(C) Daily Kos
This story was originally published by Daily Kos and is unaltered.
. . . . . . . . . .



Trump, Jack Smith, Insurrection and the 14th Amendment Linkage (w/Beau) [1]

['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']

Date: 2023-08-14

Let me start out where I will end up, with Section 3 of the 14th Amendment to the Constitution. Which reads:

Let me sort out the relevant parts pertaining to Trump:

“No Person… ...shall hold any office… ...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 or comfort to the enemies thereof.”

Starting with the obvious aspects of the above which are applicable to Trump, the Presidency is an office under the United States and Trump in obtaining that office previously took an oath to support the Constitution of the United States in January 2017. So arguably the only three (3) questions that remain as to whether Trump should be disqualified from holding the office of the Presidency again under Section 3 of the 14th Amendment are:

1. Was what happened on January 6, 2021 an Insurrection ?

2. Did Trump engage in such an insurrection or give aid or comfort to those engaging in the insurrection by his words/actions on and leading up to January 6?

3. What, if anything, is needed to disqualify Trump from being eligible to run for or hold the office of the Presidency again under Section 3 of the 14th Amendment?

The first question is somewhat easy. Let’s start with the definition of an “insurrection” from Britannica:

insurrection, an organized and usually violent act of revolt or rebellion against an established government or governing authority of a nation-state or other political entity by a group of its citizens or subjects; also, any act of engaging in such a revolt.

Seems to describe what we all saw happen on January 6 to a tee doesn't it. But has it been legally determined as such? So far, to the best of my knowledge, no one has been convicted or even charged (indicted) with engaging in an insurrection or giving aid or comfort to insurrection participants under 18 U.S.C. 2383. The closest thing to this is the conviction of the Oath Keepers and Proud Boys’ convictions on Seditious Conspiracy to obstruct an official proceeding. But of course close doesn’t count in terms of legality. So it has not yet been “legally determined” that what happened on January 6 was an insurrection. More on this and why it matters, later.

The second question is also somewhat easy. While it has not yet been established whether Trump “engaged in” the insurrection by helping to plan it, there is a mountain of evidence already publicly available that he “gave aid or comfort” to those foot soldiers who engaged in the insurrection on January 6. But again, this has not yet been legally determined, since Trump has not yet been charged under 18 U.S.C 2383. The indictment recently handed down by the D.C. Grand Jury deals with conspiracy to defraud the United States and other counts, but not charged under the afore-referenced insurrection statute. In fact, I don’t think the word “insurrection” even appears anywhere in the indictment. Again, more on this and why it matters, later.

So this gets us to the third question.

Let me start out with a diary Jamess posted a few days ago, which covers how two members of the Federalist Society answered the 3rd question. Here’s the short version of what they came up with from Jamess’s Diary:

Two “respected” members of the Federalist Society spent over a year researching a scholarly paper concerning the evidentiary events surrounding Jan 6th 2021. Guess what, among other things, they’ve concluded Donald Trump aided and abetted a “insurrection or rebellion,” with the intention of unlawfully denying the rightful Election winner from ever taking office. Furthermore, due to this attempt at “insurrection or rebellion” Donald Trump is plainly disqualified from running for any Office, according to the criteria of the 14th Amendment.

Here’s the link to a PDF of the entire paper if you’re interested.

In essence that they are arguing that the 14th amendment is “self-executing” in this case, and those determining whether Trump can be on the ballot (being the Secretary of State in all 50 States) should automatically disqualify Trump from being on the ballots, period, full stop.

But our friend Beau who I admire and agree with in this case, has a different take on my Question #3. I promised you Beau, so here he is:

Beginning at 2;42 in on the above clip, Beau explains why he does not consider the 14th Amendment to be “self-executing” as claimed by the Federalist Society’s constitutional scholars. He does this by comparing the 14th Amendment to the age qualification for President which appears under Article II, Section 1 of the Constitution. He argues, correctly IMO, that the age requirement is something that can be easily judged objectively by each State’s SoS based on birth records. However, whether Trump participated in an insurrection, or gave aid or comfort to those engaging in an insurrection, or if what happened on January 6 even was an insurrection, is currently a subjective judgement call.

But what caught my ear, and what sent me on a thought process that caused me to write this diary, was something Beau said at about 5:28 into the above clip. He said to implement Section 3 of the 14th Amendment and bar Trump from running for office, there “has to be a finding of fact”. So what does he have in mind? He doesn’t say. But I know what came into my mind.

A Trump conviction under the Insurrection Statute, 18 U.S.C. 2383.

Here’s what 18 U.S.C. 2383 says:

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.

I bolded the part that basically links this statute to Section 3 of the 14th Amendment. A Trump conviction under this statute would make it crystal clear that Trump should be disqualified from obtaining the office of the Presidency by both statute and the 14fh Amendment, giving each State’s SoS ample legal and constitutional cover to remove him from the State ballots.

The problem we have is Trump has yet to be charged under 18 U.S.C. 2383, let alone convicted, as pointed out above. In fact, none of the January 6 participants have been convicted or even charged under this statute.

WHY?

In Trump’s case, it could simply be, in Jack Smith’s opinion, a lack of sufficient evidence to prove beyond a reasonable doubt that Trump engaged in an insurrection or gave aid or comfort thereto. I get it. Go for an indictment on counts that have more evidence and are easier to prove, since like all prosecutors, Jack Smith wants to win a conviction.

Another problem that might be causing Smith to avoid charging Trump under 18 U.S.C. 2383 is the fact that the DoJ has to date, not charged a single participant in the January 6th incident with violating 18 U.S.C. 2383. Without some of these folks being charged and convicted under the Insurrection Statute, Smith would have the added burden to prove why Trump is being charged and not the actual participants, calling into question whether what happened on January 6th was an insurrection at all.

Why has DoJ not charged a single participant under 18 U.S.C. 2383?

Again, it might simply be a lack of evidence, Although that seems a bit weak. Or again they were simply charging folks with what they were confident they could prove beyond a reasonable doubt.

Contributing to this lack of charging under 18 U.S.C. 2383 maybe that charging participants under this statute would lead to having to charge Trump under the statute, and with the clause in the statute barring him from obtaining the Presidency if convicted, would certainly embolden the FALSE claim that this is a political prosecution, leaving AG Garland with weak knees.

So wrapping things up, where does that leave us?

While we can hold out hope since the DC Grand Jury is still hearing witnesses, I don’t think it possible that a superseding indictment of Trump, if there is one, would include charges that he allegedly violated 18 U.S.C. 2383. Even more remote is the possibility that if so charged, Trump would be convicted before 2024 Election Day. Conviction on any of the other counts which Trump is currently charged or maybe charged in the near future, doesn’t automatically disqualify him from being elected or serving as President under the Constitution and U.S.C. Only the 14th Amendment and 18 U.S.C. 2383 can do that.

Meaning that we the people, through our voting in the Primary or in the General Election, will once again have the burden of denying Trump access to the Oval Office.

Oh, Happy Day! Please feel free to add your 2 cents in the comments.

[END]
---
[1] Url: https://www.dailykos.com/stories/2023/8/14/2187138/-Trump-Jack-Smith-Insurrection-and-the-14th-Amendment-Linkage-w-Beau

Published and (C) by Daily Kos
Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified.

via Magical.Fish Gopher News Feeds:
gopher://magical.fish/1/feeds/news/dailykos/