Trump May No Longer Be President

January 11, 2021January 12, 2021 ~ David Tollen ~ 4 Comments

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.

History Tells Us Congress CAN Impeach the President After His Term

January 10, 2021January 14, 2021 ~ David Tollen ~ 12 Comments

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*

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The Chief Justice Can Call Witnesses

January 30, 2020January 10, 2021 ~ David Tollen ~ Leave a comment

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

November 25, 2019January 11, 2021 ~ David Tollen ~ 6 Comments

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 Roman Empire Survived Unbalanced Executives — Maybe America Can Too

December 12, 2016January 12, 2017 ~ David Tollen ~ 3 Comments

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.

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