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this post was submitted on 29 Dec 2023
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So the courts did find that he participated in an insurrection. But they also ruled that he had presidential immunity, and any prosecution would require an impeachment and trial in the senate. Basically, the courts said they didn’t have jurisdiction to prosecute him for it. They went “lol yeah he definitely did it, but we can’t punish him for it.” And the republicans haven’t actually challenged this. After all, why would they? They control congress, so they simply won’t try him for it in the senate.
But the 14th amendment doesn’t require a conviction. It only requires a sworn official to have violated their oath of office. Which includes participating in an insurrection. It doesn’t require a conviction or even prosecution; It only requires violating your oath of office.
The 14th amendment was written in the wake of the civil war, with the union looking to prevent confederates from holding office. The union feared that the confederates would attempt to seize power through the elections, even after the war was over. But they knew that taking every individual confederate to court would take way too long. It would also run counter to the reunification efforts, because no confederates would agree to rejoin the union if they knew it meant they’d be criminally prosecuted. So instead, the union circumvented the courts and simply barred anyone who violated an oath of office.