The latest improbable Democratic champion, Representative Liz Cheney, just about said the quiet part out loud: her January 6 Committee has the singular goal of pre-defeating Trump ahead of any voting in 2024.
As it becomes clearer that the Committee is failing in its propaganda campaign to get Republican power brokers to dump Trump, and as it is near crystalline that the Committee will not find evidence leading to formal prosecution of Trump for sedition, treason, or insurrection, they are getting desperate. The latest? Purposefully misinterpreting an obscure phrase from a post-Civil War constitutional amendment.
Cheney said, “I think one of the really important things that our committee has to do is lay these facts out for the American people, so that they inform us in terms of our legislative activity going forward.” Cheney is talking about one phrase from the 14th Amendment, no doubt presented to her by an intern applying a Control+F search for “insurrection” to an online text of the Constitution. This is a familiar strategy for the Democrats, having for four years purposefully taken phrases out of context from the 25th Amendment and the Emoluments Clause to try to force Trump from office.
While the 14th Amendment was written primarily to grant citizenship and rights to freed slaves, it also created the “equal protection clause,” which cornerstoned landmark cases including Brown v. Board of Education, Roe v. Wade, and Bush v. Gore.
But tucked away in Section 3 of the amendment was a bit of post-Civil War housekeeping, the phrase “No person shall hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.” The 14th also provides for Congress to enforce the provisions via legislation rather than criminal penalty, and Cheney thinks that’s the key to Democratic success. Seriously.
The sensible intent in 1868 was to prevent Confederate leaders from returning to power. But the January 6 Committee is in 2022 so lacking in substantive content that they are considering some sort of legislation to extralegally designate Trump an insurrectionist, thus prohibiting him from taking office again even if he were to win the election. Cheney is not alone: Maryland Democratic Representative Jamie Raskin has also called the use of Section 3 of the 14th a “live proposition.”
Section 3 does not have a particularly glorious history. Reconstruction-era prosecutors bypassed it to bring civil actions to oust officials linked to the Confederacy, though Congress in some cases took action to refuse to seat members. Section 3 was last used in 1919 against a socialist congressman accused of having given aid and comfort to Germany during World War I. The congressman was eventually seated after the Supreme Court threw out his spurious espionage conviction.
So while the Constitution does specifically refer to legislative action by Congress as a way to enforce Section 3, precedent clearly shows that due process steps in. Imagine Cheney or anyone trying to label someone who controls the loyalty of roughly 50 percent of Americans an insurrectionist through a show of congressional hands. Such legislation would also have to pass both houses and be signed by the president, something beyond a non-starter.
The question of whether Section 3 is actually an unconstitutional Bill of Attainder is also not fully resolved. A Bill of Attainder in simple terms is a law designed solely to punish one person, an argument the Democrats of 1868 themselves used to try and prevent Section 3 from even becoming part of the Constitution. The question was left largely unsettled as old Confederates died off and the use of Section 3 effectively ended except in the fevered brains of people like Cheney.
There is also the open question of whether using Section 3 against Trump would represent an unconstitutional ex post facto law. The drafters of Section 3 were clear that their intent was precautionary, looking not to punish Confederates for their past per se but to prevent them from taking power again in the future. It was not a measure of punishment, but a measure of self-defense, and the bar was set very high: participating in actual warfare against the United States to break up the Union. In Trump’s case, he’d be voted an insurrectionist for making a speech that failed to keep him in the White House.
More problems? Section 3 prohibits someone from taking office, not from running for election. Imagine Trump conducting a full campaign, winning the race, and then being prohibited from taking office over a clever interpretation of some words from 1868 clearly meant for a wholly different purpose. Nah. The use of the 14th Amendment to end Trump is the kind of thing non-experts with too much Google time can convince themselves is true.
So given that there is no realistic possibility of preventing Trump from taking office in 2024 under Section 3 of the 14th Amendment, what is this all about? Most superficially it is a chance for a trog like Liz Cheney to get on TV to spout some quasi-legalistic garbage. Her garbage will then be diluted through CNN as “Trump’s election is barred by the Constitution” and then repurposed into Lincoln Project Facebook memes.
But more substantively, silliness like Cheney’s is a sign of desperation by the Democrats. Increasingly sure they will lose at the ballot box, the Dems’ strategy is to prevent Trump from ever reaching the ballot box. Failing to prosecute him, all they have left is to persecute him, across tax courts in New York, the January 6 Committee, endless manhunts for Capitol trespassers, and the like. For a party that cries continuously about how democracy is in danger, the Democrats act increasingly like thugs in a banana republic trying to bring down their opponents extra-electorally.
Political prosecutions are not new in America. Political pogroms are. It is sad to watch the Democratic Party embrace third-world practices as policy.
