Sunday, May 22, 2022

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‘Giving comfort’ is important


Some historians and constitutional law scholars for the past year or so have argued that the 14th Amendment prevents Donald Trump from once again serving as President, or indeed from holding any elective office. The power of that argument no doubt depends on the findings of the U.S. House select committee investigating the January 6, 2021, assault on the U.S. Capitol.

The group’s proposition goes like this:

The 14th Amendment to the U.S. Constitution, ratified in 1868, was adopted in Congress, and then ratified by the necessary number of state legislatures, as a way to deal with the results of the Civil War. The amendment drastically changed American law and society, in several ways.

Among them were the postwar status both of former slaves and of former Confederate supporters. Section One of the 14th Amendment, among other changes, granted citizenship to former slaves, and forbids any state from abridging “the privileges or immunities” of U.S. citizens or denying anyone the “equal protection” of the laws.

Section Two erases the “three-fifths” clause of the Constitution, which had established that a slave was to be counted as three-fifths of a person for purposes of representation in Congress and the Electoral College.

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Section Four forbade payment of Confederate debt.

Section Five says that Congress can enforce the 14th Amendment “by appropriate legislation.”

It’s Section Three on which the historians and scholars base their logic.

Section Three, in summary, states that no one shall hold any federal, state or local public office who, “having previously taken an oath” to support the Constitution as a public servant, “shall have engaged in insurrection or rebellion against the same, or given comfort to the enemies thereof.” Congress may remove that restriction (stated as “such disability”) only “by a vote of two-thirds of each House . . . .” 

The contemporary argument, of course, stands or falls on whether Trump either engaged in insurrection or gave comfort to those who did, or maybe both.

A key component of the proposition is that, unlike the two-thirds Senate majority required for conviction following an impeachment, it would take only a simple majority of each House of Congress to decide that question.

That’s what the House select committee is looking into. What it decides, and then what Congress as a whole, the U.S. Justice Department, and probably the courts do with that decision, will validate or invalidate the argument about Trump’s eligibility to serve again as President.

The phrase about “giving comfort” is important. The 14th Amendment doesn’t require that a public officeholder actually engaged in insurrection or rebellion; just aiding those who did is enough to disqualify. Trump didn’t march on the Capitol, but he’s being investigated for possible complicity in the attempt to overthrow the results of the 2020 election, on January 6 and before and afterward.

Actually, the House, by impeaching him on those grounds in the second impeachment go-round, has determined that he did just that. And seven Republicans in the Senate agreed – the Senate voted 57 to 43 to convict Trump, but that result fell short of the two-thirds majority required to find him guilty in the impeachment process. The vote in each house surpassed the simple majority required by the 14th Amendment.

An attempt by Congress under the 14th Amendment to disqualify Trump from serving again as President would immediately be blasted as a brazen political act. That would be correct. But depending on the findings of the House select committee, it could be hard to deny the truth of the charge. And it’s pretty certain the Republicans will not bring the accusation. That would leave it up to the Democratically controlled Congress.

Stay tuned. ♦

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