The Justice Department has not resorted to the most egregious seditious-conspiracy charges in connection with the Capitol riot for the same reason it hasn’t brought an insurrection charge: In a courtroom, prosecutors need evidence — the loose rhetoric of Democrats and other anti-Trump obsessives won’t do. And no violent-crime charges have been brought against Trump at all because, again, in a courtroom, moral and political culpability for the events of January 6 — which Trump undoubtedly bears — is insufficient. You’ve got to be able to prove the crime — not just the acts of force but the required mental state. On Trump, Smith has neither. And he’s not close, because — past being prologue — if he were close, he’d go for it.

I don’t want Donald Trump to run for president, much less be president. But on the facts of the case, the only way to disqualify him is to impeach and convict him. Impeachment has its own disqualification provision which the Senate failed to satisfy in Trump’s second impeachment trial. The 14th Amendment is not a legitimate substitute for it, any more than the 25th Amendment was when its potential invocation was (properly) rejected in the frenzied days after the Capitol riot.

Inadvertently or not, those who are advocating the 14th Amendment as a vehicle for banning a Trump presidential run are doing the same thing they condemn Trump for doing: positing a highly dubious, widely rejected legal theory to interfere with the Constitution’s democratic process for electing a president.