The 14th Amendment: Banning Trump and His Cultists from Public Office

by | Aug 9, 2023 | Progress & Solutions

Photo by Jon Tyson

The 14th Amendment: Banning Trump and His Cultists from Public Office

by | Aug 9, 2023 | Progress & Solutions

Photo by Jon Tyson

Trump cultists are already calling for death to people who oppose his efforts to capture the White House in 2024: It’s time for the 14th Amendment.

Republished with permission from Thom Hartmann

Donald Trump conceived and led an insurrection against the United States and must be banned from public office, per the 14th Amendment. The campaign to keep him off the ballot should start at the state level, and in some ways already has.

Georgia citizens tried to prevent Marjorie Taylor Greene from running for re-election and lost for lack of clear and convincing evidence, according to the Georgia judge, that she gave “aid and comfort” to the January 6th insurrection. (Greene testified over 80 times during the proceeding that she “could not remember” details of her role in promoting the insurrection.)

But New Mexico citizens succeeded in removing Couy Griffin, founder of Cowboys for Trump, from his office as county commissioner after he was arrested at the Capitol in the midst of his attempt to overthrow our government.

Now it’s time to do the same with Trump, and to do it in as many states as possible.

The tool being used in both the above cases is Section 3 of the 14th Amendment, which 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, … shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

The dictionary definition of an insurrection is “a rising or rebellion of citizens against their government, usually manifested by acts of violence.” That’s exactly what Donald Trump called into being and led against our nation after he lost the popular vote by 7 million ballots and was crushed with a 306-232 margin in the Electoral College.

Even John Eastman claimed it was an insurrection along the lines of America’s separation from Great Britain, declared by Thomas Jefferson in 1776. In an interview last week, Eastman said:

“Our Founders lay this case out. There’s actually a provision in the Declaration of Independence that a people will suffer abuses while they remain sufferable, tolerable while they remain tolerable. At some point abuses become so intolerable that it becomes not only their right but their duty to alter or abolish the existing government.”

Yes, “altering or abolishing the existing government” is definitely an insurrection, and that’s exactly what Trump and Eastman tried to do by preventing the guy who won the election, Joe Biden, from taking his place as President of the United States.

The 14th Amendment was passed in the wake of the Civil War and the clear object of Section 3 was to prevent former Confederate insurrectionists from holding public office. At the time, the concern was that—particularly in the Southern states—enough former Confederates may be elected to public office that a brand-new secession or insurrection could take off.

Today, we face a similar threat. And, if anything, it’s increasing: over at The Donald, a website where much of January 6th was organized, Trump cultists are already calling for death to people who oppose his efforts to recapture the White House in 2024.

Donald Trump led an attempt to overthrow the government of the United States—an attempted insurrection—which included his acolytes storming the US Capitol with such violence that nine people, including four police officers, died.

But the evidence is also clear that, even if the January 6th attack on the Capitol hadn’t happened, what Trump organized and tried to execute was an insurrection.

As the bipartisan January 6th House Select Committee unanimously concluded:

“Under Section 3 of the Constitution’s Fourteenth Amendment, an individual who previously took an oath to support the Constitution of the United States, but who has ‘engaged in an insurrection’ against the same, or given ‘aid or comfort to the enemies of the Constitution’ can be disqualified from holding future federal or state office. …

“The Committee believes that those who took an oath to protect and defend the Constitution and then, on January 6th, engaged in insurrection can appropriately be disqualified and barred from holding government office—whether federal or state, civilian or military—absent at least two-thirds of Congress acting to remove the disability pursuant to Section 3 of the Fourteenth Amendment.”

That same committee also referred Donald Trump to the Department of Justice for prosecution under 18 U.S.C. § 2383 for “assisting and providing aid and comfort to an insurrection.”

That law, sometimes referred to as the Rebellion and Insurrection Act, says :

“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.”

While Jack Smith has not charged Trump under this act (presumably because it would drag out a trial), a conviction in federal court is not necessary for a state court to remove him from the ballot in that state. This issue has been repeatedly litigated, as Free Speech for People (FSP) has outlined in an extensive legal brief, and it can even be handled by a local judge (who can be upheld or overruled by state appeals courts and supreme courts).

Just a few weeks ago, FSP submitted a request to the Secretary of State here in Oregon, LaVonne Griffin-Valade, explicitly saying:

“On January 20, 2017, Trump swore an oath to support the Constitution as an officer of the United States, i.e., as president. The events of January 6, 2021 constituted an “insurrection” within the meaning of Section Three of the Fourteenth Amendment, and Trump “engaged” in that insurrection within the meaning of Section Three. Consequently, he is disqualified from holding “any office” under the United States—including the presidency. As a result, he is ineligible to appear on the presidential primary ballot in Oregon.”

Along with the Mi Familia Vota Education Fund, FSP has submitted similar demands to the secretaries of state in California, Colorado, Georgia, Michigan, Massachusetts, New York, North Carolina, and Pennsylvania. So far, no state has responded with any meaningful action, but this is early days.

MoveOn.Org is running a national petition drive calling on federal legislators to pass a law explicitly saying that Trump incited and led an insurrection and is therefore ineligible to run for president. At the moment it has over 330,000 signers.

Citizens for Responsibility and Ethics in Washington (CREW) has prepared an extensive report summarizing the legal and historical rationale for Trump being barred from the ballot in every state.

Red states, of course, won’t go along with this, but all it would take are a handful of Blue states— particularly swing states like Michigan, Wisconsin, and Pennsylvania— to put a ballot ban into place to effectively preventing him from ever regaining the title and power he held and abused between January 20, 2017 and that date in 2021.

This is a serious and legitimate effort. Even if Trump doesn’t end up the GOP’s nominee, it’s important to put this ban into place in multiple states to lay down a marker against future MAGA-type Republican demagogues who would similarly seek to overturn a fair and free election and thus end democracy in America.

And while the effort to keep Marjorie Taylor Greene off the ballot in Georgia failed, it’s worth trying again leading up to the 2024 election for the other members of Congress who are known to have, at the very least, given “aid and comfort” to the insurrection effort.

They could include Tommy Tuberville, Rick Scott, Roger Marshall, John Kennedy, Cindy Hyde-Smith, Josh Hawley, and Ted Cruz in the Senate and Andy Biggs, Scott Perry, Paul Gosar, Mo Brooks, Matt Gaetz, Louie Gohmert, and Lauren Boebert in the House.

In each case the action can be taken at the state level, or even at the county level in the case of members of the House. It was at that level, after all, where Couy Griffin was disqualified from public office in a court of law.

If you want to help or encourage this effort, sign MoveOn’s petition, put in your name for updates with CREW, let your federal elected officials know your opinion at 202-224-3121 (the US Capitol switchboard), and call your state’s Secretary of State.

And tell everybody you know. This is the sort of issue where public pressure is absolutely necessary to produce a positive result. Pass it on…

Thom Hartmann

Thom Hartmann

Thom Hartmann, one of America’s leading public intellectuals and the country’s #1 progressive talk show host, writes fresh content six days a week. The Monday-Friday “Daily Take” articles are free to all, while paid subscribers receive a Saturday summary of the week’s news and, on Sunday, a chapter excerpt from one of his books.

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