In the event the Senate acquits Trump—an event that seems very likely, even though it appears anywhere from 52 to 55 Senators are likely to vote to convict—there is only one remedy to keep Trump from ever running again. That would be Section 3 of the 14th Amendment, which stipulates that anyone who engages in “insurrection or rebellion” against the United States after having previously sworn to uphold the Constitution is barred from ever holding office again.
So how to make the case? Well, to my non-lawyer’s mind, you would have to prove that Trump knew or had reason to know that he’d lost even while spewing his nonsense about election fraud. Well, William Saletan of Slate has put together a compilation of articles that, taken together, suggest he was indeed aware that he had lost.
Last Sunday, The New York Times indicated that Trump’s lawyers knew as early as November 12 that there was no chance of winning court challenges in enough states to overturn Biden’s lead. Ethically, they had to have told Trump this as well. As the Old Grey Lady put it, from that date onward Trump began an “extralegal campaign” to overturn his defeat.
But it turns out that we may be able to move the date earlier than that, per articles in Axios and The Washington Post. They note that Trump’s campaign advisers told him shortly after the networks declared Biden president-elect that he had only one chance of reversing it. He needed to win the outstanding ballots in Arizona and Georgia by massive margins, and he needed to win a legal challenge to Wisconsin’s count. Even then, deputy campaign manager Justin Clark told him this gambit only had a 5-10 percent chance of succeeding. In other words—Trump knew as early as the weekend of November 7-8 that he was shooting his last bolt.
To my mind, that alone proves Trump was well aware that he’d lost even as he was adding fuel to “the big lie”—meaning that the insurrection was well underway before January. Now we’re no longer talking about the line between protected speech and non-protected speech, as the article of impeachment and the House managers’ brief are arguing. You’re dealing with action.
But Saletan found even more. Remember how Trump met with Michigan state house speaker Lee Chatfield and state senate majority leader Mike Shirkey November 20? Well, it turns out that, according to The Post, they intended to give Trump information that “he wasn’t hearing in his own echo chamber.” Per Reuters, the message they delivered was that there was nothing they were aware of that would overturn Biden’s lead in Michigan. According to The Post, when Chatfield and Shirkey left, they had the impression that Trump’s “blinders had fallen off.” In other words, he knew he’d lost Michigan. And there was literally no realistic path for Trump that didn’t include Michigan’s 16 electoral votes.
And of course, on December 1, Bill Barr told Trump that there was no evidence of fraud. Specifically, Barr told Trump that any talk of fraud was “bullshit” (per Politico) and “ridiculously false” (per the Old Grey Lady).
So, taken together, a convincing argument can be made that when Trump bleated and screeted about how the Democrats were stealing the election from him, he damn well knew it was false. Of course, we knew that he knew he was lying. But now we have proof. And that’s what is necessary to invoke the 14th Amendment on him in the event he is acquitted in the Senate. Which is why we’d better be about making the case for a 14th Amendment solution.
