Update (2:03 pm): Congress convened today to count the votes of the Electoral College and formally affirmed President-elect Donald Trump’s victory in the 2024 presidential election. Vice President Kamala Harris, who lost to Trump in November, presided over the joint session of Congress in her now ceremonial role as president of the Senate and announced the results of the vote (I discuss this change in the Vice-President’s January 6 duties in the essay). The ceremony, which is how we must describe it going forward, lasted less than 40 minutes, testifying to the now perfunctory nature of the proceeding. Unlike four years ago, when Democrats refused to ramp up security to protect the Capitol building, barriers and fencing were erected around the Capitol. These obstructions will remain in place until Trump’s inauguration later this month.
Before the certification, Vice-President Harris delivered brief remarks. As you might guess, she alluded to the event of four years earlier. “Today was obviously a very important day, and it was about what should be the norm and what the American people should be able to take for granted, which is that one of the most important pillars of our democracy is that there will be a peaceful transfer of power,” Harris said. “I do believe very strongly that America’s democracy is only as strong as our willingness to fight for, every single person, their willingness to fight for and respect the importance of our democracy. Otherwise, it is very fragile, and it will not be able to withstand moments of crisis.” The choice of the “fight” word is a curious one. Our democracy is not fragile, but we do need to fight for it.
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Today is January 6. January 6 holds unique significance in the context of US presidential elections. It marks the date when a joint session of Congress convenes to formally certify the Electoral College results. This process is the final constitutional step in confirming the election of a President and Vice President, occurring after the states have counted their votes, resolved disputes, and sent their certified results to Congress. The event symbolizes the culmination of a central democratic process and the peaceful transfer of power in our republic. I will be closely watching the proceedings as I did four years ago, when an effort was mounted to return suspect certifications to the states for review.
On January 6, 2021, several Republican members of Congress challenged the certification of the 2020 presidential election results during the joint session of Congress. These challenges were led by a group of lawmakers, most notably Senators Josh Hawley of Missouri and Ted Cruz of Texas, along with several members of the House of Representatives, such as Mo Brooks of Alabama, Andy Biggs of Arizona, Paul Gosar of Arizona, Louis Gohmert of Texas, and Jim Jordan of Ohio, among others.
Their efforts were thwarted by a convenient riot involving several Trump supporters (most of whom are serving time in federal prison), encouraged by police officers firing tear gas and rubber bullets into the crowd, and quite possibility by several agent provocateurs. On the latter possibility, we have learned recently that there were numerous FBI informants present outside and inside the Capitol Building. Details to one side, when Congress resumed business, Congress members who had initially planned to object to the certification of the 2020 presidential election results withdrew or dropped their objections. The long-running coup d’etat against a sitting president and his America First agenda was successful and Joe Biden was installed as caretaker for the Establishment.
Four years later, suffering from persistent inflation and housing shortages, a disastrous foreign policy, and open borders and rampant crime, the People reaffirmed their commitment to the America First movement. On November 6, 2024, Donald J. Trump won re-election, garnering 312 electoral votes, as well as the popular vote (with Republicans regaining the Senate and keeping the House). However, both before and after the election, elected officials and activists signaled their intent to attempt to bar Trump from returning to office on January 20, 2025. The reason? Insurrection.
The law in question, written in the wake of the Civil War, and in the context of Reconstruction, is found in Section 3 of the Fourteenth Amendment, which states: “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.”
In a press release on March 5, 2024, US Representatives Jamie Raskin (Maryland) and Debbie Wasserman Schultz (Florida) announced their intention to pass a law addressing the following: “The Supreme Court held that states cannot block insurrectionists from running for federal office unless Congress has acted first to identify and disqualify them under Section 5 of the Fourteenth Amendment. Although this ruling departs from the plain text and original purposes of the Fourteenth Amendment, the good news is that the Supreme Court never challenged the Colorado Supreme Court’s factual finding that Donald Trump had participated in the insurrection that took place on January 6, 2021.” More on the Colorado finding in a moment (for what it’s worth).
Raskin and Schultz concluded the press release with: “Because the Supreme Court has not provided any other way to settle the disqualification of an insurrectionist prior to the casting and counting of Electoral College votes, Congress must now develop a judicial mechanism for ascertaining such persons and Speaker Johnson must permit the House of Representatives to vote on it. If not, Section 3 of the Fourteenth Amendment could simply be rendered a dead letter or a dangerous flashpoint as applied to federal officeholders.” (To clarify, the reference to Section 5 in the press release is a reference to the self-executing function of the amendment.)
No such legislation has been passed by Congress. Indeed, in May 2022, Raskin and Schultz introduced HR 7906, which aimed to establish a civil action for disqualification under this section. The bill did not make it out of the Judiciary Committee. But what would be the point of such legislation given that the President was acquitted of insurrection at trial on February 13, 2021, nearly a month after he had peacefully transferred power to incoming president Joe Biden?
Let’s review the Constitution and recall the impeachment and trial of Donald Trump and see if there is anything there. The authority to bring and try such an indictment is found in Article II, Section 4, of the Constitution: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
The judicial process is found in Article I, Section 3 of the US Constitution. “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.” Section 3 continues: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
On January 13, 2021, just a week before the end of Trump’s term, the House of Representatives, led by Speaker Nancy Pelosi, voted to impeach the President. The charge was “incitement of insurrection.” The alleged crime occurred on January 6, 2021. On that day, as described above, there was a riot at the US Capitol that involved Trump supporters. The article of impeachment alleged that Trump had encouraged the riot, arbitrarily elevated to the level of insurrection, with his claims of election fraud and his speech at a rally earlier that day, where he used the common phrase “fight like hell” (a phrase of Democrats are quite fond).
The trial, occurring after Trump had already left office, raised constitutional questions about whether a former president could even be impeached and tried. The Senate nonetheless proceeded, arguing that accountability for high crimes and misdemeanors transcends a president’s term of office. Trump’s defense argued at trial that Trump’s speech was protected by the First Amendment and that the impeachment was politically motivated. That argument carried the day, the vote falling short of the two-thirds majority required for conviction. As a result, Trump was acquitted of the charge of insurrection. In principle, the prohibition of double jeopardy precludes retrying Trump on the charge of insurrection (see Fifth Amendment of the Bill of Rights).
Trump’s acquittal settles the question. Congress is the proper and only venue to bring such an indictment and try its merits. Article III, Section 2 of the Constitution states: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”
Despite the finality the acquittal brought, during a five-day judicial hearing in Colorado, District Court for the City and County of Denver, presided over by Judge Sarah Wallace, concluded that President Trump had engaged in insurrection as defined in Section 3 of the Fourteenth Amendment. The court’s decision was subsequently reviewed and affirmed by the Colorado Supreme Court. When the case reached the US Supreme Court, the justices correctly ruled that states lack the authority to disqualify candidates for federal office, asserting that enforcement of Section 3 requires federal legislation. This negated several others states’ attempts to bar Trump from their ballots.
Then, despite the fact that Trump has been acquitted of insurrection, a House Select Committee to Investigate the January 6th Attack, active July 2021-December 2022, concluded Trump engaged in insurrection against the Constitution. Specifically, the committee determined that Trump unlawfully pressured Vice President Mike Pence to reject Electoral College votes for Joe Biden, a power the committee claims Pence did not possess. The principle of double jeopardy notwithstanding, the Special Counsel’s Office, upon the House Select Committee referral, brought a criminal case in Washington, DC charging Trump for his role in the event of January 6, 2021. However, upon Trump’s reelection, Special Counsel Jack Smith dropped the charge related to allegedly attempting to fraudulently overturn the 2020 presidential election (as well as the charge that Trump had unlawfully retained classified documents at his Mar-a-Lago estate).
It is important to note that the House Select Committee, in addition to its illegitimacy, faced criticism over its handling of evidence and witness selection. Evidence, including interview transcripts and internal communications, had been destroyed (or not preserved), raising concerns about transparency and accountability. Additionally, the committee was accused of selectively presenting evidence and calling witnesses, focusing on evidence and testimony that aligned with its narrative while excluding exculpatory evidence and witnesses offering a differing perspective. On the matter of the narrative, the House Select Committee enlisted the help of James Goldston, a former president of ABC News and an experienced television producer, to craft and present its narrative during public hearings. Goldston played a significant role in shaping the hearings into a compelling, story-driven format, utilizing video montages, graphics, and carefully curated witness testimonies to engage the public and convey the committee’s findings effectively. Put another way, the work of the House Select Committee was a show trial designed to manufacture the perception that President Trump has indeed orchestrated an insurrection—again, a charge of which he had already been acquitted.
The illegitimacy of the House Select Committee notwithstanding, it is important to note that the claim by the House Select Committee that Trump unlawfully pressured Vice President Mike Pence to reject Electoral College votes for Joe Biden hinges on an interpretation of the Vice President’s role during the certification of electoral votes. At the time, the Electoral Count Act of 1887 was in effect, which contained language about the Vice President’s authority during the process that could reasonably be interpreted to give the Vice President the power the committee claims he did not possess.
Ironically, Democrats affirmed this interpretation with subsequent legislative action. To prevent future disputes, the Electoral Count Reform Act was revised on December 29, 2022 changing the role of the Vice President in certifying Electoral College votes to a purely ministerial role, explicitly stating that the office does not have the power to reject or alter the results. The hearings and investigative work of the House Select Committee overlapped with the debates surrounding the need for reforms to the Electoral Count Act, which made office the game being played. However, since the US Constitution prohibits ex post facto laws in Article I, Sections 9 and 10, the revision has no authority in the case.
Credit where credit is due, the persistence of those who seek to bar Trump from taking office is impressive. In a column published in The Hill on December 26, 2024, Evan Davis and David Schulte (former editors of the editors in chief at the Columbia Law Review and the Yale Law Journal respectively) argue that Congress has the authority under the Fourteenth Amendment to object to electoral votes because Donald Trump is, in their words, “an oath-breaking insurrectionist.” They urge Congress to take action during the joint session to count electoral votes. The authors cite Trump’s second impeachment trial and the Colorado Supreme Court’s decision to disqualify Trump from appearing on the state ballot in 2024. Despite the aforementioned Supreme Court ruling in Trump’s favor, the authors argue that it did not challenge the finding that Trump engaged in insurrection. They maintained that Congress, not the Supreme Court, had the authority to reject electoral votes on constitutional grounds, as specified by the Electoral Count Act.
David and Schulte’s column rightly sparked intense backlash, with critics accusing them of attempting to undermine democracy. The authors’ stance represented an attack on the electoral process and the will of the people. Indeed, Trump supporters and others argued, Davis and Schulte’s op-ed is an attempt to overturn the 2024 election, itself tantamount to insurrection. But it’s not the only action attempting to thwart the will of the people. The House Select Committee’s referral to the Department of Justice that Trump be prosecuted under the criminal statute prohibiting insurrection also represents such an attempt. All this is lawfare, and the conspiracy to stop Trump from resuming his duties as Executive and even put him in prison, as well as during his first term in office, should be obvious to everybody with a working knowledge of our government and judicial process.
Here’s the brutal truth: No federal court has found Trump engaged in insurrection. He has not been found guilty under the Insurrection Act or any other federal law that would disqualify him from office under Section 3 of the Fourteenth Amendment. Derek Muller, a University of Notre Dame law professor, put it like this: “He’s not been prosecuted under the Insurrection Act, much less found guilty under the Insurrection Act, which would disqualify him. So there’s no existing statutory mechanisms enacted by Congress to determine his eligibility at this time.”
What Muller leaves out, as do Davis and Schulte, as well as the corporate state propagandists, is that Trump was tried for the crime of insurrection and acquitted at trial. In reality, the matter was settled on February 13, 2021. It is long since time to move on. Trump is the legitimate forty-seventh president of the United States of America.
freedom and reason 