By Bob Marshall

Among never-Trumpers’ continuous efforts to embarrass themselves while contriving futile attempts to block Donald Trump from becoming president is the supinely deficient advice coming from attorneys Evan Davis and David Schulte urging that when the Electoral College meets on January 6, Democratic congressmen “need to take a stand against Electoral College votes for” Donald Trump because he is supposedly guilty of insurrection based on their ahistorical claims and flakey reading of the 14th Amendment’s Section 3.

They contend that Trump needs a two-thirds vote of Congress to overcome his “disability” regardless of receiving 312 electoral votes to 226 electoral votes for Kamala Harris and 77,270,000 popular votes to 74,984,000 for Harris! Sorry counselors. As Jimmy Stewart said in “Mr. Smith Goes to Washington,” “Forget it, fellas … [that] … is a lot of hooey.”

Democrats decided on the 14th Amendment Trump disqualification fantasy ploy after losing six state and federal court efforts with the misreporting “talents” of the leftist disinformation media to kick Trump off 2024 election ballots or to prevent him from getting on. (See “The Case Against Trump: A Guide.”)

Davis and Schulte cite the Trump impeachment trial for “incitement of insurrection” in which the attorneys bizarrely claim that the senators did “provide a majority for conviction but failed to reach the two-thirds vote required for removal from office.” Huh?

What is a Senate “vote of a majority” for conviction?

The official U.S. Senate record has a different view on the case outcome found at Congress.gov which reports that: “The Senate adjudges that Donald John Trump, former President of the United States, is not guilty as charged in the Article of Impeachment by Yea-Nay Vote. 57-43. Record Vote Number: 59.” For the benefit of these elite law school attorneys, when the U.S. Senate says Trump is not guilty it means he is cleared of the charges, i.e., Trump is not guilty.

The second insurrection clause effort these hope-beyond-hope attorneys cling to in order to disqualify Donald Trump from the presidency occurred in a state challenge to the placement of Trump’s name on the Colorado ballot for president where the Colorado Supreme Court had ruled against Trump even being allowed to have his name on the presidential ballot. The U.S. Supreme Court in Trump v. Anderson (No. 23–719, 3/4/2024) unanimously “reversed the decision of the Colorado Supreme Court that had held Trump to be ineligible for the office of president under Section 3 on the grounds that he had engaged in insurrection and, therefore, could not be listed on the Colorado presidential primary ballot” (see overview).

The Senate exoneration of Trump from the insurrection impeachment charges and the unanimous U.S. Supreme Court decision dismissing and invalidating the Colorado Supreme Court ruling should end the question.

But we are dealing with never-Trumpers.

So, the two attorneys want newly-elected Democratic members of Congress to turn the upcoming January 6 Joint Electoral Count Session of Congress into an ad hoc legal circus hard to distinguish from sedition to disqualify a sufficient number of state electoral votes because of their tortured misunderstanding of Section 3 of the 14th Amendment so that by default, Kamala Harris would be the president! 

Procedurally, to object to the state electoral counts, federal law requires at least 20% of members of the House and Senate to separately sign petitions to challenge electoral vote counts reported from each state to the Congress.

State electoral votes may be legally be rejected if:

“(I) The electors of the State were not lawfully certified under a certificate of ascertainment of appointment of electors according to section 5(a)(1).

(II) The vote of one or more electors has not been regularly given.”

Davis and Schulte want Trump disqualified for engaging in an insurrection forbidden by the 14th Amendment for presidential aspirants like Trump.

Let’s first establish the relevant law and the facts. If Trump led an insurrection, there have to be at least some insurrectionists? At least it seems so.

On June 6, 2024, the U.S. Justice Department published arrest/charging data for

January 6, 2021 Capitol riot defendants and their charges. There were:

“1,457+ defendants assaults and resistance, destruction of private and public property, entering/remaining in restricted areas, weapons charges, conspiring, attempting, obstructing official proceedings, obstructing police or conspiring to do so.”

The discerning reader will see, or rather will NOT see, any criminal charges of any of the almost 1,500 January 6 defendants for the federal crime of insurrection. It seems somewhat curious that while Donald Trump was unanimously charged by Congressional Democrats and a few Republicans with insurrection (but exonerated by the Senate), not even one of his nearly 1,500 supposed January 6, 2021 insurrectionary “followers” were charged with insurrection.

But this is Washington, where even watered down skim milk is repackaged as “cream.”

The House of Representatives H. Res 24 Articles of Impeachment, passed by a vote of 232 to 197, states, “[S]ection 3 of the 14th Amendment to the Constitution prohibits any person who has "engaged in insurrection or rebellion against” the United States from “hold[ing] any office … under the United States.”

This charge is false. The 14th Amendment’s section 3 reads: 

“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 … to support the Constitution … shall have engaged in insurrection or rebellion … or given aid or comfort to the enemies thereof.”

Neither the president nor the vice president are covered by the text as originally considered and written back in 1866.

A reading of the Congressional Globe record of House and Senate debates on the 14th Amendment as I have done twice within the past month definitively shows that no version of what became the 14th Amendment included the office of president or vice president in its developing text in any version of what became the 14th Amendment. If Trump critics have read these debates, they are either lacking in competence or candor for not incorporating this knowledge into their public deliberations.

Republican Senator John B. Henderson, when explaining the wording that eventually passed, noted that, “The language of this section is so framed as to disenfranchise from office the leaders of the past rebellion as well as the leaders of any rebellion hereafter. … When the section is closely scrutinized, it will be seen that comparatively few men will fall subject to the exclusion. It does not, as sometimes supposed, reach all who may have taken an oath to support the Constitution of the United States” (Congressional Globe, 6/8/1866, pages 3035-36).

Henderson, who also co-patroned the 13th Amendment banning chattel slavery, disputes the main contention of the Democrats’ case against Donald Trump. It is suggested that Henderson was more knowledgeable as to the meaning of Section 3 of what became the 14th Amendment than the Trump insurrection zealots.

During 1866 just after the end of the Civil War, fully 11 southern states were not represented in the Congress. So, if northern legislators wanted to make it clear that the 14th Amendment included the president under the insurrection disability clause, they could have modified the wording of the amendment. But the official record as recorded in the Congressional Globe shows they did not consider any such amendments. 

And the best proof that the drafters of the 14th Amendment did NOT intend to include the president in the disability language, unlike what anti-Trumpers gratuitously claim, is the action of Congressman Thaddeus Stevens, who introduced a statute at the request of the Joint Congressional Committee on Reconstruction disqualifying certain past office holders from taking any positions in the reconstructed national government:

“Moved to report a bill making persons in any of the following classes ineligible for public office under the Government of the United States: ‘The president and vice president of the confederate States of America, so called, and the heads of departments thereof … Heads of Departments of the United States, officers of the Army and Navy of the United States … foreign agents of the confederacy, persons educated at US military academies, federal judges, House or Senate members of the 36th Congress who aided the confederacy, select confederate Army and Navy officers, Governors who helped the rebellion and persons who mistreated captured Union military personnel” (Congressional Globe, 4/30/1866, page 2287).

The phrase “officer of the United States” distinguishes “employees” from persons appointed to some governmental position. Supreme Court Justice Samuel Freeman Miller in 1888 addressed whether the 14th Amendment’s insurrection clause includes the president. He stated, “Unless a person in the service of the Government … holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of Departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States.”

Much more recently, Chief Justice John Roberts wrote a 2009 decision, noting that, “The people do not vote for the 'Officers of the United States.’ Art. II, §2, cl. 2. … the Appointments Clause, which requires ‘Officers of the United States’ to be appointed by the President with the Senate’s advice and consent. Art. II, §2, cl. 2.”

An excellent law review (2021) on the Article III, 14th Amendment question was written by Josh Blackman and Seth Barrett Tillman. They note:

“In 1943, Attorney General Francis Biddle cited Mouat … that ‘under the Constitution of the United States, all its officers were appointed by the President … or by a court of law, or the head of a department.’ Biddle’s reading of Mouat did not distinguish ‘officers of the United States’ as used in the statute from ‘Officers of the United States’ as used in the Constitution. And, Biddle reasoned that ‘all’ officers must be appointed — not elected.

"In 2007, an Office of Legal Counsel (OLC) memorandum echoed this position. … ‘[i]t is true that an individual not properly appointed under the Appointments Clause cannot technically be an officer of the United States.’”

They also cite Justice Antonin Scalia, who said in an OLC opinion, “When the word ‘officer’ is used in the Constitution, it invariably refers to someone other than the President or Vice President.”

January 20, please save us!