I don’t know if SCOTUS will reach the merits of whether ex-President Trump can be disqualified from the presidency because of allegedly engaging in insurrection on 1/6. Let’s suppose they do address the merits.
According to a blog post at Balkinization by Marty Lederman two days ago on February 4:
What Trump did once the rioters invaded the Capitol is more than enough to settle the question [of whether he engaged in insurrection]….[M]ost importantly, President Trump deliberately chose not to do anything to stop the violence for almost three hours. Despite the desperate pleas of his advisors, he didn’t contact a single top national security official during the day; didn’t order any of his staff to facilitate a law enforcement response of any sort; and didn’t call for deployment of the National Guard.
This overlooks important evidence about the “original meaning” of Trump’s behavior during those three hours. Trump certainly didn’t block his subordinates from ending the riot (or whatever it was). His acting Defense Secretary, Christopher Miller, has confirmed under oath that, “I had all the authority I needed and I knew what had to happen.” Miller says he deliberately delayed deploying troops because he wanted to prevent another Kent State. In other words, the President had delegated the decision to someone with expertise whom he trusted, and that officer made the call.
Was it the right call? I doubt it. If Miller had made credible threats to the rioters that successfully deterred violence, then we would not be talking now about whether Trump should be disqualified under Section 3 of the 14th Amendment. Instead we would be praising Trump for giving his Defense Secretary authority to *both* prevent disruption of the electoral vote count, and avoid a Kent-state-style bloodbath. That would have duplicated the successful strategy that General Winfield Scott used to defend the electoral vote count in 1861.
It should also be observed that, if Trump’s language is blamed for activating violence at the Capitol, perhaps it should also be credited with the fact that the vast majority of the pro-Trump protesters in D.C. that day remained peaceful. But here again Miller’s testimony is relevant: “It seems clear there was an organized assault element in place that was going to assault regardless of what the president said.”
MICHAEL RAMSEY ADDS: Increasingly I'm thinking that the "engaged in" insurrection argument is the weakest part of the case against Trump. If, as Marty Lederman says, the "most important[]" evidence against Trump is that he did nothing, that doesn't really seem like engaging, which I would think suggests an active role.
FURTHER THOUGHTS: At Volokh Conspiracy, Michael McConnell guest blogging, defending a narrow reading of Section 3:
[M]y Public Discourse essay [ed.: here, and note earlier on this blog] relied for its narrow interpretive approach on the actual interpretation of Section Three by those who enforced it at the time—evidence not discussed by [Will Baude and Michael Paulsen] in their original article or their recent post. Persons elected to Congress who, having previously taken the relevant oath, took arms against the Union were excluded from taking office, but others who had taken acts in support of secession but had not literally "engaged in" the insurrection were allowed to take their seats. (I put the word "engaged in" in quotation marks because that is the operative constitutional term.)
For example, a Virginian, Lewis MacKenzie, was permitted to take his seat in the House despite voting in favor of secession as a pre-war member of Virginia's House of Delegates, and voting to appropriate funds to ready the State for armed hostilities with the Union. Similarly, John M. Rice of Kentucky was permitted to take his seat despite having voted for secession and even assisting in recruitment into the Southern armed forces. The distinction seems to have been that these men were not themselves combatants. While they certainly had supported the rebellion, they had not "engaged in" it—or so majorities of the House of Representatives concluded.
Commenting on enforcement proceedings at the time, one congressman noted in 1869 that the House of Representatives in its rulings on the meaning of Section Three, had "by a very decided expression of opinion, determined that it would strictly construe the rule that rendered any person ineligible for a seat in this House …. [N]obody should be disqualified unless he is clearly proven to have done some act" in violation of the Section. …
Posted at 6:01 AM