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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History Tells Us the President Cannot “Self-Pardon”

January 10, 2021January 12, 2021 ~ David Tollen ~ 4 Comments

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.
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