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All on Fri Jun 17 14:22:51 2022
Written by Bruce Fein on "The Hill"
Bruce Fein was associate deputy attorney general under President Reagan and is the author of “Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy.”
The House committee investigating the Jan. 6 insurrection should focus on disqualifying former President Donald Trump from office under Section 3 of the 14th Amendment.
Disqualification is triggered by engaging in “insurrection against the authority of the United States.” The committee should assemble an ironclad record showing that Trump engaged in insurrection against the authority of the United States under the
12th Amendment by directly, repeatedly and menacingly exhorting Vice President Mike Pence to not count state-certified electoral votes that had survived more than 60 judicial challenges, as the amendment requires.
This means the committee must subpoena Pence to testify in prime time. Pence is to the Jan. 6 insurrection what President Nixon’s tapes were to Watergate. The former vice president is the smoking gun. He has direct, incontrovertible knowledge of Trump
s incessant cajolery to ignore the 12th Amendment to thwart the peaceful transfer of presidential power.
On Jan. 5, 2021, Trump’s implied threats to Pence reached a sufficient threshold to provoke the vice president’s chief-of-staff to alert Secret Service that Trump might be a security risk for Pence. Pence betrayed Trump’s high-octave badgering by
refusing to leave the Capitol multiple times during the Jan. 6 insurrection and insisting that Congress certify the vote that day.
Trump should be given an opportunity to rebut the evidence showing corrupt, unconstitutional motives in menacing Pence. Declining to testify would permit an inference of Trump’s guilt in spite of the Fifth Amendment privilege against compulsory self-
incrimination because the Supreme Court held in Baxter v. Palmigiano that guilt may be inferred when the amendment is used in noncriminal proceedings.
After the committee assembles a proper record against Trump, Congress should vote by concurrent resolution to declare the former president disqualified from holding any office under the United States pursuant to Section 3. The declaration would prevent
Trump electors from appearing on state ballots in 2024.
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