The Supreme Court, Jack Smith, and the Death of the Rule of Law II

Today, the United States Supreme Court obliterated the Fourteenth Amendment, section 3, in Trump v. Anderson. The language of this section appears simple enough:

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.

The Court held that: “the Constitution makes Congress, rather than the States, responsible for enforcing Section 3.” More specifically, the Court held that only Congress may enforce the disqualification of section 3 and that states could only enforce the provision against state candidates for office and state officeholders. Otherwise the nation would face a risk of a patchwork of state outcomes. This, despite the fact that in 1868, shortly after the provision became law, the Governor of the State of Georgia disqualified a federal candidate for office. (See fn 3).

Further, if “only” Congress holds power to enforce section 3 then why did the drafters of the Amendment just insert an “only” in the section granting Congress power. The Court needs that “only” and it simply does not exist. Rather than apply the plain meaning the Court instead pretends there is an only when there is no such word. Section 5 plainly states: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” The Court did violence to the statute to protect Donald Trump.

Former Fourth Circuit Judge J. Michael Luttig, a prominent conservative jurist explains:

The Supreme Court did leave one last avenue for accountability under law that the Biden Administration or DOJ Special Counsel Jack Smith could use to disqualify Trump. 18 U.S.C. section 2383 provides:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

The Court cited this section with approval. It would provide a uniform federal solution. And, it arises from an exercise of Congressional power. Even this Court (which works overtime to protect Trump) would uphold such an action. 

Why did Jack Smith (or Attorney General Merrick Garland before him) fail to use this section against the obvious insurrectionist Donald Trump? Or, alternatively, why not bring such an action tomorrow morning? Colorado would provide a form indictment and a trial map, complete with comprehensive evidence?

So, the Court today shifted the spotlight to DOJ with today’s SCOTUS ruling. Agreement or disagreement with the Court’s opinion no longer matters. Many excellent arguments support the use of section 3 in precisely the manner of Colorado. All moot.

Why did DOJ fail (and continue to fail) to seek disqualification through a criminal action a criminal action? 

The most disturbing and vivid reality of all of this: law failed to hold Trump to account as an oath breaking insurrectionist despite many available pathways.