The 14th Amendment: 'There need not be a criminal conviction or even criminal charges' [View all]

[speak easy]

Perhaps the biggest of those surprises is the inclusion of a referral for inciting and assisting an insurrection and giving aid or comfort to insurrectionists under 18 U.S.C. 2383. That law derives from one first enacted in 1862 during the Civil War to provide for criminal penalties against Confederates and their accomplices attempting a violent secession from the Union.

Although the statute is seldom used, the committee is correct in its assessment that it applies to Mr. Trump’s conduct by summoning and whipping up the insurrectionists on Jan. 6 and then by failing to take action for three hours. The committee offers numerous examples of relevant misconduct, from Mr. Trump’s infamous remarks on the Ellipse, knowing that some of his listeners were armed, to his tweet attacking his vice president, Mike Pence, while the insurrection was underway, to his affectionate comments that day about the rioters (even if asking them to respect law enforcement).

In the 14th Amendment context, citizens could use the committee report to go to their state election officials to argue that Mr. Trump is prohibited from holding office and so from appearing on the ballot. There need not be a criminal conviction or even criminal charges; these citizens can point out that the constitutional prohibition has been prompted by the committee’s evidence. However those decisions by election officials turn out, the next stop will be the courts, which have already held that Section 3 violators can indeed be barred.

https://www.nytimes.com/2022/12/19/opinion/january-6-trump-criminal-referrals.html

The 14th Amendment was enacted to keep former insurrections out of any office, civil or military, in the United States, whether or not they had been charged or convicted under 18 U.S.C. 2383. It does not contemplate the criminal standard of proof - beyond reasonable doubt. It suggests a common sense finding of facts , although as the OP says, 'the next stop will be the courts'.

Trump was the leader of the January 6th insurrection. That was the J6 Committee's finding of fact - something that will have to tested in the courts, but does not presume a criminal conviction. Can anyone seriously suggest that Jefferson Davis could have stood for Congress after the civil war because he was not convicted under 18 U.S.C. 2383, or other Federal criminal statute?