Question: Should President Biden enforce the 14th Amendment to minimize violence this election cycle?

No conviction of insurrection is required to enforce the 14th Amendment, only an oath and violence.

Holding public office is a privilege, not a natural right. No “due process of law” is required to deny a privilege. The 14th Amendment is clear that actions, not convictions, trigger its enforcement:

  • No person shall hold any office, civil or military, under the United States,
  • who, having previously taken an oath
    • Mr. Trump swore such an oath on Jan 20, 2017
  • shall have engaged in insurrection or rebellion against the same
    • Mr. Trump’s intent does not matter; leaders are responsible for outcomes, not intents.
    • But Mr. Trump called a crowd to DC. “Big protest in D.C. on January 6th. Be there, will be wild!”
    • That crowd stormed the Capitol in “a violent uprising against an authority or government.”

America is a compound republic with Divided Sovereignty. We the People, every state, and every branch of the Federal government is required to act to enforce the 14th Amendment so Tyranny of the Majority, the vile aspect of democracy, is constrained.

President Biden’s obligations are clear:

  • Article 2, Section 1 of the Constitution: “The executive Power shall be vested in a President of the United States of America.”
  • The President of the United States has an obligation to enforce the clear text of the Constitution. Amendment 14, Section 3: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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. But Congress may by a vote of two-thirds of each House, remove such disability.”

In well-reasoned documents, Colorado and Maine enforced Amendment 14 to remove Mr. Trump from their ballots because of his acts of insurrection. Article 2, Section 1 of the Constitution is very clear that states are sovereign over their election process:

  • “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress."
  • Further, the Constitution explicitly forbids Congressmen and Supreme Court Justices injecting their opinions into state sovereignty over the Electoral College: "no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector". 

Supreme Court Justices are individuals “holding an Office of Trust or Profit under the United States”. 

  • They are individually, and as a court, forbidden from interjecting their opinions into state Electoral College processes. The only exception to this is if that state process violates the Liberty of a class of citizens, such as by race or sex.
  • Mr. Trump’s only appeal to the actions in Colorado and Maine was to the legislatures of each state. 
  • The Supreme Court had no jurisdiction to hear Trump v. Anderson.
  • Had the court not violated Divided Sovereignty in overturn Colorado and Maine, Republicans might have selected a different candidate, and the current risk of violence might have been preempted. America is a compound republic specifically to avoid this type of risk (Federalist #1-46, especially #10 and #9).

The nation is facing violence this election cycle because of:

  • The violence of Mr. Trump’s insurrection on Jan 6th. 
    • Mr. Trump called a mob to Washington, “Big protest in D.C. on January 6th. Be there, will be wild!” 
    • Mr. Trump’s speech that turned the crowd into the violent mob that stormed the Capitol.
    • Insurrection does not require intent, only “a violent uprising against an authority or government.”
  • Mr. Trump’s current hate speech.
  • Supreme Court violating the Divided Sovereignty of Federalism in hearing and overturning Trump v. Anderson (Colorado and Maine). 
  • Judges delaying trials for Mr. Trump’s

Warnings of those who worked with Mr. Trump during the 45th Presidency:

  • John Kelly, Trump's longest-serving chief of staff:
    "He's certainly an authoritarian, admires people who are dictators. He has said that. So he certainly falls into the general definition of fascist, for sure."
  • Kelly also stated that Trump "displayed the tendencies of a fascist" behind the scenes and recalled Trump "repeatedly praising Adolf Hitler."
  • Mark Esper, former Secretary of Defense under Trump, wrote in his memoir:
    "He is unfit for office and a threat to democracy."
  • General Mark Milley, Trump's former top general, reportedly called Trump:
    "fascist to the core" and said "No one has ever been as dangerous to this country."
  • From a letter signed by over 100 Republican officials:
    "Donald Trump's susceptibility to flattery and manipulation by Vladimir Putin and Xi Jinping, unusual affinity for other authoritarian leaders, contempt for the norms of decent, ethical and lawful behavior, and chaotic national security decision-making are dangerous qualities... He is unfit to serve again as President, or indeed in any office of public trust."
  • Paul Ryan, former Republican House Speaker:
    "It's a job that requires the kind of character he just doesn't have."

Background on Insurrection, Amendment 14, Section 3:

  • Definition of insurrection: “a violent uprising against an authority or government.”
    • There does not have to be intent or conviction to have an insurrection.
    • Key points on the 14th Amendment:
      • Mr. Trump “previously taken an oath”.
  • Mr. Trump, on December 19, 2020 tweeted a call to action alleging election fraud, “Big protest in D.C. on January 6th. Be there, will be wild!”
      • Mr. Trump call the crowd to Washington DC on Jan 6th. “Many of you have traveled from all across the nation to be here, and I want to thank you for the extraordinary love.”
  • “All of us here today do not want to see our election victory stolen by emboldened radical-left Democrats, which is what they're doing. And stolen by the fake news media. That's what they've done and what they're doing. We will never give up, we will never concede.”
  • “We will stop the steal. Today I will lay out just some of the evidence proving that we won this election and we won it by a landslide. This was not a close election.”
      • Mr. Trump uses the “fight” some 20 times with the crowd chanting “Fight for Trump.” Mr. Trump used “peacefully” once.
      • Mr. Trump lied about the election results: “But we look at the facts and our election was so corrupt that in the history of this country we've never seen anything like it. You can go all the way back.”
  • “We must stop the steal and then we must ensure that such outrageous election fraud never happens again, can never be allowed to happen again.”
  • “And we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore.”
    • Mr. Trump lied to the crowd that Vice President Pence could overturn the Electoral College vote.
    • Mr. Trump organized alternative Electoral College votes in some states.

Background on the Constitution’s Electoral College:

War shaped the Framers' creation of the Electoral College and Federism:

  • Federalism is the separation of powers between We the People, state governments, and the Federal government as enumerated in the written Constitution.
  • States, with militias, had just replaced a king. So Article 2, Section 1 of the Constitution assigns to states, backed by their militias, sovereignty to control the election and guard the transition of presidential powers through the Electoral College. 

Article 2, Section 1 (Amendment 12):

  • A majority of Electoral College votes is required to win. If there is no winner, then Congress must vote to elect the President. “The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.”

The 2020 Presidential election was held on November 3, 2024. 

  • Following the election, Mr. Trump and his allies filed 64 court cases challenging aspects of the election:
    • Courts held hearings on the merits in 30 cases, and 29 of these cases failed. The case won was viewed a inconsequential to the outcome of the election.
    • Trump allies asked to dismiss 14 cases themselves.
    • Courts dismissed 20 cases before holding hearings on the merits.
  • On December 14, 2024, state electors met, cast, and certified their Electoral College vote.
  • There is no appeal to the Electoral College vote. The Presidential election cycle ended with those certifications and December 14, 2020.
  • Historical example of the Presidential candidates accepting the process even when they disagreed with the outcome:
    • In 1824, there were 4 major candidates for President. Andrew Jackson won the popular vote. To win the Presidency required 131 Electoral votes. Jackson received the most with 99, John Quincy Adams received 84, and the remaining were split between the other two candidates. Without the minimum number of Electoral College votes, Congress elected John Quicy Adams President.
    • Andrew Jackson accepted that decision and ran again and won the Presidency in 1828.

Many have been convicted for violence in answering Mr. Trump’s Jan 6th call to action:

  • Approximately 730 people have pleaded guilty to charges from the Jan 6th Riot.
  • Another 170 have been convicted.
  • Congress impeached Mr. Trump, but in an example of “party over country”, Republicans in the Senate failed to convict.
  • On December 19, 2023, the Colorado Supreme Court ruled to remove Trump from the state's Republican primary ballot because of his inciting the insurrection on Jan 6, 2021.
  • On December 28, 2023 Maine Secretary of State ruled that Mr. Trump should be removed from the Maine ballot because of his inciting the insurrection on Jan 6, 2021.

Recommendation to Mr. Biden if Mr. Trump wins the 2024 Presidential election:

  • Invite state governors and legislative leaders, Supreme Court Justices, Joint Chiefs of Staff, Congressional leaders, and the public to an open discussion of the evidence of insurrection after December 14, 2020.
  • Solicit input from Mr. Trump’s former staff members.
  • If Mr. Biden perceives there is sufficient evidence, he will enforce his constitutional obligations:
    • Enforce Amendment 14, Section 3, declaring that Mr. Trump incited an insurrection to overturn the Electoral College vote on Jan 6th.
    • Offer to Congress to overturn his decision based on the 2/3rd override provided by the 14th Amendment.
    • Turn over to Congress the election of the next President in compliance with Article 2, Section 1, and Amendment 12, excluding insurrectionists.

This is a complex issue:

  • Ignoring the 14th Amendment:
    • Sanctions Mr. Trump’s assembling and exciting a violent mob on Jan 6th.
    • Accommodates Mr. Trump’s stated intent to be a dictator.
    • Yields to Mr. Trump’s stated intent to use the US military to punish his political opponents.
    • Ignores the warnings of many who served at senior levels in Mr. Trump’s Presidency.
  • Enforcing the 14th Amendment will create challenges. Fortunately, there is a mechanism for resolving this enforcement in the 12th Amendment. Congress will have to elect the next President.