Block Trump from office with the 14th Amendment's aiding an insurrection exclusionhttps://www.usatoday.com/story/opinion/2021/02/16/ban-trump-from-politics-insurrection-exclusion-column/4488397001/
Taking Senate Republican leader Mitch McConnell at his word, the buck for former President Donald Trumps incitement of the U.S. Capitol mob should stop somewhere just not in his house. He didnt get away with anything yet, McConnell said on Saturday evening, after enough Republican senators voted to acquit the former president of an impeachment charge. We have a criminal justice system in this country. We have civil litigation. Stipulated. But we still have a Congress, too.
McConnell made the case that Trump was guilty of an offense punishable by more than a Senate floor speech. The upshot of the top Senate Republicans remarks is that he believes Trump is the but-for cause of the Jan. 6 insurrection, whose participants assaulted the Capitol in his name, carried his banners, hung his flags and screamed their loyalty to him. His assessment was plain: Theres no question, none, that President Trump is practically and morally responsible for provoking the events of the day.
Options beyond censure, conviction
The question was left open, though, of who is responsible for penalizing the provocation. House Speaker Nancy Pelosi dismissed the idea of a congressional censure: We censure people for using stationery for the wrong purpose. We dont censure people for inciting insurrection that kills people in the Capitol. McConnells suggestion that district attorneys offices could take it from here if they choose is accurate but it also reveals his perspective that Congress work is finished in the meantime. It shouldnt be. By the GOPs timid standards, McConnells comments and the surprising seven Republican votes for conviction were an authorization for use of political force against the former president. Now, more than at any point in the previous four years, there appears to be a window for bipartisan accountability on Capitol Hill.
If Congress lacked accountability mechanisms other than impeachment or censure, itd be one thing. But its not wanting for options. One of them is enforcement of Section Three of the 14th Amendment, which states that no state or federal office holder who, having previously taken an oath 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.
In other words: No second chance to place your hand on the Bible and repeat after the judge if you were an insurrectionist the first go-round. This novel idea was floated by Sens. Susan Collins, R-Maine, and Tim Kaine, D-Va. It merits widespread consideration now, given how it meshes with the emerging Republican position on Trumps culpability for Jan. 6 and Congress capability for responding to it.
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The president is not in the 14th Amendment and the oath the president takes is also not in the 14th Amendment.
Part of Section 3 of the 14th, about who it applies to:
"...having previously taken an oath, as a member of Congress, or as an officer of the United States..."
I'm not a Con Law expert but I'm 99.9% certain the office of President of the United States is considered an officer of the United States.
Do you think that the amendment included the president and specifically state the members of Congress but not the president? Look at Article 2 section 4 of the Constitution, about impeachment. It says the president.
The President is of course an Officer Of The United States.
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. But Congress may by a vote of two-thirds of each House, remove such disability.
The president is in the impeachment Article 2 Section 4 and not in the 14th Amendment. Why would they leave the president out of the 14th Amendment when Congress is in it. The 14th Amendment even lists state legislature and judicial officers, but it doesn't bother to list the president. Also in the Supreme Court case of Free Enterprise Fund V. Public Accounting Oversight Bid, Chief Justice Roberts wrote "The people do not vote for the Officers of The United States. Rather Officers of the United States are appointed exclusively pursuant to Article 2 Section 2 procedures.
Buckley v. Valeo, the Supreme Court established that "officer of the United States" is an appointee and excludes elected officials and that is why the 14th Amendment has to state members of Congress. So there are 2 Supreme Court cases that show the president of the United States is not an officer of the United States.
People I trust to understand Constitutional Law (those who teach it & practice it) say that S3 of 14A requires a "finding" & that "finding" must be a criminal conviction. In other words, Trump MUST be convicted in a criminal court before S3 of 14A could be used.
S3 is short & easy to read & it makes no mention of a "finding" requirement, & even if the need for a finding is required (I can understand how it might be implied due to due process requirements) it doesn't specify if that finding must be a criminal conviction, or perhaps an act of Congress passed by majority vote of both chambers.
This seems like it may be a case where we could try it & let the courts sort it out, with the possibility that SCOTUS would clarify what's required to invoke S3 of 14A penalties.
The 14th Amendment: