Trump, a clear and present danger to American Democracy may yet be given the helm of the ship of state to say “Damn the torpedos!!”
By Anil Madan
Donald Trump is well-known for his outlandish outbursts. Of late, he has seemed even more unhinged than ever before. Perhaps it is the fear of an impending indictment stemming from one of the several criminal investigations into his conduct both as President and in running The Trump Organization. Or, perhaps it is simply an effort to grab the headlines as he has done so often.
Earlier this month he predicted, incorrectly, that his arrest was imminent. On his social media site, in capital letters, he wrote: “THE FAR & AWAY LEADING REPUBLICAN CANDIDATE AND FORMER PRESIDENT OF THE UNITED STATES OF AMERICA, WILL BE ARRESTED ON TUESDAY OF NEXT WEEK. PROTEST, TAKE OUR NATION BACK!”
That call for “PROTEST” and to “TAKE OUR NATION BACK” evoke memories of his infamous speech on January 6 when he said: “And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.” That phrasing has been characterized by many, particularly Democrats and members of the House Select Committee to Investigate the January 6th Attack on the United States Capitol as a call to violence. I shall have more to say on whether that is a fair interpretation.
The FBI has arrested almost 940 people for their participation in the January 6 event at the Capitol. As of earlier this month, 43 were convicted, 481 pleaded guilty and 382 were awaiting trial. Most of those awaiting trial are out on bail. However, some remain in jail and have been awaiting trial for almost two years. A significant number of those charged and convicted or who pleaded guilty received prison sentences. Supporters of Donald Trump including members of Congress, most notably, Representative Marjorie Taylor Greene of Georgia, have rallied to the support of the convicted criminals as well as those awaiting trial. They have falsely accused the federal government of torture and abuse of prisoners and even gone so far as calling the prison where some of them are housed, the Patriot Wing.
These right-wing Trump supporters refuse to see that January 6 event as an incipient insurrection, and some even deny that it was a riot. Tucker Carlson, the Fox News talk show host who has been afforded exclusive early access to hours of video footage of the January 6 attack by Kevin McCarthy, the Speaker of the House of Representatives, has selectively culled scenes from the footage and lied about the nature of the attack on the Capitol, saying: “These were not insurrectionists. They were sightseers.”
Donald Trump sensing that this is another hot button issue on which he can rally his base of supporters has, on more than one occasion, praised the January 6 attackers/rioters and stated that, if reelected to the Presidency, he would seriously consider pardoning all those charged with crimes in connection with the January 6 events. He has also purportedly told his confidants that he would, early in his next term, issue pardons for higher-level people who aided and abetted him in his post-election crusade to overturn the results of the election he lost.
Recent polls showing that Trump still holds a commanding lead for the Republican Party’s presidential nomination, with some 54% favoring him and other potential candidates, announced (Nikki Haley), and not so far formally announced (Pence, DeSantis, Pompeo, etc.), way behind, suggest that if the primaries were held now, Trump would likely win the party’s nomination.
In the face of this, many Americans ask how a man who has made election denial his signature and has been characterized as a clear and present danger to American constitutional democracy by Judge J. Michael Luttig, a respected former federal appellate judge, can run for and become President again. In fact, Luttig testified before the Jan. 6 Committee to that effect, and Harvard Law Professor Emeritus Laurence Tribe has dubbed him the “patron saint of the conservative legal movement.”
The short answer is that he can and there may be no way to stop him from running if he is the Republican nominee. Of course, if he doesn’t with the Republican party’s nomination, he could run as an independent but there are some states that do not permit such maneuvering, so it would likely be a futile quest.
A government of laws and not of men
For an explanation of my short and emphatic answer, let us begin with the notion that America prides itself as having a government of laws and not of men. Therefore, we must look to the law as our guide. The Constitution of the United States is the supreme law of the land so we look first to the qualifications one must have to become President. Article II states: “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.” As one can see, Trump meets these basic qualifications.
But what of disqualifications? The Constitution has one clear cut disqualification and one conditional disqualification. The relevant part of the clear disqualification is found in section 3 of the Fourteenth Amendment: “No person shall… hold any office, civil or military, under the United States, … who, having previously taken an oath… 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.”
So, the question is, has Donald Trump engaged in insurrection or rebellion against the United States? Clearly, he is a person who previously had taken an oath as an officer (President) of the United States to support the Constitution.
The answer to this question is a rather confused one. Legally, no, but in his heart, yes. But what is in one’s heart is not necessarily enough to convict. As former President Jimmy Carter said, he had “looked upon a lot of women with lust.” And he added: “I’ve committed adultery in my heart many times. This is something God recognizes I will do — and I have done it — and God forgives me for it.” Unfortunately, the American electorate was not as forgiving as God.
In assessing Donald Trump’s infamous speech on January 6, 2020, in addition to the words about fighting, Trump also said: “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” When one looks at the entire speech, the words “fight” or “fighting” appeared 23 times. It is fair to say that Trump was not necessarily referring to physical fighting, but to making one’s voice heard. And he spoke of it in many contexts.
For example, he said: For years, “Democrats have gotten away with election fraud and weak Republicans. And that’s what they are. There’s so many weak Republicans. And we have great ones. Jim Jordan and some of these guys, they’re out there fighting. The House guys are fighting.” It is virtually impossible to say that by these words, Trump was condoning violence, never mind imminent violence.
The legal significance of this goes back to a seminal case decided by the Supreme Court of the United States, Brandenburg v. Ohio. That case included this statement: The defendant had been charged with, and convicted of “advocat[ing]… the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”
Perhaps even more ominous was this: “We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.” And in what Trump seems to have echoed (perhaps, for a change, he had a good lawyer edit his speech), in his January 6 speech, the defendant said: “We are marching on Congress July the Fourth, four hundred thousand strong. From there, we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you.”
Constitutional guarantees of free speech
The Supreme Court ruled that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. The court elaborated: “the mere abstract teaching… of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action.” A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.”
Given these constraints, Trump’s January 6, 2020, speech does not remotely rise to the level of imminent incitement to insurrection.
Trump’s second impeachment presents another potential constitutional difficulty to precluding a run for reelection. His second impeachment included a charge of incitement of insurrection. A United States statute provides: “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
So, if the January 6 speech and even Trump’s conduct preceding that fateful day amounts to giving aid or comfort to rebellion or insurrection against the United States, he could be disqualified.
But there is a catch. The Fifth Amendment to the Constitution states in relevant part: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, … nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb…”
The question is whether Trump’s acquittal on the impeachment charge absolves him from being retried under the federal statute. To answer that, we must first ask if being deprived of the opportunity to run for the presidency is considered “jeopardy of life or limb.” My guess is probably not. But the Fifth Amendment does not state that the prior trial must have been in a court. Given the composition of our Supreme Court, anything is possible.
This is where the conditional disqualification comes in. The Constitution provides that: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Trump was charged with incitement of insurrection but was acquitted of the charges and of the attempt to disqualify him from holding office under the United States. It may well be that he has dodged a bullet.
Just as Jimmy Carter had lust in his heart, I have no doubt that Trump had insurrection in his heart.
But even though we elect Presidents hoping that they have the best interests of the country in their hearts, what they actually have in their hearts is neither relevant, nor a disqualification unless the voters discern evil intent.
So, Trump, a clear and present danger to American Democracy may yet be given the helm of the ship of state to say “Damn the torpedos!!”
Mauritius Times ePaper Friday 31 March 2023
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