“Subverting Justice,” the 394-page report released last week by the Senate Judiciary Committee on disgraced former president Donald Trump’s machinations to overturn the results of the 2020 election, outlines the details of a coup plot that only narrowly failed.
That’s a fact that cannot be lost on any of us, as Trump continues to spin his big lies about the last presidential election, and as he sends ever-more-ominous signals about his intention to run in the next one. The facts of the former president’s sedition, which are now more fully detailed than ever before, should inspire members of Congress and state election officials to act—according to the dictates of the Constitution—to bar Trump from ever again holding public office.
There was a vibrant conversation after Trump incited the deadly insurrection on January 6 about holding him to account based on Section 3 of the 14th Amendment, which was enacted after the Civil War in order to address the treason of former Confederates. That section of the Constitution states that anyone who, “having previously taken an oath, as a member of Congress, or as an officer of the United States…to support the Constitution of the United States, [and then] shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof,” is prohibited from holding office.
The conversation faded as Congress focused on an impeachment process that, while it drew bipartisan support, ultimately failed to win the 67 Senate votes required to convict the former president. This new Senate report, with its dramatic additional evidence of Trump’s sedition, more than justifies renewing the discussion of utilizing the 14th Amendment to disqualify him.
A 14th Amendment strategy is not a radical concept. Indeed, US Representative Jamie Raskin, the Maryland Democrat who was the lead impeachment manager for the House, has said, with regard to those who are disqualified under the 14th Amendment standard, “Donald Trump is right in…the bullseye middle of that group.”
Raskin has argued that there “conceivably could be an affirmative statement by state legislators, by Congress, by other institutions” to make this point.
“So we’d have to figure it out and do some more research about all of that,” added Raskin, a constitutional law professor before his election to Congress. “But the point is that the constitutional purpose is clear, to keep people exactly like Donald Trump and other traitors to the union from holding public office.”
This is the time to refocus on the 14th Amendment, particularly as former Trump National Security Council official Fiona Hill has noted that the ex-president “is mulling again a return to what he sees more as a crown than the presidency in 2024.” Her dire warning, in a recent Politico interview, holds that “if he makes a successful return to the presidency in 2024, democracy’s done.”
What We Know Now About Trump’s Sedition
After the Senate Judiciary Committee focused for eight months on a specific aspect of Trump’s multifaceted efforts to overturn the 2020 election results—his “relentless, direct pressure” on officials at the US Department of Justice to facilitate the defeated candidate’s “election subversion scheme”—we now know that Trump abused his position by orchestrating at least nine calls and meetings to pressure DOJ officials to facilitate his efforts to overturn the election, and that he forced the resignation of at least one US Attorney—Georgia’s BJay Pak—“because he believed Pak was not doing enough to support his false claims of election fraud in Georgia.” We also know that, when Acting Attorney General Jeff Rosen told the president that the department “can’t and won’t just flip a switch and change the election,” Trump replied that the DOJ simply needed to announce that the election was corrupt. Then, said Trump, “leave the rest to me and the [GOP] Congressmen.”
The committee concluded that “we were only a half-step away from a full blown constitutional crisis as President Donald Trump and his loyalists threatened a wholesale takeover of the Department of Justice (DOJ).”
Those revelations from the report connect to all that we have already learned about Trump’s role in the January 6 election, which led to a bipartisan vote by the House for his impeachment and a bipartisan vote by 57 senators—the most substantial in the history of presidential impeachments—for his conviction.
While that did not amount to the supermajority required to convict Trump under one section of the Constitution, the numbers are more than sufficient to bar him, under another section of the same document, from ever again using the office of the presidency to subvert justice, overturn elections, and engage in coup plotting to thwart the will of the people and the law of the land.
The wrongdoings detailed in the Senate report cannot be neglected.
Attempting to overturn an election, even if that attempt is unsuccessful, is a coup. Some coups succeed. Some fail. But they all are rooted in an assault on the rule of law that must be addressed by federal and state lawmakers if there is to be any hope of preventing the degeneration of the American experiment into the sort of anti-constitutional impunity that destroys republics.
So the first duty is to call a coup a coup, as many of the most thoughtful monitors of Trump’s rampant wrongdoing did after reviewing the Judiciary Committee’s conclusions.
“This report confirms that there were actually two different coups happening, sort of parallel to one another. They were not just talk. They were not just fluff. This was a very real concerted, coordinated effort,” said Elie Honig, former assistant US Attorney for the Southern District of New York.
“One coup was Donald Trump trying to steal the election. The other coup was happening inside DOJ, as Jeffrey Clark, who’s a real villain in this story, tried to take over as [attorney general] so he could weaponize DOJ to help Trump take over the election. This is a real scandal, and it’s more than that. Merrick Garland, DOJ, needs to get involved here. Congress has done its part. It’s time for DOJ to take a look.”
Honig—a CNN legal analyst who has long brought attention to Trump’s attempts to overturn the election, including the former president’s January 6 call to insurrection—is right that Attorney General Garland and his team should investigate Clark for engaging in federal crimes. Among other things, Clark drafted a letter fraudulently claiming that federal investigators had identified election concerns serious enough to overturn Georgia’s presidential election results. But it is not quite true, as Honig suggests, that Congress has done all it can do.
Congress, even in its divided and frequently dysfunctional current form, can and should affirm that Trump has, according to the standards set by the US Constitution, engaged in actions that disqualify him from ever again seeking the presidency.
Indeed, some members of Congress have recognized that, including US Representative Mark Pocan (D-Wis.), who said, “The Senate report solidifies what many of us here thought: that Donald Trump’s activities clearly disqualify him from running for office again.” Pocan’s office explored seeking congressional action to confirm Trump’s disqualification in January, before the impeachment vote. At the same time, US Representative Cori Bush (D-Mo.) proposed an inquiry into whether members of the House who had supported Trump’s efforts to overturn the election should be investigated and potentially expelled under the 14th Amendment, Section 3, standard.
For the members of Congress who might have been reluctant about voting for a resolution affirming Trump’s disqualification, the “Subverting Justice” report provides a clear and compelling argument for congressional action. The same goes for state election officials, who, attorney John Bonifaz and the group Free Speech for People point out, “have the authority and responsibility to determine, as part of the state ballot qualification process, that Mr. Trump is ineligible to appear on a presidential ballot because, ‘having previously taken an oath…to support the Constitution of the United States,’ he then proceeded to ‘engage in insurrection or rebellion against the same.’”
Bonifaz tells me, “If he runs in 2024, we will go into court and argue that he has disqualified himself.”
There can be no honest debate about whether Trump has engaged in insurrectionary activities that meet the amendment’s standards. Nor can there be much doubt that the former president, who made a high-profile visit to the first-caucus state of Iowa over the weekend, intends to seek the presidency in 2024. When Trump says, “We’re going to take America back,” as he’s making the rounds of states that will decide the next presidential election, there is every evidence that Bill Maher is right when he said, “the slow moving coup…is still moving.”
The threat is staring America in the face. So, too, is the appropriate response.