What Can Happen After You’re Convicted of Insurrection
You can’t run for federal or state office, or can you?
Issue #207 Government December 29, 2022
The Select House Committee to Investigate the January 6 Attack on the United States Capitol ended its inquiry by issuing a 154-page executive summary and an 845-page final report. During its last public meeting on December 19, 2022, the nine-member bipartisan committee unanimously voted to send to the Department of Justice (DOJ) four criminal referrals for Donald Trump based on his illegal efforts to overturn his loss in the 2020 election:
1. Obstructing an official proceeding.
2. Conspiracy to defraud the government.
3. Making knowingly and willfully materially false statements to the federal government.
4. Inciting or assisting an insurrection.
While the DOJ is not obligated to act on the referrals and is investigating these criminal acts itself, the referrals are still historic. Never in American history has an incumbent president who lost re-election ever attempted to retain power anyway or refuse the peaceful transfer of power from one administration to the next.
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Were the January 6 events an insurrection, an act of sedition, or an attempted coup?
Actually, it was all three.
An insurrection is an act of violently revolting against civil authority or an established government. An insurrection or rebellion is a crime under Title 18 of the U.S. Code and is punishable by a fine, a maximum sentence of 10 years in prison, or both. Being found guilty of insurrection also makes someone ineligible to hold office in the United States.
Sedition is the incitement of resistance to or insurrection against lawful authority by two or more people who conspire to overthrow the United States government or prevent, hinder, or delay the execution of United States law by force. Under the U.S. Code, a conviction of sedition is punishable by a fine and up to 20 years in prison.
A coup (short for coup d’état) is the violent overthrow or alteration of an existing government by a small group.
Several of the January 6 rioters have been indicted or tried or convicted of one or more of the above actions, but the January 6 Committee made it clear that all of those actions by others were the fault of Donald Trump.
Can Donald Trump or others who are convicted of conspiracy, treason, or insurrection still hold office in the future?
Donald Trump announced his intention to run for president again in 2024, hoping that just being a presidential candidate will shield him from any indictments. But he is still just a private citizen, and although the DOJ has an informal rule to not do anything that might influence an election for 60 days before that election, that 60-day window is about September of 2024.
Many people are reminding us that the Constitution bars people who previously took the office of a government office and subsequently have been convicted of insurrection, treason, or conspiracy from holding any future office. The 14th Amendment, which was passed by Congress on June 13, 1866, and ratified on July 9, 1868, was especially targeted at officials in the defeated Confederacy after the Civil War. Since then, there have been no incidents of presidents, senators, or congresspeople even being indicted for those three criminal acts until Donald J. Trump.
Constitutional Requirements for the President of the United States
Article II, Section 1, Clause 5 lists only three requirements for a person to become president: be a natural-born citizen of the United States, be at least 35 years of age, and have resided in the United States for fourteen years.
Some Trump supporters have tried to claim that since he meets those three requirements, he should be able to run no matter what he is accused and/or convicted of.
That might have been true except for the further statutes of the 14th Amendment. An “amendment” is by its nature a change or clarification of a previous law or other pieces of legislation.
Section 3 of the 14th Amendment states:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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. But Congress may by a vote of two-thirds of each House, remove such disability.
Notice that Congress, with a 2/3 vote by each House, could technically overcome this statute, and the Supreme Court could also rule that a person could run and take office anyway and the Congress could not vote to override the SCOTUS’ decision.
Except for people of the former Confederacy after the Civil War, the statutes of this section of the 14th Amendment have rarely been applied to people in office or planning to run for office.
With Donald J. Trump, we are treading in unprecedented territory.
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