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Democraps have previously sought to block the certification of Republican presidents and Democratic lawyers have challenged elections, including on totally unsupported claims of machines flipping the results. If we are to suddenly convert the 14th Amendment into a running barrier to those who seek to challenge election results, then we have to establish a bright line to distinguish such cases.
The 14th Amendment bars those who took the oath and then “engaged in insurrection or rebellion against the same.” It then adds that that disqualification can extend to those who have “given aid or comfort to the enemies thereof.” According to these experts, Jan. 6 was an “insurrection” and Trump gave “aid and comfort” to those who engaged in it by spreading election fraud claims and not immediately denouncing the violence.
But even the view that it was an “insurrection” is by no means a consensus. Polls have shown that most of the public view Jan. 6 for what it was: a protest that became a riot. One year after the riot, CBS News mostly downplayed and ignored the result of its own poll showing that 76 percent viewed it for what it was, as a “protest gone too far.” The view that it was an actual “insurrection” was far less settled, with almost half rejecting the claim, a division breaking along partisan lines.
The theory that this was a rebellion or insurrection has always been highly contested. On Jan. 6, I was contributing to the coverage and denounced Trump’s speech while he was still giving it. But as the protest increased in size, some of us noted that we had never seen such a comparatively light level of security precautions, given the weeks of coverage anticipating the protest. We then watched as thinly deployed police barriers were overrun and a riot ensued. It was appalling, and most of us denounced it as it was unfolding.
Trump waited to speak, despite criticism from many of us. We now know that many aides called for him to call upon his supporters to pull back, but he waited for a couple hours.
Sulking in the Oval Office does not make Trump a seditionist. Indeed, despite formal articles of the second impeachment and years of experts insisting that Trump was guilty of incitement and insurrection, Special Counsel Jack Smith notably did not charge him with any such crime.
The reason is obvious. The evidence and constitutional standards would not have supported a charge of incitement or insurrection.
Yet these experts still believe that Trump can be barred from office without any such charge even being brought, let alone a conviction.
Putting aside the lack of evidence, there is a lack of logic to these claims. A relatively small number of individuals have been charged with seditious conspiracy, a widely misrepresented charge that can amount to as little as preventing the execution of any law.
If Trump supported a rebellion or insurrection, what was the plan? Not only did Smith not charge him with any such crime, but there was little evidence that even the most radical defendants charged were planning to overthrow the nation’s government or were part of a broader conspiracy. There were no troops standing by, no plan for a post-democratic takeover by Trump or his alleged minions. At worst, according to witnesses against Trump, there was a despondent and defiant president who may have gotten satisfaction from the chaos in Congress.
That leaves us with the argument that any effort to stop a constitutional process is akin to an insurrection or rebellion under the 14th Amendment. If that were the standard, any protests — including the anti-Trump protests and the certification challenges to electoral votes in 2016 — could also be cited as disqualifying. If that were the case, figures such as Rep. Jamie Raskin (D., Md) could be summarily purged from office for having sought to overturn an election.
The wrong way to talk about Ukraine’s counteroffensive Why are Congress’s budget experts failing to address the rise of climate-related health care spending?
We would be left on a slippery slope, as partisan judges and members would seek to block opposing candidates from ballots, all supposedly in the name of protecting democracy.
There is a simpler and more obvious explanation for what occurred on Jan. 6, 2021: A political protest became a political riot, and a constitutional theory became a constitutional legend.
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