Thread by @bopinion

Donald Trump might already be ineligible to serve as president of the United States in the future.

That’s true even without an impeachment process that ends with a formal ban from future public office trib.al/MWUG8t3

The 14th Amendment bars a person from holding any office if the person has sworn an oath of allegiance to the Constitution and then “engaged in insurrection or rebellion” against the government.

The first part of this provision certainly applies to Trump trib.al/MWUG8t3

The second part is trickier: Has Trump’s conduct amounted to insurrection?

If Trump runs for office again, someone will go to court charging that he is ineligible because of his conduct leading up to, on and following Jan. 6, 2021 trib.al/MWUG8t3

Because this is a constitutional question, the courts will have to adjudicate it.

The first question is whether the attack on the Capitol was an insurrection against the government of the U.S. In vernacular terms, it certainly was trib.al/MWUG8t3

Republicans like Mitt Romney and Mitch McConnell called it an insurrection right off the bat.

But what we need is the legal definition under the Constitution, not the usage of politicians in the heat of the moment trib.al/MWUG8t3

The Constitution doesn’t define insurrection. Neither does the Insurrection Act.

Dictionary definitions of insurrection call it a violent uprising against the government. Not all of the Jan. 6 participants were violent, but some were trib.al/MWUG8t3

At least some of the rioters:

➡️Intended to interfere with the congressional process for declaring Biden to be president
➡️Wanted to use force to compel Congress to declare Trump the president-elect

That act would have subverted the democratic process trib.al/MWUG8t3

In some sense, it would have amounted to overturning the U.S. government by force.

With regard to the mob itself, it’s possible that a court could conclude that an insurrection was happening on Jan. 6 trib.al/MWUG8t3

Assuming the march on the Capitol was an insurrection: Did Trump himself engage in insurrection when he spoke to the crowd and encouraged or incited the march?

If a court says yes, Trump isn’t eligible to be president again trib.al/MWUG8t3

Trump’s Jan. 6 speech is close to the line.

His words can be seen as encouraging the crowd to enter the Capitol forcefully, which was a crime. Yet, Trump chose his words very carefully — it would be difficult to prove trib.al/MWUG8t3

In practice, it’s unlikely that a court would be prepared to disqualify a former president from running for office again.

But it’s a close issue — and one the Supreme Court may have to take up if Trump announces a 2024 candidacy trib.al/MWUG8t3