SCOTUS hears the case on Trump's eligibility on February 8, 2024

Politics & Elections
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So let’s talk about 18 USC 2383
Can we all agree that in theory it is a Federal Law that would take someone that committed insurrection and if found guilty would bar them from future Federal office automatically? With that, can we agree that it is a method to implement Section 3? And can we agree that it is appropriate under Section 5?

Then we’re done here. It is not up to SCOTUS to fix Congress’ errors or oversights (re: Zone of Death). It is not up to SCOTUS to tell the Executive Branch it needs to enforce the law better or more often. SCOTUS can say there it a process in place and if unused that’s not on them to correct.

Not on insurrection under 2383

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In theory?

If the candidate previously took an oath to uphold the Constitution, yes. But isn’t 2383’s “shall be incapable of holding any office under the United States” blatantly unconstitutional for everyone else, since it adds a qualification, for the presidency, not in the constitution? If the unconstitutional part is severable from the rest, I agree — in theory.

In reality?

No! In the federal system, the great majority of cases are plea bargained, and would be bargained down to something less severe than 2383. If it goes to trial, the process takes too long for it to be an actual way of implementing Article 3.

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Re last, I also have to mention the 14 year clause. As in:

“a resident of the United States for at least fourteen years”

I am a 68 year old native-born American who has been a resident of the United States for much more than fourteen years total. But not continuously for the past fourteen years. So, am I qualified to be president? Beats me. And who could decide that, given the lack of Supreme Court precedents? Only the federal Supreme Court (after some lower court disqualified me, and I appealed). If they are stuck with that job when it comes to me, how can it be different with Trump? And if they are just going to decline to take presidential qualification cases, or rule against me, so that I can run in the primary of some states, and not others, that’s crazy.

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Because that’s not a thing.

In the entire history of the United States, nobody has ever been indicted under that statute. I don’t believe it’s possible to be, otherwise it would have happened by now.

You cannot cite the basis for law under something that can’t happen. That’s insane. You might as well say that the standard is literally for God to appear and personally give judgement. This is a completely irrational argument.

Could you imagine if they did try to indict Trump? All Trump’s lawyers would have to say is that the DOJ is specifically targeting him for political purposes and they’d be correct. Because he’d be the first person in history to be indicted.

This is laugh out loud ridiculous.

ETA: Explain why not a single insurrectionist from 1/6 has been charged under this statute.

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Yes, but outside of the Civil war- how many have committed insurrection?

Its not like Perjury- commonly committed but rarely convicted. I am not saying you are wrong, but I wouldnt expect there to be much case law on this.

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Google New World Liberation Front, Symbionese Liberation Army, and Weather Underground. There were hundreds of 1970’s bombings targeted against the U.S. government.

Looks like insurrection to me. But charges were always something other than the partly unconstitutional 18 U.S. Code § 2383.

Earlier there were the Puerto Rican nationalist attacks:

The 1954 United States Capitol shooting was an attack on March 1, 1954, by four Puerto Rican nationalists who sought to promote the cause of Puerto Rico’s independence from US rule.

Then there was the 1950 attack on Blair House, when Harry and Bess stuck their heads out the window the see what all the shooting was about.

I probably could spend all day finding other examples of failed insurrections, against the United States, that were charged as other crimes.

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[segue]

Well, no.

–Harlan Crow

/s

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And FWIW I would say that for instance a conviction for Seditious Conspiracy of a sitting or former official should be considered as qualifying within the spirit of proven “insurrection or rebellion” if it came to interpreting eligibility under A14S3. But that’s another hypothetical.

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Which, for this thread, I contend is good enough for SCOTUS to declare Trump eligible and say it’s somebody else’s job to make him ineligible.

But the fact that the law exists and satisfies the 14th Amendment is sufficient for SCOTUS to say, “That’s not our problem.” Remember this thread is not about did Trump commit insurrection or can he be convicted of it. It is very specific about SCOTUS ruling on Trump’s eligibility re: A14(3).

Think about the Zone of Death. It is a problem that Congress could very easily fix plus they have had time to deal with it but refuse to. It is not SCOTUS’s job to fix that. By the same token the law exists and Trump could be convicted of it. It is not SCOTUS’s job to fix the obvious practical problems with it. That’s up to Congress and the executive branch.

That was actually an issue with Herbert Hoover who have not been a resident for all of the 14 years before running for President. Because of that, I believe the unofficial rule is being a resident in the US for any combination of 14 years during your life.

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No it absolutely is not sufficient. The fact is that plenty of people who have clearly and unambiguously committed insurrection have never been convicted of that particular law. Requiring someone to be convicted has absolutely zero basis in it. You might as well argue that he needs to be convicted of treason first, since that has at least actually happened in US history. It’s a non-argument and a bad legal theory.

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Then how should SCOTUS rule given the law and the separation of powers?

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From what I understand, Colorado made a really weak argument, so on the specific question of whether Trump can be stricken from the primary ballots, I’m guessing they should rule that he can’t be. Whatever my personal views are (which is that I think he shouldn’t be allowed to be on any ballot ever in the US for the rest of his life). And that has nothing to do with whether or not he was convicted for a law that nobody has ever been convicted of, will probably never be convicted of, and it seems nobody can be convicted of it.

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On what grounds? That seems to be the big question for everyone.

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Colorado made the determination that Trump had engaged in insurrection without any sort of conviction. Now, it’s true that there is nothing saying a conviction is necessary for disqualification, and the fact that led them to that conclusion are not really in dispute as far as I know. (Just whether or not they constitute a crime, which is what is going to be tested in federal court in DC.) And they did give Trump’s lawyers a chance to convince them otherwise in court.

I could understand why SCOTUS might determine this is the reason to rule in favor of Trump, and seems the most logical one. But I still don’t think it’s correct. When I said:

I shouldn’t have said that they should rule that way, I meant I wouldn’t be shocked if they did. Because as you alluded to before, there needs to be a separation of powers and if they are creating a new requirement not in the original amendment (that a conviction is necessary) that seems to be stepping on the toes of Congress.

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Many said he was qualified, but others disagreed. In the press. There was no lawsuit.

If I understand this thread correctly, there is no legal way to enforce disputed presidential qualifications in the courts, regardless of whether the dispute is over age, birthplace, residency, or adherence to a prior oath to the Constitution. A challenge to qualifications can be dismissed, as happened when Barack Obama faced a birther lawsuit. But, unless SCOTUS shocks everyone with a totally unexpected ruling, it seems there is no way to prevent an oath-breaking insurrectionist, or a native born Canadian, from being nominated. And it defies all understanding to think you can stop the winning nominee from taking office.

If so, this is a defect in our system of government. And, while a future progressive-dominated Congress could pass a law telling the court change their approach here, I don’t see how it could really be fixed except by SCOTUS. If Trump wins, and turns out to be as bad as most here expect, the justices probably will learn the lesson and act differently next time. There is nothing I see, in the SCOTUS oath of office, preventing that.

As for preventing Trump from being nominated being undemocratic, while SCOTUS is right to consider that, if you disqualify the candidate long before nomination, there is no sense in which policy was dictated. The GOP can, if Trump were disqualified, nominate someone with the same political positions. They can nominate an otherwise qualified insurrectionist. They just can’t nominate someone who is disqualified.

Does that make enforcement of Section 3 unimportant? After all, Trump Jr. is, AFAIK, legally qualified. And he’s no less danger than his father, right? Wrong. He’s probably less dangerous, because a first term president, lacking prior government experience, won’t do as much damage to the republican system of government as someone who worked in the government before. So even if I don’t have as big of a personal revulsion regarding oath-breaking as the radical Republicans did, I still see wisdom in Section 3 being enforced, as written, so longer as SCOTUS steps up early in the nomination process.

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Irrelevant.

In every single case where someone was disqualified by the 14th Amendment Section 3 that person had not been convicted under 2383.

Historical precedent also confirms that a criminal conviction is not required for an individual to be disqualified under Section 3 of the Fourteenth Amendment. No one who has been formally disqualified under Section 3 was charged under the criminal “rebellion or insurrection” statute (18 U.S.C. § 2383) or its predecessors.

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Just got my Colorado primary ballot.
Donald J. Trump was on it.

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Anyone have an idea on when SCOTUS is releasing their decision?

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Some time after Super Tuesday is my guess.

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Two.

Weeks.