The 14th amendment was written to block anyone who participated in a civil war from becoming a Congressman, Elector to the Electoral College, Justice or Cabinet member, or a member of a state government where they might incite rebellion again. The one line in President Trump's speech acknowledging that the participants were going to march to the Capitol is not insurrection or rebellion. Almost everyone who holds a rally at the Mall ends with a march to the Capitol building.
First, the wording on this is such that it seems to include everyone EXCEPT the President and Vice President.
14th Amendment Section 3
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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. But Congress may by a vote of two-thirds of each House, remove such disability.
Second, when read against the wording of Article II Section 4's impeachment clause...
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
...it is clear that the President and Vice President are separate and distinct from "any office, civil or military, under the United States" because they are included separately in the impeachment clause. "Officers of the United States" means anyone who is appointed by the President and confirmed by the Senate, that is, Justices to the Supreme Court, Cabinet members, and senior military officers. It is not the President, Vice President, or member of Congress.
Third, the 14th amendment excludes the President and Vice President from its scope because an insurrection or rebellion is, by definition, the overthrow of a country's leadership (President), not its legislative body. The assassination of President Lincoln was on their minds, which is likely why the President and Vice President were excluded: the President cannot overthrow himself. Pelosi may fancy herself as the "co-leader" (she's on record saying “The Constitution does.”), but she's not. The Speaker is second in line to fill a vacancy in the Presidency.
Finally, the role of Congress in the 14th amendment is not to make a finding of insurrection or rebellion, it is only to waive the penalty for someone so they can run for office again. It is the opposite of impeachment: by 2/3rds vote, Congress may "remove such disability," not impose it. Some other body must make a finding of insurrection or rebellion.
I'm not a lawyer, but that's my take on it.
-PJ
I guess my question is whether Trump has “given aid or comfort to the enemies thereof.” Also whether that aid or comfort can be classified as “other High Crimes and Misdemeanors.” I’m not a lawyer either, so hopefully someone hear might offer a more professional opinion.