After the testimony of former White House aide Cassidy Hutchinson, is there any doubt that Donald Trump fomented the insurrection on Jan. 6, 2021?
There are no longer any innocent explanations for what he did that day. Select Committee testimony has demonstrated that he knew he had no good factual or legal basis for his claim that the election was stolen, that he knew Vice President Mike Pence was not going to save him and that his only chance to remain in the White House was to stop the final ratification by Congress on Jan. 6. The testimony has also demonstrated that he knew some in the crowd assembled to hear him speak were armed, that a mob was heading to the Capitol, and that it was clearly in his power to call off the insurrection — but instead of trying to stop the violence, he chose to do nothing.
The question is: Can anything be done, short of a criminal conviction, to prevent Trump from seeking to recapture the presidency?
Section 3 of the 14th Amendment disqualifies a person from being president who, while holding a federal office, participated in an insurrection against the United States.
That prohibition must surely apply to Donald Trump, and that is what the House sought to establish in Trump’s second impeachment; however, because the impeachment trial was held before a full investigation of the insurrection charge had taken place, much of the most damning evidence uncovered by the Select Committee was not available. Thus, while the House will not get a second chance, there are other means of achieving Trump’s disqualification, although they have never been tested in a court before now.
Whether President Biden runs in 2024, it is certain that there will be a Democrat on the ballot, and thus the Democratic Party, on behalf of all of its candidates, could bring suit in federal court right now, seeking a ruling that Donald Trump participated in the Jan. 6 insurrection and an order precluding him from even being a candidate for president.
Trump would first have to decide whether to fight the lawsuit, which would mean saying whether he was running in 2024, something he would prefer to announce at a time and place of his choosing, not when and where he is sued.
After making some procedural motions in an effort to have the case dismissed, the former president would then have to respond to discovery, including being subjected to a deposition in which he would have to answer questions under oath. Unlike the situation with the Select Committee, he would have no arguable claims of presidential privilege, so that if he refused to answer questions, the court could draw adverse inferences against him from his refusals, meaning he could no longer argue that his conduct was justified if he would not provide a factual basis for his repeated assertions that the election was stolen. Moreover, if the suit were filed now, there would be plenty of time for discovery, a trial, and an appeal before the primaries start in early 2024.
Like every other American, Trump would have the option of claiming the Fifth Amendment privilege against self-incrimination. That path would be rather awkward for any candidate for public office, but especially for him in light of what he said during the 2016 campaign about employing that tactic: “The mob takes the Fifth … If you’re innocent, why are you taking the Fifth Amendment?”
Unlike most laws, section 3 provides a special means to avoid disqualification, which the Democrats might like as much as the trial: Two thirds of each House can vote to grant him amnesty — that would require Republican Senators and Representatives to go on the record on whether Trump should be entitled to be a candidate for president, despite having been found to have been part of the insurrection.
Will this lawsuit succeed? No one can know for sure, but it seems as if there is nothing to lose, or at least not if the Department of Justice does not indict Trump for inciting the Jan. 6 insurrection.
Alan B. Morrison is an associate dean at George Washington University Law School where he teaches constitutional law.