The Hill column claims Congress should stop Trump from becoming president

Writing in The Hill, Evan Davis and David Shulte have argued that Congress could and should block President-elect Donald Trump from taking office. The pair begin with the false contention that Section 3 of the 14th Amendment to the Constitution somehow applies to Trump. “No person shall … hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

Trump was never convicted for "insurrection." In fact, he wasn't even tried. One critic said the two are “legal half-wits” without a case to stand upon. 

The authors argue that “disqualification is based on insurrection against the Constitution and not the government” and that evidence of Trump doing so “is overwhelming” and has been demonstrated in “three separate forums.” Rep. Jamie Raskin (D-MA) has already threatened to engage in this sort of distraction when Congress meets to certify the Electoral College votes, a threat he nearly a year ago.

Davis and Shulte say three “contested” proceedings prove their case. They begin with Trump’s second impeachment that was based on the president being responsible for “incitement of insurrection.” This very charge “encompasses ‘engaging in insurrection’ against the Constitution ‘or giving aid and comfort to the enemies thereof,’ the grounds for disqualification specified in Section 3.”

The writers say the second contested proceeding was the finding by a Colorado court of “clear and convincing evidence that President Trump engaged in insurrection as those terms are used in Section Three” and that ruling being affirmed by the Colorado Supreme Court. The authors argue that even if the US Supreme Court ruled that states do not have the authority to bar candidates from running for federal office, this did not mean Trump had not “engaged in insurrection.” The Supreme Court struck down states' bans of Trump's name on ballots.

The third contested proceeding raised by the Davis and Shulte is what they refer to as “the bipartisan inquiry of the House Select Committee to Investigate the January 6th attack on the United States Capitol,” which has been dismissed by Republicans as a Democratic-led kangaroo court that ignored evidence and allegedly counseled witnesses to lie. Nevertheless the authors argue that “the inescapable conclusion of this evidence is that Trump engaged in insurrection against the Constitution.” They also point to Trump asking then-Vice President Mike Pence to reject Electoral College votes for Joe Biden and that Trump then used Pence’s refusal to do so to increase the anger of the Jan. 6 crowd.

The authors suggest that Democrats can use the Electoral Count Act to block Trump from assuming the presidency by simply not counting Electoral College votes for Trump based on the fact that he is “disqualified by the Constitution.” They say it would only require 20 percent of the membership of both the House and Senate to initiate this process.

However, the authors’ missive is quickly becoming the object of scorn and derision on social media with former Department of Justice Assistant Attorney General Jeff Clark saying the “reasoning of the article is also poor” because the second impeachment failed, the Colorado case failed and the J6 Select Committee was “an illegal farce that had the power to adjudicate nothing.”

Clark savaged the authors of the article as “two former law clerks of Potter Stewart … If Justice Stewart were still alive, he would be well advised to consider announcing he regretted ever having credentialized these legal half-wits.”