August 21, 2023
Letters to the Editor
The New York Times
Re: “Is Trump Even Eligible for a Second Term?” (Column by David French, A18, August 21, 2023)
To the Editor:
David French underscores the urgency of disqualifying Donald Trump from the White House under section 3 of the Fourteenth Amendment—even if the disqualification infuriates a popular majority. The Constitution intends to restrain majoritarian impetuosities or frenzies. James Madison, father of the Constitution, observed in Federalist 55, “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”
Mr. French omitted the need for a process to establish Mr. Trump’s January 6 engagement in insurrection against the United States. A law review article is not due process. At least two avenues are available: Special counsel Jack Smith’s could seek a superseding January 6 indictment adding an insurrection count pursuant to 18 U.S.C. 2383; and, voters could seek Mr. Trump’s disqualification before electoral boards or secretaries of state in battleground States. In cases of paramount political importance, the Supreme Court can and has acted with supersonic speed to review decisions of subordinate tribunals. Think of Bush v. Gore (2000); United States v. Nixon (1974); New York Times v. United States (1971); and Youngstown Sheet & Tube v. Sawyer (1952).
Sincerely,
Bruce Fein, associate deputy attorney general under President Reagan and author of Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy
300 New Jersey Avenue, N.W., Suite 900
Washington, D.C. 20001
Phone: 202-465-8728; 703-963-4968
Email: bruce@feinpoints.com