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.

14th Amend. Sec. 3

Pretty straightforward, isn’t it? If you waged war against the United States, you didn’t get to be a Senator, or president, or dog catcher. Robert E. Lee was not going to become president of the United States. We seriously doubt that the drafters of Section Three anticipated a second insurrection, or the desire to elect someone who led it, or they might have been a bit more specific.

In other words, it’s clear in the constitution that if you participated in an insurrection or rebellion against the U.S., you don’t get to be president. Except it doesn’t say who decides whether you “insurrected” or “rebelled”?

Judges, normally. But is there even a crime called “Rebelling against the United States? We best ask the best constitutional expert to ever live, Lawrence Tribe:

“If anything, the idea has waxed and waned,” said Laurence Tribe, a constitutional expert at Harvard Law School. “I hear it being raised with considerable frequency these days both by media commentators and by members of Congress and their staffs, some of whom have sought my advice on how to implement Section 3.”

There is another portion of the 14th Amendment that says that no one should be deprived of life, liberty, or property without due process of government. It is not like the Democrats can decide Trump rebelled against the United States, they would have to pass a law, initiate some proceeding, something, and it would go to the Supreme Court. It may work to Trump’s political advantage; “Look at how afraid of me they are!”

An analysis by The Hill found that around a dozen Democratic lawmakers have spoken either publicly or privately over the last year about how Section 3 of the 14th Amendment might apply to those who engaged in insurrection on Jan. 6. 

Among those whose offices have spoken recently with Tribe are Rep. Jamie Raskin (D-Md.), who sits on the Jan. 6 House Select Committee; Rep. Jerry Nadler (D-N.Y.), who chairs the powerful House Judiciary Committee; and Rep. Debbie Wasserman Schultz (D-Fla.).

As we said, who decides. These geniuses in the article have determined that Section 3 is not “self-executing,” meaning that Trump is already precluded by the Constitution.

So not what?

Some scholars believe that Congress, by a simple majority in both chambers, could act on its own to find Trump engaged in insurrection, which would implicate the constitutional provision. Under the 14th Amendment, restoring Trump’s eligibility would then require a supermajority vote. 

Bad precedent. Then any majority can determine at any time that they didn’t like what someone said or did back at that protest in college.

Other experts, like Tribe of Harvard, say Congress would need to go further, either by establishing a neutral fact-finding body to determine whether Trump engaged in insurrection under Section 3, or assigning that fact-finding role to a federal court.

Tribe is right because Congress shouldn’t be involved in who can and cannot run for president. Tribe is right because he’s Lawrence Tribe.

But there is still the thought about whether or not it’s even a good idea without a court conviction on something. Even a conviction on his taxes would be something to go off to start some sort of proceedings to determine whether January 6th qualifies. And, of course, even if it does, Trump doesn’t care about the Constitution and could persuade his party to put him on the ballot anyway – then what?

We are already a dysfunctional democracy. It is probably best to either arrest him or beat him. One or the other. They had their chance at impeachment and came awfully close.

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