Instigating Insurrection, Trial By Senate

[Being]

Seems obvious to me that Republicans will give Trump another pass. A conviction would necessarily lead to admitting their complacence (complicity) not to mention pissing off 75% of their constituency. I hope there is a conviction but I don't believe there will be one.

[Lewkowski]

Seems obvious to me that Republicans will give Trump another pass. A conviction would necessarily lead to admitting their complacence (complicity) not to mention pissing off 75% of their constituency. I hope there is a conviction but I don't believe there will be one.

Here's hoping for a very loooong drawwwwn out trial.

[Aimless]

Seems obvious to me that Republicans will give Trump another pass. A conviction would necessarily lead to admitting their complacence (complicity) not to mention pissing off 75% of their constituency. I hope there is a conviction but I don't believe there will be one.

Hopefully they'll argue that banning him from holding future office doesn't require a supermajority.

[LittleFuzzy]

Hopefully they'll argue that banning him from holding future office doesn't require a supermajority.

Why would they argue that? It does require a supermajority. Congress does not have the power under the Constitution to declare someone unable to pursue or hold future office except by impeachment. They could refuse to seat him if he ran for one of their houses and won, but they can't bar him from holding that office by doing so

[Hazir]

Why would they argue that? It does require a supermajority. Congress does not have the power under the Constitution to declare someone unable to pursue or hold future office except by impeachment. They could refuse to seat him if he ran for one of their houses and won, but they can't bar him from holding that office by doing so

If he is convicted, barring him from elected office takes a simple majority. The Republicans could play that perfectly; produce the vote to find him guilty and let the Democrats be the ones who hang him (figuratively I'm sad to say).

[Flixy]

First you need to get votes to convict though.

Curious how the trial will go, I'm assuming there will be new evidence/testimony. And I suppose the DoJ is less likely to misrepresent reports this time. But altogether, unless there's really damning new evidence, on top of what's already there, I wouldn't be surprised if not enough Republicans will vote to convict.

One can only hope he will decide to testify himself and go completely off rails and incriminate himself, that'd be good for the ratings he likes so much at least.

Out of curiosity, if he's convicted of a felony (outside impeachment trial), in the US that generally means you cannot vote anymore right? Does that also mean you cannot be elected? Here in the Netherlands, if your voting rights are revoked that includes the right to stand in an election (but here it's not automatic, a judge needs to include it in sentencing, and only for specific felonies such as terrorism).

[Aimless]

Why would they argue that? It does require a supermajority. Congress does not have the power under the Constitution to declare someone unable to pursue or hold future office except by impeachment.

Afaict this is legally unclear wrt the 14th amendment.

[Wraith]

Afaict this is legally unclear wrt the 14th amendment.

I don't think the congress has anything to do with invoking that clause, unless they wanted to excuse him from it. He'd need to be convicted of insurrection in a criminal court for it to apply.

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.

Sounds pretty applicable, but not sure if the DoJ will pursue. They should at least go after his lackeys - Giuliani and Don Jr. would be especially hard to defend from this charge.

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

Emphasis mine in both.

[Aimless]

I don't think the congress has anything to do with invoking that clause, unless they wanted to excuse him from it. He'd need to be convicted of insurrection in a criminal court for it to apply.

I don't think that has been clearly determined. Lawfare has one perspective:

https://www.lawfareblog.com/practica...y-donald-trump

They specifically cite a case of a person who was disqualified from holding office due to having previously fought for the Confederacy, and served as a governor in NC during the civil war, after first having served in Congress and taken an oath to uphold the Constitution. It is, of course, unclear whether that section would apply to Trump; no doubt his defenders would argue that the President is exempt.

[Wraith]

That's why the amendment was specifically made - to prevent any elected officials who joined the Confederacy from regaining their office. I don't think it immediately applies here, as you have to have a determination that somebody has "engaged in insurrection or rebellion", which needs more backing than just an accusation. There was a paper trail for people who served the Confederacy, and in lieu of that we need something like a criminal conviction. A guilty verdict for his impeachment would suffice, but it'd also make it moot, and since we're trying to shortcut that, the only other option I see is for there to be a criminal conviction.

Either way, I don't see anything that suggests Congress can just majority-vote to activate that clause. It takes effect immediately once the conditions have been met, all they can do is grant an exception to it.

[Loki]

That clause is for a jury to decide on, not Congress. And Congress doesn't need any particular rationale to bar someone from political office

[Aimless]

This exact objection is discussed in the post to which I linked.

[Wraith]

Just had a thought: if Biden were to offer Trump a pardon for the insurrection, and Trump were to accept it, that would legally count as a confession of guilt. Since the 14th amendment clause is not a part of the criminal statutes, and with the precedent that it still applied to the Confederates that Andrew Johnson had pardoned, Trump accepting that pardon would be enough to activate it and prevent him from holding office again.

Seems fitting, seeing as Trump rallied a mob waving Confederate flags to storm the Capitol.

[LittleFuzzy]

Afaict this is legally unclear wrt the 14th amendment.

Presumption of innocent, Aimless. If he's not convicted then he didn't do the crime, legally speaking. And a court (in the US anyway) can't convict him for his actions as President, only the Senate can.

Your Lawfare article mentions the Senate refusing to seat Vance. Notwithstanding that I already mentioned either House would be entirely able to deny him a seat if he was elected to their office, Vance was pardoned by Andrew Johnson and by accepting the pardon he admits guilt, legally speaking. So it's not a precedent here (although I suppose it could be if it turns out Trump left a sealed pardon for himself). I further do not see any basis provided in the article or in law for the claim that Congress enforces that provision in the first place. They have no ability to enforce at all. They have the ability to authorize, both in general and explicitly here by having the power to lift the restriction, but there is no mention anywhere that they are the ones who can apply the restriction in the first place (outside their own respective offices, which falls under an Article 1 measure)

Also odd is the idea that the specious "bill of attainder" matter from the Davis treason trial has any relevance here. He was on trial for the very crime at the time. The "defense" used is that it constituted double jeopardy because Congress already "convicted" him. But such an act by Congress would be the unconstitutional bill of attainder. What makes it a specious defense there is exactly the same reason it can't be done here. Because Congress does not have that power. Being barred from office is not, strictly speaking, a criminal penalty. It is just something that follows from being found guilty of certain criminal acts (like being barred from voting in some locations). But you do still need to be found guilty for any of it to come into play. And Congress has only one mechanism for finding someone guilty: impeachment.

The 14th amendment is no more a viable path to getting what you want than hoping Pence would invoke the 25th amendment was.

[Aimless]

Presumption of innocent, Aimless. If he's not convicted then he didn't do the crime, legally speaking. And a court (in the US anyway) can't convict him for his actions as President, only the Senate can.

Your Lawfare article mentions the Senate refusing to seat Vance. Notwithstanding that I already mentioned either House would be entirely able to deny him a seat if he was elected to their office, Vance was pardoned by Andrew Johnson and by accepting the pardon he admits guilt, legally speaking. So it's not a precedent here (although I suppose it could be if it turns out Trump left a sealed pardon for himself).

Again, the question of whether or not there is a need for a conviction for a crime is discussed in the article, and the case for there being such a need does not seem to be as clear-cut as you're making it out to be. He discusses this in the following section:

First, the 14th Amendment does not require the Senate to conclude that Trump engaged in an insurrection. The amendment requires only that Congress conclude that Trump gave aid or comfort to enemies of the Constitution. This he did, both on Jan. 6 and in the broader context of the events after the presidential election of 2020.

The House of Representatives has already adopted this conclusion. The article of impeachment adopted by the House found that Trump violated his oath to defend the Constitution “by willfully inciting violence against the Government of the United States.” It also found that this conduct was “consistent with his prior efforts to subvert and obstruct the certification of the results of the 2020 presidential election.” Thus, the House concluded, “In all of this, President Trump gravely endangered the security of the United States and its institutions of government.”

Hemel’s explanation of the relevant standard confused matters a bit because he discussed how “aid and comfort” was defined under the criminal law of treason, which applies to enemies “of the United States.” The 14th Amendment is not identical to the criminal law of treason: It refers to enemies of the Constitution.

What America just experienced was an assault by enemies at home who, while claiming to be patriots, sought to override and thus overthrow the Constitution’s procedures for electing a president. Though he had sworn to defend the Constitution as a public official, Trump gave aid and comfort to these enemies of the Constitution. He thereby, under the 14th Amendment, disqualified himself from holding future office unless the Congress chooses to remove the disqualification by a two-thirds vote.

The House already voted that Trump aided these enemies. The Senate could therefore just concur with the House’s conclusion, by majority vote, in a resolution. To make the legal implication of this shared conclusion clear, the resolution could add that, by these actions, Donald Trump gave aid or comfort to enemies of the Constitution of the United States. This would explicitly invoke the 14th Amendment standard. Period.

Magliocca is reluctant to find power for a congressional finding because he believes some judicial involvement is needed to establish 14th Amendment disability. But the 14th Amendment expressly gives Congress the direct constitutional authority to enforce its provisions, including by legislation.

Some might worry that a congressional finding violates the constitutional prohibition on bills of attainder, a legislative act that pronounces an individual’s guilt of a certain crime. But the congressional finding is not a prohibited bill of attainder. It is not a criminal conviction. The criminal law of treason is a separate matter with its own burdens of proof and penalties.

The 14th amendment is no more a viable path to getting what you want than hoping Pence would invoke the 25th amendment was.

It's possible you're misremembering that exchange.

[Aimless]

Just had a thought: if Biden were to offer Trump a pardon for the insurrection, and Trump were to accept it, that would legally count as a confession of guilt. Since the 14th amendment clause is not a part of the criminal statutes, and with the precedent that it still applied to the Confederates that Andrew Johnson had pardoned, Trump accepting that pardon would be enough to activate it and prevent him from holding office again.

Seems fitting, seeing as Trump rallied a mob waving Confederate flags to storm the Capitol.

I've been asking around about this but haven't gotten—or seen—an answer yet. If he has already pardoned himself for it that would be hilarious

[LittleFuzzy]

Aimless, I was editing in more material while you were writing your reply. I address what you claim was already raised in the article.

[Aimless]

Aimless, I was editing in more material while you were writing your reply. I address what you claim was already raised in the article.

I further do not see any basis provided in the article or in law for the claim that Congress enforces that provision in the first place. They have no ability to enforce at all. They have the ability to authorize, both in general and explicitly here by having the power to lift the restriction, but there is no mention anywhere that they are the ones who can apply the restriction in the first place (outside their own respective offices, which falls under an Article 1 measure)

Section 5 explicitly grants Congress the power to enforce the 14th amendment, section 3 of which bars certain people from holding public office apparently without requiring a criminal conviction (debatable). Courts have ruled in a variety of ways on the scope and purpose of this power, but it's not immediately obvious that passing a resolution to ensure the disqualification of a person who has given aid or comfort to insurrectionists and enemies of the Constitution is outside that scope (ie. also debatable).

[Wraith]

And a court (in the US anyway) can't convict him for his actions as President, only the Senate can.

I don't think this one quite holds, though I'm sure it'd be challenged on this basis. The question would be, when he was doing this was he acting as the President? Unless he can make a solid claim that he was fulfilling his duties when he was inciting an insurrection, presidential immunity wouldn't apply, especially now that he's no longer sitting. There's enough gray here that it'd probably get Supreme Court attention, but the legal precedent only supports immunity for what he does while discharging his duties.

[LittleFuzzy]

You're going to have a very hard time convincing many judges that either electioneering or using the bully pulpit are not within the duties of the President rather than activities as a private citizen. I'm perfectly willing to cede (and in fact I champion) the idea that the use he put them to was illegal. If it wasn't, there wouldn't be much basis for impeachment. But speaking to a rally of voters about the election? That comes with political office. If does the same thing now he's vulnerable to standard criminal charges because he's no longer President but he was still in office at the time, so the normal immunities would be in place.

[Wraith]

You're going to have a very hard time convincing many judges that either electioneering or using the bully pulpit are not within the duties of the President rather than activities as a private citizen. I'm perfectly willing to cede (and in fact I champion) the idea that the use he put them to was illegal. If it wasn't, there wouldn't be much basis for impeachment. But speaking to a rally of voters about the election? That comes with political office. If does the same thing now he's vulnerable to standard criminal charges because he's no longer President but he was still in office at the time, so the normal immunities would be in place.

I understand your argument, but I think there's enough of a difference between "vote for me" and "storm the capitol to prevent congress from fulfilling their legal obligations" that a distinction could be made. It'd open too many doors for abuse to hand out that large of a free pass. But I'm sure Trump's legal team (if he can ever find anyone to represent him again) would make the argument, and I'm not a lawyer so :shrug:

[Lewkowski]

I just find it amusing how little faith the Democrats have in Biden. Do they really think the country is going to go that much into the shitter that the people will elect Trump in 2024?

[Being]

I just find it amusing how little faith the Democrats have in Biden. Do they really think the country is going to go that much into the shitter that the people will elect Trump in 2024?

75% of Republicans will do anything to make liberals cry.

[Lewkowski]

75% of Republicans will do anything to make liberals cry.

True (and it is a worthy cause) but 75% of Republicans don't create an electoral win

[LittleFuzzy]

I understand your argument, but I think there's enough of a difference between "vote for me" and "storm the capitol to prevent congress from fulfilling their legal obligations" that a distinction could be made. It'd open too many doors for abuse to hand out that large of a free pass. But I'm sure Trump's legal team (if he can ever find anyone to represent him again) would make the argument, and I'm not a lawyer so :shrug:

Which, again, is why it's criminal behavior. But a sitting President has immunity to criminal charges for their actions as President outside of impeachment. It is a fairly broad immunity and it is intended to be. It probably shouldn't be the case but the politicians decided they were more interested in protecting themselves than the public interest some time ago.

[Wraith]

Which, again, is why it's criminal behavior. But a sitting President has immunity to criminal charges for their actions as President outside of impeachment. It is a fairly broad immunity and it is intended to be. It probably shouldn't be the case but the politicians decided they were more interested in protecting themselves than the public interest some time ago.

I wasn't lying. I understand what you're saying, and I'm not really saying you're wrong, I'm saying it's fuzzy. More than a little fuzzy, or I'd have gone with that. These aren't well tested things, and until they are a lot of we're talking about is suppositional. Presidential immunity is an inferred thing, it's not really well defined. It's even still fairly new by legal standards, since nothing was known about it until 1973 when it became a thing during the whole Nixon scandals. There are some limits already imposed, but the supreme court has always been very careful to leave as much as they can of what presidential immunity does as an open question.

This isn't really something the two of us can settle. Neither of us have that kind of power, so we have to wait until the people who do feel like deciding on an answer.

[LittleFuzzy]

True enough. I will add this additional note. Since we are talking about one specific action here (I will always retain hope that New York will get him for financial crimes, from before, during, or after his tenure in the White House, since those most certainly AREN'T part of his job as President, but that's a different matter), where's the jurisdiction? It was done in DC. So federal authority. FBI, maybe Homeland Security or Capitol Police? If impeachment fails, do you think the new administration is going to continue trying to go after him to get this kind of conviction? Even if we ignore whether the new Biden adminstration wants to continue, Biden himself is one of those professional politicians who has allowed the immunity doctrine to develop and flourish and will now be benefiting from it himself.

It probably shouldn't be the case but the politicians decided they were more interested in protecting themselves than the public interest some time ago.

I don't see those with their hands on the reins of federal authority now making themselves vulnerable for the future, if they have to in order to take aim at Trump for a third time. They'll say "let it go, it's time to heal and reconcile" instead.

[Wraith]

I don't have a clue how this'll go. I think offering Trump a pardon is the best move that Biden could make here. I also hate the idea of Trump getting a pardon instead of a long and drawn-out humiliation from bankruptcy and relocation to a penitentiary. I have no idea what Biden is going to do, but I think you're right and he's probably not going to be pursuing Trump with any kind of vigor.

[Aimless]

Afaict, the question of whether or not a former president is immune from prosecution for criminal acts committed during their tenure as president is not a settled matter, but that one should lean more towards the assumption that they can.

Although the exchanges in question were a little ambiguous, during Mueller's hearing, he agreed that Trump could be prosecuted for obstruction of justice after leaving office—without clarifying that it would have to be for new acts of obstruction, and, instead, implying that it would be for his obstruction as president.

Another source of encouragement are the opinions from Nixon v Fitzgerald, where justices appear to indicate that a former president might not/should not be immune from prosecution for crimes—in this context, criminal acts outside the scope of their official duties—they committed while in office. The most directly relevant passages are cited here: https://www.justsecurity.org/44264/s...dent-indicted/

I must conclude that the claim that "... a court (in the US anyway) can't convict him for his actions as President, only the Senate can" is, at the very least, overstated.

[Ziggy Stardust]

75% of Republicans will do anything to make liberals cry.

Enjoy

https://youtu.be/6sqeVKPbAwI?t=36

Some time later

https://youtu.be/U4MOEG8_Vvw?t=24

True (and it is a worthy cause)

https://www.youtube.com/watch?v=nejo-O6RF1Q