Overnight I’ve received some feedback on my post concerning a potential nightmare scenario on January 6, 2025. One constructive comment concerns the relationship, including differences, between the statutory crime of insurrection in 18 U.S. Code § 2383 and the scope of the disqualification from office set forth in section 3 of the Fourteenth Amendment. This is an issue extensively analyzed by Josh Blackman and Seth Tillman.

I don’t want to debate here whether their analysis is correct or not. I’m inclined to believe that, under the latitude afforded to Congress by the congruence and proportionality test for the exercise of its enforcement power under section 5 of the Fourteenth Amendment, Congress is constitutionally entitled to enact a statutory prohibition somewhat broader than might be the judicial construction of section three itself. (I also have some tentative views about how best construe the meaning of the terms “office” and “officer” in section 3, including in relationship to how those terms are employed elsewhere in the Constitution.) But that is tangential to the main point: if for whatever reason in a prosecution of Trump under 18 U.S. Code § 2383 the judiciary determined that Trump could not be rendered ineligible to serve again as president, my view is that the joint session of Congress under the Twelfth Amendment should consider that judicial determination as binding on the question. Congress, in other words, should not attempt to overturn that judicial judgment. If Congress accepted this view, then as a practical matter a criminal indictment of Trump under 18 U.S. Code § 2383 as a practical matter would settle one way or the other the question of whether Trump is eligible to serve again as president.

For the reasons set forth in my post, however, I continue to believe that a special statute along the lines I described there for a civil adjudication of Trump’s status under section 3 of the Fourteenth Amendment would be a superior way to resolve this crucial question.