Trump could be banned from the office of president

The 14th Amendment could be used without a criminal conviction for insurrection

After last week’s column about world leaders facing criminal charges there have been developments in the Donald Trump saga that compel further comment. Trump claims the criminal justice system has been weaponised against him and, not to be outdone, he has weaponised it to suit his re-election campaign and is far and away ahead of all his rivals for the Republican Party nomination.

Last Thursday he was processed as an accused at Fulton County Jail in Atlanta, Georgia, where he was arrested and a mug shot taken for the first time of a former US president. It shows Trump in scowling mode depicting anger and defiance that suits him fine.

The mug shot is embarrassing to the office of US President, but not in the least embarrassing to the Republican Party. Like Trump, it is convinced the charges are politically motivated by Biden and his administration to discredit the candidate they fear most.

It has to be said that the timing of the prosecutions so close to the presidential elections is suspect, even if most of the charges are evidence-based and well-constructed. The truth is, however, that a case to answer against Trump was found by separate grand juries – not the Department of Justice – in all four prosecutions.

A lot of the evidence against Trump is well known and well documented; the question in the last two indictments is whether he had a guilty mind when he sought to overturn the election results of 2020, or whether he genuinely believed the election was stolen from him and sought to rectify a wrong done to him?

Trump’s rival candidates in the Republican Party are too cynical to break ranks while at the same time hoping he is ruled out of the contest by the charges they condemn as political persecution while secretly wishing he is knocked out and they inherit the Trumpist mantle.

There was a debate last Wednesday between the Republican Party’s eight other presidential candidates that was branded the debate with the elephant not in the room because Trump, who absented himself, dominated the event. The participants were an assortment of upstarts and has-beens most of whom did not dare say a word against the old rascal.

There was, however, one honourable exception, the former New Jersey Governor, Chris Christie, who argued that, guilty or not, Trump was not fit to be president as he had subverted the oath he had taken as president to uphold the US Constitution.

As an eminent lawyer Christie argued forcefully that character and truth matter and even came close to suggesting that Trump could be banned from running for president under the 14th amendment though he did not say so in terms. The 14th amendment says that one cannot hold any public office in the US if having previously taken an oath to support the Constitution he has engaged in insurrection or rebellion against it.

Importantly a ban under the 14th amendment does not require a conviction of the crime of insurrection. It is an important requirement that a person who runs for any public office in the US has not engaged in insurrection or rebellion having previously taken the oath to uphold the Constitution.

The indictment against Trump concerning the events of January 6, 2021, alleges that he exploited the violence at Capitol Hill to frustrate the certification of the election result. The indictment alleges that Trump refused to call off the violent mob that had invaded Capitol Hill.

It times a tweet at 2.24pm from Trump in which he castigates his Vice President, Mike Pence, for not having the courage to do his bidding by refusing to certify the returns of the electoral college, which it juxtaposes with shouts from the mob of “hang the traitor Mike Pence” and “where’s Pence bring him out.”

The implication is that the tweet and Trump’s behaviour in the face of the violence at the Capitol were done with the intention of frustrating the peaceful transfer of power that at 2.25pm forced the US Secret Service to evacuate Pence to a safe location that ensured the insurrection failed.

The inference is that Trump manipulated a violent mob on the Capitol Hill, where Congress assembled formally to certify the presidential election result, so as to prevent a peaceful transfer of power by physical threats to the vice president to prevent him from certifying the election result.

Given the evidence already in the public domain, Chris Christie came as close as the occasion would allow by saying that Trump could be banned from being president for encouraging insurrection without actually spelling it out.

Alper Ali Riza is a king’s counsel in the UK and a retired part time judge