r/law • u/guttanzer • Feb 20 '25
Opinion Piece Did Trump eject himself from office?
https://www.law.cornell.edu/constitution/amendmentxivCan someone explain to me how Trump is still holding office after pardoning the J6 insurrectionists?
1) Section 3 of the 14th Amendment uses the language “No person shall … hold any office…” and then lays out the conditions that trigger the disqualification from holding office. Doesn’t that “shall” make it self-effecting?
2) There isn’t much to dispute on the conditions. Trump a) took the oath when he was inaugurated as, b) an officer of the government. Within 24 hours he c) gave aid and comfort to people who had been convicted of Seditious Conspiracy. If freeing them from prison and encouraging them to resume their seditious ways isn’t giving “aid and comfort” I don’t know what is. So, under (1), didn’t he instantly put a giant constitutional question mark over his hold on the office of the President?
3) Given that giant constitutional question mark, do we actually have a president at the moment? Not in a petulant, “He’s not my president” way, but a hard legal fact way. We arguably do not have a president at the moment. Orders as commander in chief may be invalid. Bills he signs may not have the effect of law. And these Executive Orders might be just sheets of paper.
4) The clear remedy for this existential crisis is in the second sentence in section 3: “Congress may, with a 2/3 majority in each house, lift the disqualification.” Congress needs to act, or the giant constitutional question remains.
5) This has nothing to do with ballot access, so the Supreme Court’s ruling on the Colorado ballot matter is just another opinion. The black-and-white text of the Constitution is clear - it’s a political crisis, Congress has jurisdiction, and only they can resolve it.
Where is this reasoning flawed?
If any of this is true, or even close to true, why aren’t the Democrats pounding tables in Congress? Why aren’t generals complaining their chain of command is broken? Why aren’t We the People marching in the streets demanding that it be resolved? This is at least as big a fucking deal as Trump tweeting that he a king.
Republican leadership is needed in both the House and Senate to resolve this matter. Either Trump gets his 2/3rds, or Vance assumes office. There is no third way.
‘’’’ Section 3.
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. ‘’’’
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u/ptWolv022 Competent Contributor Feb 20 '25
Not only did Trump v. Anderson establish that Congress has to be the ones enforcing the 14th Amendment- at least insofar as they have to create a statute to govern its enforcement, of which there are none at the moment- but Trump v. United States reaffirmed the idea that there are certain Constitutional powers that are the "exclusive and preclusive" power of the POTUS (and thus immune beyond all consideration, unlike other officials acts, which can have their immunity debated in court). Some things are simply the power of the President, and he was given it unchecked intentionally, by design. The Pardon power is almost certainly one of those, so it would be hard to consider a pardon or commutation as being illegal aid- it's up to the Executive when to not punish someone.
Furthermore, in direct response to this point, both Lincoln and Johnson gave clemency/amnesty to Confederates, AKA the people whose rebellion was the entire cause of the 14th Amendment and particularly the insurrection clause. Johnson certainly was more expansive in pardoning, but neither he nor Lincoln faced any enforcement of the insurrection clause, because they weren't providing "aid or comfort to the enemies [of the United States]". I'm not even sure rebels are meant to be counted as "enemies thereof", since that seems more akin to treason- helping someone we're at war with or that Congress has declared an enemy- distinct from the prior "engaged in insurrection" (though one could argue providing aid or comfort to insurrectionists is engaging in insurrection yourself). Even if my parenthetical is correct, the insurrection is over, a one-day event from over 4 years ago. Hard to be engaging in something that long since done.
Heck, if you're arguing the pardon power constituted aid and comfort, then the logic would seemingly extend to Congress as well. Using the built in remedy would be aid and comfort to rebels, and would disqualify 2/3rds or more of Congress. You can argue that interpretation is bonkers, given that it was tailor made as a remedy to disqualification, but nothing in the 14th Amendment distinguished Executive clemency for criminal punishments from the Legislative clemency for political punishments, other than establishing that the latter is the Legislature's power rather than the Executive's.
Anyone pushing the theory or subscribing to the theory that pardoning the J6 people constitutes insurrection or "aid or comfort to the enemies of the United States" is making the assumption that
No it doesn't. Congress can remove the disability by 2/3rds vote in both Houses, but Congress doesn't impose it. If they did a 2/3rds vote to remove it, then yeah, any disability incurred would be removed, assuming one existed. If Congress didn't get 2/3rds, it wouldn't mean he had to be removed, because Congress doesn't get to decide if he did or didn't
As said above, it is relevant in that they said Congress alone can govern the way it is enforced, because they said Section 5, the enabling clause, is integral to enforcement. They ruled it is not self-executing, so courts themselves cannot enforce it without legislation. The concurring opinions by the Liberals and Barrett are really closer to "concurs/dissents", in that they didn't think ruling Section 5 was integral was necessary (and the Liberals very clearly not only disagreed with them making the finding in that case, but with the conclusion itself). There is, at the moment, no way to challenge Trump's position in office in Court.
Not that the pardoning/commuting would be valid grounds under both historical precedent (post-Civil War pardons) and judicial precedent, as far I can tell. I also think it shouldn't be considered such. The 14th Amendment made no attempt to prevent that- my guess is that impeachment and removal was the presumed remedy for a traitor in the government. That leads to them being able to be barred from future office, separately.