Joshua Z. Rokach

Saving US democracy, Israeli style

Hand putting vote into ballot box on table outside.
ballot box/Istock/

With the Republican presidential nomination contest all but over and the Democratic never in doubt, the US faces a potentially grave threat to its constitutional system.  Enough progressive voters may abstain or vote for third-party candidates to defeat Joe Biden and elect Donald Trump.  He faces felony charges for attempting to stay in power despite losing reelection. He has promised a dictatorship, though he said, “only on Day 1.”

Israel survived its own brush with authoritarianism: the Knesset passage of the first “judicial reform.”  The High Court courageously came to the rescue and struck down a measure eliminating court review under the reasonableness standard.

The US Supreme Court can render a similar service.  Last Friday, the victorious parties  in  the Colorado  case disqualifying  Mr. Trump from running again filed their briefs (Trump having done so earlier).   The Court will hear argument in Trump v. Anderson on February 8.

The Israeli High Court majority saw through the sophistry of those who tried to foreclose consideration of the case. The argument went: the US Supreme Court cannot overturn provisions of the Constitution, neither can the High Court overturn a Basic Law. Twelve justices rejoined that, unlike the US, which requires two-thirds of Congress and three-quarters of the states to ratify a constitutional amendment, a simple Knesset majority can pass a Basic Law.   Calling a law “Basic” means nothing.

The US Supreme Court faces a similar test.  The Insurrection Clause, section 3 of the 14th Amendment states, “No person shall be a Senator or Representative in Congress, or . . . hold any office. . . under the United States,” if, having taken an oath to support the US Constitution, later “engages in insurrection or rebellion against the same . . . .” .

The US Supreme Court must  see through the fog of arguments which read the clause out of context.  True, the text specifically lists Senators and Representatives and not presidents.  The trial court in Colorado used that reasoning to maintain access to the ballot.  However, section 3 bars an insurrectionist from any “office under the United States.”  The language refers to the entire Executive Branch, including the presidency..

The Impeachment Clause, Article I, section 3, bars officials whom the Senate convicts of high crimes and misdemeanors from holding “any office . . . under the United States.”  The disqualification must apply to the presidency. It would make no sense for a president removed from office to regain the position.  In fact, the phrase excludes congressional office.  Thirty-five years ago, the Senate removed Judge Alcee Hastings of Florida, having convicted him of bribery and perjury.  A Miami district elected him to the House, where he served for many years.

Similarly, Article I, section 6, prohibits one holding an office under the United States from sitting in Congress simultaneously.  That must include the president; otherwise, the US would become a parliamentary system, the opposite of the constitutional design.

Examining the purpose of the provision requires a simpler analysis.  Congress feared that secessionists, having lost the Civil War, would infiltrate the federal government and subvert the Union. At a time of the rise of the Ku Klux Klan and racial violence, the framers sought to keep the presidency especially out of reach.

The trial court conducted a thorough proceeding and relied on the exhaustive findings of the January 6 Committee to conclude that Mr. Trump engaged in insurrection.  Contrary to the dissenting Colorado justices, he received due process.  Applying the Insurrection Clause does not require a finding of guilt beyond a reasonable doubt.  Disqualification from office, just as removal after impeachment, constitutes a civil penalty.

The Constitution’s Impeachment Clause states categorically that an official removed from office can still face criminal proceedings. Moreover, Hastings’s removal occurred after his acquittal in criminal court.  If disqualification were a criminal penalty, the Double Jeopardy Clause, barring another trial after an acquittal for the “same offense” would have kept him on the bench.

Equally invalid arguments say courts should stay out.  One claim holds that barring insurrectionists from holding office represents a political question, one that courts have no expertise to adjudicate.

The doctrine originated in a case involving Article IV, section 4,  of the Constitution, guaranteeing states a “Republican form of Government.” Turmoil in 19th Century Rhode Island brought the question to the US Supreme Court.  The Court rightly held that judges cannot figure out what a “Republican form of Government” entails.  They can figure out what the legal term insurrection means.

Others fear the consequences of enraging the Republican base.  Israeli politicians of the right warned that chaos would result if the ruling came down during the Gaza War.  The court issued its ruling. All the more in the US, where doing nothing would cause existential damage.

About the Author
Joshua Z. Rokach is a retired appellate lawyer and a graduate of Yale Law School.
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