This episode is very much worth listening to, especially for its discussion of how the nation seems to be “sleepwalking” into a disastrous situation next spring as a consequence of the Senate’s failure to reach 67 votes to convict Trump on his January 6 impeachment. One detail was news to me: Chuck Todd said definitively that Senator Mitch McConnell had the 67 votes necessary for a conviction, but chose not to pursue it for fear of its effect on the Republican Party’s chances in the 2022 midterms. That was not my understanding from reading Jonathan Martin and Alexander Burns, This Will Not Pass. Nor, by my reading, is the account provided by Rachel Bade and Karoun Demirjian, which was excerpted in the Washington Post from their Unchecked book, as definitive as that. I’d be curious if any ELB readers are aware of reporting in books or articles that support the proposition that McConnell would have been successful in securing a conviction on this impeachment charge if McConnell had chosen to pursue it.

Important Jason Willick column in the Washington Post on the perilous nature of disqualification politics:

“Baude and Paulsen concede that their sweeping constitutional vision of disqualification-for-disloyalty could “perhaps” be “a little dangerous” for ‘First Amendment liberties of speech, press, assembly, religion, and the right to dissent generally.”’But they argue that disqualification is nonetheless required by the Constitution. To support their interpretation, they point to President Abraham Lincoln’s restrictions on dissent during the Civil War. That the Jan. 6 riot wasn’t a full-scale rebellion like the Civil War is immaterial, they say; it was an ‘insurrection,’ and any insurrection triggers Section 3.

“Their analysis is not persuasive — certainly not oftheir view that Trump’s “case is not even close.” An insurrection in a colloquial or political sense is not the same as an insurrection in a constitutionally binding sense. The Congressional Research Service notes that the Insurrection Act describes a situation in which it is ‘impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.’ That doesn’t seem to apply to the Jan. 6 violence, after which participants were vigorously prosecuted in federal court.

“Trump probably gave ‘aid or comfort’ to the mob with his disgraceful delay in responding to the violence at the Capitol — but to be constitutionally disqualified, an official must give aid or comfort to “enemies” of the country. As the Congressional Research Service also notes, ‘history … suggests that an ‘enemy’ is one who owes allegiance to an opposing government and not merely a U.S. citizen opposing the U.S. government.’

“Such arguments are likely to lose relevance, though, if Trump’s rise to the GOP nomination, and potentially the presidency, continues. His disqualification could become a partisan imperative, a titanic political struggle. Edward B. Foley recently described in these pages how the question could be resolved in a timely fashion by the Supreme Court. I hope he’s right, but such a polarizing controversy about a major candidate’s eligibility for office is a leap into the unknown — in the states, in the electoral college and in Congress. …

“The nation is playing with fire. Through his egregious conduct after the 2020 election, Trump ensured that a third presidential campaign would trigger a sense of emergency in the American establishment. Special counsel Jack Smith is racing to convict him before the 2024 election (and Trump could be muzzled or jailed before trial if he defies District Judge Tanya S. Chutkan’s admonition that his “defense is supposed to happen in this courtroom, not on the internet”). Trump voters’ sense that elites are trying to forbid them to vote for the candidate of their choice might only grow if a campaign to disqualify him gets underway.

Whether Trump is disqualified or not, or convicted or not, and whether he wins or loses the presidency, American political legitimacy will be inescapably damaged by the 2024 election if the former president remains the GOP standard-bearer. The only realistic opportunity to control the flames now belongs to Republican voters, who can still make a different political choice.”

These cautionary words deserve serious and sustained consideration, and there will be opportunity for additional reflection, analysis, and commentary on these issues. Meanwhile, I note here a few quick points:

1. One court in New Mexico has already disqualified an officeholder (Couy Griffin) for his participation in the January 6 insurrection. While that is not a U.S. Supreme Court decision on the issue, it does indicate that it is possible that the Court will consider the January 6 insurrection (in the colloquial sense) to be a qualifying “insurrection” for purposes of section 3 of the Fourteenth Amendment.
2. The question of Trump’s role in the January 6 attack on the Capitol is, of course, very different from Couy Griffin’s, who was at the Capitol that day. But the Baude-Paulsen argument for Trump’s disqualification does not rely solely on the “aid and comfort” portion of section 3, but instead that the totality of Trump’s actions and inaction surrounding the January 6 attack suffices to constitute “engage[ing]” in insurrection within the meaning of the clause. That surely is debatable, but it’s not an implausible interpretation.
3. Disqualification of a leading presidential contender certainly is fraught with great peril for a democracy. That is why I previously compared Trump’s candidacy to the (not entirely unrealistic) possibility that John Breckinridge might have tried to run again for president in 1872 as he had in 1860. Another historical figure to think about in this regard is if hypothetically Clement Vallandigham had tried to run for president in 1872 or 1876 (if he had not died accidentally in 1871).
4. In considering Willick’s valuable point about just how dangerous the current situation, with its upcoming 2024 election, is, we would do well to revisit the history of partisan competition between Republicans and Democrats during the Civil War and Reconstruction, including the relevant presidential campaigns during that time. A bit of brief research disclosed that Horace Greeley, Grant’s opponent in 1872, was accused colloquially of being a “traitor” for his promoting peace during the Civil War–but to my knowledge he was never accused of being disqualified under section 3 of the Fourteenth Amendment.