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When is an insurrection NOT an insurrection?

By Robert Romano

Serious arguments are beginning anew about barring former President Donald Trump from seeking reelection in 2024 under the Fourteenth Amendment’s Section 3, which states

“No person shall … hold any office, civil or military, under the United States … who, having previously taken an oath … as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof.”

The latest is a law review article by William Baude and Michael Stokes Paulsen that argues that the Jan. 6, 2021, Capitol riot was an insurrection and that former President Trump participated in it, and that the amendment’s Section 3 is self-enforcing, whether Congress exercises its power under Section 5 to enforce the provisions of the amendment, which states, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

So, in cases where Congress has not acted, who decides who is disqualified?

Under Baude and Paulsen’s interpretation, state election officials could enforce Section 3 of the Fourteenth Amendment:

“a state secretary of state (for example) might well possess state-law authority to determine candidate eligibility for federal elective offices — President and Vice President, U.S. Representatives, U.S. Senators — selected directly or indirectly via state elections; and among those relevant eligibility criteria is whether a candidate is disqualified from the office he or she seeks by Section Three of the Fourteenth Amendment.”

But that would be unprecedented. Usually, the insurrection disqualifications were meted out under laws passed by Congress.

Before the Fourteenth Amendment was even ratified in 1868, Congress had already supplied a procedure for disqualifying former Confederate officers and soldiers from running for public office in the First Military Reconstruction Act of 1867. The disqualification required military tribunals, speedy trials, convictions, and ratification of the Fourteenth Amendment for states to be readmitted to the Union.

This was enforced in part by the Enforcement Act of 1870, which provided in Sections 14 and 15 for federal prosecutors to bring cases that would remove individuals from holding public office if they had participated in the Confederacy. It was not self-executing. It required convictions.

Section 14 states,

“That whenever any person shall persons hold office, except as a member of Congress or of some State legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution of the United States, it shall be the duty of the of the district attorney of the United States for the district in which such person shall hold office, as foresaid, to proceed against such person… [in] the circuit or district court of the against by United States in such district, and to prosecute the same to the removal of such person from office.” Here, Congress was explicitly holding onto its own power to disqualify its own members, and of states to do the same. Under no reading, however, would this provision have applied to the President, to be removed, since that is covered under impeachment, removal and disqualification as under the Constitution. In this case, officers of the United States, that is, federal employees, could be removed from office if they were later tried and convicted of participating in the Confederacy.

Section 15 provided that upon conviction, a person who had participated in the Confederacy held public office and was removed would be guilty of a misdemeanor, imprisoned for no more than a year, and fined no more than $1,000.

When it came to removing the former Confederates’ disability of running for public office, that was once again Congress. Congress had already removed political disabilities for 4,616 former Confederates by March 1871. And then, with the Amnesty Act of 1872 to remove all political disabilities “except Senators and Representatives of the Thirty-sixth and Thirty-seventh Congresses and officers in the judicial, military, and naval service of the United States, heads of Departments, and foreign ministers of the United States.”

And again, in 1896, Congress voted to allow former Confederate officers to rejoin the U.S. armed forces. And in 1898, the Section 3 bar was obliterated by Congress. Every time, this was done by two-thirds votes required of Congress to remove the political disabilities under Section 3.

 So, during Reconstruction, it was the military districts that would try rebels that were in military captivity. And afterward, if a member of the Confederacy were in the federal civil or armed services, federal prosecutors would bring a charge and seek conviction and removal of said officers. But those acts were repealed.

Now, who decides whether there was a rebellion?

In part, that is the President.

Under 10 U.S. Code § 252, “Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.”

Enacted in 1792 in response to the Whiskey Rebellion and updated in 1795, in 1807 as the Insurrection Act, in 1861 and 1956, the law allows the President to restore order whether the state’s governor wants it or not. It was used by George Washington to put down the Whiskey Rebellion, by Abraham Lincoln to wage the Civil War, and by Dwight Eisenhower in 1957 when Arkansas attempted to use the Arkansas National Guard to block Brown v. Board of Education and Eisenhower federalized the Guard to enforce it. In Lincoln and Eisenhower’s cases, neither intervention was requested by state governors.

While Trump was in office, he and his administration, including the Department of Defense acting under his authority, unquestionably suppressed the riot at the U.S. Capitol on Jan. 6, 2021, as Congress considered legally allowed election challenges on the floor of the House and Senate as provided for under the Electoral Count Act.

In part, we know that because then Acting Secretary of Defense Chris Miller said so to the House Oversight Committee in May 2021:

“I had a meeting with Trump on 3rd of January concerning some international threats, and at the very end, he asked if there were any requests for National Guard support.”

Miller relayed what Trump said: “Fill it and do whatever’s necessary to protect the demonstrators.”

According to the press statement by the National Guard on Jan. 8, 2021,

“At around 2 p.m., D.C. Mayor Muriel Bowser requested more assistance. Acting Defense Secretary Chris Miller immediately called up 1,100 members of the D.C. National Guard. At the same time, officials were collecting Guardsmen at traffic points and Metro stations and returning them to the D.C. Armory to refit for a crowd control mission, the secretary said. Their mission was to support D.C. Metropolitan Police and Capitol Hill Police. Guardsmen started flowing into the area of the Capitol soon after and reinforced Metro Police on the perimeter of the Capitol. This allowed the police and FBI to clear the chambers and offices of the U.S. Capitol…”

And it worked, according to then Secretary of the Army Ryan McCarthy, from the statement:

“By 7:15 [p.m.], both chambers and leadership offices were cleared, and members were able to return to business, and we began the planning for the following day.”

The press statement continued,

“At 6 p.m., Miller authorized the mobilization of up to 6,200 National Guard members from Maryland, Virginia, New York, New Jersey, Delaware, and Pennsylvania. These service members will flow into the city over the next few days and will help secure the peaceful transfer of power to President-elect Joseph Biden on Jan. 20.”

A Mar. 18, 2021, report by the Department of Army Headquarters outlined under what authority to D.C. National Guard acted on Jan. 6, 2021, confirming the chain of command that was in place that day and every day for that matter, with the President ultimately in charge of the Guard:

“As provided in D.C. Code Sec. 4-409, the President is the Commander-in-Chief of the District of Columbia National Guard (DCNG); but through Executive Order 11485, dated 1 October 1969, he authorized and directed the Secretary of Defense (SecDef) to ‘supervise, administer and control’ the DCNG. By memorandum dated 10 October 1969, SecDef directed the Secretary of the Army (SecArmy) to act for him in matters related to the District of Columbia (D.C.) Army National Guard, and directed SecArmy to ‘command, through the Commanding General of the National Guard, all operations of the Army and Air National Guard elements,’ and ‘after consultation with [SecDef] and subject to the direction of the President as Commander-in-Chief, and in accordance with the Interdepartmental Action Plan for Civil Disturbance, may order out the National Guard under Title 39 of the District of Columbia Code to aid the civil authorities of the District of Columbia.’”

Additionally, per the Army report, “The President appoints and commissions the Commanding General (CG) of the DCNG, and may remove the CG from office at any time.” Trump appointed all of the officials who were directly responsible for the D.C. Guard and controlling any civil disturbances in Washington, D.C., and they acted that very day, on Jan. 6, 2021, under the Commander-in-Chief’s authority, to order out the Guard and restore order

So, the Jan. 6, 2021, Capitol riot was suppressed under then-President Trump’s authority under Executive Order 11485, which was in effect since Oct. 1, 1969, which delegated the President’s authority over the D.C. National Guard to the Secretary of Defense and the Secretary of the Army. According to the executive order, signed by then-President Richard Nixon, it was brought into force “section 6 of the Act of Mar. 1, 1889, 25 Stat. 773 (District of Columbia Code, sec. 39-112), and section 110 of title 32 and section 301 of title 3 of the United States Code,” [hyperlinks added] provisions of law that organized the D.C. National Guard, made the President the commander-in-chief of the D.C. National Guard, allowed for the President to regulate the D.C. National Guard and that allowed the President to delegate his authority to inferior officers, respectively.

Therefore, although then-President Trump and his administration suppressed the Jan. 6, 2021, riot at the U.S. Capitol under provisions of law, it was not done under the terms of the Insurrection Act. Nor was there any proclamation by Trump declaring the riot to be an insurrection or a rebellion.

But even if there had been such a declaration by Trump, would the argument now be that Trump both participated in, encouraged, and somehow suppressed within hours the Jan. 6, 2021, Capitol “insurrection”?

In fact, it would not be until six months after the riot, on Jul. 6, 2021, the current President Joe Biden issued a statement, but not a proclamation, declaring an insurrection, stating,

“Not even during the Civil War did insurrectionists breach our Capitol, the citadel of our democracy. But six months ago today, insurrectionists did.”

And a year later, on Jan. 6, 2022, Biden gave a speech to Congress at the U.S. Capitol, declaring, “This was an armed insurrection.” And he accused Trump of supporting it, stating he “rallied the mob to attack…”

But that’s actually not true. At the Save America Rally on Jan. 6, 2021, then-President Trump explicitly urged everyone to “peacefully” protest the Electoral College certification of Joe Biden as President-elect:

“We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”

Unfortunately, the call for peaceful protest was not heeded, as some of the crowd breached the perimeter around the Capitol, attacked police officers, proceeded into the U.S. Capitol, broke down doors, smashed windows, and made their way to the floors of the House and Senate.

But under no standard of law would Trump’s speech ever constitute incitement of insurrection, as they are political speech fully protected under the First Amendment of the U.S. Constitution.

In fact, Congress already attempted to try Trump on this count when the U.S. House of Representatives charged him with incitement of insurrection., The single article of impeachment states the President “willfully made statements that, in context, encouraged — and foreseeably resulted in — lawless action at the Capitol,” for which Trump was acquitted by the Senate on Feb. 13, 2021, who was at that point voting on whether to disqualify Trump, who had already left office.

So, when it comes to insurrection and Trump, this has already been asked and answered by Congress, and specifically, the Senate, which has the power under the impeachment clause under Article I, Section 3, which states to try all cases and disqualify from holding office upon conviction:

“The Senate shall have the sole power to try all impeachments… Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, trust, or profit, under the United States…”

The impeachment clause further provides that a convicted former president would be liable for the acts under which he was removed:

“the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment, according to law.”

And the Fifth Amendment provides the same, stating, “No person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offense…”

However, in its rush to prosecute Trump, Congress might have already foreclosed the former President’s liability for incitement of insurrection, as it only extends provided that “the party [is] convicted” of the charge leveled when he was impeached, which Trump was not. The clause “except in cases of impeachment” does not override “the party [is] convicted” because the provisions are consistent. Nobody can be tried twice for the same offense, except for a president, who, if convicted by the Senate, can be found liable later in court.

Instead, Trump was acquitted, so there could be an argument that trying Trump for incitement of insurrection would constitute double jeopardy because he was already found not guilty on that charge by the Senate, the highest constitutional authority on trying presidents.

By the same token, if it were read the other way, it might mean that Trump could be tried in courts an unlimited amount of times or a hundred times for incitement of insurrection of Jan. 6, 2021, by the fact the House had charged him with that offense, and if he were found not guilty the first 99 times, but the 100th time convicted, it would stick and not at all violate the Fifth Amendment, an absurd reading of the double jeopardy provision as it relates to impeachments.

With that in mind, it is also worth noting that — so far, at least — Special Counsel Jack Smith and the U.S. Justice Department. However, a few insurrection prosecutions related to Jan. 6, 2021, have neither charged Trump with insurrection nor incitement of insurrection.

And with no charge of insurrection or incitement of insurrection, there cannot be a conviction or insurrection or incitement of insurrection.

So, Section 3 of the Fourteenth Amendment is not self-executing; it requires the President to declare a rebellion and then to prosecute individuals for the crime of insurrection because under the Fifth Amendment, “No person shall be… deprived of life, liberty or property, without due process of law…” And under the Fourteenth Amendment, Section 1, it states, “No State shall… deprive any person of life, liberty, or property, without due process of law…”

But, again, under Baude and Paulsen’s interpretation, state election officials could enforce Sec. 3 of the Fourteenth Amendment.

That is, whether Trump is ever tried, convicted, or acquitted of the incitement of insurrection charge, as Biden has stated, or he is not. Here, Baude and Paulsen claim implicit “state-law authority” independent of the explicit power of Congress under Section 5 of the Fourteenth Amendment to enforce the amendment’s provisions.

Under that theory, state election officials could arbitrarily declare any act or statement as insurrection and bar opposing party members from seeking public office, whether there is even a trial.

All that, even though Congress has not voted to disqualify anybody from running for public office who participated in the Jan. 6, 2021, riot at the U.S. Capitol. Baude and Paulsen weakly afford that such a decision by state election officials would be “subject to the usual avenues of judicial review…” That is, state election officials — who are explicitly barred from “depriv[ing] any person of life, liberty, or property, without due process of law” under the Fourteenth Amendment — and federal or state courts could seize power from Congress that Congress never conferred to them, except in the limited case that a charge of insurrection is brought in federal court and a conviction is secured.

As for Jack Smith and the Justice Department, their silence on the Trump indictment is telling. They have not brought a charge of insurrection; until they do, this is a hypothetical question.

And even then, and even if Trump were convicted, presuming that Section 3 of the Fourteenth Amendment is not self-executing — in the Civil War it was, again, Congress that provided procedures for disqualifying members of the Confederacy from holding public office and again, Congress that alleviated those disabilities — it could still be up to Congress to pass a law disqualifying people who had some role in Jan. 6, 2021, which it has not done.

Or, Congress could pass a law stating that secretaries of state of several states could disqualify individuals under Section 3 of the Fourteenth Amendment. It has not done so.

Baude and Paulsen appear to be saying that in cases where Congress has not acted, Section 3 of the Fourteenth Amendment becomes a constitutional free-for-all, that any official with the authority of deeming eligibility to appear on a ballot can simply declare there has been an insurrection that a person has participated in and arbitrarily bar that person from appearing on the ballot, without any trial, and even though that person — in this case, Trump — will have otherwise met all legal requirements to appear on the ballot. Even though when the Fourteenth Amendment was enacted, it took votes in Congress to disqualify, convictions in courts of law to remove officials, and more votes in Congress, to requalify individuals to run for office.

As Baude and Paulsen say, “The case is not even close.” To disqualify Trump, you need an insurrection conviction and Congress.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation.

Cross-Posted with Conservative Firing Line


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