This comment alone is worth it’s weight in gold.
One thing this article/opinion suggests to me is that the Federalist Society has determined there is no way Trump can win the Presidency in 2024, so they need to get another GOP candidate elected to carry out their court-packing agenda.
I would disagree. The offence here carries fines and imprisonment. The power to impeach expressly only gives the power to remove from office, and to bar from future office. They’re separate things. Otherwise, a president could create an insurrection against the United States and be immune from criminal penalty, unlike any other US citizen. I don’t think that the founders were trying to create a president with immunity from the criminal law.
I’m more concerned that there’s an upside or value to finding any kind of teeth in your food. And I agree that this argument by the professors is good fodder for discussion, but not much more unless some lawyer decides to try it out in court somewhere.
I agree with this assessment completely.
And I agree that this argument by the professors is good fodder for discussion, but not much more unless some lawyer decides to try it out in court somewhere.
Yep, this, too.
I don’t agree with their assessment that no proof or adjudication of insurrection is necessary to trigger the 14th Amendment clause. Everyone deserves due process. Could it be enough if Defendant 1 is found guilty of conspiracy to overturn a free and fair election? I think probably maybe, but it could well be to late by that point. Could it be some AGs will leave him off the ballot to trigger a court case to decide the matter? Even better, but also probably to late by that point.
The dream is nice, though. Get rid of all the corrupt elected MAGAts in one fell swoop.
In the Presidential election. It would have a huge effect on all downballot races as many MAGATS would be very likely to stay at home.
Also a good point.
Here’s the clause I was thinking of: Article I, s. 3, clause 7:
Impeachment is for removal from office, not a replacement for criminal liability.
That’s the part that the article is blithely skipping. Everything about the Constitution was predicated on the Founders’ historic readings of English star chambers, even though those had long been abolished. Clause after clause guaranteed fair and open trials with juries along with protections against political retaliation.
The Fourteenth Amendment was worded in spirit with the time. Everybody knew what was meant. They didn’t think to examine what the words would mean in a different world 150 years into the future. (Same thing can be said about the Founders. Well, any and everybody before and since in all humanity.)
I found The Insurrection Bar to Office: Section 3 of the Fourteenth Amendment prepared by the Congressional Research Service as a “Legal Sidebar Prepared for Members and Committees of Congress”.
It’s a great summary of the history of the clause and how it has been interpreted in the few cases since the Amnesty Act of 1872. Of course it says that nobody knows how it would work in the example we’re talking about here.
The legal opinion in the law review article means nothing, except that it was written by people one would not expect it of. Why they did so is the only topic worth discussing but we’re doing that based on nothing at all.
IANAL, but I have doubts that is correct.
First point: the amendment was intended to specifically exclude people who held office in the Confederate states. None of them had been convicted of sedition. Thus an actual conviction is not needed to invoke the law.
Second point: There exist courts that are empowered to adjudicate election disputes like this. We saw team Trump try various gambits in these courts. A frequent argument they made is changes in the law allowing mail-in ballots were unconstitutional, thus all mail-in ballots should be excluded. The various judges had the power to order this, if the legal arguments had been valid.
Why shouldn’t the same courts have the power to exclude a candidate from the ballot, if he committed sedition?
Also, consider the following hypothetical scenarios:
A candidate will be 34 years old on election day, but will turn 35 in time for the inauguration. An opponent claims that he can’t even run for President until he is 35. Who would resolve this dispute? A judge.
There is a dispute whether a particular candidate was an American citizen from birth. An opponent says he must be excluded. Who would resolve this dispute? A judge.
A candidate has spent a large percentage of his life traveling, on business, in the military, as a diplomat, or whatever. An opponent claims he has been a resident in the US for less than 14 years, and must be excluded. Who would resolve this? A judge.
Trump certainly won in 2016, and claims he also won in 2020. An opponent says this means he has been twice elected President already, and is thus ineligible to run a third time. Who would resolve this? A judge.
Trump wants to run again. An opponent says he tried an insurrection, and should be excluded. Who would resolve this? A judge. Why should this dispute require a conviction?
I don’t see how a Republican can think there is no way Trump can win. Polls say Biden-Trump is, right now, tied, and has been for about the last year. It could as easily go one way or another. (And I don’t see how Democrats could think Trump has a low chance of winning without wishful thinking.)
As for there being some Federalist Society prior restraint, where this article had to get approval, no. These two Federalist lawyers are surely hoping for another nominee, most likely DeSantis. Someone can correct me, but isn’t this next member still sufficiently pro-Trump to want him on the ballot:
Correct.
In theory, I suppose the New York State Board of Elections could wait to see if Trump is nominated, and then, when it was too late for the GOP to pick someone else, rule Donald can’t be on the November ballot because of being an insurrectionist. This would put Elise Stefanik’s seat in play.
In practice, it would be perceived, by moderates like myself, as a dirty trick comparable to gerrymandering, but worse because of setting a new bad precedent. And it won’t happen.
So the 14th Amendment says that any person who took an oath to support the U.S. Constitution and then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof,” is prohibited from holding any government office.
Very interesting but what does any of that have to do with Donald Trump? Not only hasn’t he been convicted of insurrection or rebellion he hasn’t even been charged with either one of those, has he?
The amendment was specifically intended to block Confederate officer from holding office. None of them were charged or convicted. Why should Trump need to be?
Yes, where does the 14th Amendment say that any person convicted of insurrection is barred from office? It doesn’t. It says that anyone involved in insurrection is barred. That’s an eligibility requirement, just like age, citizenship and residency are eligibility requirements.
ETA: could Robert Lee have run for president in 1868? He was not convicted of any insurrection related offence.
Well yes.
But who exactly is empowered to determine officially whether Person X engaged in prohibited behavior Y and is therefore ineligible? Are they allowed to decide for themselves whether they did Y? Why not? If they can’t decide for themselves, who is better placed to know the facts of the matter?
The words of the constitution are often lacking in specificity on how they’re to be carried into effect.
Why not the state Secretary of State, or whoever is in charge of an election in the state? Don’t they already have the power to determine ballot eligibility?
If I applied to be on the ballot for president in North Dakota, and mention that I don’t live in the US and am not a US citizen, wouldn’t the North Dakota SecState have the power to bounce me as ineligible?
There is a possible difference between the age, and insurrection, restrictions due to the Amnesty Act of 1872. By one interpretation, this only removed the insurrection restrictions for Civil War participants, but by another, it permanently took away the restriction, and by the needed 2/3 vote. If Trump is re-elected, there might be a case that would come to the Supreme Court on whethet the Amnesty Act still applies.
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I imagine they could and would given that fact pattern. And your remedy if you disagreed with their decision would be to sue them in the appropriate court.
Now a sensible person like yourself would not attempt to contest counterfactually in court that you are a US citizen. And certainly clear records could be brought to bear by the other side to show you are not.
Traitor trump and his enablers are perfectly happy making counterfactual contentions before courts all over the land. And the matters at issue are not so cut and dried as whether one has or doesn’t have a citizen ID number.
Of course I know you know all this; we’re just laying it out for the audience.
I think so. But I just checked and see that the North Dakota Secretary of State is elected. So, in your example, and given that we are talking about Donald Trump, it depends on whether said Secretary of State desires re-election.