Ralpn Nader - The knockout is from former Vice President Pence. He testified in various formulations that on January 6, 2021, Mr. Trump demanded that he “choose between [Trump] and the Constitution.” Mr. Trump’s demand showed his knowledge that he was haranguing the Vice President to do something contrary to the Constitution.... Mr. Trump, a few days earlier, had similarly assailed Pence for being “too honest” in denying any constitutional foundation for a lawsuit claiming the Vice President possessed the authority to reject state-certified electoral votes.
The uniform advice Mr. Trump received from his own lawyers was that the Vice President’s constitutional role in “counting” state-certified electoral votes was ministerial. He was not empowered to question their validity. That had been the universal understanding for more than two centuries since the Twelfth Amendment was ratified in 1804...
Historical practice and the Twelfth Amendment’s plain text are reinforced by the four-centuries-old Anglo-American axiom that a man cannot be a judge in his own case. Thus, Vice President Al Gore lacked power to second-guess the state-certified electoral votes for Republican George Bush in the 2000 presidential election in which Mr. Gore was Mr. Bush’s Democratic opponent. Vice President Pence, who was Trump’s running mate, would have faced a similar political conflict if he decided on the validity of state-certified electoral votes cast in 2020.
Mr. Trump’s incorrigibly criminal, extraconstitutional state of mind was betrayed by his alarming proclamation on July 23, 2019, hoping to undo the American Revolution: “Then I have Article 2, where I have the right to do anything I want as president,” That is, the rule of law is no longer king, the king is law. Willful ignorance or stupidity is no defense to criminal action.
Any free speech defense mounted by Mr. Trump would be DOA. There is no First Amendment right to unleash a tsunami of “Stop the Steal” lies with the ulterior criminal motive of shipwrecking the peaceful transfer of presidential power under the Twelfth Amendment by intimidating the Vice President from counting state-certified electoral votes that had survived 61 judicial challenges. Mr. Trump nearly succeeded. The indictment states that on January 6, 2021, “at 2: 25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location [in the Capitol]. [There], throughout the afternoon, members of the crowd chanted, ‘Hang Mike Pence!’; ‘Where is Pence? Bring him out!’; and ‘Traitor Pence!’”
Free speech icon Justice Louis D. Brandies confirmed in a concurring opinion in Whitney v. California (1927) that the First Amendment is undisturbed by the prosecution of speech calculated to occasion imminent serious harm. It is difficult to conceive of any greater injury to a democracy founded on the consent of the governed than frustrating the peaceful transfer of presidential power in accord with judicially vetted and politically certified popular votes...
The sole criminal prohibition that would disqualify Mr. Trump from the ballot, under Section 3 of the Fourteenth Amendment, is “insurrection,” made criminal by 18 United States Code Section 2383. Section 3 categorically disqualifies from public office at any level of government any official who, after having taken an oath to support the Constitution of the United States, engages in “insurrection” against it. Among other things, insurrection means seeking by force, violence, or otherwise to frustrate the ability of the United States to enforce the Constitution or laws. The narrative of the January 6th indictment makes clear that Mr. Trump conspired and directly engaged in insurrection against the Constitution on January 6th by attempting to obstruct the enforcement of the Twelfth Amendment and Electoral Count Act.
The House Select Committee to Investigate the January 6th Attack on the United States Capitol made a criminal referral to the Department of Justice recommending prosecution of Trump for assisting or aiding the January 6th insurrection. Mr. Trump was impeached by the U.S. House of Representatives for inciting insurrection and a majority of U.S. Senators voted to convict (but short of the two-thirds majority constitutionally required). The Department of Justice has secured multiple convictions against Trump’s January 6th mob for “seditious conspiracy” under 18 U.S.C. 2384, whose elements of proof are virtually indistinguishable from insurrection.
Why then did the indictment omit an insurrection count to disqualify Trump for 2024? And was Special Counsel Jack Smith or Attorney General Merrick Garland the de facto or de jure decider? Under Department of Justice special counsel regulations, the latter is empowered to overrule the former in narrow circumstances.
Without exhausting all the hypotheses, Democrats might wish to see Mr. Trump nominated as the Republican presidential candidate in 2024 because they believe he is a sure loser against President Joe Biden and would convulse the Republican Party. Placing that political calculation above the Constitution, i.e., Section 3 of the Fourteenth Amendment, we submit, would be too dismaying for words.
Alternatively, Democrats could believe that disqualifying Mr. Trump from the 2024 campaign would taint the outcome in the minds of the considerable number of his deceived supporters and compound political polarization. But to bow to such political calculations would erode the rule of law. The sole loyalty of federal officials from the highest to the lowest is to the Constitution, period.
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