Opinion: Congress has already disqualified Trump from the ballot

Opinion by Tristan Snell

(CNN) — The Supreme Court on Thursday is weighing the question of whether former President Donald Trump has been disqualified from office by engaging in an insurrection in violation of Section 3 of the 14th Amendment to the Constitution. The constitutional text is clear: Any official who took an oath of office is disqualified if they “have engaged in insurrection” against the Constitution or “given aid or comfort to the enemies thereof.”

The Colorado Supreme Court ruled Trump to be ineligible on this basis. The ruling encompassed both the January 6, 2021, attack on the Capitol itself, which interfered with the certification of the Electoral College vote for president, and the former president’s overall scheme to overturn the 2020 election.

The case now comes to the Supreme Court following Trump’s appeal, and it could determine whether Trump appears on the ballot in up to 35 different states where his eligibility is being challenged.

There are two factual questions at the core of this case: Was January 6 an insurrection and did Trump “engage” in it?

Fortunately, the Supreme Court need not look far for answers to these questions. They can simply look across the street at the Capitol, where majorities of both chambers of Congress already found that January 6 was an insurrection and that Trump not only engaged in it but “incited” it.

This may come as a shock. When, one might ask, did Congress ever hold such votes?

Those votes came in the second impeachment of Trump, in January and February of 2021, in which majorities of both the House and the Senate backed an article of impeachment against Trump for “incitement of insurrection.”

This was a finding of fact, by majorities of our elected representatives, after a full public trial in which Trump was able to mount a defense — and it should be deemed persuasive, if not conclusive, in answering the factual questions before the Supreme Court. Indeed, for the more right-wing justices, who are often fond of pontificating that courts should not make policy judgments and should instead defer to legislatures, one would think that such a clear public pronouncement from Congress on Trump’s engagement in insurrection would be a compelling precedent.

To be clear, the 14th Amendment does not actually require anyone to have voted to disqualify an insurrectionist, whether that’s a legislature or a jury. It certainly does not require a conviction, as some have tried to argue (and such bastardization of the plain language of a constitutional provision is exactly the opposite of what conservatives normally preach).

Legally, the insurrectionist is disqualified the moment he engages in insurrection. Though “innocent until proven guilty” is a familiar standard in criminal law, it shouldn’t apply to disqualifying someone from public office, since holding office is a privilege, not a right. Indeed, the courts in Colorado found Trump engaged in insurrection, and that alone was legally sufficient for Trump to be ruled ineligible there.

Yet if we are going to look for some additional fact-based determination on whether Trump engaged in insurrection — especially one that can be applied nationally — Congress has already provided us with one, and the Supreme Court should look no further.

The congressional votes regarding Trump should satisfy those who say we should “let the voters decide” rather than applying the Constitution and removing Trump from the ballot; the voters already decided. Our elected representatives convened, heard from both sides and voted that January 6 was an insurrection and that Donald Trump not only engaged in it but incited it. This was the conclusion of 232 of 435 representatives and 57 of 100 senators.

Those majorities already represent the will of the American people. True, it was not enough for impeachment, which requires a two-thirds majority in the Senate, but it is more than enough for disqualification, where no supermajority is stipulated and thus a simple majority should suffice.

If the voters change their minds at some future date, the Constitution also provides a way to restore Trump’s eligibility for office: Section 3 of the 14th Amendment allows for a disqualified official to be rehabilitated by a two-thirds vote of each house of Congress.

Without such an effort by Congress, it makes a mockery of both democracy and the Constitution to allow Trump to run again. If he is legally ineligible, he must not be on the 2024 ballot, or else the Constitution is meaningless. We cannot cherry-pick which provisions of the Constitution we feel like enforcing at any given moment and we cannot ignore provisions of the Constitution merely because they yield difficult or inconvenient outcomes.

Therein lies the greatest danger. We must not be fooled by the “let the voters decide” argument. It sounds democratic, but a suspension and circumvention of a clear constitutional provision could be the beginning of the end for our democracy and the rule of law. If any one part of the Constitution is set aside, no part of it is sacred.

If we “let the voters decide” Trump’s eligibility, does that mean we should also “let the voters decide” whether journalists should be jailed, as Trump has called for? Should we “let the voters decide” to strip voting rights from other voters they disagree with? A democracy without a constitution and the rule of law will not remain a democracy for long. Instead, we must apply all the laws as written — including the 14th Amendment.

We already possess a clear determination by Congress regarding Trump and January 6, and we must not ignore it. We cannot keep holding more and more votes until Trump finds one that he can win — or overturn successfully.

The Supreme Court may be wary of disqualifying Trump based solely on their own ruling as a group of unelected judges. But they do not have to do so. They can ground their ruling in the determination that Congress has already made, thus giving their decision both legal and political legitimacy. The Constitution is clear, Congress’ votes are clear and Trump’s disqualification is thus wholly justified. If some people disagree, they can push for Congress to reinstate Trump as provided by the Constitution.

What Congress did, Congress can undo. That is the genius of the 14th Amendment — which the Supreme Court should fully embrace.

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