Monday, September 04, 2023
Engaged in insurrection or rebellion
I’ll have to put a standard “I am not a lawyer” disclaimer at the start of this post, but I can’t shake the feeling that my knowledge of the US legal system is far greater than that of most pundits in US media, or, more likely, that some of these pundits decided to say what they think their audience wants to hear, rather than what their scholarly knowledge tells them. This feeds a widespread and highly dangerous belief among Democrats that the 2024 US presidential election is in the bag, because the Republican candidate will be in jail or barred from office by the 14th amendment. But even the most perfunctory reading of the 14th amendment reveals that it bars from office people who “engaged in insurrection or rebellion”. Not “are accused of insurrection”, but have been “engaged in”. “Engaged in” very obviously requires some legal proof, and it is stupid of some pundits to pretend that this would be “self-executing”. Otherwise both parties would simply accuse any candidate from the other side of insurrection, and every possible candidate would be barred from office.
That is a bit of a problem for Democrats. Not only is Donald Trump, legally speaking, innocent until proven guilty. But furthermore in none of the ongoing lawsuits or past impeachments has Donald Trump even been formally charged with insurrection or rebellion. He has been charged in 4 ongoing cases with multiple counts of conspiracy, fraud, false statements, and even violations of the espionage act. But even if he were found guilty of every single charge in all 4 cases, he still wouldn’t disqualify under the 14th amendment. Any attempt by Democrats to prevent Donald Trump from taking office by ways of the 14th amendment will be thrown out by courts about as speedily as Trumps claims of election fraud were previously. Although not yet tested, the Republican legal position, which is “let’s get Trump elected, an then he’ll pardon himself”, is probably more constitutionally sound than those 14th amendment theories. And that would be true under a completely non-partisan SCOTUS, with the current conservative bias shielding Trump further.
While of course we can argue that Trump invented “lock her up” chants, that doesn’t make “lock him up” a viable election strategy. In 1985 the chief justice of New York’s Supreme Court famously said that any good prosecutor could get a grand jury to indict a ham sandwich. Politically some of these indictments might have worked in 2021, but by waiting until the next election cycle it is all too easy to dismiss the charges as politically motivated. If necessary, Republicans in the House will impeach Joe Biden, and Republican statet prosecutors will indict the Biden family for a bunch more things, until it looks as if both candidates are under equal amount of legal troubles. Tit-for-tat indictments as far as the eye can see, and both the political system and the legal system of the United States will be worse off for it.
For somebody from outside the USA it appears evident that Americans shouldn’t vote for Trump as president on the basis that he already had a term and turned out to be rather bad at the job. The “let the courts keep Trump out of office” electoral strategy suggests that Democrats don’t have good political arguments for their candidate. Alexander Hamilton argued in the Federalist Papers that the electoral college system would be be suited to raise the most qualified person to the office of US president. But “candidate quality” is increasingly becoming a problem for both parties. If the 2024 US presidential election had a “none of the above” option, that might well be the majority choice.