It's Debatable: Is Donald Trump an insurrectionist and can he serve as President?

In this week's "It's Debatable" segment, Rick Rosen and Charles Moster debate whether former President Trump is an insurrectionist under Section 3 of the 14th Amendment and constitutionally disqualified from serving as President. Rosen retired as a professor from the Texas Tech University School of Law and is a retired U.S. Army colonel. Moster is founder of the Moster Law Firm based in Lubbock with seven offices including Austin, Dallas, and Houston. 

ROSEN-1

Section 3 of the Fourteenth Amendment provides in relevant part: “No person shall … 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….” Some argue former President Trump engaged in an insurrection on January 6, 2021, and is automatically ineligible to appear on ballots for president. I disagree.

First, it’s not at all clear that the events of Jan. 6 constituted an insurrection let alone Trump’s participation in one. Section 3 was intended to keep former Confederates from holding public office following a bloody Civil War that left 620,000 dead, not a demonstration that turned into a five-hour riot. Although Trump faces four indictments consisting of 91 charges, not one accuses him of insurrection. And the American people do not agree about such a characterization of Jan. 6. For example, a January 2023 University of Massachusetts Amherst poll found that 55% of respondents describe Jan. 6 as a riot and only 41% consider it an insurrection.

Second, some assert that an insurrection is an immediate disqualification that “should be enforced by every official, state or federal, who judges qualification” without due process of law. Under such a scheme the election map could become a checkerboard in which some states would permit people to vote for Trump while others would deny that choice. This is chaos.

I do not mean to minimize the enormity of Jan. 6 or President Trump’s role in it. It was horrendous. And Trump may pay the price for his actions in the courts. But employing Section 3 to prevent people from voting for Trump is a clear recipe for disaster—it will literally tear the nation apart. The American people should decide the election, not government officials by executive or judicial fiat.

Finally, once employed, such a tactic cannot be contained. What if some state election officials deem Section 3 applicable to President Biden’s humiliating withdrawal from Afghanistan resulting in the loss of American lives and the abandonment of $7 billion of military equipment as “aid and comfort” to the Taliban and a reconstituted al Qaeda—our nation’s enemies for over 20 years. May Biden be kept from the ballot in those jurisdictions? Is this really a wise path to follow?

Moster - 1

Former President Trump is poised to be disqualified as a candidate for the Presidency based upon the outcome of indictments brought by the Justice Department for his “corrupt attempt to obstruct an official (legislative) proceeding”. My only point of agreement with my distinguished debate partner is that the 14th amendment to the Constitution is not self-effectuating which is a good thing as it could easily be abused to eliminate candidates from the political process based on partisan interests.

I am still bewildered that many of my colleagues in Lubbock continue to support Mr. Trump who has plainly stated that he wants to "suspend the Constitution". I recall conversations with some of my dear friends who elevated the very words of the Constitution to "biblical stature" given the sacred concepts expressed. How they could continue to support this crass NY Carpetbagger who would trash the Constitution to regain power is incomprehensible. My only explanation is that this fraudster has achieved cult status somehow. Malignant narcissists have incredible power.

There is no merit to Rick's position that the 14th amendment is limited to those who engaged in insurrection during the Civil War. I would ask Rick to come up with any legislative history to substantiate that position. In the absence of such evidence, I would assert persuasively that the amendment was intended to apply prospectively to acts intended to threaten the survival of the American way of life.

The indictment relates (in part) to Trump's attempt to obstruct certification of the votes to authorize the election of Joe Biden. I am not a big fan of Mr. Biden, but the certification process is merely ministerial and cannot be used to obstruct or block the outcome of an election which is what Trump and his cronies attempted to do. You can add the “not so” illustrious Ted Cruz to the list who appears to be in hiding these days. The efforts of Trump and his co-conspirators were false and intended to destroy the most critical component of the American democratic process which is the peaceful transfer of power.

Although the federal indictment does not specifically reference “insurrection”, the effect is identical and one of semantics. I know nothing in the 14th amendment that would require an indictment to specifically allege insurrection as my debate partner myopically suggests.

Critically, Vice President Pence got it right as exemplified by JFK in his Pulitzer Prize winning book, Profiles in Courage. The evidence brought out by the January 6 Commission makes clear that Trump was fully aware that those breaching the Capitol grounds actively sought to “lynch” the Vice President. That is the extent of the evil we are dealing with.

If one needs corroboration from constitutional scholars, I point to an article that appeared in the Atlantic authored by both conservative and liberal Constitutional experts, specifically former conservative federal Judge J. Michaele Luttig and his liberal counterpart, Laurence Tribe. They both took an even more extreme position than mine arguing that the 14th amendment is self-effectuating and former President Trump is presumptively disqualified. I beg to differ as all accused defendants have the right to due process. That said, the convergence of scholars on both sides of the spectrum is telling.

In the event Mr. Trump is found guilty of obstructing an official legislative proceeding, he must be disqualified from serving as President of United States. However, until such a time, the preclusive prohibition of his very candidacy is premature.

Finally, to my friends and colleagues in West Texas who still support Trump, I implore you to reconsider given his intention to suspend the Constitution. Of course, there will be a penalty to be paid for changing one's position as I originally supported Trump in this column. I have been the subject of inflammatory and derogatory comments including being labeled a so-called “RINO”.

We must stand together to protect the Constitution and recall the great Benjamin Franklin’s admonition as he departed Independence Hall after the Constitutional Convention. A bystander blurted out, “Doctor, what have we got? A republic or a monarchy?” Franklin responded ominously – “A Republic, if you can keep it.”

Never has a warning been as prescient.

ROSEN - 2

Brad Raffensperger, the Georgia Republican Secretary of State who resisted Trump’s claim that the 2020 presidential election was rigged, called the 14th Amendment argument the “newest way of attempting to short-circuit the ballot box.” Writing in the Wall Street Journal, Raffensperger said that “[a] process that denies voters the chance to be the deciding factor in the nomination and election process would erode the belief in our uniquely American representative democracy.” True the 14th Amendment disqualifies persons who have engaged in an insurrection, but Trump has not done so.

First, I did not assert as Charles claims that the 14th Amendment is limited to those who engaged in the Civil War. While the Amendment was prompted by southern states who sent Senators and Representatives to Congress who had served in the

Confederacy including the Confederate army, it certainly reaches beyond that era. I simply stated that the events of January 6 did not constitute an insurrection.

Second, I noted that out of the 91 criminal charges Trump faces, not one mentions an insurrection. Charles argues that the charge of a “corrupt attempt to obstruct an official (legislative) proceeding” is effectively identical “and one of semantics.” This is flatly false. Trump could have been charged with insurrection under section 2383 of Title 18 of the United States Code. He was not. Instead, he was charged with obstructing a legislative proceeding under section 1512(k). The two are not the same. Under the 14th Amendment, the disqualification applies to persons who have engaged in an insurrection, not obstructing a legislative proceeding. If Trump is convicted of violating section 1512(k), he will not have been convicted of an insurrection.

Third, Charles expresses bewilderment that many of his colleagues in Lubbock continue to support Trump. I am not sure how to respond because I have never voted for Trump (or for Biden). Moreover, I find it difficult to believe that the American voters may be stuck with a choice between Trump and Biden—we could do much better. We need candidates who can unify the nation, not further divide it. But, assuming Trump is the Republican nominee for president, disenfranchising nearly half the country (including Charles’ colleagues in Lubbock) by removing him from the ballot perhaps just weeks before an election will literally tear the country apart.

MOSTER - 2

This is how the U.S. Department of Justice described the indictments which were entered against former President Donald Trump:

“Today, an indictment was unsealed charging Donald J. Trump with conspiring to defraud the United States, conspiring to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding. The indictment was issued by a

grand jury of citizens here in the District of Columbia and sets forth the crimes charged in detail... The attack on our nation’s capital on Jan. 6, 2021, was an unprecedented assault on the seat of American democracy. As described in the indictment, it was fueled by lies. Lies by the defendant targeted at obstructing a bedrock function of the U.S.”

For anyone who has studied the events of what has been called “the January 6th Insurrection” and in particular, the full published report (724 pages in total), it is as obvious as the sun rising over the U.S. Capitol, that Trump attempted to prevent the peaceful transfer of power which has inexorably occurred in our great Republic since the end of the Washington Administration. I cannot fathom that anyone could deny the mountains of evidence which point to Mr. Trump as the most dangerous threat to American democracy since Benedict Arnold and you can add his rogue cast of characters to the mix including Ted Cruz who, unlike Trump, was a Harvard trained lawyer and knew precisely what he was doing. You can also include Florida Governor Ron DeSantis to the list of former Harvard law grads who continue to embrace Trump and have declared their support for him should he win the nomination. Wake up, America!

For those who had fallen victim to Trump’s incessant lies, his former press official stated that Trump’s advice was “to repeat a lie over and over again as the people will ultimately believe it”. Of course, Trump and the official had no recollection of history as this paraphrase of a quote is attributed to Hitler’s own Minister of Propaganda, Joseph Goebbels. The fact that a majority of Republicans fallaciously believe that the election was stolen pathetically and prophetically proves the validity of Goebbels psychological rule of thumb. Some of the most intelligent people I know in Lubbock have fallen for this falsehood and I see no avenue for reconsideration.

The text of the 14th Amendment does not require, as Rick would suggest, that an indictment specifically mentioning “insurrection” be charged and a conviction obtained to implement its proscription on running for office. I note again for the record, that one of the most conservative constitutional scholars and a former federal judge in the United States would prohibit Trump from running under the 14th amendment based on his reported acts alone, without the requirement of even an indictment.

The indictment relating to Trump’s corrupt attempt to obstruct an official proceeding relates to his behind the scenes overt and fallacious acts to get Pence to refuse acknowledgment of the counting of the Congressional electoral votes. If Mr. Pence had acceded to the enormous pressure applied by Trump and his implied threats of violence (leading to lynching attempts), our democracy would have ended right there and then. For the sake of all Americans, Mr. Pence personified a true “Profile in Courage” and saved the republic.

As we sit here today on the eve of a new election, I am fearful for the very survival of our nation. Mr. Trump’s only viable exit strategy to avoid prison is winning the Presidency which presumably he would serve from a Federal or State penitentiary.

Of course, if my reading of the 14th Amendment is correct, we can avoid this tragedy for all of us and our nation.

This article originally appeared on Lubbock Avalanche-Journal: It's Debatable Is Trump an insurrectionist, can he serve as President?