The Problem with ‘Insurrection’ in the Impeachment Article

Members of U.S. Capitol Police part through a crowd in riot gear as people rally outside of the Supreme Court in support of President Trump in Washington, November 14, 2020. (Leah Millis/Reuters)

The Democrats’ language could have implications for people other than the president.

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The Democrats’ language could have implications for people other than the president.

NRPLUS MEMBER ARTICLE I have tried to distinguish two issues: whether President Trump committed impeachable conduct (he did), and whether that conduct is accurately described in the article of impeachment Democrats will propose today (the description is problematic). Relevant to that latter point, as I’ve previously detailed, is the title of the article: “Incitement to Insurrection.”

My point here is not to rehash the problems I’ve already outlined. It is, rather, to look at the issue through the prism of my colleague Dan McLaughlin’s characteristically incisive and comprehensive essay on the insurrection-based disqualification from public office in Section 3 of the 14th Amendment.

As Dan details, top Democrats and influential progressive legal scholars contend that President Trump, and perhaps other Republicans and Trump supporters who can be tied to the events that led to the siege on the Capitol last Wednesday, could be disqualified from holding public office under Section 3. The ban is triggered if a person is found to “have engaged in insurrection or rebellion against [the United States], or given aid or comfort to the enemies thereof.”

The main attraction of Section 3 to Democrats is that it takes just a simple majority vote of both houses to disqualify a person. This makes it easier to accomplish than the disqualification from future public office that can flow from impeachment, which requires a two-thirds-supermajority vote for conviction in the Senate. Moreover, as Dan further explains, progressive scholars

also aim at finding a way to run the Section 3 machinery around Senate Republicans, and potentially use it to give judges or other unspecified actors the power to disqualify en masse[.]… Their idea is plainly to use an expansive definition to have party-line votes of Democrats target a lot of Republicans, potentially including everybody who objected to counting electors.

Congressional Democrats who drafted the “Incitement to Insurrection” impeachment article are clearly coordinating with Democrats and progressive scholars who urge the invocation of Section 3 to disqualify Trump and potentially others. The 14th Amendment chatter was public before the proposed impeachment article was released. House speaker Nancy Pelosi requested over the weekend that her colleagues weigh in on the possible application of Section 3.

It would thus be naïve to separate the text of the impeachment article from the Section 3 disqualification strategy.

The impeachment article asserts that an “insurrection” occurred. It expressly alleges that President Trump is guilty of “willfully inciting violence against the Government of the United States.” Ergo, if the House approves the article of impeachment as currently written, the article will be cited as a congressional finding (at least by one chamber) that the events at the Capitol were, in fact, an insurrection as that term is defined in federal law.

Democrats will then posit the approval of the article as a predicate for disqualifying from public office anyone they contend contributed to the conditions that led to the violence at the Capitol. The more aggressive Democrats will urge that this includes not only President Trump but those who supported his quest to have the election result reversed.

It is not my purpose here to agree or disagree with the Democrats’ claims about the applicability of the 14th Amendment’s disqualification provision. I find Dan’s analysis persuasive, but I’ve also analyzed and litigated enough constitutional issues to know that the Democrats’ argument is far from frivolous. To the contrary, it would be found convincing by many progressive judges, bureaucrats, and tribunals.

My point is to underscore that Democrats propose to have their impeachment article voted on, take-it-or-leave-it, as it is currently written. Contrary to other impeachments in American history, there will be no hearings on such debatable matters as whether what happened at the Capitol qualifies as an insurrection. I don’t mean merely in the rhetorical sense of decrying an “insurrectionist mob,” as many of us have done. (GOP Senate Leader Mitch McConnell called it a “failed insurrection” in his speech for the ages after the siege was quelled.) I mean in the actionable legal sense, such that being found to have somehow engaged in or abetted the said insurrection could result in disqualification from public office.

As I’ve argued, I think the loaded words insurrection and incitement are unnecessary to, and needlessly problematic for, the accurate articulation of President Trump’s impeachable conduct. If those words are going to be used, we ought to have our eyes open about the potential consequences — which may affect people other than the president.