As Congress prepares to do its duty, validate the Electoral College vote, and declare Donald Trump the 47th President of the United States, the bitter-clingers pushing the discredited "Trump is an insurrectionist" trope are making a final push to have their peculiar theory taken seriously. The latest iteration of this nonsensical twaddle was posted in The Hill in "Congress does not have to accept Trump's electoral votes."

The theory goes like this: Trump is an insurrectionist. The Constitution disqualifies insurrectionists from holding office, so Trump cannot be president. Given the right light and the correct amount of psilocybin, it makes perfect sense.

To the extent that sane people think there is one, the controversy starts with Section 3 of the 14th Amendment.

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.

The argument proffered by the "he's a bloody insurrectionist" crowd is that the section is "self-executing," which means that no definition of insurrection is needed, nor is proof required. All that is necessary to disqualify someone from office is for someone, somewhere, to accuse a person, and it's game over. 

The authors of the post claim that Trump's guilt has been established three times.

Impeachment

The first fully contested proceeding was Trump’s second impeachment trial. On Jan. 13, 2021, then-President Trump was impeached for “incitement of insurrection.” At the trial in the Senate, seven Republicans joined all Democrats to provide a majority for conviction but failed to reach the two-thirds vote required for removal from office. Inciting insurrection encompasses “engaging in insurrection” against the Constitution “or giving aid and comfort to the enemies thereof,” the grounds for disqualification specified in Section 3.  

This is obvious bullsh**. No matter what the House impeachment charged, Trump was acquitted. The fact that some Republicans voted in favor of conviction is meaningless. As this is the only time the issue has been litigated in anything like a judicial setting, this should've closed the book on the whole ludicrous subject. 

Trump vs. Anderson

The second contested proceeding was the Colorado five-day judicial due process hearing where the court “found by clear and convincing evidence that President Trump engaged in insurrection as those terms are used in Section Three.” The Colorado Supreme Court affirmed. On further appeal to the U.S. Supreme Court, the court held that states lack power to disqualify candidates for federal office and that federal legislation was required to enforce Section 3. The court did not address the finding that Trump had engaged in insurrection. 

This case was an exercise in judicial trolling that a unanimous Supreme Court swatted away.

The Court found that states may disqualify state candidates based on Section 3 but can't disqualify federal candidates. The authors then go on to claim, without evidence, that the Supreme Court's finding that Congress must establish a procedure under Section 5 of the 14th Amendment for its enforcement is irrelevant. The Court says, "The Constitution empowers Congress to prescribe how those determinations should be made. The relevant provision is Section 5, which enables Congress, subject of course to judicial review, to pass “appropriate legislation” to “enforce” the Fourteenth Amendment." It goes on to show how Congress had previously addressed that issue under the Enforcement Act of 1870, which has since lapsed. If you'll note, the Supreme Court drove a stake through the heart of the "self-executing" argument by saying a procedure is required to enforce Section 3.

The authors contend:

First the majority’s suggestion that there must be new implementing federal legislation passed pursuant to the enforcement power specified in the 14th Amendment is what lawyers call dicta. Dicta are the musings of an opinion that are not required to decide the case. The holding that Section 3 is not self-executing may be an alternate holding, but thoughts about the kind of implementing statute required are plain dicta.

All of this is a waste of time, as the Colorado case does nothing to bolster the idea that Trump is guilty of "insurrection." 

January 6 Committee

Finally, there is the bipartisan inquiry of the House Select Committee to Investigate the January 6th attack on the United States Capitol. More than half of the witnesses whose testimony was displayed at its nine public hearings were Republicans, including members of the Trump administration. The inescapable conclusion of this evidence is that Trump engaged in insurrection against the Constitution.

While the committee issued a criminal referral charging Trump with "insurrection," what is notable is that this charge was not accepted by Merrick Garland's Justice Department, which appointed a special counsel to investigate other referrals by the January 6 committee. That is what, down at the FBI office, they call a clue. If the same people trying to put Trump in jail over storing documents at Mar-a-Lago won't investigate the "trumped up" insurrection charge, that indicates they don't think it is provable.

The bottom line is there is zero evidence of any proceeding anywhere that has found Trump to be an "insurrectionist." When faced with that roadblock, the same folks who are terribly concerned about the fate of our "democracy" (FACT CHECK: we don't have a democracy, but you be you) want to subvert the will of the majority of American voters and use chicanery to prevent Trump from being elected.

Solution: Corrupt the Vote Counting Process

The irony of the authors proposing to do what they accuse Trump of having done in 2020 is sweet.

The act specifies two grounds for objection to an electoral vote: if the electors from a state were not lawfully certified or if the vote of one or more electors was not “regularly given.” A vote for a candidate disqualified by the Constitution is plainly in accordance with the normal use of words “not regularly given.” Disqualification for engaging in insurrection is no different from disqualification based on other constitutional requirements such as age, citizenship from birth and 14 years’ residency in the United States.  

Instead of a fraudulent vote count, they want to use a fraudulent accusation of insurrection. As damaging to the nation as this move might be, this strategy is open. All it takes is 20 percent of the House and Senate members to sign a petition to trigger a vote. If a majority of both houses vote to exclude votes, they can, and the Supreme Court has no role in the process. Their conceit is thinking that once their side does this, everyone will forget about an indisputable electoral victory being set aside by way of backroom dealing. That is the quickest way for armed men to take control of the process and turn us into Pakistan. But that seems to be what the authors want.