It’s Debatable Is Trump an insurrectionist, can he serve as President?
In this week’s “It’s Debatable” segment, Rick Rosen and Charles Moster debate whether former President Trump is an insurrectionist under Section 3 of the 14th Amendment and constitutionally disqualified from serving as President. Rosen retired as a professor from the Texas Tech University School of Law and is a retired U.S. Army colonel. Moster is founder of the Moster Law Firm based in Lubbock with seven offices including Austin, Dallas, and Houston.
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Section 3 of the Fourteenth Amendment provides in relevant part: “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 … 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….” Some argue former President Trump engaged in an insurrection on January 6, 2021, and is automatically ineligible to appear on ballots for president. I disagree.
First, it’s not at all clear that the events of Jan. 6 constituted an insurrection let alone Trump’s participation in one. Section 3 was intended to keep former Confederates from holding public office following a bloody Civil War that left 620,000 dead, not a demonstration that turned into a five-hour riot. Although Trump faces four indictments consisting of 91 charges, not one accuses him of insurrection. And the American people do not agree about such a characterization of Jan. 6. For example, a January 2023 University of Massachusetts Amherst poll found that 55% of respondents describe Jan. 6 as a riot and only 41% consider it an insurrection.
Second, some assert that an insurrection is an immediate disqualification that “should be enforced by every official, state or federal, who judges qualification” without due process of law. Under such a scheme the election map could become a checkerboard in which some states would permit people to vote for Trump while others would deny that choice. This is chaos.
I do not mean to minimize the enormity of Jan. 6 or President Trump’s role in it. It was horrendous. And Trump may pay the price for his actions in the courts. But employing Section 3 to prevent people from voting for Trump is a clear recipe for disaster—it will literally tear the nation apart. The American people should decide the election, not government officials by executive or judicial fiat.
Finally, once employed, such a tactic cannot be contained. What if some state election officials deem Section 3 applicable to President Biden’s humiliating withdrawal from Afghanistan resulting in the loss of American lives and the abandonment of $7 billion of military equipment as “aid and comfort” to the Taliban and a reconstituted al Qaeda—our nation’s enemies for over 20 years. May Biden be kept from the ballot in those jurisdictions? Is this really a wise path to follow?
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Former President Trump is poised to be disqualified as a candidate for the Presidency based upon the outcome of indictments brought by the Justice Department for his “corrupt attempt to obstruct an official (legislative) proceeding”….
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