Did Trump Engage in ‘Insurrection or Rebellion’ Against the Constitution?

The article of impeachment against President Donald Trump that the House of Representatives is expected to approve tomorrow invokes Section 3 of the 14th Amendment, a little-discussed provision originally aimed at former Confederates. As relevant here, Section 3 says “no person” may “hold any office, civil or military, under the United States,” who, “having previously taken an oath as…an officer of the United States…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.”

I understand why House Democrats might want to cite a specific legal provision as justification for Trump’s second impeachment after catching flak for not doing that the first time around. But I’m not sure this is a can of worms we want to open.

Under Section 3, the impeachment article charges, Trump disqualified himself from office by inciting his followers to violently obstruct the congressional affirmation of President-elect Joe Biden’s victory last Wednesday. The article also cites Trump’s “prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election,” specifically mentioning the January 2 telephone call in which he pressured Georgia Secretary of State Brad Raffensperger to overturn that state’s election results.

Those actions, the article says, “threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government.” Trump “thereby betrayed his trust as President, to the manifest injury of the people of the United States.”

Today Trump claimed his remarks last Wednesday, when he inflamed his followers with his oft-repeated fantasy of a stolen election and urged them to “fight like hell” against an “egregious assault on our democracy,” were “totally appropriate.” They were not; they were manifestly outrageous and irresponsible. At the same time, his speech, which on its face advocated nothing beyond peaceful protest, did not qualify as incitement to riot under federal law. Nor did it exceed the bounds of constitutionally protected speech as described in the 1969 Supreme Court case Brandenburg v. Ohio, which said even advocacy of illegal behavior is covered by the First Amendment unless it is not only “likely” to incite “imminent lawless action” but also “directed” at doing so.

Trump’s conversation with Raffensperger, during which he suggested that the secretary of state could face criminal prosecution if he failed to “find” the votes needed to change the outcome of Georgia’s election, was clearly an abuse of power. But it is doubtful