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    Is Donald Trump Ineligible to Be President?

    How does a democracy protect itself against a political leader who is openly hostile to democratic self-rule? This is the dilemma the nation faces once again as it confronts a third presidential run by Donald Trump, even as he still refuses to admit he lost his second.Of course, we shouldn’t be in this situation to begin with. The facts are well known but necessary to repeat, if only because we must never become inured to them: Abetted by a posse of low-rent lawyers, craven lawmakers and associated crackpots, Mr. Trump schemed to overturn the 2020 election by illegal and unconstitutional means. When those efforts failed, he incited a violent insurrection at the United States Capitol, causing widespread destruction, leading to multiple deaths and — for the first time in American history — interfering with the peaceful transfer of power. Almost two years later, he continues to claim, without any evidence, that he was cheated out of victory, and millions of Americans continue to believe him.The best solution to behavior like this is the one that’s been available from the start: impeachment. The founders put it in the Constitution because they were well acquainted with the risks of corruption and abuse that come with vesting great power in a single person. Congress rightly used this tool, impeaching Mr. Trump in 2021 to hold him accountable for his central role in the Jan. 6 siege. Had the Senate convicted him as it should have, he could have been disqualified from holding public office again. But nearly all Senate Republicans came to his defense, leaving him free to run another day.There is another, less-known solution in our Constitution to protect the country from Mr. Trump: Section 3 of the 14th Amendment, which bars from public office anyone who, “having previously taken an oath” to support the Constitution, “engaged in insurrection or rebellion” or gave “aid or comfort” to America’s enemies.On its face, this seems like an eminently sensible rule to put in a nation’s governing document. That’s how Representative David Cicilline of Rhode Island, who has drafted a resolution in Congress enabling the use of Section 3 against Mr. Trump, framed it. “This is America. We basically allow anyone to be president,” Mr. Cicilline told me. “We set limited disqualifications. One is, you can’t incite an insurrection against the United States. You shouldn’t get to lead a government that you tried to destroy.”This was also the reasoning of the 14th Amendment’s framers, who intended it to serve as an aggressive response to the existential threat to the Republic posed by the losing side of the Civil War. Section 3 was Congress’s way of ensuring that unrepentant former Confederate officials — “enemies to the Union” — were not allowed to hold federal or state office again. As Representative John Bingham, one of the amendment’s lead drafters, put it in 1866, rebel leaders “surely have no right to complain if this is all the punishment the American people shall see fit to impose upon them.”And yet despite its clarity and good sense, the provision has rarely been invoked. The first time, in the aftermath of the Civil War, it was used to disqualify thousands of Southern rebels, but within four years, Congress voted to extend amnesty to most of them. It was used again in 1919 when the House refused to seat a socialist member accused of giving aid and comfort to Germany in World War I.In September, for the first time in more than a century, a New Mexico judge invoked Section 3, to remove from office a county commissioner, Couy Griffin, who had been convicted of entering the Capitol grounds as part of the Jan. 6 mob. This raised hopes among those looking for a way to bulletproof the White House against Mr. Trump that Section 3 might be the answer.I count myself among this crowd. As Jan. 6 showed the world, Mr. Trump poses a unique and profound threat to the Republic: He is an authoritarian who disregards the Constitution and the rule of law and who delights in abusing his power to harm his perceived opponents and benefit himself, his family and his friends. For that reason, I am open to using any constitutional means of preventing him from even attempting to return to the White House.At the same time, I’m torn about using this specific tool. Section 3 is extraordinarily strong medicine. Like an impeachment followed by conviction, it denies the voters their free choice of those who seek to represent them. That’s not the way democracy is designed to work.And yet it is true, as certain conservatives never tire of reminding us, that democracy in the United States is not absolute. There are multiple checks built into our system that interfere with the expression of direct majority rule: the Senate, the Supreme Court and the Electoral College, for example. The 14th Amendment’s disqualification clause is another example — in this case, a peaceful and transparent mechanism to neutralize an existential threat to the Republic.Nor is it antidemocratic to impose conditions of eligibility for public office. For instance, Article II of the Constitution puts the presidency off limits to anyone younger than 35. If we have decided that a 34-year-old is, by definition, not mature or reliable enough to hold such immense power, then surely we can decide the same about a 76-year-old who incited an insurrection in an attempt to keep that power.So could Section 3 really be used to prevent Mr. Trump from running for or becoming president again? As a legal matter, it seems beyond doubt. The Capitol attack was an insurrection by any meaningful definition — a concerted, violent attempt to block Congress from performing its constitutionally mandated job of counting electoral votes. He engaged in that insurrection, even if he did not physically join the crowd as he promised he would. As top Democrats and Republicans in Congress said during and after his impeachment trial, the former president was practically and morally responsible for provoking the events of Jan. 6. The overwhelming evidence gathered and presented by the House’s Jan. 6 committee has only made clearer the extent of the plot by Mr. Trump and his associates to overturn the election — and how his actions and his failures to act led directly to the assault and allowed it to continue as long as it did. In the words of Representative Liz Cheney, the committee’s vice chair, Mr. Trump “summoned the mob, assembled the mob and lit the flame of this attack.”A few legal scholars have argued that Section 3 does not apply to the presidency because it does not explicitly list that position. It is hard to square that claim with the provision’s fundamental purpose, which is to prevent insurrectionists from participating in American government. It would be bizarre in the extreme if Mr. Griffin’s behavior can disqualify him from serving as a county commissioner but not from serving as president.It’s not the legal questions that give me pause, though; it’s the political ones.First is the matter of how Republicans would react to Mr. Trump’s disqualification. An alarmingly large faction of the party is unwilling to accept the legitimacy of an election that its candidate didn’t win. Imagine the reaction if their standard-bearer were kept off the ballot altogether. They would thunder about a “rigged election” — and unlike all the times Mr. Trump has baselessly invoked that phrase, it would carry a measure of truth. Combine this with the increasingly violent rhetoric coming from right-wing media figures and politicians, including top Republicans, and you have the recipe for something far worse than Jan. 6. On the other hand, if partisan outrage were a barrier to invoking the law, many laws would be dead letters.The more serious problem with Section 3 is that it is easy to see how it could morph into a caricature of what it is trying to prevent. Keeping specific candidates off the ballot is a classic move of autocrats, from Nicolas Maduro in Venezuela to Aleksandr Lukashenko in Belarus to Vladimir Putin. It sends the message that voters cannot be trusted to choose their leaders wisely — if at all. And didn’t we just witness Americans around the country using their voting power to repudiate Mr. Trump’s Big Lie and reject the most dangerous election deniers? Shouldn’t we let elections take their course and give the people the chance to (again) reject Mr. Trump at the ballot box?To help me resolve my ambivalence, I called Representative Jamie Raskin of Maryland, who sits on the Jan. 6 committee and taught constitutional law before joining Congress. He acknowledged what he called an understandable “queasiness” about invoking Section 3 to keep Mr. Trump off the ballot. But Mr. Raskin argued that this queasiness is built into the provision. “What was the constitutional bargain struck in Section 3?” he asked. “There would be a very minor incursion into the right of the people to elect exactly who they want, in order to obtain much greater security for the constitutional order against those who have demonstrated a propensity to want to overthrow it when it is to their advantage.”The contours of the case for Mr. Trump’s disqualification might get stronger yet, as the Justice Department and state prosecutors continue to pursue multiple criminal investigations into him and his associates and as the Jan. 6 committee prepares to release its final report. While he would not be prohibited from running for office even if he was under criminal indictment, it would be more politically palatable to invoke Section 3 in that case and even more so if he was convicted.I still believe that the ideal way for Mr. Trump to be banished for good would be via the voters. This scenario is democracy’s happy ending. After all, self-government is not a place; it is a choice, and an ongoing one. If Americans are going to keep making that choice — in favor of fair and equal representation, in favor of institutions that venerate the rule of law and against the threats of authoritarian strongmen — they do it best by themselves. That is why electoral victory is the ultimate political solution to the ultimate political problem. It worked that way in 2020, when an outright majority of voters rejected Mr. Trump and replaced him with Joe Biden.But it’s essential to remember that not all democracies have happy endings. Which brings us to the most unsettling answer to the question I began with: Sometimes a democracy doesn’t protect itself. There is no rule that says democracies will perpetuate themselves indefinitely. Many countries, notably Hungary and Turkey, have democratically undone themselves by electing leaders who then dismantled most of the rights and privileges people tend to expect from democratic government. Section 3 is in the Constitution precisely to help ensure that America does not fall into that trap.Whether or not invoking Section 3 succeeds, the best argument for it is to take the Constitution at its word. “We undermine the importance of the Constitution if we pick and choose what rules apply,” Mr. Cicilline told me. “One of the ways we rebuild confidence in American democracy is to remind people we have a Constitution and that it has in it provisions that say who can run for public office. You don’t get to apply the Constitution sometimes or only if you feel like it. We take an oath. We swear to uphold it. We don’t swear to uphold most of it. If Donald Trump has taught us anything, it’s about protecting the Constitution of the United States.”Surely the remedy of Section 3 is worth pursuing only in the most extraordinary circumstances. Just as surely, the events surrounding Jan. 6 clear that bar. If inciting a violent insurrection to keep oneself in office against the will of the voters isn’t such a circumstance, what is?The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: the New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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    Justice Dept. Seeking to Question Pence in Jan. 6 Investigation

    Prosecutors want to speak with the former vice president as a witness to former President Donald Trump’s efforts to remain in power, and he is said to be considering how to respond.The Justice Department is seeking to question former Vice President Mike Pence as a witness in connection with its criminal investigation into former President Donald J. Trump’s efforts to stay in power after he lost the 2020 election, according to two people familiar with the matter.Mr. Pence, according to people familiar with his thinking, is open to considering the request, recognizing that the Justice Department’s criminal investigation is different from the inquiry by the House Jan. 6 committee, whose overtures he has flatly rejected.Complicating the situation is whether Mr. Trump would try to invoke executive privilege to stop him or limit his testimony, a step that he has taken with limited success so far with other former officials.Mr. Pence was present for some of the critical moments in which Mr. Trump and his allies schemed to keep him in office and block the congressional certification of Joseph R. Biden Jr.’s victory. An agreement for him to cooperate would be the latest remarkable twist in an investigation that is already fraught with legal and political consequences, involving a former president who is now a declared candidate to return to the White House — and whose potential rivals for the 2024 Republican nomination include Mr. Pence.Thomas Windom, one of the lead investigators examining the efforts to overturn the election, reached out to Mr. Pence’s team in the weeks before Attorney General Merrick B. Garland appointed a special counsel on Friday to oversee the Jan. 6 investigation and a separate inquiry into Mr. Trump’s handling of classified documents, according to one of the people familiar with the matter. Mr. Garland has said that the appointment of the special counsel, Jack Smith, will not slow the investigation.Officials at the Justice Department declined to comment. A spokesman for Mr. Pence also declined to comment.The discussions about questioning Mr. Pence are said to be in their early stages. Mr. Pence has not been subpoenaed, and the process could take months, because Mr. Trump can seek to block, or slow, his testimony by trying to invoke executive privilege.Mr. Trump has cited executive privilege to try to stop other former top officials from talking with investigators. While those efforts have generally been unsuccessful in stopping testimony by the officials to a federal grand jury, they have significantly slowed the process.Mr. Trump’s efforts to slow or block testimony included asserting executive privilege over testimony from two of Mr. Pence’s top aides: his former chief of staff, Marc Short, and his general counsel, Greg Jacob. But both men returned for grand jury interviews after the Justice Department, in a closed-door court proceeding, fought the effort to apply executive privilege.Mr. Pence, who rebuffed Mr. Trump’s efforts to enlist him in the plan to block certification of the Electoral College results, has been publicly critical of Mr. Trump’s conduct in the run-up to the Jan. 6 assault on the Capitol and on the day of the attack, when members of a pro-Trump mob were chanting “Hang Mike Pence.”Understand the Events on Jan. 6Timeline: On Jan. 6, 2021, 64 days after Election Day 2020, a mob of supporters of President Donald J. Trump raided the Capitol. Here is a close look at how the attack unfolded.A Day of Rage: Using thousands of videos and police radio communications, a Times investigation reconstructed in detail what happened — and why.Lost Lives: A bipartisan Senate report found that at least seven people died in connection with the attack.Jan. 6 Attendees: To many of those who attended the Trump rally but never breached the Capitol, that date wasn’t a dark day for the nation. It was a new start.During an appearance in New Hampshire in August, Mr. Pence indicated he was open to appearing before the House Jan. 6 committee, which had been pushing to have him tell his story, but he offered a caveat.“If there was an invitation to participate, I’d consider it,” Mr. Pence said at the time. But he added that he was concerned that speaking to a congressional committee would violate the doctrine of separation of powers between the executive and legislative branches. “But as I said, I don’t want to prejudge. If ever any formal invitation” came, he said, “we’d give it due consideration.”However, in interviews for the release of his new book, “So Help Me God,” Mr. Pence has been more emphatic in his opposition to providing testimony to the House committee, asserting that “Congress has no right to my testimony” about what he witnessed.“There’s profound separation-of-powers issues,” Mr. Pence told The New York Times in an interview. “And it would be a terrible precedent.”But Mr. Pence, according to people familiar with his thinking, sees the Justice Department inquiry differently given that it is a criminal investigation. His testimony could be compelled by subpoena, though none has been issued.The former vice president is being represented by Emmet Flood, a veteran Washington-based lawyer who served as the lead Trump White House lawyer dealing with the investigation by Robert S. Mueller III, the special counsel, into possible conspiracy between the Trump campaign and Russia in 2016.Mr. Flood is representing several other top White House officials who find themselves as witnesses in the range of congressional and Justice Department investigations into Mr. Trump, including Mr. Short.An increasing number of high-ranking officials in Mr. Trump’s administration have received grand jury subpoenas as part of the Justice Department’s inquiry into a wide array of efforts to overturn the election, including a plan to create fake slates of pro-Trump electors in key swing states that were won by Mr. Biden.The wide-ranging subpoenas sought information on a host of subjects that included the fake elector plan, attempts to paint the election as having been marred by fraud and the inner workings of Mr. Trump’s main postelection fund-raising vehicle, the Save America PAC.The effort to seek an interview with Mr. Pence puts both the department and the former vice president in uncharted territory.Mr. Pence is considering a campaign for president in 2024, in a race that Mr. Trump has already announced his candidacy for. And Mr. Biden’s Justice Department is seeking to use Mr. Pence as a potential witness against Mr. Trump; either could end up as rivals to Mr. Biden should he run again, which he has indicated is likely.Mr. Pence has written in detail in his book about Mr. Trump’s efforts to stay in power and the pressure campaign he imposed on his vice president beginning in December 2020.Among other interactions he describes, Mr. Pence details how Mr. Trump summoned him to the Oval Office on Jan. 4 to meet with a conservative lawyer named John Eastman, who repeatedly argued that Mr. Pence could exceed the ceremonial duties of overseeing the Electoral College certification by Congress. Mr. Eastman was promoting the notion that Mr. Pence had the power to set aside the results from states where Mr. Trump was still trying to challenge the outcome.Mr. Pence writes about telling Mr. Trump that he did not have such authority. In an interview with The Times in connection with the book, Mr. Pence was forceful, saying that he was blunt with Mr. Trump that he could not do what he wanted.“In the weeks before Jan. 6, I repeatedly told the president that I did not have the authority to reject or return electoral votes,” Mr. Pence said in the interview. “It was clear he was getting different legal advice from an outside group of lawyers that, frankly, should have never been let in the building.”In that period of time, Mr. Trump began to publicly pressure Mr. Pence, as well as officials in Georgia, to go along with his efforts to remain in office. At the same time, Mr. Trump began using his Twitter account to try to draw a crowd to Washington for a “protest” at the Ellipse near the White House on Jan. 6, the day of the congressional certification.The Times has previously reported that Mr. Pence’s chief of staff, Mr. Short, called Mr. Pence’s lead Secret Service agent, Tim Giebels, to his West Wing office on Jan. 5, 2021. When Mr. Giebels arrived at Mr. Short’s office, the chief of staff said that the president was going to turn on the vice president, and that they would have a security risk because of it, a conversation that Mr. Short described to the House select committee. The committee released a video snippet of Mr. Short discussing it at one of its public hearings this year.Mr. Trump addressed the crowd at the Ellipse at midday on Jan. 6 and again pressured Mr. Pence, whom he had called a few hours earlier in a further effort to persuade him to go along with the last-ditch plan to block the certification.In his address at the Ellipse, Mr. Trump said: “You’re never going to take back our country with weakness. You have to show strength and you have to be strong.”He went on: “So I hope Mike has the courage to do what he has to do. And I hope he doesn’t listen to the RINOs and the stupid people that he’s listening to.”A short time later, Mr. Trump’s supporters marched to the Capitol, where Mr. Pence was. Hundreds of them stormed the building, smashing windows and barreling through doors, forcing Mr. Pence, his wife and his daughter to flee his office in the Capitol and take refuge on a loading dock underground. He stayed there, working to get the situation under control as Mr. Trump watched the coverage of the riot on television at the White House.Mr. Pence wrote about the experience in his book, and has since described his anger that Mr. Trump was “reckless” and “endangered” Mr. Pence and his family.Despite Mr. Pence being a witness to a range of Mr. Trump’s actions in office, an interview of the former vice president would be the first time that he has been questioned in a federal investigation of Mr. Trump.Mr. Pence was in the room for many of the key events examined by Mr. Mueller in the obstruction investigation, but Mr. Pence’s lawyer at the time managed to get him out of having to testify.The lawyer, Richard Cullen, met with Mr. Mueller and his team, telling them that Mr. Pence believed Mr. Trump had not obstructed justice and what he would say if questioned.Mr. Mueller’s team never followed up to question Mr. Pence, and he was never cited as a witness against Mr. Trump in Mr. Mueller’s final report.Glenn Thrush More