Mr Trump is appealing

But is he an insurrectionist?

While our social circles differ, and leaving all question of whether we would ever hit it off together, fact is, whether I like him or not, and whether I like it or not: Mr Trump is appealing.

The State of Colorado ruled that he cannot stand for election to the presidency in that state because he is an insurrectionist. I wonder what Colorado will do if the Supreme Court of the US overturns its ruling. Perhaps hoards of objectors will storm the Supreme Court and heap karma on it, trying to stop it counting its votes; or maybe Colorado will refuse to recognise Mr Trump as president, assuming he wins in the other 49 states, that is. Maybe they’ll cross that bridge when they get to it ... for there are a few bridges yet.

[Footnotes follow the relevant section in each case.]

Here are the bones of contention in the Trump disqualification case:

Can a past president be disqualified?

1)     The 14th Amendment, section 3,^[1] does not apply to an insurrectionist who engaged in the relevant conduct whilst or after acting as president, because the president isn’t an officer.

Yes, they are. The president is an officer. Holding office. In an Oval Office, in fact. It’s not the room they work in that makes them an officer, but the fact the Constitution calls them that, 25 times. If you are president and then engage in proscribed activity, you can’t be president again. That’s the rule.

But, if you engage in proscribed activity and subsequently want to stand for the presidency without having ever before been president (or another relevant position), you can. Even if you’re incarcerated. That is a good rule, which works as a counterbalance to political witch-hunting.

^[1] “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, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.”

Is subordinate legislation needed to disqualify?

2)     The 14th Amendment doesn’t apply because parliament (Congress) hasn’t passed a statute to implement it.

No, that’s right, they haven’t. But they passed the amendment to the Constitution. That should count. There is a difference between the enactment of a statute and its commencement. If a law doesn’t come into effect immediately, commencement will be provided for in the body of the act, usually something like “this act comes into force on” whenever. Enactment is completion of all the procedures necessary for a bill (here, an amendment to a constitution) to pass into law. Commencement is the time from when the enacted law actual starts applying. If statutes say nothing about commencing at a later date, they are normally deemed to commence upon enactment. The 14th Amendment makes no provision for delayed commencement, so it came into force in 1868 and is still in force, not having been abrogated in the interim.^[2]

^[2] Canada enacted the Statutes Repeal Act in 2010 to dis-enact un-commenced legislation after ten years, if no order is issued by the Governor in Council. But the laws in question must provide for commencement to be triggered by order of the Governor in Council for the 2010 act to apply.

The criminal offence of insurrection

3)     Mr Trump isn’t an insurrectionist because he hasn’t been tried and convicted of an offence of insurrection.

The 14th Amendment prohibits anyone who has held public office sworn to uphold the constitution and who then engages “in insurrection or rebellion” from ever holding office again.

There are a number of requirements for running for president: broadly, they’re age, nationality and not being an insurrectionist. The law requires candidates to be 35 years of age on the day they take office. They must be US citizens. And they must not be insurrectionists or rebels or have aided the US’s enemies.

Mr Trump is, I believe, over 35 years of age, and he’s an American. But is he an insurrectionist? Is he a rebel? Or has he aided or comforted an enemy of the US? The Supreme Court of the State of Colorado says Trump is an insurrectionist, but how would they know?

• Did they read the transcripts from the Congressional January 6 Hearings?

• Has Mr Trump been convicted of running amok in the Washington DC Capitol, as some others have?

• Has Trump made a confession or admission of insurrection, in an affidavit or solemn sworn statement?

If he needed to, Mr Trump could probably present a driver’s licence or his birth certificate as evidence that he meets the age requirement. In years past, Mr Trump even called for Barack Obama’s birth certificate, which was duly produced in response, to prove that Mr Obama was an American. There will surely be some requirement to file those documents—extracts from the register of births attesting to nationality and date of birth—but there is, to my knowledge, unlike for sex offenders, no register of insurrectionists, rebels, and persons giving aid or comfort to enemies of the United States. Given this absence, how does one go about proving the insurrection which Trump is said by Colorado to have engaged in, and, for that matter, its absence?

The issue here is that age and nationality are fairly easily proved, using standard documents that everyone has in their possession. But a negative cannot be proved, not with a standard document. At best, like with a certificate of good conduct, all a public register can state is that, on a certain date, it knew of certain (or no) information. And, if proof of an absence of insurrection is not generally submitted by presidential candidates, it can’t be suggested that one should be introduced, surely? In short, insurrection is the only criminal offence that will bar you from standing for president (you can even stand if you have committed murder), and yet, so it would seem, it doesn’t even need to be proved for it to debar you.

Whilst we’re here:

·       What is an enemy of the US?

Enemies and traitors of the United States

An enemy of the US can be a country from which the US has withdrawn its diplomatic credentials, or on which the US has declared war, or relative to which the US is bound under a treaty (like the North Atlantic Treaty) to consider a nation that is in conflict with a fellow treaty nation to be hostile to the US itself.

Maintaining diplomatic ties can be an unreliable indicator of enmity, however, because most nations endeavour to maintain (possibly third-party) ties of diplomacy, even if they are openly hostile to each other.

There is a list of countries with which US arms contractors are not allowed to deal, which is laid down under the US Export Administration Regulation. It currently includes (this may differ from the list on 6 January 2021):

• Belarus,

• the People’s Republic of China,

• Cuba,

• Laos,

• North Korea,

• the Russian Federation and

• Vietnam.

But whether that makes these countries enemies of the US, I shouldn’t like to say. The list notably doesn’t include Syria, Iran, Afghanistan ... That said, an enemy need not be an entire nation, but can simply be someone who is acting in an unlawful manner contrary to the US’s interests—classically, a spy, a defector, a traitor.

Here, one must tread terminologically carefully. An enemy is defined in terms of the US Constitution’s provisions on treason; there are plenty of other definitions,^[3] since the word enemy is in common, everyday parlance, but I am unaware of another definition in US law.^[4]

In short, an enemy, for the purposes of the crime of treason, is always a foreign power. Therefore, to be guilty of lending aid or comfort to an enemy of the US, the aid or comfort must be lent to a nation (or a person of a nation) with which the US is in a state of open hostility.^[5] The American Civil War, being, as it was, a fight between the US Union and the secessionist Confederate States, was not a state of open hostility with a foreign power, but with a part of the US that no longer wanted to be part of that Union. It did indeed want to be a separate nation, but it was precisely the war that prevented the Confederacy from consummating that desire. Moreover, at no point did the Union ever recognise the Confederacy as a separate legal entity.^[6]

Rather than the Confederacy, now, let us dwell an instant on Mr Trump, for I believe that, whatever mileage there may be in a finding in fact of insurrection, some distance may yet be offered by the enemy provision. I don’t think that Mr Trump can be said to have committed treason, because no foreign power was involved in the 6 January events and the treason provision has not changed from that immutable state commented on in Greathouse (see footnote 5). Nonetheless, what if we turned the lens around and considered whether Mr Trump himself could be regarded as a foreign power?

Tying the definition of an enemy to the restrictive terms of the treason definition, of course, sat athwart the intentions of the 14th Amendment’s drafters, which is why it is reasonable to broaden the construction of its section 3 to extend the ambit of enemies also to internal enemies, not just foreign powers; for, to do otherwise would mean that, on the word enemy, the provision missed its mark (especially given the context within which it was enacted).

The framers of the US Constitution can never have contemplated such an attempted scission as occurred on 8 February 1861. It was that act that rendered the 14th Amendment even necessary. Whatever merits or demerits the treason provision had had up to the point of the amendment, its framers were avid to see the term enemy extended beyond just foreign enemies. Unimaginable though the north-south split was in the drafters’ minds in 1776, one might imagine how dumbfounded those drafters of 1868 would be to now see the amendment being applied to no less a personage than a past president—of the Union, to boot.

^[3] enemy: 1. Someone who opposes or inflicts injury on another; an antagonist. 2. An opposing military force. 3. A state with which another state is at war. 4. A person possessing the nationality of the state with which one is at war—Also termed enemy subject. 5. A foreign state that is openly hostile to another whose position is being considered. [Garner, Bryan (ed.). 2004. Black’s Law Dictionary, 10th edition. St Paul, MN: Thomson Reuters.]

^[4] In defining the term insurrection, for instance, sources of inspiration have been taken from contemporary dictionaries of the time (1828), modern dictionaries, modern insurance policy force majeure clauses and, of course, the parliamentary debates and judicial dicta.

^[5] United States v. Greathouse, 17 October 1863 [4 Sawy. 457; 2 Abb. U. S. 364.]: Treason having been defined by the constitution, congress can neither extend nor restrict the crime; its power over the subject is limited to prescribing the punishment (§ 2). The term “enemies,” as used in the constitutional clause defining treason (Const, art. 3, § 3), applies only to subjects of a foreign power in a state of open hostility with us; it does not embrace rebels in insurrection against their own government (§ 3).

^[6] It’s a conundrum that even misfooted the Russian President, Vladimir Putin, in 2022: having insisted that Ukraine has no right to exist and having attacked and bombarded what he argues is an integral part of the Russian Federation, he conceded that his forces had conducted artillery attacks on the energy infrastructure of a neighbouring country, and it was precisely his denial that Ukraine is a country that he cited as the pretext for his special military operation.

The Ukrainian analogy

Looking only at the constitutional legal arguments in the Trump case and considering the legal arguments adduced by the Russian Federation in Ukraine, we might have some better insight on how the disqualification provision is functioning, by removing it from its context and looking simply at its legality. Later, I have to assume Russia wins this war, simply because the Union won its war.

As stated, an insurrectionist cannot be a foreign power, because, quite simply, those acts that qualify as insurrection for domestic purposes qualify, internationally, as acts of war. Mr Biden’s government was not a foreign power. Was Mr Trump’s?

If we lend some latitude to the tricky terminology here, one in fact has a situation (with the Civil War) not entirely unlike Russia and Ukraine. Russia claims that Ukraine is not entitled to declare its independence, and that Moscow is Ukraine’s legitimate government. Kyiv argues the contrary: that it is entitled to secede.

Now, if we apply the US Constitution, Russia is our Union side, Ukraine our Confederacy side. If Russia prevailed in its conflict, would Ukraine and its leaders be guilty of insurrection? The answer could be “yes”: by “seceding” from the Russian Federation, Ukraine will not have breached the treason provisions of the US Constitution, because, aside from Ukraine and Russia themselves, no other foreign power is involved. On the old, narrow reading of the treason provision (pre-1868), Ukraine cannot be an enemy, because Russia claims Ukraine as part of Russia, and, so, neither the term enemy nor the term treason applies. But, now comes the 14th amendment and enemy is suddenly also extended to include an enemy within.

Volodymyr Zelenskiy is our Donald Trump. Remember: insurrection is not a crime committed by a body politic; it is committed by individuals. Therefore, Zelenskiy wouldn’t be guilty of the deemed insurrection committed back in December 1991, when Ukraine’s independence was declared. He could be accused of insurrection as a successor to that line of presidencies (he became president some time after the split from Russia, in 2019) but, as strange as it sounds, Zelenskiy could then actually stand for election as president of Russia, because his insurrection was not engaged in subsequent to his swearing an oath to uphold the Russian constitution. He swore to uphold Ukraine’s.

Trump’s not an insurrectionist–he’s an invader

Now to Mr Trump. Trump neither seceded from the Union, nor did he become a leader of a portion of the US that had seceded (à la Zelenskiy). But Trump’s acts on 6 January 2021 can be seen in two different lights: one, that he sought the perpetuation of his own administration, and hence tried to prevent Mr Biden from assuming the reins of power; or, two, he in fact had been voted out of office and would two weeks later quit office upon the swearing of Biden’s oath. Therefore, on this second view, there was no “Trump administration” for him to perpetuate, since Mr Biden was forming his own administration in waiting by then.

The substance of Trump’s act was to claim his own administration as the true administration of the country. He didn’t use military force, and he didn’t come marching through the land like Giuseppe Garibaldi did in Italy. But the effect is as if he had done so. Mr Trump launched not an insurrection on 6 January 2021, but an invasion and, if he didn’t do that on 6 January (on the argument that his government was technically still in office), he most certainly did so after 20 January, on which day the new president was sworn in. Trump sought to supplant the legitimate government with his own government, which was by then in desuetude.

The Republic of Mar-a-Lago

Mr Trump constructively constituted himself a foreign power, since his aim was usurpation of the legitimate American government, and, inter se, he and his cohorts, in their mutual dealings, aided and comforted one another. Each of them comforted an enemy and those who’d sworn an oath to uphold the Constitution upon assuming office under the United States thereby disqualified themselves ipso iure from ever holding office as president (“again”, as the case may be). Trump breached the treason provision of the US Constitution by consorting with enemies, and, what’s more, this time, in the narrow, pre-14th Amendment sense: enemies from outside legitimate government who would seek to overturn that legitimate government.

Whilst there is evidence of what Mr Trump did, said, tweeted and, damningly, didn’t say on 6 January 2021, I have my doubts as to whether that is really sufficient to tar him with the brush of insurrection. What I believe may well disqualify Mr Trump, with all due respect to the justices of the Supreme Court of the United States, is not what he did on that fateful day, but what he did in all the months and years that have followed. He is still engaged in his invasion, and, crucially for this thesis, still has support and assistance: if he were alone, his acts would not in my view be enough to constitute him as having aided or comforted enemies of the US. It is the fact that he and his team are in the plural that satisfies that requirement. He may not have called it the Republic of Mar-a-Lago, but he may as well have done. For I don’t believe an enemy of the US needs to be a duly constituted, fully fledged nation state.

Felony murder

The break-in to the Capitol building was a criminal act, during which at least one death occurred (a police officer struck with a fire extinguisher). If Mr Trump can be proved to have encouraged and promoted that action, then, even if he had no intention of causing any deaths, his complicity in the scheme to interrupt the vote count must be sufficient to lay a charge of felony murder on Mr Trump. If that conviction can be secured, then the penalty (for what then converts to first-degree murder) is life imprisonment.

Were he to be tried and, on conviction, sent to prison for his purported insurrection, he would be deprived of his liberty by due process of law, assuming all was indeed duly done. What Southern politicians did or did not do, what they were or were not charged with, and what they were or were not prosecuted for in the aftermath of the fall of the Confederacy is really neither here nor there: the argument must stand that section 3 disqualifies an individual simply by dint of his or her having held certain offices or positions, and having “done” insurrection.

Reasonable doubt versus balance of probabilities

What Colorado has done is not quite to disqualify Mr Trump for his insurrection: what it has done is to have made a finding in fact that Mr Trump engaged in insurrection, ergo he is disqualified. That helps clarify the situation regarding the argument that turns on proving his criminal guilt. One cannot produce before the court any conviction of Mr Trump by a criminal jurisdiction on the charge of insurrection, because there exists, at the present time at least, none to present.

Civil claimants who claim damages for losses sustained further to a criminal act will often hold fire until the prosecution has concluded, they hope, with a guilty verdict (in Belgium, they actually conjoin in the prosecution as constituted third parties). Because a criminal finding of guilt must satisfy a higher standard than a civil judgment (beyond reasonable doubt, versus balance of probabilities), the criminal conviction will generally secure the award of damages (which is why the plaintiff waits)-- provided causation is sufficiently proximate, of course. However, winning first in a civil action^[7] is not an indictment, and a far cry from a guilty verdict, on any penal charge. The balance of probabilities that will see a defendant liable for a plaintiff’s loss is simply not enough to convict the defendant.

So, the Colorado court has made a finding in fact that Mr Trump engaged in insurrection on 6 January 2021; and that will not function as a criminal judgment. I do wonder whether it is enough to meet the requirement for the 14th Amendment disqualification to be triggered: found on a balance of probabilities to have engaged in usurping the federal government?

It would of course be feasible for anyone to make an utterly spurious accusation of insurrection against any presidential candidate. But, while the accusation against Trump meets the test of common knowledge, that is legally insufficient to deprive a man of his liberty (it falls fairly squarely into “hearsay”--unless his accusers were among those who were actually there).

^[7] Not quite what we have with Colorado: it’s public law/constitutional law, but it’s certainly out of the penal realm.

The let-out clause

Finally, the US parliament (both chambers) can, on a qualified majority, effectively tell Mr Trump, “Oh, all right then,” and still allow him to stand.

There are parts of the US Constitution that resemble the rules for a cricket club.

What is the disqualification from?

The 14th Amendment disqualifies relevant individuals from being and holding. They can’t be a Congressperson. And they can’t hold office.

However, the provision says nothing about standing for office. Only once the oath of fidelity to the Constitution is sworn is an individual a Senator or Representative. Only then do they hold office.

Now, the Republican party is fairly up in arms about these developments and is not pleased at the prospect of their favoured candidate possibly being struck from the ballot papers. However, I imagine they’d be incandescent with rage if Mr Trump stood and won and, at the inauguration, the Chief Justice said, “Sorry, sir, not you. Was there a runner-up?”

On that analysis, the process before SCOTUS will at least clarify something before next January. But I think Trump could still validly run for office. What good would that do him?

Well, if he were to die in office, his vice president would take over from him. If Trump were elected and barred from taking his oath, he could defer in favour of his vice president. His popularity in the party is such as to augur well for the party’s success. Getting them the presidency could then be his final act of benevolence to the party, even if he can’t take up his office. (I know, it sounds more like James Carter.)

The Chief Justice would be right: there would be a runner-up. There are provisions for no end of eventualities: the president is incapacitated, mentally deranged, dies, is killed, is temporarily hindered from fulfilling his duties, has a cold, and so on. These are eventualities for which contingencies are prepared beforehand. We are in such uncharted waters, it’s worth considering whether the contingency of deferring to the vice president can solely be invoked where the president him- or herself has actually assumed office. What would the difference be between a president who, at his or her inauguration, has a heart-attack and collapses dead after pronouncing the oath, and one who simply never swears it?

No recusal expected

The US Supreme Court is in a bit of a bind, given its avowed originalist construction of the relevant law. It could reverse that trend, but that would, quite frankly, make a mockery of the entire US legal system (i.e. “we decide how we feel like”). But they could do it. They can do anything, in point of fact. They can sit on cases in which they have high-stakes, family, patrimonial interests; they can take gifts worth eye-watering amounts from influential real-estate barons and political bigwigs, and they can certainly wipe the Colorado judgment a quo off the slate.

As the Ukraine comparison, above, shows, seeing the wood for the trees in this technical legal matter can be helped by applying analogy to the facts. What unsettles the entire USA at the present time, however, is an apprehension that, rather than being quietly relied upon to apply wisdom with equanimity and even-handedness to an anything-but-easy case, it is instead feared the Supreme Court will contrive a solution to fit the appellant’s political agenda. I find it sad to be voicing the concern that such could be true relative to a court of law in the United States. It is to be fervently hoped that, instead, the justices will judge the case as befits the law, and not the politics.

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The foregoing may verge on creative lawyering, and the ideas may face a knee-jerk reaction of, “Don’t be ludicrous—Mr Trump isn’t a foreign power.” Of course he isn’t, but he doesn’t need to be one in your and my minds. If you wanna gettim, it must be done methodically and legally. Because saving democracy just to trash it again in hammering the guy who wanted to usurp it is hardly anything to rejoice in. Two wrongs, and all that.

No, he doesn’t need to be a foreign power to us, but, if you do wanna gettim, he might be that or something equally creative for the purposes of the statute, and that would be enough.

This is the product of an afternoon’s thought, and, lawyer as I am, I like the law. But I also like a bit of “what if” speculation, so try this parallel universe:

If the Civil War had never occurred, and if the 14th Amendment had never seen the light of day, and if Mr Trump had still done all he did and is doing, what safeguard, then, would there have been?

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