Dozens of House Democrats introduced a bill that would disqualify Donald Trump from future public office under the 14th Amendment’s insurrection clause (see story here).
It probably won’t make it through the House, and if it does, it’ll surely die in the Senate, although for wrong (i.e. partisan) reasons. On a purely objective basis, this bill shouldn’t become law.
To be clear: Trump is a clear and present danger to America’s democracy, and should never hold public office again. But it’s not Congress’ job to disqualify him.
Why? Primarily because finding him guilty of insurrection is the job of the courts, so it’s a separation of powers issue. It’s also a legitimacy issue; if Congress does it, it will be seen as politically motivated, and illegitimate.
It’s a slippery slope that opens the door to tit-for-tat legislation. In other words, it will bring “baseball rules” into play (if your pitcher hits our batter, our pitcher will hit one of your batters, etc.).
But most of all, on principle. Declaring Trump an insurrectionist, and then imposing a disqualification on him, involves adjudicating his guilt or innocence. That should be done by the judicial branch of government. It’s questionable whether a congressional imposition of disqualification would even hold up in the courts. The Supreme Court undoubtedly would have something to say about that, and the court likely will jealously guard possession of the court system’s judicial prerogatives.
The problem with that, of course, is if the facts and evidence justify bringing a case, but it’s steered to a partisan judge who derails any objective determination. We’d have to trust an appeals court to set that straight. Generally, appellate judges, including those appointed by Trump, have been trustworthy on that score. It was three Republican judges, two appointed by Trump, who scuttled a Trump-friendly lower court judge’s attempt to derail the Mar-a-Lago investigation.
I firmly believe legislating a 14th Amendment disqualification is the wrong way to go about it. Interested parties, whether Democrats or ordinary voters, should sue Trump in the courts to disqualify him from holding office again. There’s precedent; a federal judge imposed disqualification on a Nevada county commissioner convicted of participating in the Capitol riot. If the system worked in that case, it can work in Trump’s case, too.
That doesn’t mean a lawsuit to disqualify Trump would succeed. A similar lawsuit against Marjorie Taylor Greene failed. But the circumstances are different; Greene has a big mouth, but didn’t riot. If Trump were found to have instigated the riot, that could be held an act of insurrection, where Greene’s abuse of free speech was not. That’s another reason for courts to determine his guilt or innocence; they’re better trained and equipped than Congress to make these fine distinctions.
And even if Congress and the courts don’t bar the man who many of us consider the Insurrectionist-In-Chief from being president again, the voters can. They should, and I believe they will, if polls mean anything at all. They did in 2020, and the 2022 midterms proved that a majority of Americans care deeply about democracy and set aside their economic and inflation grievances to vote to preserve it.