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””

America Has No Guarantee of Freedom

In a second term, the ballot box would no longer restrict Trump. So we can expect:

  • Expanded use of the Department of Justice (DoJ) against the President’s opponents, including members of Congress.
  • More use of force against protesters.
  • Federal tolerance of crime against the President’s opponents (e.g., Michigan’s governor).
  • Refusal of federal disaster funds and other resources for blue states.
  • Further suppression of information on Covid-19’s nationwide impact.
  • Prompt firing of senior officials and federal prosecutors who try to restrain the President.
  • White House orders blocking DoJ prosecution of the President’s allies.
  • More separation of children from immigrant parents.
  • Withdrawal of federal resources aimed at curbing White supremacists.
  • Federal support for attacks on the voting process, particularly in swing states, probably leading to “disqualification” of large numbers of ballots and voters in 2022 and 2024.

Continue reading “America Has No Guarantee of Freedom”

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”

Vichy and American Collaborators

In 1940, cooperation with the Germans looked like good sense to many French leaders. Germany had conquered most of their country, and by working with the invaders, these politicians and generals could maintain power. Even better, much of the populace favored cooperation. So while some French leaders kept fighting a seemingly hopeless war, others set up the “Vichy government,” which administered much of the country and assisted the Germans during World War II. Aiding the foes of French liberty, however, did these men no good in the long run. After the war, the French jailed or executed much of the Vichy leadership. And the nation came to view them with contempt and loathing. Some Vichy leaders had done great things before 1940, but that does not matter. History has given them an ugly name: collaborators.

Marshal Pétain, first of the Vichy collaborators -- a lesson for impeachment
Marshal Philippe Pétain, once an immensely popular WWI hero — jailed for leading the Vichy government and remembered today as a traitor and collaborator

Continue reading “Vichy and American Collaborators”

George Washington and the Dignity of the Presidency

George Washington infused the American presidency with his personal dignity and restraint. That may seem a hazy contribution, but it has shaped our nation. “President” was a new title for a head of state in 1789, and no well-known republic had ever created such a strong one-man executive. America’s presidency could easily have become a sleazy office known for naked power, with none of the royal charisma the Eighteenth Century expected of national leadership. Such a graceless office might have degenerated into a banana republic strongman’s post. Or America might have suffered the sort of “citizen leadership” that destroyed the French Revolution, with executives relentlessly accusing and slandering each other. But no. Our first president was another sort of man. Continue reading “George Washington and the Dignity of the Presidency”

The Roman Empire Survived Unbalanced Executives — Maybe America Can Too

The early Roman Empire survived two mentally unbalanced emperors: Caligula and Nero. In fact, neither seems to have harmed the economy or disrupted the lives of the common people, despite bizarre behavior. That’s encouraging in the age of Donald Trump.

Nero entertains the crowds
Nero entertains the crowds

Continue reading “The Roman Empire Survived Unbalanced Executives — Maybe America Can Too”

Trump, ISIS, and the Tactics of the Weak

A prominent Trump supporter recently offered a view that seems to represent much of the nation. “When I’m looking for somebody who’s going to deal with ISIS,” said Pastor Robert Jeffress, an influential TV host, “I want the meanest, toughest, son of a you-know-what I can find.” Few would doubt that Donald Trump is mean, but what makes Pastor Jeffress thinks he’s tough? What makes millions of Americans think Trump is tough when, in fact, his behavior suggests he’s unusually sensitive? What, for that matter, makes us think ISIS is tough — so much so that “looking for somebody who’s going to deal with ISIS” becomes the top priority? The answer is that Americans have been fooled by bluster and the tactics of the weak.

President Theodore Roosevelt: "speak softly and carry a big stick"
President Theodore Roosevelt: “speak softly and carry a big stick”

Bluster means loud, boastful, and threatening talk. It’s meant to give an impression of power. Terrorism plays a similar role, and in fact you might call it geopolitical bluster. It is devastating for its individual victims, but it has no military impact. So on a geopolitical scale, between nations, a terrorist attack is a loud, threatening statement. Continue reading “Trump, ISIS, and the Tactics of the Weak”