An argument for disqualifying former President Donald Trump from the presidency is that his activities before and on Jan. 6, 2021, gave “aid and comfort to the enemies” of the United States.
If President Trump is finally disqualified on that basis, however, his supporters can seek the disqualification of many left-wing officeholders, based on their previous activities.
As regular readers of my columns know, I’ve already disputed the claim that President Trump engaged in insurrection. In addition, I’ve summarized the evidence suggesting that the presidency isn’t an office from which one can be disqualified. (And I’ve criticized the former president.)
‘Aid and Comfort’
The phrase “aid and comfort” appears twice in the Constitution. The first is in the definition of treason (Article III, Section 3). The phrase came from a 14th-century English statute. The American Founders selected the phrase because of its narrow scope: They didn’t want to repeat the English experience by which treason was prosecuted under multiple statutes and common law theories—often just to punish political enemies.
How Trump’s Enemies Interpret ‘Aid and Comfort’
Although the “aid and comfort” language in the Constitution’s Treason Clause was designed to have a narrowing effect, advocates of disqualifying President Trump argue that the same phrase in the 14th Amendment should be applied broadly. They rely heavily on a research paper that gives examples of how the words have been interpreted loosely.One hurdle faced by those advocating disqualification is that President Trump didn’t personally invade the Capitol on Jan. 6, 2021. Nor did he urge his followers to do so. On the contrary, he urged them to be peaceful. But advocates of a broad “aid and comfort” rule claim his speech encouraged them to enter, and that speech alone—without action—can be enough.
For example, the research paper President Trump’s opponents rely on notes the exclusion of one John Y. Brown from Congress shortly after the 14th Amendment was ratified. Brown (not to be confused with the more famous John Brown, the abolitionist) was disqualified from Congress not for any overt action—but merely for writing an inflammatory letter.
How This Applies to Anti-War Protests
Now let’s apply the same standard to some activities by those on the political left.During the late 1960s and early 1970s, the United States was engaged in a shooting war against communist North Vietnam. Although many call the war “undeclared,” the Tonkin Gulf Resolution of 1964 served as what lawyers called a “functional equivalent” of a declaration of war.
The efforts of the United States to contain communism in Southeast Asia provoked massive left-wing protests in the United States. The protests featured a lot of fiery language of the same general type that John Y. Brown included in his letter. But the protests went much further than mere words: They also included a great deal of violent and otherwise forcible action.
Most of those protesting weren’t communists, but the protests were subsidized by communist agents. For example, in 1972, student activists from Cornell University first met with North Vietnamese representatives in Montreal, Canada, and then seized a university building after classes had begun. They “re-named” the building after two communists (one of whom was the commander of the North Vietnamese military) and occupied it for some time, with the avowed purpose of obstructing the war. This was in addition to an earlier building takeover at Cornell in 1969.
Most of these protests didn’t qualify as treasonous under the “aid and comfort” constitutional definition of treason. But they certainly did qualify as 14th Amendment “aid and comfort” as the words are being used by Trump opponents.
The Opportunities
According to the disqualification standard being applied to President Trump, very likely some politicians in office today were guilty of giving “aid and comfort to the enemies” during the Vietnam and Gulf War protests. Those who already were in political office—and therefore had taken an oath to support the Constitution of the United States—are disqualifiable.Most weren’t in office then: They resisted American war efforts and later went into politics. Former President Bill Clinton is probably the most famous example. But that doesn’t mean they’re home free.
A major part of politics is “opposition research.” This is investigating a political opponent for information you can use against him. It’s unpleasant work. But it’s also a necessary part of informing the electorate about the candidates who seek their trust.
If President Trump is disqualified, then unearthing the “aid and comfort” activities of left-of-center politicians will be legitimate opposition research. The same standard that applies to President Trump should apply to them.
