gave the President does not include a “self-pardon.”

even with 3 positions, Charles I could not self-pardon
Charles I, triple portrait by Anthony van Dyck

The Constitution does not address a “self-pardon,” and caselaw offers little guidance on whether the President has such a power. But the history of the Seventeenth Century does.
Continue reading “History Tells Us the President Cannot “Self-Pardon””

What Really Happens in a Challenged Election

by David W. Tollen and guest contributor Robert W. Tollen

Many commentators assume the new House of Representatives would choose the President after a challenged election — with each state’s delegation casting a single vote. Others say the Supreme Court would decide. Each scenario gives Republicans an advantage, since they’ll probably control more state delegations, despite their overall minority in the House, and they appointed most of the Justices. But in fact, neither scenario is likely, and the commentators focused on them misunderstand the law. State governments resolve disputes about their voters’ presidential electors, under state law. And the new Congress rules on challenges to those decisions in the normal way, with each house voting by simple majority.

The Unlikely Case of a Tie or Plurality in the Electoral College

When does the House of Representatives choose the President, voting by state? Only when no candidate gets a majority of the electors, per the rules in the Twelfth Amendment.

The electors tied in 1824, so the House decided.
In 1824, the House chose the President because, with three major candidates, no one had earned a majority of electors. That had never happened and hasn’t since.

Continue reading “What Really Happens in a Challenged Election”

Police History: Constable vs. Paramilitary

Calls to abolish or massively reform America’s police sound new and radical. Yet history offers a very old model for those reforms: an alternative to our current military style of policing. In the world of the Founding Fathers, civilian constables enforced the law. They had done so for 150 years in the American colonies — and for longer in England. And they would continue well into the 19th Century.

police history: a constable or beadle
An English constable (technically, a beadle)

Continue reading “Police History: Constable vs. Paramilitary”

The Chief Justice Can Call Witnesses

Marshall would never stand for impeachment without witnesses
Would John Marshall, our most influential Chief Justice (1755-1835), have stood for a trial without witnesses?

Under the Constitution, the Vice President presides over the Senate — except during presidential impeachment trials. The Vice President would inherit the President’s position if the trial led to conviction, so the Founders feared the VP’s bias. Who then? An obvious choice would be the President pro tempore of the Senate: the Senator who presides in the Vice President’s absence. Or the Senate could elect another Senator. But instead of those natural choices, the Founding Fathers reached out of Congress and chose the Chief Justice of the United States. Why? Continue reading “The Chief Justice Can Call Witnesses”

Time for an Independent Attorney General

Almost every U.S. state has an independent attorney general. Forty-eight of our state governors cannot fire their AG at will, so they can’t avoid justice through control of state prosecutors. American Presidents, however, however, can fire the U.S. Attorney General, for essentially any reason. Yet the White House generates far more potential corruption than any governor’s mansion, due to its greater power. In fact, thanks to the modern imperial presidency, the U.S. executive now overshadows the other two branches, disrupting the Founding Fathers’ plan for a balance of power. And the extreme partisanship of 21st Century politics boosts Presidents’ might even further. It renders them almost immune to impeachment and even to justice from the ballot box. That leaves law enforcement as a crucial check on executive corruption. But the federal prosecutors’ hands are tied by the Presidents’ power to fire them. So the U.S. must learn from the wisdom of its own states.

This article proposes a constitutional amendment creating an independent Attorney General — and it offers the amendment’s text, ready for adoption. It takes no position on the conduct of Presidents Trump or Obama or any of their predecessors. Rather, it offers a non-partisan, traditional American solution. Continue reading “Time for an Independent Attorney General”

The Democracy Watch List

Here’s what to watch for.

How would the Trump administration erode American freedom and democracy, if it went down that road? I’ve approached this question as a lawyer and amateur historian, studying democracies that lost freedom in recent years, as well as some currently on the brink. I’ve put together a list of their leaders’ moves against liberty — then deleted those I consider barely possible in the United States, thanks to our culture and Constitution. The result is below: steps the Trump administration and its GOP allies might take without obviously violating the Constitution. Continue reading “The Democracy Watch List”

Trump Threatens to Jail Clinton: An Authoritarian in America

portrait_of_george_washington-transparent
George Washington’s legacy is restraint, particularly on presidential power. That legacy is threatened like never before.

Last night, Donald Trump told Hillary Clinton he plans to put her in jail if he’s elected President of the United States.

Dictators threaten to arrest political rivals. American presidential candidates never have. One of the central features of our democracy, since the Founding Fathers, is that we do not use the criminal justice system against political opponents. We separate the two realms as much as possible, to protect political freedom. Continue reading “Trump Threatens to Jail Clinton: An Authoritarian in America”