Democrats are so scared one of their all-time favorite boogeymen, former President Donald Trump, will run and humiliate them again they are considering banishing him from electoral politics forever through an obscure constitutional provision created in the aftermath of the Civil War to deal with Confederate leaders and soldiers.
Disqualifying opposing candidates, in case you forgot, is part of the old Barack Obama playbook from his Illinois Senate days, and, call me crazy, but Donald Trump is no Jefferson Davis.
Because leftist depravity is bottomless, it should come as no surprise that Democrats are fine with going full-on banana republic to “save” the country from the potential reemergence of a truly great, legitimate president who, unlike the phony who has (temporarily) succeeded him, loves America, and who spent his four years in office expertly outfoxing Democrats to the benefit of the American people.
And because two bogus impeachments based on absolutely nothing are not enough for these people, left-wing lawmakers, wooden stakes in hand, are demanding Section 3 of the 14th Amendment be invoked before Count Trumpula rises from the political grave.
That amendment, by the way, was ratified July 9, 1868, a little over three years after Robert E. Lee’s Army of Northern Virginia surrendered at Appomattox Court House and Democrat actor John Wilkes Booth assassinated the Republican U.S. president, Abraham Lincoln.
The constitutional provision itself, Section 3 of the 14th Amendment, known as the Disqualification Clause, reads:
“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. But Congress may by a vote of two-thirds of each House, remove such disability.”
If Section 3 isn’t enough to bury Trump, Section 5 gives Congress the power to enforce the 14th Amendment through “appropriate legislation.”
Some very creative scholars claim this means a simple majority of both chambers of Congress could pass a law applying a ban on future political activities to a particular former president, like Donald Trump.
Marxist history professor Eric Foner urges the Democrats to get medieval on the 45th president and hold a political show trial.
The 14th Amendment “can be invoked against anyone who has ever taken an oath to support the Constitution, including the president,” he said, according to the Nation.
“It’s much simpler than impeachment. It is not a judicial proceeding. It’s a political proceeding. It doesn’t involve lawyers or trials. It is simply about qualification for office. You could have one afternoon of debate and a vote.”
Such a show trial, of course, would be a textbook “bill of attainder” that criminalizes behavior after the fact and singles out a specific individual for punishment, something Article I, Section 9, of the Constitution explicitly forbids because the Framers rightly viewed it as a hallmark of tyranny.
The process newly espoused by Democrats desperate to satisfy their Trump Derangement Syndrome-suffering base because an impeachment conviction in the Senate is looking unlikely, sounds dangerously like an unconstitutional bill of attainder and ex post facto legislation or maybe even a Roman proscription. If they could, Democrats in Congress who only revere the Constitution when it aids their cause, would no doubt try to impose the ancient punishment of corruption of the blood against the ex-president and all members of the Trump family, escheating, or forfeiting, their property to the government.
Such processes have rarely been used to mete justice – they are instruments of malice, humiliation, and revenge that send messages to enemies. Attainder was a politically expedient way for the king to convict individuals of crimes, condemn them to death, and confiscate their property without holding a trial and presenting incriminating evidence.
Attainder is thought to have been used for the first time in 1321 to railroad Hugh le Despenser, 1st Earl of Winchester and his son Hugh Despenser the Younger, Earl of Gloucester, for ending up on the losing side of a power struggle. Their crime was supporting Edward II over Edward III.
Having prevailed in battle over Richard III, in 1485 Henry VII had Richard, who was already dead at the time, attainted in an act of victor’s justice.
In a grotesquely unfair procedure, Henry VIII used it in 1542 to attaint for high treason and execute his free-spirited fifth wife, Catherine Howard, for adultery and the “crime” of marrying the king while unchaste.
In 1660, after the monarchy was restored in England, Charles II had Oliver Cromwell, who was already dead, attainted and posthumously executed. Cromwell’s corpse was disinterred from Westminster Abbey and hanged in chains after which it was thrown into a pit. What was left of his head was severed and publicly displayed on a pole for years.
This kind of freewheeling Dark Ages justice is fine with Team TDS.
Using the 14th Amendment is “an idea that’s out there that I think people are contemplating in the accountability space,” said Antifa-loving Sen. Tim Kaine (D-Va., pictured above), who added he was “quite confident” Congress could act under the constitutional amendment.
“I just want us to choose a path that maximizes focus on the Biden-Harris agenda,” said Kaine, The Hill newspaper reported.
Kaine’s son, Woody, is a violent Antifa terrorist, who was part of a 2017 assault on Trump supporters in the Minnesota Capitol. Young Kaine, who fought with police as they tried to arrest him for lobbing a smoke bomb, was convicted of obstructing legal process and interfering with a peace officer and given jail time. A few weeks before the Antifa action, Sen. Kaine himself urged Democrats to “fight back” against the Trump administration “in the streets,” which by the Democrats’ own standards in Trump’s second impeachment would make Kaine guilty of inciting insurrection.
“The remedies of the 14th Amendment certainly may be appropriate for someone who incites an insurrection as Donald Trump did,” said Sen. Richard Blumenthal (D-Conn.), a member of the Senate Judiciary Committee, adding Congress could do it by way of a resolution.
“All of these are questions of first impression, in terms of constitutionality,” said Sen. Chris Murphy (D-Conn.). “I certainly think there is a 14th Amendment avenue separate and aside from impeachment.”
(Sen. Joe Manchin, a West Virginia Democrat, by the way, wants to use the 14th Amendment against GOP Sens. Josh Hawley of Missouri and Ted Cruz of Texas, ousting them and disqualifying them from holding public office because they dared to contest the congressional certification of 2020 election results from states where the Democrat machine successfully rigged the election.)
Presumably, private citizen Trump, a billionaire land developer, has no interest in becoming a member of the U.S. Senate or U.S. House, or a member of the Electoral College, nor any desire to hold any office, civil or military under the United States or under any state.
And it is far from clear whether the presidency is an “office” or whether the president is an “officer” of the United States within the meaning of the Disqualification Clause. The offices of “Senator” and “Representative” are identified specifically, but not president.
If the drafters of the amendment wanted to allow for the possibility of excluding a president from holding one of the offices mentioned –including the presidency itself— they would have said so. And why would they bother when elsewhere in the Constitution a mechanism for impeaching, trying, and removing a president was already laid out?
Even if the effort to use the 14th Amendment against Trump were to clear the office/officer bar, there remains the question of whether he “engaged in insurrection or rebellion against the same, or [gave] aid or comfort to the enemies thereof.”
Some say the House already made a finding Trump was guilty of insurrection because his supposed incitement thereof is (falsely) treated as fact in the new impeachment article. But an impeachment is akin to an indictment – a mere accusation, rather than a conviction.
Indiana University law professor Gerard Magliocca argues that a court, not Congress, “must determine if someone outside of Congress is subject to the disability.” The point “was established in cases between 1868 and 1872, in which men who were accused of being ineligible contested that claim in court with full due process of law.”
“Congress cannot simply declare an official outside of that body ineligible under Section 3 without the concurrence of the courts. To hold otherwise would allow simple majorities in Congress to oust federal and state officials without judicial scrutiny and would subvert long-established constitutional principles, such as life tenure for federal judges and the limits of the impeachment process.”
The last time the Disqualification Clause was used appears to have been in 1919, against Rep. Victor L. Berger of Wisconsin, the first Socialist elected to Congress.
Berger was convicted of violating the Espionage Act for publicly opposing American intervention in World War One, a war prosecuted by Democrat president Woodrow Wilson, arguably the closest thing to a fascist ever to occupy the Oval Office.
Congress denied Berger his seat. After the Supreme Court overturned his Espionage Act conviction, Berger went on to be elected to three more terms in the House of Representatives.
So using the 14th Amendment to halt a possible Trump revival is not only a half-baked, banana republic-like, probably unconstitutional idea, but it seems doomed to fail.
What would we do without left-wingers and their cutting-edge, innovative insights into the law?
This article by Matthew Vadum appeared Jan. 25, 2021, at FrontPageMag.