New Article: What Happens if the Biden Administration Prosecutes and Convicts Donald Trump of Violating 18 U.S.C. § 2383?

Seth Barrett Tillman and I published in the Illinois Law Review's Symposium on President Biden's First 100 Days

The Illinois Law Review has published an expansive online symposium on President Biden's first 100 days in office. There are more than thirty submissions from a wide range of law professors. Seth Barrett Tillman and I submitted an article titled "What Happens if the Biden Administration Prosecutes and Convicts Donald Trump of Violating 18 U.S.C. § 2383?" This article is based on a blog post we wrote for the Volokh Conspiracy in February. Over the past two months, we have substantially expanded our research on Section 2383, and its relation to the 14th Amendment.

Here is the abstract:

President Trump's term in office has drawn to a close, and the Biden administration has begun. Attorney General Merrick Garland will soon face a difficult decision: Should he pursue a criminal prosecution of Trump for his conduct leading up to, and during the events of January 6, 2020? One possible basis for prosecution would be under the Insurrection Act, 18 U.S.C. § 2383. This statute provides:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

In this Article, we take no position whether Trump committed the substantive offenses of inciting or engaging in an insurrection. Rather, we will analyze the potential legal consequences of convicting Trump under this statute. Specifically, what would it mean for Trump to be "incapable of holding any office under the United States." Would this punishment disqualify Trump for serving a second term as President, should he be elected?

Attorney General Garland's decision will be complicated because there are no settled authorities to answer these legal questions. He will also face tough political choices. Any prosecution could be seen as an effort to disqualify the presumptive Republican nominee for President in 2024. In effect, a Biden Administration prosecution could knock out its most likely political opponent. A substantial segment of the public may view the Attorney General as disenfranchising tens of millions of voters. This decision is fraught with difficulty.

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. However, that conviction would not disqualify him from holding the presidency or any other elected federal position. We think our reading is correct as a matter of original public meaning with respect to the Constitution of 1788. And this conclusion is unchanged by Sections 3 and 5 of the Fourteenth Amendment. Our position is supported by modern Supreme Court and other federal court precedent.

In our view, even if Trump were convicted of violating § 2383, he would not be disqualified from serving a second term as President.

This Article proceeds in five parts. Part I explains that under the Constitution of 1788, Congress cannot add qualifications for elected federal officials. To illustrate our position, Part II analyzes an anti-bribery statute that the first Congress enacted in 1790. This statute imposes additional qualifications on certain federal positions. But, we argue, it should not be read to impose additional qualifications on elected federal positions. In Part III, we consider whether our general position is altered by the ratification of the Fourteenth Amendment. In other words, do Sections 3 and 5 of the Fourteenth Amendment give Congress the power to impose additional qualifications on holding elected federal positions? Part IV traces the history of the Insurrection Act, 18 U.S.C. § 2383. The Insurrection Act has remained virtually unchanged since President Lincoln signed it into law in 1862. This law should not be read to impose additional qualifications on elected federal officials. Finally, in Part V, we consider an amended, hypothetical version of § 2383 in which Congress expressly invoked its powers under Sections 3 and 5 of the Fourteenth Amendment. Even under this hypothetical statute, we still do not think Congress could disqualify former President Trump from serving a second term in office.

And from our conclusion:

We think it unlikely that the Biden administration will bring a criminal prosecution against former President Trump. We also think a conviction unlikely should he be prosecuted. But even if Trump were convicted of violating 18 U.S.C. § 2383, we do not think he would be disqualified from running for and serving a second term as President, should he win re-election.

…

Going forward, the Biden Department of Justice faces a difficult choice. There are legal and political upsides and downsides to prosecuting Trump under § 2383. If Trump were convicted, it may lead some people to conclude that he is disqualified from running for and serving a second term as President should he win re-election. We think this issue is far from clear, but recognize that election boards, courts, and even Congress could reach that conclusion in good faith.⁸⁸ But what if Trump were acquitted of a § 2383 charge? Trump could credibly argue on that basis that he did not engage in insurrection, and thus did not run afoul of Section 3. (In much the same way, Trump could cite his two acquittals from impeachment trials as proof of his exoneration.) The decision to bring this prosecution will be made at the highest levels of the Department of Justice, likely by Attorney General Garland. And we suspect these legal and political risks would factor into the future Attorney General's decision. Yet, even if Trump is prosecuted and convicted, the scope of disqualification would remain for another day.

We welcome any comments.

Comments

[PeteRR]

Mental masturbation at its finest.

[Michael D]

Right or wrong that is one of the best phrases I have ever read this week and probably all month. That is pure gold.

[DaivdBehar]

The consequences would be highly unpredictable.

[Dr. Ed 2]

No. quite *predictable* -- highly incendiary....

[Ben of Houston]

The consequences would be very predictable. Outright war.

You have many, MANY statements, most notably by our current vice president that are not only equivalent, but quite arguably worse, being made after people had already been burning buildings and there was a double digit death toll.

Prosecution of a former president while ignoring the equal statements made by the current administration would break any remaining faith that conservatives have in the judicial system. Attempting such a thing would cause a full-out revolution.

[James Pollock]

Difference is, current vice-president won the election, former President did not.

[Dilan Esper]

I've said this before about other "disqualification" issues (such as if a President was elected who was less than 35 years old, or was not a natural born citizen), and I will say it here.

The only real enforcement of these sorts of things is the parties. Parties will generally not nominate someone they think might get disqualified from holding the office.

But at the same time, if a person were nominated and won the presidency, that person would have enormous democratic legitimacy. Indeed, he or she would have been elected despite the fact that the constitutional issue was raised to the electorate.

There's no way in the world in that situation that the courts would, or should, remove that person from office. That would be the ultimate political question, and any attempt to do so would result in a massive backlash that would probably end up in a situation where Article III judges lose a lot of power.

[Bob from Ohio]

"Article III judges lose a lot of power."

https://seinfeldmemes.com/thats-a-shame-gif/

[Sebastian Cremmington]

I agree. Furthermore I don’t believe Marco Rubio is a NBC...but I voted for him because I believe that is a dumb provision. I also would not have owned slaves even though the Constitution originally allowed me to own slaves. Also the Constitution protects free exercise of religion...but I choose not to be a Muslim or Satanist even though the Framers apparently believed exercising a religion was something positive.

[Noscitur a sociis]

Furthermore I don’t believe Marco Rubio is a NBC

Go on...

[Sebastian Cremmington]

Nikki Haley’s slightly older sister is ineligible because she was born in Canada...so Nikki is eligible but her sister is ineligible all because her parents didn’t move to America a few months earlier?!? That doesn’t seem fair to the slightly older sister. So NBC can’t simply mean “born in America” because then the Framers would have stated “not naturalized citizen” or “citizen at birth”.

Furthermore for many years Americans believed that citizens had to be born on American soil in order to be a NBC...but that would have meant JQA’s son would have been ineligible and the Framers weren’t so dumb that they would make their children ineligible knowing many of the elite would work overseas on behalf of America. So the reason we think being born on American soil was important over the last several decades was always a red herring that distorted our search for the meaning of NBC. NBC means citizenship through parents and it has nothing to do with being born on American soil. Neither Haley nor Rubio acquired citizenship through their patents so neither of them qualify as NBC.

[Krayt]

Born on us land, as opposed to people born here before it was America, and were grandfathered in as eligible.

I don't understand the pr...ohhh right. People want to weasel in their candidates.

n/m

[Voize of Reazon]

NBC can’t simply mean “born in America” because then the Framers would have stated “not naturalized citizen” or “citizen at birth”.

Your preferred meaning has the same defect. Why wouldn't the Framers have said "born to citizens" if that was what they meant?

[Ben of Houston]

We have extensive laws about who has birthright citizenship. This is a nonsense argument and you KNOW IT.

Anyone who didn't look it up back when Obama was running is ridiculous.

It's based on
1: Where you were born
2: Whether your parents are citizens or residents
3: How long they have lived in the USA

For example, Obama was the son of a Nigerian non-resident and an American mother. Based on the law at the time, for a non-resident and a citizen, the citizen parent had to have resided in America for 10 years, five years of which were after the age of 16. However, Obama's mom was only 20 when he was born. Therefore, Obama had to be born in America to be a citizen. (The law has since been changed to 5 and 2 years)

To compare, Ted Cruz had an identical situation, but his mother was older, so there's no problem for him being born in Canada.

It's not hard. It's not complicated. If you don't know it, you can look it up. Being confused about this topic after it has come up in the past 3 presidential elections makes you willfully ignorant.

[bernard11]

Could you point us to these "laws?"

I think you're full of crap.

[Josh R]

Ben addresses an issue not raised. Instead, Sebastian posits that a "natural born citizen" does not equate to being a citizen at birth, but rather is the subset of citizens at birth who are born of two citizen parents. Thus, Ben's comments on birthright citizenship put us on a tangent.

That being said, Ben is mostly correct in what he did claim. The law is 8 U.S. Code § 1401. Currently, it states you are a citizen at birth if you were

born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.

In 1986 (click on the "Notes" in my link) the law was changed to the above current form by substituting "five years, at least two” for “ten years, at least five.”

The only things Ben got wrong was 1) it's 14, not 16 years of age, and 2) Obama's mother was 18, not 20, when Obama was born.

[bernard11]

Josh,

Did you read part (a)?

The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;

I may have misunderstood Ben's comment. I read it as saying people born in the US are not automatically citizens.

[Josh R]

I think you misunderstood Ben. he said:

Therefore, Obama had to be born in America to be a citizen.

[James Pollock]

Being born in the US grants US citizenship because the authors of the 14th amendment intended to grant citizenship to freed slaves whose parents had most definitely not been considered citizens of the U.S., and they had to make it bulletproof enough that the sore losers running the former Confederate States couldn't find a way to decide that they weren't "really" citizens. They did (and continue to try to) find ways that their votes don't have to be counted.

[Dr. Ed 2]

If I had the money, I would have and here's why:

When someone died, the slaves were often sold to liquidate the estate, families were broken up, both husbands and wives and parents & children -- often never seeing each other again. And there was no Farcebook to stay in touch -- they never saw each other again...).

So if I had the chance, I'd buy the entire family -- take them home and (preferably without my neighbors knowing) quietly tell them that they were free. That I bought them to keep them together and while they were welcome to leave right now, they had no money and no where to go. So they were welcome to stay with me and be my hired help -- If they worked with me, we'd make sure that they were fed and housed and if I had any hard currency left at the end of the year (which might not be always), I'd give them some. Not much, but a little. And of course they could keep any "butter & egg" money they earned on their own.

There were people who did this. There were Black slave owners -- in some cases for this reason (often buying up family members) and then there was Kamala Harris' Grandfather who was a traditional slave owner.

If I had the money, and lived in the South at the time, I would have bought up families to both keep them together and to free them -- knowing that in most ways, they'd be more free working for me than being out on their own struggling to survive -- and likely kidnapped back into slavery anyway. Even if I put them onto a railroad train (and much of the South didn't have through trains to Canada), with the racism of that era, I had no assurance they'd make it through to Canada.

Yes, I can be very Machiavellian at times, but my two Christian goals would be (a) family unification and (b) freedom -- within the reality of what existed at the time. "Slave catchers" and the rest.

I would have told them they could leave at any time, all I asked was to say good by so that I didn't think they'd gotten hurt somewhere and hence I didn't go looking for them.

Oh, and I'd have taught them how to read. That was a serious criminal offense at the time...

Comments???

[Dr. Ed 2]

If I had some to spare, I might have sold them some land -- for labor rather than cash, which they wouldn't have. Something like "you clear that land and work it 5 years for me, and then it's yours."

[subpatre]

Congrats! That's some awesome virtue signalling.

[Dr. Ed 2]

It's also what the Christian thing t do would have been.

The milltown of Lowell, Massachusetts was *initially* founded as a Christian establishment where the teenaged (WASP-Protestant) farm girls could work for a couple of years to build up a dowry and then return to their farm towns to get married. There was religious and other supervision, the girls lived in dormitories, and initially it was a pretty decent place to work.

Then came in all the cheap Irish labor and everything changed.

[Sarcastr0]

Not according to the Christian church at the time.

Waxing on about what you totally wouldda done if you were a rich person back in slaveholding days is just ego.
Fact is, most of us would be cool with slavery if in the place of a landowner back then; moral compasses are less inherent than they feel.

[bernard11]

To be saint in one's own mind is pretty easy.

[David Nieporent]

Dr Ed loves black people as long as they’ve been dead for 150 years. Current ones, he’s rooting for the race war to take them out.

[Martinned]

There’s no way in the world in that situation that the courts would, or should, remove that person from office.

There would be no need to remove anyone from office. Someone who purports to hold an office they are disqualified from holding does not, in fact, hold that office, and does not need to be removed from it.

[Dr. Ed 2]

"Someone who purports to hold an office they are disqualified from holding does not, in fact, hold that office, and does not need to be removed from it."

And this will almost inevitably lead to a shooting civil war, or something just less than that. It's the issue right now in Venezuela, and it's been an issue in a lot of other unstable countries over the past 30 years -- and likely longer.

[James Pollock]

Special Ed's fantasizing about his shooting civil war again.

[jdgalt1]

There would be no need to remove anyone from office. Someone who purports to hold an office they are disqualified from holding does not, in fact, hold that office, and does not need to be removed from it.

I'm curious: who decides then? (In some cases the Constitution answers that question - each house of Congress is the final judge of the qualifications of its members - but how about a President?)

Because some of us still believe this situation now exists.

[jdgalt1]

[I hit Send too soon.]

Should Trump set up an "office of the real President" across town from the White House? Or call up some militia and go to the White House to take it back?

[Krychek_2]

Neither. He should quietly hide out in Mara Lago and not be seen nor heard from for the rest of his life. He’s already done enough damage.

[James Pollock]

Trump should set up his "government in exile" someplace that isn't part of the United States, and any idiot who wants to should go join him there.

[Jerry B.]

Bonnie Prince Donny?

[David Nieporent]

I hear St. Helena isn’t being used.

[James Pollock]

Is there a golf resort on the island that has a lax policy regarding observance of the rules of golf?

[Dr. Ed 2]

It happened in Maine in 1879 and but for the intervention of Civil War hero (and former Governor) Joshua Chamberlain, would have turned into a shooting war.

See: https://downeast.com/history/maine-governor-steal-election/

[Josh R]

I think your argument leads to the absurd conclusion that there is no legal recourse if Jefferson Davis won in a bid for Congress, which could have plausibly happened given the politics of his district.

[Dilan Esper]

Can't Congress refuse to seat someone? There are other remedies when you aren't talking about the President.

[Josh R]

I think it likely if Davis were elected to Mississippi's state legislature, he would be seated. What remedy is there in that case?

[Dilan Esper]

Maybe a court challenge. He's not the President.

The key point is that refusing to seat a duly elected President- I don't mean a Bush v. Gore situation, but a situation where everyone agrees what the result of the election was- where the electorate was aware of the ineligibility and didn't care- is an impossibility. No court is stupid enough to get involved in that, and if anyone tried to make it stick, there would be an enormous pushback.

If the public wants to violate the rules when electing a President, what they say goes.

[Josh R]

Why the distinction for courts to butt out when it comes to the president but not other offices? Also, assuming Trump was convicted, I would expect a challenge before the election. The easiest way to get standing is for his name to be left off a primary or general election ballot, thus forcing Trump to sue. The courts can't take a pass.

[Don Nico]

The only reason for the courts not to withdraw is if there is a written condition of eligibility that is violated.

[James Pollock]

"I think it likely if Davis were elected to Mississippi’s state legislature, he would be seated. What remedy is there in that case?"

Don't stay in Mississippi.

[M L]

And that's why there's no limit to the amount of voter fraud that at a few people would be willing to attempt, on both sides even.

[James Pollock]

In 2020, only one side was caught on tape advocating attempting to vote multiple times for him. Hint: He lost.

[ReaderY]

Enforcement would be straightforward even if it can’t be done as part of sentencing, and perhaps Professor Blackman may be right that the statute itself doesn’t cover the issue. No matter. If an unqualified person gets on the ballot, rival candidates have standing to sue to get the unqualified person removed. Somebody will.

[Brett Bellmore]

I suppose if they do that, there won't be anything left to do but burn DC to the ground.

[donojack]

At least that would get attention, unlike the torture of the political prisoners of the "insurrection."
https://gab.com/a/posts/106151496871212142

[James Pollock]

I believe the saying is "don't do the crime if you can't do the time", but maybe we should add to the old one about shooting at the king, to say something about make sure you get the EC votes when you raid the Capitol to keep them from counting EC votes.

[Sebastian Cremmington]

Over 320 million Americans and George Wu Bush and Trump are the best candidates Republicans can find—I think you should just burn down the GOP.

[Don Nico]

George W was far better than DJT even if he made the most grievously bad decision of any President in my lifetime and even though DJT did not start a foreign war.
In fact if his fellow R's has listened to W concerning immigration, the GOP might arguably be on its way to becoming a majority party for decades

[James Pollock]

"even though DJT did not start a foreign war."

Not from lack of trying. He tried to get us into a nuclear war with Korea.

[Martinned]

That would certainly be on brand, in terms of Republicans' utter lack of self-awareness.

[Brett Bellmore]

To be clear, I think that, if you're going to be falsely prosecuted for a lamb, you might as well get some mutton for your trouble. If the Biden administration were to start political prosecutions against his enemies, and even somehow secure convictions, there's no point in being factually innocent anymore, so it's time to give them something real to hold trials over, and at least get some licks in.

[bernard11]

And if you are justifiably prosecuted for a lamb?

Look, no one is going to prosecute Trump over Jan. 6 unless something truly startling comes to light - he helped set up the whole thing - planned to declare the election void if Congress could be prevented from voting, etc. Never happen.

Now, he might be prosecuted for something that is clearly, indisputably, a crime - criminal tax fraud is the best bet - that can be proven with clearcut evidence.

Even then, there will be those - Fifth Avenue Trumpists - who claim it's all political.

[James Pollock]

"I suppose if they do that, there won’t be anything left to do but burn DC to the ground."

The Brits tried that in 1812.

[Jerry B.]

And did a pretty good job of it. Time for a rerun?

[James Pollock]

How'd that turn out for the Brits?

And the First Confederacy couldn't even get to Washington to do any burning.

[SimonP]

Given that (i) Trump is guilty of a number of violations of federal law, including for actions we know about and likely for actions we have yet to learn about, to say nothing of his utter disregard for his duties as president; (ii) he is unlikely to face meaningful prosecution for any of these actions at a federal level, due to political pressures and the threat of violence from the right; (iii) no other political mechanism on the right seems capable of holding Trump or his cronies to account for their crimes and malfeasance; and (iv) a number of fascists like yourself are prepared to close ranks and engage in insurrection in order to defend Trump and his corrupt legacy -

What, may I ask, can I burn down, in order to put an end to this massive failure of our institutions?

[Don Nico]

You can hold your breath and hope for better times. If NY or GA don't prosecute the Orange Clown, no one will.
It's called prosecutorial discretion and it happens many times every day.

[bernard11]

The feds might, but only for blatant financial crimes. I'd consider that pretty unlikely, but something like civil tax fraud is far from impossible.

Will NY or GA? NY seems to have let him off once - on the Trump Foundation business. Who knows if they 'll do it again. As for GA, well, it's going to be hard to get a conviction. I'll leave it at that.

[Jerry B.]

Well, you know he’s guilty, so there’s no need to have a trial then.

[Brett Bellmore]

You're asking for his guilt to be treated as a given. I refuse.

[James Pollock]

I'm asking for it to be treated as real as it is, rather than as unreal as you want to imagine it to be.

[BillyG]

This is unbecoming a serious writer. Trump did not incite any riot, even the FBI says it was preplanned. You've got more evidence against half of Congress for the 2020 summer of riots then against Trump.

[Dr. Ed 2]

"You’ve got more evidence against half of Congress for the 2020 summer of riots then against Trump."

IANAL but has the 14th Amendment's "Equal Protection of the Laws" clause ever been extended to prosecutional discretion?

This would inherently be a selective prosecution -- in any dimension, it would be easy to show the greater dislike of Trump than of anyone else and while prejudice usually involves an identifiable group, could it not also involve a highly recognizable individual?

[James Pollock]

The problem with your wishful thinking is that you aren't entitled to having a prosecutor ignore crimes you commit because they're biased against you for committing crimes.

[Brett Bellmore]

In order for a prosecutor ignoring crimes you commit to even be relevant, you have to have committed a crime for him to ignore.

You keep starting from the presumption that Trump is guilty. We refuse to start from that presumption.

If we ever accept it, it's going to have to be a conclusion, instead, you'll need to prove it, not assume it.

[James Pollock]

We get it. Reality is for suckers, and you want no part of it.

[jdgalt1]

Not to mention a whole year of preplanned arson and looting by Antifa/BLM, funded by Soros, and deliberately encouraged by Democratic politicians including Harris and Waters. Put those three on trial for treason, and then maybe we can talk about January 6.

[James Pollock]

Let's keep the trials for treason to actual cases of treason, instead.

[Ben of Houston]

Setting up sections of cities and declaring them not part of the country. If that's not insurrection, what is?

[James Pollock]

When somebody does that, go get 'em.

[James Pollock]

"Trump did not incite any riot, even the FBI says it was preplanned."

That doesn't help your case any. Trump's stooges were doing the planning.

[Brett Bellmore]

Well, prove that. Supporting somebody doesn't make them a co-conspirator in your crimes, or else we could have put Bernie Sanders away in the Big House for that House baseball shooting, and half the Democratic caucus in Congress away for last year's riots.

[James Pollock]

who can forget that fateful speech where Bernie told the softball shooter how much he supported them?

[David Nieporent]

Trump did not incite any riot, even the FBI says it was preplanned.

The second assertion does not support the first.

[Armchair Lawyer]

"We welcome any comments."

That's a dangerous statement.

But seriously Garland and Biden would be extremely unwise to try charging Trump under this statement. The case for Trump "inciting" the riot was extremely weak, and only got weaker since the impeachment as key "facts" from the impeachment turn out to have been "fake news."

Any time of prosecution on such weak charges would open the door up for all sorts of political prosecution of the party that leaves office in the future. In particular, charges against Hunter Biden would be easy for a future GOP president to make, push, and get through.

It's only through a mutual understanding that such politically motivated persecutions would be enormously damaging that they don't occur. Once that door is open though...

[Dr. Ed 2]

"It’s only through a mutual understanding that such politically motivated persecutions would be enormously damaging that they don’t occur. Once that door is open though…"

And who says that you can't retroactively extend the statutes of limitations? (We've done it for child molesters..)

So yes, B. Hussain could be prosecuted for lots of things that didn't look good, and he, too, needs to read Harvey Silverglate's book...

[James Pollock]

There's a pretty significant difference between Trump and "B. Hussain"... Trump lost an election. Obama didn't.

[Stephen Lathrop]

The premise seems to be Trump gets convicted, but he is somehow able to move around freely, stump for election, and perform the duties of the office. Why assume that?

[Dr. Ed 2]

Picture this: Trump establishes a "Government in Exile" in a country without an extrication treaty.

He then sends messages to his supporters -- via short wave radio if nothing else. I used to pick up shortwave radio broadcasts during the Cold War, it's easy enough to do -- and that's presuming that he can be totally blocked from the internet, which I also doubt.

So he becomes a very public martyr -- and selects a Congress that he asks people to vote for in 2022. And then he calls for an Impeachment -- with the principle now established that the President can be impeached for whatever the House wishes to impeach him for...

[James Pollock]

Yes. Have Trump set up a "government in exile" somewhere outside the US. Then you idiots who want to follow him can go, too. That might get us to finish a big beautiful wall, to keep you from getting back in.

[MonitorsMost]

The events of January 6, 2021. Not 2020.

[Martinned]

Why not prosecute him under 18 USC 242? A sentence of up to 10 years should suffice to prevent him from running again.

[Don Nico]

Any prosecution offers the same political hazard. Moreover, your suggestion would be even less probable to secure a conviction.

[Martinned]

Less likely than a conviction for insurrection? Are you insane?

[Don Nico]

No, I am not but you are.
And consequently no credible lawyer in the US has suggested prosecution under 18 USC 242.

[Bob from Ohio]

Eugene Debs was in prison in 1920 when he ran.

No law [that I am aware of] says an incarcerated person cannot be elected. Worst he couldn't vote, but in the District of Columbia, Maine and Vermont, felons never lose their right to vote, even while they are incarcerated. So, he rents an apartment and registers in DC before he gets convicted.

The whole point is that no law can impose qualifications other than 35 year old natural born citizen.

[Martinned]

Indeed, the states can't add qualifications for running over and above what it says in the Constitution. My point was more that it would prevent him from running/winning as a practical matter. (As it did for Debs.)

[James Pollock]

"Indeed, the states can’t add qualifications for running over and above what it says in the Constitution."

Depends on what you mean by "running". They can and do impose all sorts of limits on who gets listed on the ballot, to keep third-party candidates off.

[James Pollock]

"No law [that I am aware of] says an incarcerated person cannot be elected. "

Sometimes a dead guy wins the election, too. Presumably, the voters who voted dead-guy get what they have coming.

[James Pollock]

"A sentence of up to 10 years should suffice to prevent him from running again."

The only thing certain to keep him from running again is if he can't make any money from it.

[Doug Heffernan]

"The Illinois Law Review has published an expansive online symposium on President Biden's first 100 days in office."

Biden's first 100 days in office are about Trump? Will anything ever not be about Trump?

[SimonP]

Not if you, like Josh, are solely interested in promoting yourself among the right-wing pseudo-intellectual elite.

[Jerry B.]

The only cure for TDS is a radical libotomy.

[James Pollock]

Depends on which flavor of TDS one is afflicted with. for one variant, growing a forebrain appears to provide permanent relief.

[Unodir4]

Can the Insurrection Act survive “imminent” standard of Brandenburg?

[Michael D]

Explain further for a lay person like me.

[Unodir4]

Brandenburg v Ohio held speech is protected unless it incites an “imminent” lawless act. The Insurrection Act does not textually require the incitement to be constrained by time. Could one be convicted under the Insurrection Act for a YouTube video that incites insurrection? If so, the Insurrection Act may have a Brandenburg problem. If Pres Trump’s speech is protected under Brandenburg (1st Amendment case) it cannot be constrained by statue (Insurrection Act).

[Brett Bellmore]

The obvious alternative to incitement would be directly ordering. Speech doesn't have to be immediately followed by a crime, if it's part of a criminal conspiracy.

I gather from the raving, that they think Trump ordered the attack in the first place, somehow.

[James Pollock]

He straight up arranged the where and when, and hoped the pawns would know what to do when they got there. Turned out they were easily distracted and didn't complete what Trump had pinned his hopes on them accomplishing. Rats! Back to muttering in conspiratorial tones, glancing about furtively, and whining that the election fraud is so obvious the only people who can't see it have a reason not to see it.

[Voize of Reazon]

I agree that Trump is unlikely to be indicted by the current administration. It is in no-ones interest to see the United States descend to full-fledged banana republic status, and for that reason ex-Presidents will remain largely inviolate.
That immunity doesn't extend to his travelers though, as Rudy Giuliani is discovering.

[Bruce Hayden]

So completely political prosecutions are completely ok just as long as they don’t prosecute the former President?

Criminal FARA prosecutions are almost the epitome of politicized prosecutions. The infamous Brandon Van Grack, lead prosecutor of Ge Flynn, was booted from there to run the DOJ FARA unit (having used FARA to attack Trump and Flynn). Keep in mind that criminal FARA prosecutions are probably unconstitutional, and that 99% of inquiries end up in civil stipulations, instead of criminal convictions. It is LawFare all the way - partisan abuse of prosecutorial power just because they can.

[Voize of Reazon]

Bruce, I was talking about completely political abstentions from prosecution, and I didn't say they were any more "ok" than completely political Presidential pardons, but both are a reality.

[Don Nico]

"political prosecutions are completely ok just as long as "
just as long as prosecuting does not cause more damage than letting sleeping rats lie.

[Brett Bellmore]

And there's the utilitarian calculus rearing its head: Any abuse is OK, even mandatory, so long as you posit worse consequences if you refrain from it.

This sort of reasoning certainly gives people incentive to develop a good imagination, I'll give it that.

[James Pollock]

"This sort of reasoning certainly gives people incentive to develop a good imagination, I’ll give it that."

Ironic, given source.

[bernard11]

This seems to have nothing whatsoever to do with Biden's first 100 days in office.

Plus, it's silly, because no one is going to prosecute Trump under the Insurrection Act.

Plus, it's time to bury that equine corpse that Blackman and Tillman won't leave alone.

[Michael D]

Oh wow, I had to think about equine corpse for a minute. I feel stupid now. But your comment is spot on, IMO.

[Captain Motion]

I think he should be prosecuted, and could be convicted, of the crime, but I do not think the Congress can narrow the grounds for election by statute, so he would not be precluded from running for the presidency, nor for serving in that office, if that horror story were to be told.

[Brett Bellmore]

Sheesh. Has nobody here heard of 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."

That's the only reason anybody is proposing to charge him.

[Bruce Hayden]

Except none of those apply to the Presidency.

[Life of Brian]

Right. Just like Sarbox's "obstructing an official proceeding" doesn't apply to protestors crowding into a congressional chamber and screaming during a vote. And just like the Logan Act doesn't apply to transition team members talking to foreign officials.

And yet, history strongly suggests that lefties revel in yet-untested legal theories, however ludicrous....

[Brett Bellmore]

The Logan act? You might as well propose going after somebody using the Alien and Sedition acts. I'd say that it's never, ever been applied to transition team members, but that's an understatement. It's only been applied twice in the entire history of the country, and neither time got as far as an actual prosecution. And, you know why?

Because everybody knows it's grossly unconstitutional.

[David Nieporent]

"Everybody" who isn't a lawyer "knows" this.

[James Pollock]

Turns out there's a lot things people just "know", and a lot of them turn out not to be true. (in the long run). A lot of conservatism consists of ignoring evidence that they things you just "know" might not be true.

[James Pollock]

"Except none of those apply to the Presidency."

The President doesn't take an oath to defend the Constitution any more? I mean, Justice Roberts botched administering the oath of office to Obama, did they just decide not to do it any more until we get a new CJ?

[David Nieporent]

Except none of those apply to the Presidency.

That claim is lunacy. It has neither textual nor logical support.

[bernard11]

the Biden Department of Justice faces a difficult choice. There are legal and political upsides and downsides to prosecuting Trump under § 2383.

No. Not a difficult choice at all. The whole question is of interest only to Blackman, and Tillman, I guess.

But hey. Another line on the CV.

[M L]

I just read the headline. LMAO!

[iowantwo]

Democrats are all about destroying institutions.
The list is long.
Destroying the peaceful transfer of power is all but complete.

[James Pollock]

Yeah. It was Democrats who damaged the peaceful transfer of power.

[James Pollock]

By expecting it to be handed to them just because they won the election.

[iowantwo]

Can the pro fake insurection adherents describe to me how a success would look at the end of January 6, 2021?

To me it seems like charging a person with attempted assassination of a guy 500 yards from the target with a manual sling shoot and a pile of pebbles. Also a written manifesto stating that no physical harm should ever come to the target.

For an attempted crime, there has to be pathway to carry the crime out to its stated goal.

Kind of a side note, I have seen no legal movement in the kidnapping charges against the perpetrators against the Michigan governor plot. Probably having a hard time suppressing the evidence of the FBI plant being the planner.

[Dr. Ed 2]

<I?"Kind of a side note, I have seen no legal movement in the kidnapping charges against the perpetrators against the Michigan governor plot. Probably having a hard time suppressing the evidence of the FBI plant being the planner"

Pity that can't be publicized if true.

It's damned dangerous doing something like that because of the very real likelyhood that you will create -- quite real -- copycats...

[James Pollock]

"Can the pro fake insurection adherents describe to me how a success would look at the end of January 6, 2021? "

Trying to decrypt what TF you're asking.
Obviously, from Trump's point of view, "success" would have involved capturing the actual votes of the EC, so the R's could declare the count invalid and have time to come up with a reason why they didn't lose the election(s) in 2020, and maybe have a do-over.
But they botched the insurrection, and didn't get the EC votes while they were pillaging through the Capitol Building, and the true results of the election eventually came to be. Moving forward, they've stepped up the voter suppression efforts to keep the D's from getting all the voters out who don't vote R-branded candidates reliably.

[James Pollock]

Conversely, "success" for America involves actually counting the votes and showing Mr. Trump where the door was.

[Brett Bellmore]

If you assume the attack was organized by the opposing side, success consists of immediately terminating Trump's efforts to contest the election, and making claims the election was stolen radioactive.

We're looking at one of three things, I think.

1. A grossly failed coup by the outgoing party on account of using absurdly too little resources.
2. A successful Reichstag fire by the incoming majority party.
3. Stupidity in action ordered by neither.

I'd say it was 2 or 3, but if I had to chose, I'd go with 3.

[bernard11]

Forget the "false flag" stupidity, Brett. I know you rely on it when someone on your side does something you don't like, but all those Oath Keeper types weren't in Soros' pay. No left wing conspiracy there, no matter how much you wish.

I don't think Trump "ordered" the insurrection. I do think he and others on his side encouraged it, were happy to see it go on, supported it, even after it ended. Recall Trump's words to the rioters: "We love you, you're very special."

Maybe not criminal. Definitely a scumbag.

[James Pollock]

"Maybe not criminal. Definitely a scumbag."

Most importantly, 100% loser.

[James Pollock]

"1. A grossly failed coup by the outgoing party on account of using absurdly too little resources.
2. A successful Reichstag fire by the incoming majority party.
3. Stupidity in action ordered by neither.

I’d say it was 2 or 3, but if I had to chose, I’d go with 3."

It was 1, but with no shortage of stupidity.

[James Pollock]

"If you assume the attack was organized by the opposing side"

If you assume that anything that didn't go the way you wanted it to was organized by shadowy forces with unseen power, you're paranoid. Hint, hint.

[iowantwo]

So the people petitioning congress to exercise their enumerated power is an insurrection?

[James Pollock]

When they're doing their petitioning by smashing the doors and climbing in the windows. The pillaging of spoils is also a giveaway.

[James Pollock]

" Probably having a hard time suppressing the evidence of the FBI plant being the planner."

I was still in law school when the FBI busted the Portland would be Christmas terrorist, and was taking a class from the USA for Oregon. He came into class and told us a bunch of behind the scenes info, about directing the FBI quite carefully to make sure the case was strong and there was no entrapment defense. And yet, later on, during the actual prosecution, there was a lot of noise about entrapment by misinformed people who were just certain that the FBI decided to railroad a poor misguided Muslim boy as a terrorist. But you're WAY smarter than those nutty leftists, right? You don't automatically doubt the FBI just because they're G-men, right?

[Moderation4ever]

First I investigate and consider charges but would hold off and let civic cases proceed first. The success of a civil suite against the former President would tell prosecutors the likely hood of a success in a criminal case.

[Don Nico]

"a civil suite against the former President "
That indeed would being interesting. Presumably some lawyers might be willing to argue the case pro bono.

[James Pollock]

"What Happens if the Biden Administration Prosecutes and Convicts Donald Trump of Violating 18 U.S.C. § 2383?"

If they succeed in convicting him, it means that they provided some compelling evidence that he was guilty. Alternatively, they could deport him to Cuba, which is theoretically easier to arrange from Florida than it would have been in New York. Might be fun to see Rudy trying to come up with evidence that is real (claiming that Biden acted without authority in deporting Trump to Guantanamo) when he's accusing someone of acts they're actually guilty of. I'd give him at least a 5% chance of successfully getting Trump readmitted to the United States.

[ReaderY]

In my view, the 14th amendment covers the office of President even if Professor Blackman is correct in his argument that the statute doesn’t. This creates many alternative wnforcement opportunities even if it caouldn’t be done as prt of a criminal sentence. For example, a rival candidate could sue to have his bame removed from a ballot on grounds that his conviction renders him constitutionally unqualified.

While I had argued earlier that Congress could not pass a law simply declaring him to be an insurrectionist, criminal conviction by a court of law upheld on appeal would satisfy all due process concerns.

[James Pollock]

" For example, a rival candidate could sue to have his bame removed from a ballot on grounds that his conviction renders him constitutionally unqualified."

Or the state bureaucracy might choose to omit the name from ballots because not eligible. Then discard the votes from people who choose to write-in an invalid name.
Or, Conversely, we could listen to a candidate who publicly requested supporters to try to vote for him multiple time whine about vote fraud. Can't really recommend that one.

[wnoise]

Trump is no Grover Cleveland.

[James Pollock]

He's more Cleveland Browns than Grover Cleveland.

[James Pollock]

Teddy Roosevelt ran under the "Bull Moose" Party, Trump can run under his own "Bull Stuff" Party. Next time, the hats won't be red.