In a powerful warning Thursday, the patron saint of the conservative legal movement, former federal appellate Judge J. Michael Luttig, testified before the Jan. 6 Committee and pronounced former President Donald Trump and his allies a “clear and present danger” to American constitutional democracy. As Luttig knows better than most, this historic phrase generates an extraordinary constitutional power of government to act — and a duty to do so.
Luttig’s verdict should be understood as a plea for Attorney General Merrick Garland to proceed toward charging Trump with federal crimes that the public record now amply establishes. Only then will this nation be able to move forward from the ongoing insurrection.
Beyond the avalanche of documents and testimony pointing to Trump’s guilt and the principle that no one is above the law, there is an additional reason to indict Trump for his multi-faceted conspiracy in 2020 to override the vote. Upon a conviction for inciting insurrection, or being an accessory to insurrection, Trump would be subject to disqualification from acquiring federal office.
Section 3 of the 14th Amendment directs: “No person shall ... hold any office ... under the United States ... who, having previously taken an oath ... as an officer of the United States ... to support the Constitution shall have engaged in insurrection or rebellion against the same.’'
There is ample evidence that Trump’s objective was the insurrection’s success. Among that evidence was his three-hour delay in calling on the attackers to go home and his vengeful tweet demeaning Vice President Mike Pence after Trump knew that the savage invasion of the U.S. Capitol had begun. That was “pouring gasoline on the fire,” testified former deputy White House press secretary Sarah Matthews.
Even without a direct charge of insurrection, allegations of such insurrectionist activities in an indictment for conspiring to defraud the United States or to obstruct an official proceeding or for seditious conspiracy might suffice for 14th Amendment disqualification if Trump were convicted.
Holding Trump accountable — and disqualifying him from future office — would not be a partisan act, but one needed to preserve the republic.
Without a prosecution of Trump, here are three things that seem sure to happen if he were allowed to run again and either be lawfully elected or succeed in installing himself in office despite defeat in the electoral college, as he attempted to do in 2020:
The end of elections in which a majority of voters choose their leaders
As Judge Luttig put it at Thursday’s hearing: The clear and present danger now is because “to this very day the former president and his allies and supporters pledge that in the presidential election of 2024, if the former president or his anointed successor as the Republican Party presidential candidate were to lose that election, they would attempt to overturn that 2024 election in the same way that they attempted to overturn the 2020 election.”