“Insurrection” isn’t a crime you can charge for. Good luck finding anyone ever convicted of it in the history of the United States. (Hint: you won’t.)
On the other hand, conspiracy to overthrow the election and illegally place yourself in charge is absolutely insurrection, and he was charged for that. His actions on January 6 were even part of the indictment, and used as evidence of part of his criminality.
So yeah, he has been indicted on this already, Smith is trying to get him convicted in DC right now for it.
18 U.S.C. §2383 (" Rebellion or insurrection") was written in the same timeframe as the 14th Amendment. I think it’s entirely reasonable to assume that “insurrection” in the 14th references the same act as §2383. It makes no sense to say Trump’s actions don’t rise to the level of insurrection in the legislative code, but do with regards to the 14th.
The fact that no one has been convicted of insurrection to date could mean a lot of things: it’s impossible to prove insurrection if it wasn’t successful; the few times an action might have reached that level, there were other easier crimes to prove; prosecutors are too timid; etc. No matter the reason, I think the conclusion is this is a poor way to keep him off the ballot. Stick with the charged crimes that are easier to prove.
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.
It IS true that nobody has been convicted of this. But it does not mean it is impossible. However the extended SCOTUS decision ties everyone’s hands by saying that as far as they can tell there is no other law that has the effect of enforcing Sec. 3, so…
He stands accused or obstruction and conspiracy to obstruct an official function, conspiracy to deprive others of rights, and conspiracy to defraud the United States with an included allegation of taking advantage of chaos and violence. And that this “is absolutely insurrection” would be a moral opinion but, aggravatingly, as the decision interprets the law, it apparently would not be considered legally the same for these purposes.
Nothing precludes a Congress passing going forward a law bringing those under the umbrella of “insurrection or rebellion” on the criminal side and/or creating a civil cause of action in Federal Court so someone can put forth a suit or injunction for disqualification for those conducts (with a correspondingly lower standard of proof). But that isn’t happening until someone gets the presidency AND both houses with a filibuster-proof Senate on board.
Which, in effect, means we’ll never see a candidate declared ineligible for insurrection in our lifetimes.
In our current climate, it’s unimaginable that Congress could get its shit together to codify what insurrection means, to whom Sec. 3 applies, and how and when to apply it.
If there’s a future climate where Congress could actually pull it off, it will also likely mean that there’s no one running for federal office who deserves to be excluded.
The sad fact is that we probably have enough safeguards to prevent an individual from committing insurrection, but we are helpless when an entire party does it.
I just realized the bit I bolded from the statute might be declared unconstitutional someday, if someone who had never previously sworn an oath to support the constitution (unlike Trump, who did so on Jan 20th 2017) was ever convicted and barred from future office using that clause and appealed things all the way to SCOTUS. The 14th amendment does limit who can be penalized that way, and the statute as written makes no distinction.
One reason there was enough of a push to pass the Electoral Count Reform and Presidential Transition Improvement Act of 2022 was that everyone knew DJT will quite possibly be the next president of the United States. Without that possibility, the same members of Congress would have been willing to vote for it, but urgency would have been lower, and it might have been left behind.
An Article 3 implementation act will seem even less urgent. It will be pointed out that it couldn’t have stopped a first Trump term.
In theory, a bill could be passed saying that the 2,000 or so persons, who breached the Capitol on January 6, 2021, are barred from federal office for life. But the Supreme Court might say that such trespassing wasn’t enough to be an insurrectionist. Such ambiguities, in what the Trump v. Anderson decision allows, would result in too much uncertainty for it to be worth bringing such a bill to the floor.
It would take considerable courage for the Supreme Court to disqualify a highly electable Presidential candidate. Their homes would be picketed. Death threats would increase. The size of, and inconveniences associated with, their security details would increase. Their spouses and children would need security details. So no matter what bill was passed, they would look for an excuse not to decide if the future Trump was barred by Article 3, and would find it just as they did two days ago.
There were also wide-reaching (criminal) amnesties as the civil war wound down, some as a condition for surrender if I recall, and then even wider amnesties years after as Reconstruction came to an end.
I will also note, again, that there was in fact a law empowering U.S. District Attorneys to sue (in civil court) and disqualify ex-C.S.A. That law was repealed however.