On the eve of the public hearings of the January 6, 2021 Congressional Committee, I have been contemplating this moment in our nation’s history by comparing it to another genuine crossroads for American democracy, when Richard Nixon faced down the United States Supreme Court as it decided that Nixon had to turn over “the tapes” to Congress and the Justice Department. We know what happened. Nixon decided not to challenge our nation’s system of government. He turned over the tapes, leading to the famous about face by key Republicans and ultimately Nixon’s resignation and the peaceful transition of power to VP Ford.
But there is another aspect to the twin crises in American Democracy that is worth considering. What are the options open to America and its governmental institutions when a criminal occupies the Oval Office? Here is the relevant question debated in 1974 and today. Can a former President of the United States be indicted and tried for the crimes he/she committed while in office? Yes, but the more difficult question is “SHOULD” a former POTUS be indicted and tried in a federal criminal courtroom?
The easy answer is “of course.” If the evidence of criminal activity is overwhelming; if 10 out of 10 prosecutors would bring the charges and try the case based on the evidence they have, then The Rule of Law means nothing if the prosecutorial authority of the federal government (or for that matter, state prosecutors, such as in Georgia or New York) fails to indict and try the case before a jury.
Ah, but not so fast. However misguided, 74 million folks voted for the prospective criminal defendant. Of that 74 million, many millions were passionate about their vote and remain locked in what Rep. Chaney calls the “Cult of Personality.” Does it matter that these cult members might respond to such a prosecution with violence? Riots?
And that is where we can go back to Gerald R. Ford and his decision to pardon Nixon. Ford knew that the government had a strong criminal case against Nixon. But he justifiably worried about the turmoil that such a prosecution would cause within the body politic. He worried that nothing would get done during his presidency if a Nixon trial dominated the day-to-day affairs of state. His decision to pardon was made so that Nixon could be put in the nation’s rear view mirror.
Of course there are key differences with Trump. The main difference is that Nixon resigned in disgrace and thus there was zero chance he would ever run for office again. Trump committed his crimes up to the day he left office, refuses to acknowledge he lost and plans to run again in 2024. He remains a clear and present danger to the nation. Nixon was no longer a danger to the nation once he resigned.
But in each case, there remains the question: What will happen in the United States of America if it seeks to try and convict a former president? Is there an unreasonable risk that such a trial itself will destroy the country? Is there an alternative?
Yes, I submit, there is an alternative and it is a FREE ONE. While not especially relevant with Nixon in 1974, it is an alternative that is literally screaming to us today.
Section 3 of the 14th Amendment to the Constitution was passed by Congress in 1866, just months after the end of the Civil War and then ratified by the required number of states on July 9, 1868.
Here is what it says, in plain English (that is, I will recite the essence of the amendment as it might apply to a former United States President):
NO PERSON SHALL BE PRESIDENT OF THE UNITED STATES OR HOLD ANY OTHER OFFICE OF PUBLIC TRUST WHO HAS PREVIOUSLY ENGAGED IN INSURRECTION OR REBELLION AGAINST THE UNITED STATES OF AMERICA OR GIVEN AID OR COMFORT TO THE EMEMIES OF THE UNITED STATES OF AMERICA, AT A TIME WHEN THAT PERSON HAD TAKEN THE OATH OF OFFICE AND HAD SERVED AS PRESIDENT OF THE UNITED STATES (OR IN ANY OFFICE OF PUBLIC TRUST REQUIRING THE SAME OR SIMILAR OATH) AND THUS PREVIOUSLY PLEDGED TO SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES.
All right, so what? It would be natural to first ask why this section was included in the 14th Amendment. It is equally easy to answer that question by stating that the renewed United States of America was concerned about members of the defeated Confederacy running for a federal office having been a person who engaged in rebellion against the Union. It would therefore be easy to dismiss section 3 as having application only during the lives of those who supported the Confederacy. But is that how the Constitution works? Absent an explicit clause that says “this only applies for the next 10 years”, are we really to ignore a part of the Constitution that has no time or circumstance limitation? Or, are we to take the words as they appear and apply them to WHATEVER CIRCUMSTANCE THE WORDS MIGHT APPLY IN THE FUTURE?
So let us assume Section 3 applies today. The next obvious problem is one the drafters of section 3 failed to appreciate. Yes, they failed to write with clarity. Not the first time! Simply stated, who gets to decide when and how section 3 applies? Congress? The Courts? Of note is a final passage in section 3: “Congress may…remove such disability.”
We are thus told that this prohibition on the right to hold office is a “disability.” And we are told that Congress alone can “remove” the “disability.” So does it not stand to reason that only Congress can “impose” the disability? Perhaps. But note that while Section 3 establishes the role of Congress in “removing” the disability, Section 3 says nothing about Congress or anyone else “establishing” the disability.
I submit that the third branch of government - the judiciary - is peculiarly equipped and qualified to make the finding under Section 3 of the 14th Amendment that establishes the disability of holding office. After all, our Supreme Court in Marbury v. Madison, 5 U.S. 137 (1803) said that “It is emphatically the province and duty of the judicial department to say what the law is” (p. 177). And then the Court said “The judicial power of the United States is extended to all cases arising under the constitution.” In other words, our United States Supreme Court, preceded by the lower federal courts, are uniquely authorized to not only say what the Constitution means but when and how it is to be applied to a given circumstance.
I propose that the United States Justice Department file a CIVIL ACTION in the United States District Court for the District of Columbia against Donald John Trump, former POTUS, stating a single cause of action invoking Section 3 of the 14th Amendment and seeking the remedy therein provided, the disability of never again being able to hold an office of public trust. The Complaint by the government would state the facts supporting that Trump engaged in insurrection or rebellion and/or gave aid and comfort to enemies of the United States of America.
At the same time, the federal government should timely indict Trump for alleged crimes and then ask the Court to STAY (suspend) the criminal action pending the outcome of the civil case.
Why? Because in a civil case, proof is by a preponderance of the evicence; in a criminal case, proof must be beyond reasonable doubt.
Does our nation really need to put a 79 year old man behind bars? Or is the national interest best served by preventing Trump from ever running for office again? Perhaps his cult will riot in the streets either way, but in my view how can it hurt not to try the civil case approach first. The “stay” of the criminal action means that if the federal courts refuse to take part in a Section 3 lawsuit, the criminal case is still there to pursue.
This nation adopted Section 3 of the 14th Amendment at a particular moment in time when traitors were among us in the states of the recently returned Confederacy. A traitor is among us now and the concern is no less immediate. Let us return to the concerns of 1868 and give them life today, for the threat is real.