‘Disqualification Without Conviction’ Is Emerging as a Democratic Strategy

The decision by the January 6 committee to refer President Trump to the Department of Justice for criminal prosecution for incitement to insurrection could emerge as a landmark in efforts to disqualify the former president from office, regardless of whether indictments are handed up — or verdicts brought in.That possibility comes into focus as the legal director of a group pushing to disqualify Mr. Trump, Ronald Fein, tells the Sun that the committee’s findings will “help us demonstrate, in court and to public officials, why Trump is already disqualified.”Mr. Fein, who works with Free Speech for People to apply the 14th Amendment’s Disqualification Clause to Mr. Trump on the basis of his participation in the events of January 6, 2021, argues that the J6 committee’s work highlights “why Mr. Trump is disqualified from office.” Mr. Fein adds that disqualification “doesn’t require a prior criminal conviction,” an unsettled legal position that appears to beguile Democrats in the House. Yet Mr. Fein goes further — arguing that disqualification can proceed even though the former president was actually acquitted — found to be “not guilty,” and by a wide margin — when he was tried in the Senate for incitement of insurrection.Asked by the Sun about the relevance of that verdict, Mr. Fein responds that the “fact that the Senate failed to convict Trump in his second impeachment trial is irrelevant.” He argues that “of the 43 senators who voted to acquit, 22 expressly based their vote on their belief that the Senate lacked jurisdiction to try a former official,” meaning that their votes were not on the merits or that the standard was guilty until proven innocent. Mr. Fein walks this reporter through a creative calculation. He adds the aforementioned 22, who felt the Senate lacked jurisdiction, to the 57 who voted to convict, to conclude that, as he puts it, a “clear majority, and a likely two-thirds majority, if not more, of senators agree that Mr. Trump is guilty of incitement to insurrection.” As the J6 committee packs up its tent, more than 40 Democrats have introduced a bill proposing that Mr. Trump is “ineligible to again hold the office of President of the United States or to hold any office, civil or military, under the United States.”That legislation is sponsored by Representative David Cicilline. It is co-sponsored by, among others, Henry “Hank” Johnson Jr., chairman of the House Judiciary Committee. Mr. Ciciiline tells NBC News that it is “very clear that the president engaged in an insurrection.” He said that if Mr. Trump is convicted, disqualification would be “automatic.” When Mr. Trump was tried for incitement of insurrection in 2021, it was the sole count at issue in his second impeachment trial, which concluded in an acquittal. In recent generations, only one official has been disqualified on the basis of the 14th Amendment; a county commissioner in New Mexico, Couy Griffin, who was convicted of trespassing on January 6. Mr. Fein’s contention that conviction is not required for disqualification is bolstered by the state judge, Francis Mathew, who disqualified Griffin. In his decision, Judge Mathew ruled that disqualification is “not a criminal penalty, and neither the courts nor Congress have ever required a prior criminal conviction” for its imposition.Mr. Trump could face a disqualification push that has nothing to do with January 6. Eighteen U.S. Code § 2071, one of the statutes at play in the Mar-a-Lago documents case, ordains that anyone found guilty of mishandling documents is “disqualified from holding” office again. A disqualification on that basis would likely face a constitutional challenge. Article II of the Constitution lists the requirements for chief executive, and there are only three; that he be a “natural born citizen,” at least 35 years old, and a resident of America for at least 14 years. The national parchment — which is one part the “supreme law of the land” — would override any statutory penalty.

‘Disqualification Without Conviction’ Is Emerging as a Democratic Strategy

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