This is thrust upon us by an extraordinary new report in The Post that reconstructs Trump’s actions during the assault, and by renewed discussion of the 14th Amendment as a tool for barring officials who incited the mob from ever holding public office again.
The meta-revelation in the Post piece is that Trump appeared to take solipsistic, even sadistic pleasure in watching a mob lay siege to our seat of government in his name, and as a result, refused to call for calm, potentially further endangering lawmakers’ lives.
We learn that panicking members of Congress tried to urge Trump to call off the rioters, but he was too absorbed in watching the assault on TV to act or respond. Some Republicans literally begged White House aides to get Trump to step up, stating they feared for their lives, and even underscored that they were willing to vote to overturn the election, as if this would help their case.
We also learn that when Trump attacked Vice President Pence on Twitter for failing to overturn the election, Trump aides were already worried the situation had escalated and that this act could incite more violence. And when Trump finally sent a tweet urging the mob to “stay peaceful,” he initially didn’t want to include that directive.
And long after the mob had laid waste to the Capitol, Trump sent still another tweet (which Twitter quickly deleted) lying that his “sacred landslide election victory” had been “viciously stripped away from great patriots,” an obvious effort to further inflame the situation.
Finally, after Trump issued a new video the next day pledging a peaceful transfer of power, he privately said he wished he hadn’t, because “he feared that the calming words made him look weak,” as The Post puts it.
The 14th Amendment option
As numerous scholars point out, the third section of the 14th Amendment bars people from holding “any office” if they have “engaged in insurrection or rebellion” against the United States. The provision was designed to keep former Confederate leaders from subverting the post-Civil War constitutional order.
Now Trump has waged his own assault on our government and constitutional order. So the amendment might be invoked against him and others who may have incited the insurrection.
The amendment gives Congress the power to enforce it “by appropriate legislation.” As Deepak Gupta and Brian Beutler write:
Congress can immediately pass a law declaring that any person who has ever sworn to defend the Constitution — from Mr. Trump to others — and who incited, directed, or participated in the Jan. 6 assault “engaged in insurrection or rebellion” and is therefore constitutionally disqualified from holding office in the future.Congress can also decide how this legislation will be enforced by election officials and the courts, based on all the facts as they come out. The Constitution prohibits Congress from enacting so-called bills of attainder, which single out individuals for guilt. But, in addition to the legislation we suggest, Congress could also pass nonbinding sense-of-Congress resolutions that specify whom they intend to disqualify. This would provide a road map for election officials and judges, should any people named in those resolutions seek to run for or hold public office.
This, I think, suggests a way forward. However exactly this is done, an effort to create legislation enforcing the 14th Amendment in this context could be the hook for a serious congressional inquiry into the mob violence and all that led up to it.
In this scenario, the need to determine who might be disqualified this way — Trump, of course, but also several other Republicans who may have helped incite or even organize the assault — would call forth a serious accounting, carried out with the power of Congress’ investigative machinery.
Another approach might be to pass a law like this and then proceed with a big investigation, such as a new version of the 9/11 Commission.
After all, the reporting is filling in a deeply damning picture, but it’s still only partial, built mostly on anonymous sources. That itself suggests the need for a more comprehensive investigative dive.
“Getting to the bottom of what happened and who was involved and complicit is tremendously desirable and necessary,” Eric Foner, the great historian and author of a recent book about the Reconstruction amendments, told me. “If the prospective use of the 14th Amendment is the way to launch that, it would be perfectly good.”
This would also call the bluff of officials now issuing self-serving leaks depicting their horror at the mob and showing them heroically trying to get Trump to act. Shouldn’t they want the full picture filled in?
Foner noted that this idea about the 14th Amendment also hints at an intriguing historical irony involving the Confederacy and Trump.
“The 14th Amendment option” would “complete a circle,” Foner told me, because the provision “used to punish Confederates now would be used to punish a guy who so identified with the Confederacy” that his supporters “carry Confederate flags all over the place.”
That is perhaps a useful indicator of how deep a hole we’ve fallen into. But it also hints at how big a reckoning we will need to dig ourselves out of it.