Upholding the law of the land “would be an affirmation of the vitality of our wounded democracy,” eminent historian Eric Foner wrote in the Washington Post six days after the riotous part of the Donald-Trump-led insurrection on January 6, 2021.
Trump has wounded our democracy by breaking some of the laws of the land, and we have come to expect that conduct. However, the widespread advocacy for not prosecuting Trump is undoubtedly “hurting” our democracy even more.
In an article entitled “Impeachment May Not Work,” Foner considered the time issues confronting the second impeachment of Donald Trump and suggested that invoking a constitutional Amendment barring Trump from holding national office again would solve that problem.
Foner discussed the now-famous Section Three of the 14th Amendment, which states:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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.
I italicized the last part of Section Three to highlight a phrase seldom mentioned when discussing Trump and the insurrection. It is hard to hold that Trump did not at least give “aid or comfort” to the enemies (for instance, those convicted for the insurrection.)
But back to my main complaint. I am complaining about so many people saying, “Yes, Trump did something illegal, but to punish him would cause chaos, or at least upset a large portion of the population.” And “Let the voters decide.” What happened to “No one is above the law.” To not punish everyone found guilty of breaking laws has the potential to harm our democracy more than punishing anyone would.
Of course, it is difficult for me to argue what appears to be a simple matter as I have yet to accept the self-written rule of the Department of Justice, which says a sitting president of the United States should not be prosecuted. This idea differs from the practice of other democracies that routinely prosecute their chief executives. Further, it contradicts the history of the United States, where, in 1872, a Washington, D.C. patrolman arrested President Grant.
Notably, people alarmed at the prospect of disqualifying Trump, according to Section Three of the 14th Amendment, include law school professors and political pundits. I will dismiss some of these ostensibly learned people as part of the MAGA cult.
However, as expected, some scholars try to argue that sections of the 14th Amendment were attempts to strike a blow on the former Confederates and do not apply to future issues. However, historian Sean Wilentz quotes another historian who crushes that argument.
As the legal historian Mark Graber has demonstrated, the third section’s framers and supporters also pointedly stated that they were not aiming its disqualification provision simply at those who had participated in what they called “the late rebellion.” Graber cites, among others, Senator John Henderson of Missouri, who observed that “the language of this section is so framed as to disenfranchise from office the leaders of the past rebellion as well as the leaders of any rebellion hereafter to come.” Anyone who had violated a solemn vow to uphold the Constitution could never be trusted not to do so again; hence, disqualification was the only reasonable course. The reasoning pertained not to any one era but to all time, providing the nation, Senator Waitman T. Willey of West Virginia declared, with a “measure of self-defense.”
To not disqualify Trump from the ballot or not prosecute him for illegal activity is seriously detrimental to America’s democracy.
But similar to Bush v Gore in 2000, the Supreme Court will likely twist itself into legal knots and distortions to side with Trump and the Republicans. In Bush v. Gore, the Supreme Court stopped the recounting of votes in Florida, then came back later and installed Bush as President, arguing that not enough time was left to do the recount, a situation their first ruling created.
The Bush v. Gore decision was so bad that the late Justice Scalia, who voted with the majority to install Bush, called the written decision “a piece of s__t.” Will we have a similar result this time?