Op-Ed: The insurrection won’t end until Trump is
prosecuted and disqualified from future office
BY LAURENCE H.
TRIBE, PHILLIP ALLEN LACOVARA AND DENNIS AFTERGUT
JUNE 20, 2022 2:50 AM PT
In a powerful warning
Thursday, the patron saint of the conservative legal movement, former federal
appellate Judge J. Michael Luttig, testified before the Jan. 6 Committee and
pronounced former President Trump and his allies a “clear and present danger” to
American constitutional democracy. As Luttig knows better than most, this historic phrase generates
an extraordinary constitutional power of government to act — and a duty to do
so.
Luttig’s verdict should be understood as a plea
for Atty. Gen. Merrick Garland to proceed toward charging Trump with federal
crimes that the public record now amply establishes. Only then will this nation
be able to move forward from the ongoing insurrection.
Beyond the avalanche of documents and testimony
pointing to Trump’s guilt and the principle that no one is above the law, there
is an additional reason to indict Trump for his multi-faceted conspiracy in
2020 to override the vote. Upon a conviction for inciting insurrection, or being an accessory to
insurrection, Trump would be subject to disqualification from acquiring federal
office.
Section 3 of the 14th Amendment
directs: “No person shall . . . hold any office . . . under the United States .
. . who, having previously taken an oath . . . as an officer of the United
States . . . to support the Constitution shall have engaged in insurrection or
rebellion against the same.’'
There is ample evidence that Trump’s objective
was the insurrection’s success. Among that evidence was his three-hour delay in
calling on the attackers to go home and his vengeful tweet demeaning Vice
President Mike Pence after Trump knew that the savage invasion of the U.S.
Capitol had begun. That was “pouring gasoline on the fire,” testified former
deputy White House press secretary Sarah Matthews.
Even without a direct charge of insurrection,
allegations of such insurrectionist activities in an indictment for conspiring
to defraud the United States or to obstruct an official proceeding or for seditious conspiracy might suffice for 14th Amendment
disqualification if Trump were convicted.
Holding Trump accountable — and disqualifying
him from future office — would not be a partisan act, but one needed to
preserve the republic.
Without a prosecution of Trump, here are three
things that seem sure to happen if he were allowed to run again and either be
lawfully elected or succeed in installing himself in office despite defeat in
the electoral college, as he attempted to do in 2020:
The end of elections in which a majority of
voters choose their leaders
As Judge Luttig put it at Thursday’s hearing:
The clear and present danger now is because “to this very day the former
president and his allies and supporters pledge that in the presidential
election of 2024, if the former president or his anointed successor as the
Republican Party presidential candidate were to lose that election, they would
attempt to overturn that 2024 election in the same way that they attempted to
overturn the 2020 election.”
Republican-controlled state legislatures are
already institutionalizing election sabotage —
with GOP election officials determining election results no matter the vote
winner. More than a dozen “election deniers”
like Jim Marchant, who just won the Republican
primary for secretary of state in Nevada, are GOP nominees for secretary of
state and other election-controlling positions.
So even though Trump won’t hold the levers of
presidential power in 2024 the way he did in 2020, he won’t need to: His allies
and his disinformation are putting officials in place around the country who
will certify his win whatever the vote.
The use of the military for domestic control
Trump’s administration deployed military
helicopters in an unprecedented show of military force over
peaceful demonstrators whom police attacked in Washington’s Lafayette Park in
July 2020. Retired military leaders excoriated the abuse.
In early December 2020, Trump’s close ally, his
former national security advisor and retired Lt. Gen. Michael Flynn,
reportedly urged Trump to declare
martial law.
On Nov. 9, 2020, Trump fired Defense
Secretary Mark Esper and installed a more compliant Christopher Miller. On Jan.
4, 2021, Miller issued a memo requiring
his approval to deploy the National Guard in Washington, D.C. On Jan. 6,
Defense Department leadership delayed the National
Guard’s response to the Capitol siege by three hours.
You don’t have to be a clairvoyant to imagine
how military force against political foes — and restraint of force to protect
violent supporters — will be used if Trump regains office.
The end of accountability
On June 17, in Nashville, Trump said that if
reelected, he would consider “very, very seriously” pardoning all the
participants in the Jan. 6 insurrection.
That could clear more than 310 insurrectionists
who have pleaded guilty or
been convicted at trial.
Deterrence of future violence depends on judicially imposed sanctions. Trump
would remove them, signaling that violent extremism in defense of Trump is no
vice.
If he returns to the White House, he will
install his people in the Justice Department and turn the machinery of
prosecution against his enemies and toward protecting his friends and his
schemes.
And should Trump get an encore, look to
pre-World War II Germany for a mirror. A failed coup in 1923 taught Hitler a better
route to dictatorship nine years later.
Those who repeat history are doomed to learn it.
The hard way.
Laurence H. Tribe is professor emeritus of
constitutional law at Harvard. Phillip Allen Lacovara was deputy solicitor
general of the United States, counsel to the Watergate special prosecutor, and
argued the case of United States vs. Nixon. Dennis Aftergut is a former federal
prosecutor, currently of counsel to Lawyers Defending American Democracy.