Jamelle Bouie has a really concise and eloquent opinion piece in the NY Times today (gift link) arguing why Trump should indeed be disqualified from any future office through the 14th amendment. He summarizes the reasons he should not be on any ballot and argues against the slippery slope “but the GOP will use it against Dems” argument as well. Some highlights:
Trump sought and actively tried to subvert constitutional government and overturn the results of the presidential election. And what he could not do through the arcane rules and procedures of the Electoral College, he tried to do through the threat of brute force, carried out by an actual mob.
Looked at this way, the case for disqualifying Trump through the 14th Amendment is straightforward. Section 3 states that “No person shall … hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath … 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.”
Under a plain reading of Section 3 — and given the evidence uncovered by the Jan. 6 committee — Trump cannot stand for the presidency of the United States or any other federal office, for that matter.
The real issue with disqualifying Trump is less constitutional than political. Disqualification, goes the argument, would bring American democracy to the breaking point.
But these objections rests on a poor foundation. They treat Trump as an ordinary candidate and Jan. 6 as a variation on ordinary politics. But as the House Select Committee established, Jan. 6 and the events leading up to it were nothing of the sort. And while many Americans still contest the meaning of the attack on the Capitol, many Americans also contested, in the wake of the Civil War, the meaning of secession and rebellion. That those Americans viewed Confederate military and political leaders as heroes did not somehow delegitimize the Republican effort to keep them, as much as possible, out of formal political life.
What unites Trump with the former secessionists under the disqualification clause is that, like them, he refused to listen to the voice of the voting public. He rejected the bedrock principle of democratic life, the peaceful transfer of power.
Yes, the two Chases on SCOTUS were unrelated, I believe.
I also agree that this SCOTUS is going to have to decide the question of Trump’s disqualification, to avoid a patchwork of state decisions. Even had he not appointed a third of the court, institutionally I think they would be extremely unlikely to force off the ballot someone who is already likely to win one of the two major parties’ nominations. That would be so widely seen as un-democratic, elitist and controversial, I expect they’ll shy away from it. But I’d be delighted to be proven wrong.
Here’s the problem with that. It is pretty obvious that if you took an oath and your state seceded and you continued to work for the State you committed insurrection. But suppose I go onto here and say this country would be better off if all the Republican Congresspeople were dead. Just walk into The Capitol and execute them. Now The Straight Dope Progressive Army says, “Hey that’s a great idea.” and actually do it. Have I participated in an insurrection? The Pubs say yes and there go my chanced to run for President. I say, “No. I just said words and I wasn’t even there.” How is the matter decided?
Like all other legal matters - in a court of law. Just like happened in Colorado, where the court found that Trump did indeed participate in the insurrection.
Relevant facts might include: Did you provide funding/logistical support to the SDPA? Did you encourage them to gather at the Capitol in the days/weeks prior to the event? Did you continue to encourage them during the event? Did you resist calls to tell them to stop their activities during the event?
Trump attorney Alina Habba on Thursday suggested that Supreme Court Justice Brett Kavanaugh would “step up” and rule in favor of the former president because he “fought for” him…
“She’s saying the quiet part out loud,” replied panelist Jon Avlon. “She’s saying that Brett Kavanaugh will step up and side with the president because he appointed him. That goes against every basic idea of law and independence of the judiciary. And frankly, it puts Kavanaugh in a bit of a box.”
If you’re trying to draw an equivalency between that and 1/6, you’d have to actually arrange for SDMB members to meet at the capitol, give your suggestion to a group of Dopers you know are armed, shout that the Republicans need to be stopped because “this is war”, and then swear you’ll march with them to take care of it, then get restrained from doing so and instead sit back and watch. Then after many hours, reluctantly ask them to stop while complimenting them.
Now, if you’re instead saying that Republicans will be empowered to call anything “insurrection”, and strike people off the ballot because they don’t like them, that doesn’t follow. No more than local jurisdictions can get away with jailing anyone they like for spurious reasons because they have the ability to enforce local laws. That’s jumping to an illogical conclusion.
And as others have said, yes it’s the courts that decide. The Judicial branch’s job is to interpret the US Constitution. That’s their role in government. That part isn’t ambiguous. I learned that much in elementary school.
I’m not although I know it looks like I did. I’m trying to draw a comparison re: self-executing when there are objective facts (your state seceded and you took an oath of office for them) vs. subjective opinions (when does speech become insurrection).
To be fair, that isn’t totally clear, which is why this is going up to SCOTUS.
What seems clear is that the provisions of the amendment are enforceable because they’ve been enforced in the past. That seems pretty unambiguous. To argue otherwise is like claiming that something that actually happened is impossible.
On the other hand, there’s a difference between saying that the law can be enforced in general, and that the law can be applied in a specific case. But that’s always the case with every law. That’s again how courts work.
The law is always a mixture of objective and subjective determinations. An example is a murder case. You can objectively state that Person A shot Person B, who died of the gunshot. Proving the intent of Person A, though, might be subjective (unless you have something like a video where you can hear Person A saying they hate Person B and are going to kill them right before the gunshot).
Our conclusion is simple: the President was an officer of the United States as originally understood both at the Founding and the ratification of the Fourteenth Amendment. Numerous sources confirm that “officer of the United States: was not a term of art, which by itself settles the matter. Regardless, founding-era sources also refer to the President as an officer of the United States. This includes the Postal Act of 1792, which lists the President with officers of the United States. Additionally, there is strong probative evidence that, in 1868, President was considered an officer of the United States.
The relevant language of the Act on the subject of free postage for officers of the United States, including the president (bolding ours): “And be it further enacted, That letters and packets to and from the following officers of the United States, shall be received and conveyed by post, free of postage. Each postmaster, provided each of his letters or packets shall not exceed half an ounce in weight; each member of the Senate and House of Representatives of the Congress of the United States; the Secretary of the Senate and Clerk of House of Representatives, provided each letter or packet shall not exceed two ounces in weight, and during their actual attendance in any session of Congress, and twenty days after such session; the President of the United States; Vice President; the Secretary of the Treasury,” and so on…
Additionally, Andrew Johnson was referred to, and referred to himself as, an officer of the United States.
Good stuff - thanks! I’d never even heard of that Act before.
Of course, SCOTUS, in deciding Dred Scott v. Sandford in 1857, ignored the fact that many of the Framers, including Washington, thought the Congress could lawfully limit the spread of slavery. The SCOTUS of 2023 will, I suspect, also be selective in its reading of history.
As I see it, here are the options for the court to choose:
It’s up to a state to decide if insurrection happened. If they did, as with Colorado, they can declare a person ineligible. But it’s not a nationwide standard, so trump is only ineligible in Colorado.
It’s up to a state to decide if insurrection happened. If they did, as with Colorado, they can declare a person ineligible. That creates a nationwide standard, so trump is ineligible everywhere.
It’s up to a state to decide if insurrection happened (which may or may not apply nationally), but Colorado didn’t do it right, so trump is still eligible in Colorado and elsewhere.
it’s not up to a state to decide if insurrection happened, as only the federal government can do that. trump is still eligible at this time.
it’s not up to a state to decide if insurrection happened, as only congress can do that. trump is still eligible at this time.
trump did commit insurrection, and is therefore ineligible.
trump did not commit insurrection, and is therefore eligible.
whether trump committed insurrection is irrelevant, because the president isn’t subject to this section of the 14th amendment, and trump is therefore eligible.
“The Colorado Supreme Court erred in how it described President Trump’s role in the events of January 6, 2021,” (Trump’s lawyers) argued in the filing. “It was not ‘insurrection’ and President Trump in no way ‘engaged’ in ‘insurrection.’”
It sounds like they are asking the Supreme Court to overrule the Colorado court on the facts. Which I understand is a very rare thing for the Supreme Court to do - I think they generally only rule on the law.
I remember my father telling me (age 14) to pay attention to what was going on, when Jack Ruby killed Lee Harvey Oswald, because “this is history.”
I humbly submit that this case has the potential for far more historical impact than the assassination of a president. I also doubt that very many parents are issuing similar recommendations to their own children about this series of events.
When this goes to the USSC we will find out if the plain language of the 14th amendment will decide for the “originalists” on the Supreme Court or that they only consider the words written in 1787 as original and not the words of the “radical Republican” Congress of 1866.