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| Tweet reflects backlash Davis and Schulte have faced (Twitter) |
As we reported in a post on Friday (12/27/24), a proposal from two legal scholars that Congress should consider blocking Donald Trump from taking office has generated backlash from the right side of the political spectrum -- even though the authors make a powerful argument that U.S. law provides for such action when a political figure has violated his oath by failing to protect the constitution by engaging in insurrection, as Trump is accused of doing on Jan. 6, 2021. Newsweek describes how the article raised hackles in some quarters under the headline "Proposed Plan to Block Donald Trump from Taking Office Sparks MAGA Fury." Politics Weekend Editor Peter Aitken writes:
What's New
Two legal scholars have suggested Democrats should block President-elect Donald Trump from taking office, even as MAGA Republicans decry the very idea.
Why It Matters
In a historic political comeback, Donald Trump secured the presidency in the 2024 U.S. election, defeating Vice President Kamala Harris. This victory comes nearly four years after the January 6, 2021, Capitol riot, where a mob of Trump's supporters stormed Congress in an attempt to overturn the 2020 election results. The insurrection led to widespread condemnation and legal challenges for Trump, including an impeachment for incitement of insurrection, though he was acquitted by the Senate. Despite these controversies, Trump's 2024 campaign focused on economic issues, persuading voters of his capability to enhance their financial well-being, which played a significant role in his electoral success.
What To Know
Who are Evan Davis and David Schulte?
Evan A. Davis and David M. Schulte, two experts with extensive legal experience, wrote an op-ed for The Hill in which they argued that Democrats would be within their rights to block Trump's certification on grounds of "an oath-breaking insurrection" that makes Trump "ineligible to be president."
Davis is a Columbia Law School-educated lawyer who previously served as the president of the New York City Bar Association and editor of the Columbia Law Review. Schulte works as an investment banker in Chicago, but he clerked for Justice Potter Stewart and was educated at Yale Law School.
Schulte is an ardent supporter of President Barack Obama, even renting his Martha's Vineyard home to the Obama family in 2013, and is friends with Bill and Hillary Clinton, according to Chicago Magazine.
Jan 6 Cited as Cause for Blocking Certification
The argument both men put forward relies on the 14th Amendment, which says that "No person shall ... hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath ... 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."
The authors called evidence of Trump's involvement in the insurrection "overwhelming" and, therefore, disqualifying.
Davis told Newsweek: "I think the Dems will consider this because there should be some reluctance to set aside the Constitution and because they voted to impeach and convict for inciting insurrection. We wrote the piece to encourage attention to the Constitution, either by rejecting electoral votes or by a 2/3 vote to remove the disability."
Schulte told Newsweek: "I think members of Congress are becoming more aware of the issue by the hour, and they're duty-bound to consider it as guardians of the Constitution. How they'll react remains to be seen, both Democrats and Republicans. They've all taken the same oath of office.
"We wrote the piece to give voice to the constitutional issue and describe the interrelationship among the events, the official forums that have touched the issues, and the law of the Constitution and the Electoral Count Act.
"Congress will do what it does, and it has the power under section 3 to free Trump of the disability of disqualification by reason of insurrection. The politics are intense, though the law is clear. Should Trump be certified, unless the disability is relieved, his administration will labor under a cloud of illegitimacy."
On what arguments would opponents of their plan likely rely? Aitken provides insight:
The authors noted that the Supreme Court's decision on Colorado's plan to leave Trump off the primary ballot, which the high court rejected, would likely be the main defense that critics of their plan would use.
The Colorado Supreme Court had determined that there was "clear and convincing evidence that President Trump engaged in insurrection as those terms are used" in the 14th Amendment, but the U.S. Supreme Court determined that states lack the power to disqualify candidates for federal office.
The authors argued the decision's relation to Trump's certification "lacks merit" for, mainly, the fact that the power of certification of Electoral College votes "is uniquely assigned to Congress by the Constitution." Additionally, they note the U.S. Supreme Court decision "did not address the finding that Trump had engaged in insurrection."
"The rejection of the vote on constitutionally specified grounds is a non-reviewable political question," Davis and Schulte wrote in their op-ed.
The Electoral Count Act that they also cited includes sections on "Grounds for objections" and "Consideration of objections and questions." Specifically, they refer to a 2022 amendment to the act that "provides a detailed mechanism for resolving disputes as to the validity of Electoral College votes."
"The act specifies two grounds for objection to an electoral vote: If the electors from a state were not lawfully certified or if the vote of one or more electors was not 'regularly given,'" the authors wrote.
"A vote for a candidate disqualified by the Constitution is plainly in accordance with the normal use of words 'not regularly given,'" they continued. "Disqualification for engaging in insurrection is no different from disqualification based on other constitutional requirements such as age, citizenship from birth and 14 years' residency in the United States."
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