Garland's Choice: Should He Indict Donald Trump for Inciting an Insurrection?

President Biden would be presiding over the prosecution of his most-likely 2024 opponent.

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In the New York Times, Laurence Tribe and two others urge Merrick Garland to prosecute Donald Trump for his role in the events of January 6, 2021. The very first charge Tribe proposes is 18 U.S.C. § 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 suggests that a prosecution under this statute would "permanently disqualify" Trump from holding office under Section 3 of the 14th Amendment. Section 2383 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 order to prevent Trump from serving as President, the presidency must be an "office under the United States." By now, you should know the drill.

Earlier this year, Seth Barrett Tillman and I wrote an essay for the Illinois Law Review on President Biden's first 100 days. Our essay, as the title suggests, posed just this question: What Happens if the Biden Administration Prosecutes and Convicts Donald Trump of Violating 18 U.S.C. § 2383? We wrote:

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.

Attorney General Garland should add our article to his stack of reading material.

Unlike Tribe, I am not surprised that Garland is staying out of this mess. Even if Tribe is right on the law, prosecutorial discretion would weigh heavily against bringing this charge before the 2024 election. The partisan optics would be like the Russiagate, times a billion.

Indeed, if any of the Section 3 litigation makes it to the Supreme Court, I think the Department of Justice would have to decline to take a position on whether Trump is disqualified from the presidency. The conflict of interest is apparent: President Biden's administration would be litigating to knock his opponent out in Court. For those curious, Mark Elias is already predicting litigation with respect to members of Congress:

Once again, the precise meaning of "office'- and "officer"-language remains important. Part II of our series in the South Texas Law Review, which lays out our taxonomy, should be published shortly. Seth and I will soon write more about our article in the NYU Journal of Law and liberty, that addresses whether Trump is disqualified pursuant to Section 3.