The House committee investigating the Jan. 6 insurrection should focus on disqualifying former President Donald Trump from office under Section 3 of the 14th Amendment.
Disqualification is triggered by engaging in “insurrection against the authority of the United States.” The committee should assemble an ironclad record showing that Trump engaged in insurrection against the authority of the United States under the 12th Amendment by directly, repeatedly and menacingly exhorting Vice President Mike Pence to not count state-certified electoral votes that had survived more than 60 judicial challenges, as the amendment requires.
This means the committee must subpoena Pence to testify in prime time. Pence is to the Jan. 6 insurrection what President Nixon’s tapes were to Watergate. The former vice president is the smoking gun. He has direct, incontrovertible knowledge of Trump’s incessant cajolery to ignore the 12th Amendment to thwart the peaceful transfer of presidential power.
On Jan. 5, 2021, Trump’s implied threats to Pence reached a sufficient threshold to provoke the vice president’s chief-of-staff to alert Secret Service that Trump might be a security risk for Pence. Pence betrayed Trump’s high-octave badgering by refusing to leave the Capitol multiple times during the Jan. 6 insurrection and insisting that Congress certify the vote that day.
Trump should be given an opportunity to rebut the evidence showing corrupt, unconstitutional motives in menacing Pence. Declining to testify would permit an inference of Trump’s guilt in spite of the Fifth Amendment privilege against compulsory self-incrimination because the Supreme Court held in Baxter v. Palmigiano that guilt may be inferred when the amendment is used in noncriminal proceedings.
After the committee assembles a proper record against Trump, Congress should vote by concurrent resolution to declare the former president disqualified from holding any office under the United States pursuant to Section 3. The declaration would prevent Trump electors from appearing on state ballots in 2024.
Supreme Court Justice Hugo Black declared in Oregon v. Mitchell, that, “It cannot seriously be contended that Congress has less power over the conduct of presidential elections than it has over congressional elections.” And the House voted twice to exclude Victor Berger from congressional office after winning races in Wisconsin in 1910 and 1918, acting pursuant to Section 3.
The Constitution is not a suicide pact. Former President Trump is a manifest danger to the survival of the Constitution and the rule of law. His entire life bespeaks a manifesto of pursuing limitless power, money and fame to feed insatiable narcissism at all costs. Judicial notice of Trump’s character can be taken.
President Trump, emulating Napoleon’s self-coronation, boasted, “Then I have Article 2, where I have the right to do anything I want as president.” He acted as promised.
Trump’s former national security advisor John Bolton said in his memoir that “The pattern [of President Trump’s behavior] looked like obstruction of justice as a way of life.” The Mueller Report corroborates Bolton, including Trump’s multiple efforts to interfere with the report by trying to get Mueller fired — a second edition of President Richard Nixon’s infamous Saturday Night Massacre. Trump officials openly and notoriously flouted the Hatch Act in commandeering federal property and personnel to assist his 2020 presidential campaign. His administration misspent federal funds in violation of the Antideficiency Act. He flouted congressional subpoenas and formal demands for information in order to operate the government in secret.
None of these incidents were prosecuted, however, partially because of the misconceived opinion of the Justice Department’s Office of Legal Counsel declaring that an incumbent president is constitutionally shielded from indictment.
Can it be doubted that Trump would have no scruples about torching the Constitution if re-elected in 2024? Can it be doubted that Trump would not refuse a crown — like George Washington?
The unexcelled handiwork and sacrifices of our ancestors will be imperiled if Congress neglects to disqualify the former president from future public office under Section 3 of the 14th Amendment.
The buck stops with the members.
Bruce Fein was associate deputy attorney general under President Reagan and is the author of “Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy.” Twitter: @brucefeinesq.