Democrats' back-up plan: Let's do something unconstitutional too

Put this one in the “we had to burn the village to save it” column of bad ideas … again. Despite the obvious unconstitutionality of the plan, McClatchy reports that Democrats still want to keep the so-called 14th Amendment Option in reserve in the all-too-certain case that the impeachment trial results in an acquittal for Donald Trump. Democrats want to defend the Constitution by violating one of its core controls on congressional power, it seems:

House and Senate Democrats may push ahead this week with a censure resolution to bar former President Donald Trump from holding future office over his role in the U.S. Capitol riot, anticipating acquittal in the Senate impeachment trial, several sources familiar with the matter told McClatchy.

The effort to draft the resolution that would invoke a provision of the 14th Amendment began quietly in January and gained momentum over the weekend, as Democratic Sen. Tim Kaine of Virginia and Republican Sen. Susan Collins of Maine gauge whether the measure could attract bipartisan support. …

Their attention has focused on Section 3 of the 14th Amendment, a rarely cited Civil War-era provision which allows Congress to bar individuals from holding office if they have “engaged in insurrection.” A resolution to censure Trump would require a simple majority vote to pass in the House and Senate.

That’s incorrect twice over. Not only does Section 3 not give Congress any such authority, it also explicitly violates Article I’s prohibition against passing bills of attainder. Here’s Section 3. Where exactly does it give Congress any judicial authority for imposing disqualification?

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.

Nothing in this language confers authority on Congress to do anything except waive the prohibition. It prohibits people who have committed certain  crimes from holding federal office, but nothing in this denies those people from having due process in a court of law to make that determination of guilt in the first place. Congress is not a court in any other mode than impeachment, and the same document that Democrats claim to be defending explicitly prohibits them from declaring anyone guilty of a crime. The founders wrote that prohibition after having experienced the corruption of Parliament usurping the role of courts to declare political opponents and dissidents as traitors, which is exactly what Democrats want to do here, too.

McClatchy includes this hurdle in its report, along with the fact that Democrats damn well know it:

The Constitution does not allow Congress to punish an individual over a crime without due process or a trial — a process referred to in the founding document as a “bill of attainder.” Democratic lawyers have warned members of Congress that any move to bar Trump from holding office without conviction at an impeachment trial could provide him with a strong constitutional argument in any future court challenge.

“I know there was some concern about it being a bill of attainder, but I’m not concerned about that,” said Cohen, a member of the House Judiciary Committee, “because what he did was the most horrific thing that a president of the United States has ever done to this country.”

So, to be clear, Cohen knows it’s unconstitutional, but Trump Trump Trump! We must restore the norms by burning them all down first! Congress has an important role in keeping presidents in check, but Congress is bound by the same document as presidents. Democrats who want to get revenge on Trump this badly should consider whether they’re becoming their own nightmare.

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