Would Democrats use Jack Smith’s case as a trigger for invoking the insurrection disqualification at a joint session of Congress?
Would Democrats use Jack Smith’s case as a trigger for invoking the insurrection disqualification at a joint session of Congress?
I f Donald Trump were to win the presidency again next week, the lawfare ramifications would be expansive and complex. That’s why I did a three-part series on it, which concluded Monday. (See here, with links to the first two installments.)
The mix includes not just civil and criminal cases at the state and federal levels but also congressional action — potential Democratic efforts to disqualify Trump from taking office and to impeach him once he is in office. Consequently, I thought the best way to run through it was to compartmentalize it: congressional action first, then the easier-to-explain state litigation, and finally the two federal prosecutions — lingering long on the so-called J6 case (Biden-Harris DOJ special counsel Jack Smith’s 2020 election-interference case) because it is the one most fraught with complications for Trump and what would be his Justice Department come January 20, 2025.
Compartmentalizing is great for breaking a complicated mosaic into accessible bits. But it’s not how life works. The lawfare proceedings are dynamic, and they interrelate.
Despite the breadth of the three-part series, I thus feared I’d given insufficient attention to what may become — indeed, what may already be — the most significant lawfare scenario: the explosive combination of the J6 prosecution (addressed in part three) with likely efforts by congressional Democrats to prevent a Trump election victory from being ratified at the January 6, 2025, joint session of Congress (addressed in part one).
To frame this, I’ll repeat something I said in part three:
When Democrats lost the 2016 election to Trump, they immediately tried to set his presidency up for failure by beating the Russiagate drum and ratcheting up a criminal investigation, with congressional Democrats adumbrating eventual impeachment proceedings. A Russiagate prosecution and impeachment did not come to pass because special counsel Robert Mueller eventually cleared Trump (at which point Democrats pivoted to their Ukraine-related impeachment of Trump). But the Russia “collusion” demagoguery, built on bogus opposition research provided to the government by the Clinton campaign, did saddle Trump’s administration for two years with a criminal investigation — and all the stigma and grief that goes with it. That’s lawfare. I expect that if Trump wins the election next week, Democrats will try to use the J6 case to do what Russiagate did for them eight years ago.
I believe this is already happening.
Recall that, with less than a month to go before the election and early voting already under way in some key states, special counsel Smith submitted a book-length recitation of the J6 case as he intends to prove it in court, complete with an even more voluminous appendix compiling testimony and other exhibits. Remember also a major objective of Smith’s prosecution: Even though he lacks evidence that Trump committed insurrection (a federal crime, see Section 2383 of the penal code), Smith is trying to prove through the back door that Trump is criminally culpable for the Capitol riot.
How so? Well, despite Smith’s failure to charge Trump with a Section 2383 offense, the violence of the riot is prominently featured in the J6 charges Smith brought (see pp. 6, 31–33, of the superseding indictment, filed on August 27). The idea is that even if Smith is unable to prove that Trump committed insurrection beyond a reasonable doubt, he can try to establish that Trump knowingly and intentionally exploited the violence of the riot for the criminal purpose of (allegedly) obstructing Congress from ratifying President Biden’s 2020 victory.
We have focused on the immediate purpose of Smith’s submission and Obama-appointed Judge Tanya Chutkan’s directive that it be filed publicly: Because of the immunity litigation, Smith and Chutkan were not able to put Trump on trial in the run-up to the election as they tried to do; ergo, the next best thing was to get the evidence into the public record in the final weeks of the campaign so it could be used by the Harris campaign and other purveyors of Democratic messaging. On that score, I believe I have been proved right that it would have negligible impact — the story is too well known, Democrats have hyped and hyperbolized it nonstop for four years, the public has already factored it into the spectrum of 2024 issues, and nothing short of a high-profile trial and guilty verdicts could have moved the needle at this point.
But Smith’s submission could have another important purpose that we’ve overlooked to this point: It could play for congressional Democrats a role eerily similar that played by the March 2019 Mueller report.
Five years ago, Democrats were planning to impeach then-president Trump. The theory was that, even if Mueller had not established prosecutable crimes, the misconduct outlined could be sufficiently grave to warrant citing Trump for high crimes and misdemeanors (which need not be penal crimes; impeachment is a political proceeding, not a legal one, focusing on abuses of power that may establish a president’s unfitness for office). The Democrats’ gambit failed because, after they’d spent two years claiming the sitting president was a clandestine operative of the Kremlin, the Mueller report’s abject failure to establish “collusion,” coupled with Mueller’s bracingly inept testimony in congressional hearings, ended any possibility of public support for a Russiagate impeachment. (Democrats subsequently rushed through a farcical Ukraine impeachment, along partisan lines, futile for purposes of Senate conviction and disqualification, but enough, they hoped, to mollify their Trump-obsessive base.)
By contrast, Smith and Democrats are confident that Smith has the goods in the J6 case: provable crimes that, even if they don’t include insurrection, are insurrection-adjacent. Moreover, Smith’s submission may be better for Democrats than his proof at a trial would be. The submission outlines the prosecutor’s best case, untested by cross-examination or defense witnesses. Sure, Trump does not stand convicted, but since there won’t be a trial anytime soon (and probably never if Trump is elected), Smith’s submission will stand as the definitive government version of the J6 case — the soft-coup attempt that culminated in a forcible uprising at the Capitol.
The 14th Amendment’s Section 3 sets forth a disqualification for federal officers who “have engaged in insurrection or rebellion against the United States” after having “taken an oath . . . to support the Constitution.” Back in March, as I recounted in part one of the lawfare series, the Supreme Court held in Trump v. Anderson that the states may not enforce the Section 3 disqualification, and therefore rejected an effort, led by Colorado Democrats, to remove Trump from the state’s ballot.
Back when Anderson was decided, I referred to it, only half-jokingly, as “the Supreme Court’s unanimous 5–4 decision.” For all the kumbaya coverage about what a relief it was to have the justices speak with one voice on a case of great national concern, there was a deep divide in the ruling: The majority went beyond the narrow question presented, which was whether the states could enforce the disqualification provision by keeping a candidate for federal office off the ballot. Five of the Court’s conservatives (Chief Justice John Roberts, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh) opined not simply that Congress, and only Congress, could enforce Section 3, but also (a) that this could be done only by legislation; and (b) that at this time the only such legislation is the aforementioned Section 2383 crime of insurrection — i.e., a criminal conviction is required for enforcement because the civil action Congress had enacted in the 19th century to enforce Section 3 was allowed to lapse.
The majority’s amplification of the question to be decided prompted a tsk-tsk from conservative Justice Amy Coney Barrett (gently chiding the majority and stressing that the public should take comfort in the Court’s overriding consensus). But the rebuke from the Court’s three progressives (Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson) was so sharp that it is a “concurrence” in name only. The progressives accused their colleagues of judicial activism for the purposes of (a) protecting Trump from future federal efforts, short of legislation, to disqualify him, and (b) protecting the Court itself from having to decide the validity of such efforts.
We now face the very real possibilities of a Trump election victory and congressional Democratic lawfare, focused on Section 3, to prevent him from taking office. Two things can be said.
First, if Democrats win control of both congressional chambers in the coming election, they could try to ram through legislation that would create a process, short of criminal conviction, to disqualify “an oath-breaking insurrectionist” (Justice Sotomayor’s label). This would be difficult to do prior to Inauguration Day (i.e., in the period when Biden could still sign such legislation, before Trump takes office on January 20), let alone before the joint session of Congress. Such legislation would, for example, require both eliminating the Senate filibuster and ensuring that no Democrats defect. (Many would feel pressure to defect, especially if they’ve won seats in districts also won by Trump, since their constituents would have just elected Trump despite what Democrats maintain was an insurrection. The pressure would be even more intense if the presidential election is close and Democrats are simultaneously denying that Trump won.)
Second, and I believe more likely, congressional Democrats, echoing the Court’s progressives and Justice Barrett, could conclude that the question of how the federal government may enforce the Section 3 disqualification was not before the justices in Anderson; therefore, they’d argue, the majority’s assertions that enforcement could be done only by legislation are obiter dicta, not binding on Congress.
Either or both of these steps would be a prelude to using Smith’s submission, describing the J6 allegations and his evidence, as the basis for invoking the Section 3 disqualification. Since it would be difficult for Democrats to push through legislation, the most likely invocation would be at the January 6 joint session, in the form of objections by Senate and House Democrats to the ratification of state-certified electoral votes cast for Trump in the Electoral College.
To repeat my part one forecast, this effort will not succeed if current polling proves correct and Republicans end up controlling one or both houses of Congress. Even if Democrats pull an upset and narrowly win both chambers, they could not block Trump in the absence of working majorities that would be willing to defy the voters’ election of Trump (although, if Trump does not win the popular vote, Democrats would rationalize that, in trying to disqualify Trump, they were siding with the majority of voters).
I don’t believe Democrats will be able to prevent Trump from taking office. But that’s just an educated guess; if he wins, we’ll just have to see how the down-ballot results shake out. But I can confidently say this: If Democrats and other zealous anti-Trumpers are sincere in their proclaimed conceit that Trump is a fierce, unprecedented threat to American democracy — and some of them are sincere, even if many are partisan poseurs, and even if many of us believe American democracy is far stronger than Trump — then they are going to use every potential legal means at their disposal to deny him the presidency. That includes using Smith’s J6 case as a trigger for invoking the Section 3 insurrection disqualification at the joint session.
And then there is the other side of this synergy. As congressional Democrats put more stock in the J6 case in an effort to prevent Trump from taking power, that will increase the public profile of Smith’s evidence during the eleven weeks between Election Day and Inauguration Day. That, in turn, will raise the political stakes for Trump when, upon assuming office, he undertakes to fire Smith and direct the Justice Department to dismiss the J6 case — actions that congressional Democrats will portray as impeachable offenses, and over which Democrats will likely impeach Trump if they win control of the House in next week’s election.
Lawfare proceedings don’t just sit in compartmentalized silos. They combust.