How Trump could win the election only to be disqualified as a rebel – or impeached

The effort to disqualify President Trump from the White House on the basis of Section Three of the Constitution’s 14th Amendment could enter a new phase if Democrats capture the House and hold the Senate. If Trump wins — or if he loses — Democratic lawmakers could try to impeach the 45th president.

That portion of the parchment disqualifies former government officials from holding office if they took an oath to support the constitution but then betrayed it by participating in a rebellion. Democrats have long tried to impeach Trump on this basis of his role in trying to reverse the results of the last presidential election.

One Democrat, Representative Jamie Raskin, told the Daily Beast: “We will not go along with any fraud. We will stand for a fair and honest election, as we always have.” Raskin told CNN last year that of “all the kinds of disqualification that we have, the one that disqualifies people from participating in rebellion is the most democratic because it’s the one where people choose themselves to be disqualified.”

Mr. Raskin was the lead prosecutor for Trump’s impeachment trial on January 6 and has warned that the former president is “setting the stage” for “the Big Lie Round 2.” His comments came after Congressman Hakeem Jeffries vowed in September that “House Democrats will do whatever is necessary to protect our democracy, defend the transition and ensure that the winner of the presidential election is certified on January 6 without drama or consequences.”

The Colorado Supreme Court endorsed this position when it ruled that January 6, 2021 constituted a rebellion and that the 45th president was sufficiently responsible to trigger the disqualification provision. The text of the amendment was adopted with respect to the Confederacy in the aftermath of the Civil War. After Colorado’s decision, President Biden ventured that there was “no question” that Trump had engaged in an insurgency.

However, a unanimous Supreme Court issued a Rocky Mountain reversal Trump v. Anderson. The justices ruled that the Centennial State exceeded its authority when it excluded Trump from the ballot because states cannot unilaterally disqualify federal officials. A bare majority—five justices—went ahead, holding that only Congress can enforce Section Three. This means that not only state courts, but also federal courts, cannot enforce the clause in the absence of a relevant statute.

Judge Amy Coney Barrett agreed that Colorado had gone too far, but ventured that the high court should not have reached “the complicated question of whether federal law is the exclusive vehicle through which § 3 can be enforced.” The liberal justices went even further, accusing their conservative colleagues of deciding “new constitutional questions to insulate this court” and Trump from further scrutiny.

A means of disqualification would be conviction under the Criminal Insurrection Act. This act provides that “any person who incites, instigates, aids, or abets any rebellion or insurrection against the authority of the United States or the laws therein, or gives aid or comfort thereto, shall be fined under this title, or imprisoned no longer than ten years, or both; and shall be incapable of holding any office under the United States.”

However, special counsel Jack Smith did not charge Trump with sedition. The Justice Department declined to bring that charge against more than 1,000 defendants on January 6, and no federal court has ruled that the riot at the Capitol was a rebellion. Andy McCarthy, writing in National Review, speculating that if Democrats win control of both houses of Congress, “they could try to hammer out legislation that would create a process” to disqualify Trump.

Crafting such legislation could be challenging, even setting aside the task of commanding enough majorities to get it to a possible President Harris’ desk. A law specifically targeting Trump could run afoul of the Constitution’s absolute ban on certificates. The Supreme Court defines them as a “device frequently used in England in the sixteenth, seventeenth, and eighteenth centuries for dealing with persons who had attempted or threatened to attempt to overthrow the government.”

Another possibility is that Democrats could avoid disqualification in favor of impeachment. Trump, if he wins, has promised to fire Mr. Smith within “two seconds” of taking the oath of office. The special legal regulations mandate that Mr. Smith can only be fired by a state attorney and for “good cause,” which must be stated in writing. If Democrats control the House, they could begin impeachment — for a third time — against Trump.