A Candidate Without Convictions

If the Supreme Court, like it did when it declared corporations are people, also claimed words are human beings, “UNPRECEDENTED” would be the leading candidate for Time Magazine’s “Person of the Year 2023.”  Primary among the array of “never before” possibilities is the likelihood the 2024 Republican presidential nominee will be a convicted felon.  Which has led the handful of remaining sane GOP governors and members of Congress to suggest the party needs a candidate who is not out on bail following 91 federal and state felony counts so far.

One thing can truthfully be said about the Trump alternatives who believe they can convince Republican voters it is time to put Donald Trump in the party’s rear view mirror.  None will enter the 2024 primary season with convictions.  However, this morning I will focus on one of the contenders who made my point this weekend, former vice-president Mike Pence who recently patted himself on the back for making the tough choice between his boss and the U.S. Constitution.

At a June 7 Iowa campaign rally Pence finally broke his silence on the January 6, 2021 attack on the U.S. Capitol.

The American people deserve to know that on that day, president Trump also demanded that I choose between him and the Constitution. Now, voters will be faced with the same choice: I chose the Constitution and I always will.

There is only one problem.  If you are going to abide by the Constitution, you might take time to read it.  Not just the original seven articles, but each and every one of the amendments. Especially Section 3 of the Fourteenth Amendment which reads:

Section 3 Disqualification from Holding Office

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.

This particular provision of the Constitution has received quite a bit of attention following an article in the Pennsylvania Law Review by law professors William Baude (University of Chicago) and Michael Stokes Paulsen (St. Thomas University).  They write, even without a conviction, the former president has violated Section 3.  “[Trump’s] overall course of conduct disqualifies him.”

As much as I would like to agree with these and other scholars, I cannot.  Section 3 uses the specific phrase “shall have engaged in insurrection or rebellion.”  My question? Who makes that determination?  Not two law professors  Not House Speaker Kevin McCarthy, who on January 13, 2021, infamously said, “The president bears responsibility for Wednesday’s attack on the Congress by mob rioters.”  Nor FBI director Chris Wray who MAGA world considers corrupt and should be fired. Nor MSNBC, CNN or even Fox News to whom we look to call elections but whose decision desks lack the necessary algorithms for this purpose.

I believe there are only two venues in which there would be an actionable conclusion whether Trump’s behavior meets that threshold.  The first, of course, would have been impeachment and conviction by Congress.  The other is a court of law.  A conviction in either Jack Smith’s January 6 case or Fani Willis’ Georgia RICO case would authoritatively tag Trump’s actions as meeting the insurrection/rebellion test.

Which brings me back to Mike Pence, who proved over the weekend he is one candidate with no conviction. Two and a half months after steadfastly stating he would always rely on the Constitution for guidance, he told ABC’s Jon Karl he did not believe a conviction would disqualify Trump from seeking the presidency.  “I think that needs to be left to the American people.”

For Pence, always, like art, is in the mind of the beholder.  In this instance, 74 days to be exact.

For what it’s worth.


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