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05/02/2021

Josh Blackman & Seth Barrett Tillman: What Happens if the Biden Administration Prosecutes and Convicts Donald Trump of Violating 18 U.S.C. § 2383?
Michael Ramsey

In the Illinois Law Review Online, Josh Blackman & Seth Barrett Tillman: What Happens if the Biden Administration Prosecutes and Convicts Donald Trump of Violating 18 U.S.C. § 2383? (part of a symposium on President Biden's first 100 days).  From the introduction (footnotes omitted): 

... Attorney General Merrick Garland will soon face a difficult decision: Should he pursue a criminal prosecution of Trump for his conduct leading up to, and during the events of January 6, 2020? One possible basis for prosecution would be under the Insurrection Act, 18 U.S.C. § 2383. This statute 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. [emphasis added]

In this Article, we take no position whether Trump committed the substantive offenses of inciting or engaging in an insurrection. Rather, we will analyze the potential legal consequences of convicting Trump under this statute. Specifically, what would it mean for Trump to be “incapable of holding any office under the United States.” Would this punishment disqualify Trump for serving a second term as President, should he be elected?

...

... 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.

In our view, even if Trump were convicted of violating § 2383, he would not be disqualified from serving a second term as President.

(Note: an earlier version appeared at Volokh Conspiracy, here.)