Should He Indict Donald Trump for Inciting an Insurrection?

The New York TimesLaurence Tribe, two other people and Merrick Garland urge Donald Trump to be prosecuted for his involvement in the January 6th 2021 events. Tribe suggests 18 U.S.C. as the first accusation. § 2383.

The criminal code prohibits inciting an insurrection or “giving aid or comfort” to those who do, as well as conspiracy to forcibly “prevent, hinder or delay the execution of any law of the United States.”

Tribe suggested that Trump would be permanently disqualified from office if he was convicted under the statute. Section 2383 states:

Anyone who incites or sets foot on foot or assists in rebellion against the United States authority or its laws, or provides aid or comfort to them, will be subject to a fine under this title and ten years imprisonment or both. United States office.

To prevent Trump’s presidency, Trump must not be allowed to serve. The presidency must therefore be considered an “office under United States”. The drill should be familiar to you.

An essay on the first 100 days of President Biden was written by Seth Barrett Tillman, and me for Illinois Law Review. As the name suggests, our essay asked this exact question: What happens if Donald Trump is convicted by the Biden Administration of violating 18 U.S.C. § 2383?This is what we wrote

Because there is no established authority to address these legal issues, Attorney General Garland will have to make a complicated decision. His political options will be difficult. A prosecution might be seen as an attempt to disqualify him from running for the presidency in 2024. Biden Administration charges could effectively disqualify its most likely political adversary. An important segment of the population may perceive the Attorney General to be disenfranchising millions of voters. This is a difficult decision.

However, we think Garland’s decision is simpler in one regard: Trump’s conviction under § 2383 would not prevent his serving in the White House again. In our view, if Trump were convicted of violating § 2383, he would be disqualified from holding appointed federal positions. But, a conviction will not render him ineligible for the presidency and any other elected federal office. Our reading of the Constitution of 1788 is accurate in our opinion. This conclusion remains unchanged by Sections 3, 5 and 14 of the Fourteenth Amendment. This position is supported and confirmed by the modern Supreme Court as well as other federal court precedents.

Attorney General Garland needs to include our article into his collection of reading materials.

Garland seems to be staying clear of this mess, which is surprising considering Tribe’s position. Even though Tribe may be correct on the law, the prosecutorial discretion could weigh against the possibility of this case being brought before 2024. Partisan optics could be compared to Russiagate multiplied by a billion.

If any of the Section 3 proceedings make it to the Supreme Court I believe the Department of Justice might have to decline to decide whether Trump should be disqualified. It is obvious that President Biden’s Administration would seek to disqualify his opponent in Court. Mark Elias, a lawyer who predicts lawsuits against members of Congress is available for those interested.

Again, it is crucial to understand the exact meaning of “office” and “officer-language.” Part II, which details our taxonomy in South Texas Law Review’s series, will be published soon. Seth, along with I, will soon publish more information about our article in NYU Journal of Law. It addresses Trump’s disqualification pursuant to Section 3.