Trump and the 14th Amendment

The Former President and the 14the Amendment - First Glance

Former President Donald Trump has been disqualified from appearing on the ballot in two states - Maine and Colorado - based on the 14th Amendment to the US Constitution, and the allegation that he engaged in "insurrection" against the United States. 

Here is what Section 3 to the 14th Amendment says:

Section 3.

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. 

Note that "Rebellion and Insurrection" are also illegal in the United States as follows:

"Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States." [18 U.S. Code § 2383 - Rebellion or insurrection]

In spite of a massive investigation into the actions of Donald Trump on January 6, 2021, he has not been charged with "rebellion or insurrection" under 18 U.S. Code. He has been charged with: i) conspiracy to violate civil rights; ii) conspiracy to defraud the government; iii) the corrupt obstruction of an official proceeding; and iv) conspiracy to carry out such obstruction. "Insurrection" isn't on this list.

How is it possible that former President Trump was disqualified from running for office based on his allegedly having engaged in an "insurrection" when he has not actually been charged with that very thing? 

Put another way, if there is insufficient evidence to charge him with insurrection under 18 U.S. Code based on his actions on January 6, 2021, what is his disqualification from running for office under the 14th Amendment based on?

The Coming Supreme Court Decision on the 14th Amendment

The Supreme Court of the United States has not weighed in one the meaning of the 14th Amendment. That court is guaranteed to hear this case. What follows is a short discussion of how they may dispose of the issue.

The prohibition in the 14th Amendment and the prohibition in 18 U.S. Code are potentially massive in scope. Both could be interpreted as including an intention to overthrow the established political order, and even just dissent, with no actual actions having been taken in that regard. 

This is because of the definition of "insurrection" is as follows: "An act or instance of revolting against civil authority or an established government."

We have a definition in a definition here. The legal definition of the word "revolting", is as follows: "...a renouncing of allegiance (as to a government or party) especially: a determined armed uprising: a movement or expression of vigorous dissent."

These definitions are taken from Merriam-Webster because, incredibly, these terms do not appear to have been defined in the U.S. Code!

So "insurrection" includes "revolt" that can include "expressions of vigorous dissent". This would imply that anyone who even dissents from the established political order in the United States could be barred from running for office under the 14th Amendment. 

This potential interpretation is so massive that many Socialists and all American Communists could be barred from running for office as both, in different ways, dissent from the established US political, and related to it, the economic order. As well, it could include the Black Lives Matter folks and the MAGA people who also often call for massive changes in the established political order, but for different reasons and to different ends.

There is no way that the US Supreme Court will interpret the prohibition in the 14th Amendment broadly enough to include "expressions of vigorous dissent", as that would upend much of the political order in the United States, and could make a mockery of other rights in the Bill of Rights such as Freedom of Speech in the First Amendment.

At the other end of the spectrum we have the Civil War, which sparked the 14th Amendment in the first place. This is clearly an example of "insurrection".

Regarding the potential disqualification of Donald Trump, what the United States Supreme Court will have to decide is where, on the spectrum between legal dissent on the one hand, and actual illegal war on the other, would Donald Trump's actions on January 6, 2021 lie?  

In deciding this issue, it is suggested here that the test they may use could include the likelihood that the alleged insurrection could have actually succeeded in overthrowing the established political order in the USA. Simple dissent could not ever do this, but the Civil War certainly could have.

So the question may be something like, "Could the insurrection launched by Donald Trump that coalesced on January 6, 2021, have actually overthrown the established political order of the United States of America?"

With former Vice President Pence having refused to participate in the insurrection, and determined to certify the election as he was required to do under the Constitution, the answer is clearly "no". 

As there was no chance that the insurrection could have succeeded, the United States Supreme Court will not disqualified Donald Trump from running for office under 14th Amendment.

Donald Trump needs to buy Mike Pence lunch.