I'm not sure about banning Trump. If that's truly the constitution, then okay ban him. But that would be sad. I like the idea/concept of keeping the legal proceedings separate from the electoral procedure. At the same time, I understand that it is problematic to have a leader of an attempted coup representing one of the two major parties. If Trump is convicted, he wouldn't even be able to vote in many states. The funny thing is that I believe Biden's best chance is to run against Trump. Biden has beat him once already. Trump has never gotten more votes than his opponent. Sadly, I'm simply unsure if 14th amendment should keep him off the ballot or not. I think I would like to see the case argued and read the arguments and decision.
Judge Luttig: SCOTUS Will Soon Rule On Trump Disqualification He anticipates they will rule before the first primary election. The US Supreme Court is likely to soon determine whether Donald Trump is eligible to run for president in 2024, former federal judge Michael Luttig said on Sunday. Via The Guardian: Some legal experts believe Trump could be disqualified under section 3 of the 14th amendment. The measure bars someone from holding federal office if they have “previously taken an oath … to support the constitution” and subsequently “engaged in insurrection or rebellion against the same”. Interpreting that language, Luttig and some other prominent conservative scholars have concluded Trump’s actions on January 6 and his efforts to overturn the 2020 election bar him from running for president. Other scholars have been more skeptical of a disqualification claim, questioning whether Trump’s conduct actually amounted to insurrection. The provision has never been enforced and it is unclear what the exact mechanism for doing so would be. Secretaries of state, who are charged with overseeing candidate eligibility requirements, are studying how the process will probably play out. “This is one of the most fundamental questions that could ever be decided under our constitution,” Luttig said on Sunday during an appearance on MSNBC’s Velshi. “And it will be decided by the Supreme Court of the United States sooner rather than later, and most likely before the first primaries.”
The text of Section 3 of the 14th Amendment is clear. There is no explicit mention of the Civil War. There is no doubt that the Civil War informs about the motivation of Section 3. If the writers of the 14 Amendment had only wanted it to apply only to Civil War participants they would have said so.
https://www.nationalreview.com/2023/09/there-is-no-insurrection-case-against-trump/ There Is No Insurrection Case against Trump By ANDREW C. MCCARTHY September 5, 2023 11:27 AM If there were, the Justice Department would already have brought charges against him. You know insurrection is a crime, right? Just to recap, under Section 2383 of the federal criminal code, a person is guilty of a felony, punishable by up to ten years’ imprisonment, if he incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto. And why do we need a refresher on this? Because the Department of Justice has been investigating Donald Trump and the January 6, 2021, Capitol riot for nearly three years, yet no insurrection charges have ever been brought against Trump or anyone else. That should be in the front of our minds as anti-Trump obsessives, of the left and the right, proceed with their incendiary plot to disqualify Trump from seeking the presidency by inducing sympathetic state officials to brand him an insurrectionist under Section 3 of the 14th Amendment. The Justice Department — the arm of the United States government vested with responsibility to enforce the insurrection law — has not charged Trump with insurrection because it can’t prove Trump committed insurrection. Not with anything we would recognize as due process of law. It’s not that Biden-DOJ-appointed special counsel Jack Smith hasn’t been trying. And it is obviously not that Smith is unwilling to stretch federal criminal laws to the breaking point to make a January 6 case against Trump. The insuperable hurdle is that the evidence does not support a charge of insurrection. The Biden Justice Department, the most unabashedly political Justice Department in American history, has prosecuted about 1,100 people in connection with the riot, while blinking at the more lengthy and lethal rioting of the radical left. It has been moving heaven and earth to make criminal cases against the former Republican president, indicting him twice, even as it turns a blind eye to the Biden family influence-peddling scandal and willfully allows the statute-of-limitations on the crimes of the sitting Democratic president and his family to expire rather than filing indictments. After years of investigating, Smith and the Biden Justice Department brought a January 6 indictment against Trump in the District of Columbia, which has the most Trump-hostile jury pool in the country. They then hit the jackpot by drawing an anti-Trump judge out of central casting — Obama appointee Tanya Chutkan, who, in a courthouse where the bench teems with Democratic appointees who’ve meted out harsh sentences to January 6 defendants, manages to stand out as the scourge of the Capitol riot. It is safe to say that Judge Chutkan has swallowed whole the Democratic Party hyperbole that our democracy stood on the precipice of doom due to a mere three hours of unrest — in which no security personnel were killed, which had not the remotest chance of reversing Biden’s victory, and which was so ineffectual that Congress was able to reconvene in the Capitol just a few hours later. Nevertheless, gifted with this greatest home-field advantage of all time, Smith and his team haven’t charged Trump with insurrection. That’s because they don’t have a case. They desperately want to bring one, but they know that nothing would explode the Democrats’ January 6 myth-making like an acquittal of Donald Trump. And even with Judge Chutkan presiding and a Washington, D.C., jury, that’s what they’d get. Trump has never been charged with a crime of violence arising out of the riot. Even Smith’s stretch-and-strain indictment did not cross that line. In the Justice Department’s 1,100-odd January 6 cases, not only was Trump never charged; he was not even named as an unindicted coconspirator as defendants were convicted of assaulting police officers and forcibly obstructing a congressional proceeding. It is not enough to say that Trump was not charged or named as an unindicted coconspirator in the Justice Department’s seditious-conspiracy cases. Those cases themselves do not charge sedition — the wellspring of insurrection. In the relevant statute (Section 2384), the word seditious appears only in the title, not in the charging language. That language prescribes five distinct conspiracy objectives, the commission of any one of which is a crime punishable by up to 20 years’ imprisonment. The two most serious of these are akin to sedition as connoted by the Democratic narrative of the Capitol riot: (1) conspiracy “to overthrow, put down, or destroy by force the Government of the United States,” and (2) conspiracy “to levy war against” the United States. But while the Biden Justice Department’s cheerleaders like to tout the “sedition” convictions, the Justice Department did not charge anyone with conspiring to overthrow the government or wage war against our nation. That’s not what even the worst of the rioters were up to. The rioters bought Trump’s reckless nonsense about a stolen election and believed they were saving the government and the country. What they did was reprehensible, but it was not an effort to overthrow the government — it was to preserve the government with Trump, whom they irrationally believed had been duly elected, as president. Thus, the Justice Department had to resort to two of the three less serious, albeit condemnable, conspiracies codified by Section 2384: conspiracy (3) “to oppose by force the authority” of the United States government, and (4) conspiracy “to prevent, hinder, or delay the execution of any law of the United States.” (The fifth conspiracy criminalized by Section 2384 is conspiracy to forcibly seize government property.) These are serious offenses, but they are not sedition, let alone insurrection. It is noteworthy, moreover, that the Justice Department’s rationale for invoking these Section 2384 provisions in January 6 cases could also have rationalized seditious-conspiracy charges against radical leftists who were stirred by the likes of Senator Elizabeth Warren to occupy the Capitol during the 2018 Kavanaugh-confirmation hearings, as well as, say, the radical leftists who firebombed the federal courthouse in Portland, Ore., in 2021. Naturally, such cases were never brought. The Justice Department has not resorted to the most egregious seditious-conspiracy charges in connection with the Capitol riot for the same reason it hasn’t brought an insurrection charge: In a courtroom, prosecutors need evidence — the loose rhetoric of Democrats and other anti-Trump obsessives won’t do. And no violent-crime charges have been brought against Trump at all because, again, in a courtroom, moral and political culpability for the events of January 6 — which Trump undoubtedly bears — is insufficient. You’ve got to be able to prove the crime — not just the acts of force but the required mental state. On Trump, Smith has neither. And he’s not close, because — past being prologue — if he were close, he’d go for it. I don’t want Donald Trump to run for president, much less be president. But on the facts of the case, the only way to disqualify him is to impeach and convict him. Impeachment has its own disqualification provision which the Senate failed to satisfy in Trump’s second impeachment trial. The 14th Amendment is not a legitimate substitute for it, any more than the 25th Amendment was when its potential invocation was (properly) rejected in the frenzied days after the Capitol riot. Inadvertently or not, those who are advocating the 14th Amendment as a vehicle for banning a Trump presidential run are doing the same thing they condemn Trump for doing: positing a highly dubious, widely rejected legal theory to interfere with the Constitution’s democratic process for electing a president. Why do I think that when they inevitably get the same result, they will shrug their shoulders Trump-like and tell us they bear no blame for the tumult? That said, since we are apparently content for the criminal-justice process to be our proxy for Congress’s failed impeachment process, should it not also settle any legitimate question of the 14th Amendment? That is, shouldn’t there be no move to disqualify Donald Trump under Section 3 unless special counsel Smith indicts and convicts him of insurrection — with Trump given all the due-process protections of a criminal trial? If Smith, with all of his advantages, cannot make the case, why are we even discussing this?
https://www.wsj.com/articles/colora...-election-85b540e0?mod=hp_opin_pos_6#cxrecs_s Will Colorado Kick Trump Off the Ballot? Six voters file suit, with the secretary of state watching closely. By The Editorial Board Sept. 6, 2023 at 6:38 pm ET Six voters in Colorado filed a lawsuit in state court Wednesday to block former President Trump from appearing on the ballot there, citing the theory lately en vogue that the Constitution’s 14th Amendment disqualifies Mr. Trump from sitting in the Oval Office ever again. Does this begin the countdown to the political case of the century at the U.S. Supreme Court? Watching this litigation closely is somebody whose opinion matters: Colorado secretary of state Jena Griswold, a Democrat re-elected last year. “I look forward to the Colorado Court’s substantive resolution of the issues,” Ms. Griswold said Wednesday, “and am hopeful that this case will provide guidance to election officials on Trump’s eligibility as a candidate for office.” What a perilous path to go down. The Colorado lawsuit, filed with assistance from the wrecking crew at Citizens for Responsibility and Ethics in Washington, repeats as self-evident the same claims circulating in the public debate over sidelining Mr. Trump. Section 3 of the 14th Amendment, passed after the Civil War, was originally aimed at disqualifying Confederates who had taken an oath to support the U.S. Constitution and then “engaged in insurrection or rebellion against the same.” The mob violence at the U.S. Capitol on Jan. 6, 2021, was indisputably awful. But was it an insurrection? “All three branches of the federal government have referred to the January 6th attack as an ‘insurrection,’” the lawsuit argues. It says that includes Members of Congress during Mr. Trump’s second impeachment (despite his eventual acquittal), as well as Mr. Trump’s own Justice Department in detention proceedings for the QAnon shaman. The lawsuit says “leading constitutional scholars” agree with this view. Well, how about former Tenth Circuit Court of Appeals Judge Michael McConnell? “The terms of Section 3 should not be defined down to include mere riots or civil disturbances, which are common,” he argued last month. “Many of these riots impede the lawful operations of government, and exceed the power of normal law enforcement to control. Are they insurrections or rebellions, within the meaning of Section 3?” Mr. McConnell: “I would hazard the suggestion that a riot is the use of violence to express anger or to attempt to coerce the government to take certain actions, while insurrections and rebellions are the use of violence, usually on a larger scale, to overthrow the government or prevent it from being able to govern.” Given how disqualification could be made into a partisan weapon, he writes, “we should seek the narrowest, most precise, least susceptible to abuse, definition that is consistent with history and precedent.” Mr. Trump bears moral and practical responsibility for what happened on Jan. 6, as we’ve said from the beginning. He sold his supporters a fantasy of a stolen election, summoned them to Washington, and then inflamed the crowd. But the lawsuit’s next bald assertion is that his conduct “easily qualifies” as “engaging” in insurrection. That’s hardly clear. Mr. Trump hasn’t been charged with anything close to that by special counsel Jack Smith, and so far no evidence has emerged to show that Mr. Trump was secretly plotting with the rioters. A threshold question is whether voters in Colorado even have standing to bring a lawsuit like this. A similar effort failed last week in federal court in Florida. “Courts throughout the United States have uniformly concluded,” wrote Judge Robin Rosenberg, “that citizens do not have standing to bring lawsuits challenging a candidate’s eligibility for national office.” But state laws and judiciaries have different rules. As the new lawsuit shows, Mr. Trump’s opponents will try again and again until they find a judge or a secretary of state who agrees. That’s all it would take to tee up a case that is likely to end up at the U.S. Supreme Court. If political tensions in the country seem high now, just wait.
https://www.wsj.com/articles/was-tr...-amendment-50b7d26?mod=hp_opin_pos_2#cxrecs_s Was Trump ‘an Officer of the United States’? A careful look at the 14th Amendment’s Insurrection Clause shows that it doesn’t apply to him. By Michael B. Mukasey Sept. 7, 2023 at 12:59 pm ET Apart from the four criminal indictments brought against Donald Trump, those who would end his campaign for the presidency by means other than an election seem to be putting increasing faith in Section 3 of the 14th Amendment, known as the Insurrection Clause. That faith seems to be seriously misplaced. To the extent its text is relevant here, the section in question denies to a discrete category of people—including those who have taken an oath “as an officer of the United States . . . to support the Constitution of the United States”—the right to serve as a “Senator or Representative in Congress, or elector of President and Vice President, or hold any office . . . under the United States” if they “have engaged in insurrection or rebellion against same.” A good deal of attention has focused thus far on whether the attack on the Capitol on Jan. 6, 2021, was an “insurrection or rebellion” and, if so, whether Mr. Trump “engaged” in it. Those questions, however, need not be answered until two preliminary questions of law are addressed: Is the presidency an “office . . . under the United States,” and was the presidential oath Mr. Trump swore on Jan. 20, 2016, to support the Constitution taken “as an officer of the United States”? The latter question is easier. The use of the term “officer of the United States” in other constitutional provisions shows that it refers only to appointed officials, not to elected ones. In U.S. v. Mouat (1888), the Supreme Court ruled that “unless a person in the service of the government . . . holds his place by virtue of an appointment . . ., he is not, strictly speaking, an officer of the United States.” Chief Justice John Robertsreiterated the point in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010): “The people do not vote for the ‘Officers of the United States.’ ” Article VI of the Constitution provides that senators and representatives “and all executive and judicial Officers . . . of the United States” take an oath to support the Constitution. But the presidential oath is separately provided for at the end of Article II, Section 1, which would be superfluous if the president’s oath were required by the general language in Article VI. Mr. Trump took an oath as president pursuant to Article II, not as an officer pursuant to Article VI. Because the Insurrection Clause applies only to those who have taken an oath “as an officer of the United States,” he can’t be barred by that clause from serving in any capacity. As for the former question, the language disqualifying a rebel from holding “any office . . . under the United States” follows the language disqualifying the rebel from office as “Senator or Representative in Congress, or elector of President and Vice President.” If “any office . . . under the United States” is broad enough to cover the president, it is certainly broad enough to cover senators, representatives and perhaps electors. Such a reading would make reference to those specific offices superfluous. Is it plausible that the authors of the 14th Amendment specified senators, representatives and electors but meant to include the presidency and vice presidency under the general term “any office . . . under the United States”? Note that the term is “any office,” not “any other office,” which implies that the positions listed before it aren’t “offices under the United States,” because they are elected not appointed. But that conclusion is uncertain. The phrase “office under the United States” appears four other times in the body of the Constitution, at least two of which—one barring officeholders from accepting a foreign title or emolument, and one barring anyone impeached and convicted from holding such an office—may well apply to an elected official, including the president. Also, if a holder of an “office under the United States” meant the same thing as “Officer of the United States,” why weren’t the same words used to specify it? That may be puzzling, but as applied to Mr. Trump it is irrelevant, because—again—he didn’t take and thus didn’t violate an oath as an “Officer of the United States,” and so cannot be barred by the 14th Amendment from seeking re-election. Even a criminal conviction wouldn’t bar him from seeking and winning the presidency. The Constitution specifies only that a person seeking that office be at least 35, a natural-born citizen and a 14-year U.S. resident. If Mr. Trump is to be kept from office, it will have to be done the old-fashioned way, the way it was done in 2020—by defeating him in an election. Mr. Mukasey served as U.S. attorney general, 2007-09, and as a U.S. district judge, 1988-2006.
I would be the first one to stand up and cheer if they could actually do this, BUT, doesn't he have to be convicted of the crime first? One thing I keep seeing is the thought of is this what the framers had in mind? To be honest how could they have expected any of this to happen, just like the 2nd amendment, I bet they had no clue that one day you would have a military style rifle making up the majority of mass shooting happening in the US and I am dam sure they never thought a reality show, morally bankrupt rapist to be the President............but here we are.
The text of Section 3 of the 14th Amendment is clear. I suspect that the authors were using the know-it-when-I-see-it standard. No explicit federal statues were mentioned, so no conviction of a crime is required. No matter how the state and lower level federal courts rule, this matter is heading to the USSC for review. USSC will get to set the standards for Section 3 of the 14th Amendment. I am unsure most people will not be happy with this. I am reading/seeing that there are two approaches in the MSM. Legal experts try to sort out the straight legal matters. Political experts discuss how each side will react to the 14 Amendment cases. Political experts are in consensus that if Trump is barred from public office the MAGAts will lose their ****, break out their guns and start shooting. I am less sure about the shooting part, though at this point nothing will surprise me. SCWs do like to threaten that they want to start a new Civil War. The SCWs FAFO may not be other.
he's right about Tribe Ragefully Wrong: A Response to Professor Laurence Tribe https://jonathanturley.org/2023/09/08/ragefully-wrong-a-response-to-professor-laurence-tribe/
...what is possibly the watermark for the "know-it-when-we-see-it" standard, is when and where the events of January 6th took place. I've said (half-jokingly, but very seriously) that these idiot "protestors" made the singular mistake of having their "protest" or "demonstration" or whatever the hell they've stooped to calling all this, on the day and time of the certification of the presidential election by Congress, in order to peacefully continue our democratic governmental experiment as the office of the Presidency changes hands. A constitutionally legal proceeding of our government. Legal. Any disruption of that particular proceeding is, at best, seditious in intent at the very least. They have their little caniption fit a day before or a day after...maybe the same thing ends up happening...but the whole "protest" thing has some legal legs to stand on. Timing, they say, is everything. And what a time to be a traitorous ignoramus...
Who knew ethics were liberal? And so it begins ... Trump lawyers move 'insurrection' clause lawsuit aiming to bar him from the ballot to federal court Attorneys for former President Donald Trump moved a lawsuit seeking to bar him from running again for the White House from state to federal court in the first step of what promises to be a tangled legal battle that seems ultimately destined for the U.S. Supreme Court. The liberal group Citizens for Responsibility and Ethics in Washington filed the initial lawsuit on Wednesday in Colorado state court, arguing a Civil War-era clause prohibiting higher office for those who once swore an oath to the Constitution and then engaged in “insurrection” prevents Trump from running in 2024. “Plaintiffs’ challenge to Colorado’s ability to place Donald Trump on the presidential ballot depends solely on the Fourteenth Amendment,” they wrote. “Trump’s basis for removal of the state court action is federal question jurisdiction under Section 3 of Fourteenth Amendment.” CREW's case is the first of what's expected to be many challenges filed in various states by the group and Free Speech for People, another liberal nonprofit. Activists in other states have filed lawsuits in which they represent themselves, but legal observers contend the more robust complaints by the nonprofits are more likely to end up at the nation's highest court, which has never ruled on the clause. CREW can move to return the case to state court. It has requested a speedy ruling on the issues before Colorado's Republican primary ballot is finalized on Jan. 5.
Yes, Trump CAN Be Disqualified—And a Trial is Not Necessarily Required Hard as it currently is for many Americans to believe, there is a meaningful possibility (based on a constitutional argument that is very strong) that Donald Trump’s name will be removed from presidential-election ballots in one state—or in a whole bunch of them—in 2024. Contrary to a fair amount of misinformation you may have seen online, Trump’s disqualification under the Fourteenth Amendment to the U.S. Constitution would not require him to be convicted of any crime. Indeed, there is no guarantee that there would even need to be a trial under the relevant state-law procedural standards. If you’d like to see the procedural issues examined by a litigator with a couple of decades of experience in this kind of litigation, read on. Hi. I’m Rieux, a Kossack since 2004. I’m an attorney who has been litigating constitutional issues in state and federal courts for a bit over twenty years now (I once wrote a diary about a certain memorable experience I had in law school), and I think I can contribute to public understanding of a particular constitutional issue that has been in the news quite a bit lately: the question of whether Donald Trump should be disqualified from appearing on election ballots in the Presidential race in 2024 pursuant to Section Three of the Fourteenth Amendment to the U.S. Constitution. You might have heard that a New Mexico county commissioner (who also happened to be a whackjob who led the “Cowboys for Trump” organization and participated in the January 6, 2021 attack on the U.S. Capitol) was removed from office one year ago this week on the grounds of Section Three. You may also have heard that various prominent legal scholars—among them a pair who are members of the right-wing Federalist Society—have argued in print that Trump is and should be disqualified from public office under Section Three. Finally, you may be aware that the first major entry in what promises to be a long list of lawsuits seeking to remove Trump from ballots was filed on Wednesday in Colorado. (Less well-crafted suits have been filed in New Hampshire and Florida, too.) Things are starting to happen, and they will inevitably ramp up from here over the coming months. I’ve seen a lot of misinformation online about these legal issues and (especially) the procedural aspects of the Section Three litigation that is definitely coming in our near future, so I thought the DKos community might benefit from a diary providing some basic information. The Disqualification Section Section Three of the Fourteenth Amendment, which was part of the post-Civil War amendments that were ratified in the late 1860s, provides as follows: 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. You’re welcome to dive into the above text if you’d like, or to read the expert analyses from the Federalist Society guys (William Baude and Michael Stokes Paulsen) or from the also-prestigious duo of conservative retired federal court of appeals judge J. Michael Luttig and progressive Harvard Law professor Laurence Tribe. Suffice it to say that the merits of the case for disqualifying Trump from public office under Section Three are very strong. But what I want to concentrate on, again, are the procedural aspects of how this works—and for that purpose, an even better set of readings are the substantial number of court decisions that have interpreted and applied Section Three in the context of cases involving insurrectionists who subsequently sought public office. There is Plenty of Court Precedent Applying Section Three, and It Answers a Lot of Questions. One misconception that I’ve seen online is the notion that disqualifying a candidate for office under Section Three is some kind of untested, unprecedented act in American history. This notion is nonsense. As Citizens for Responsibility & Ethics in Washington (CREW), the progressive nonprofit organization behind this week’s Colorado suit, demonstrates in materials posted on its website, Section 3 has blocked thousands of would-be elected officials from taking office during the 150-plus years that it has existed, and a small fraction of those individuals’ cases have managed to find their way into American courts. The published court decisions in those cases are highly educational. Most obviously, one year ago this week a district court in New Mexico removed January 6 insurrectionist Cuoy Griffin from his position on the Otero County Board of Commissioners pursuant to Section Three. Judge Francis J. Mathew’s decision in the case is a vital read, not least because it (1) provides the crucial legal standards that apply in Section Three cases and (2) cites some of the several prior cases that provide clear precedent for any court or executive official evaluating a Section Three disqualification matter. (The decision also provides specific elements for courts to use in the determination of whether a would-be candidate has taken part in an insurrection.) Several questions that seem to be confusing a significant number of folks at the moment are actually well-settled matters of Section Three precedent—and the New Mexico decision addresses some of the more important ones. Judge Mathew explains: American courts have uniformly held for more than 150 years that the determination of whether a candidate is rendered ineligible for public office under Section Three is a straightforward question of the candidate’s qualifications—a question that’s not categorically any different than the determination of whether (for example) a presidential candidate is 35 years old, a natural-born citizen of the United States, or a resident of the United States for at least 14 years. This has far-reaching implications, especially for the procedures that will be required to remove Trump from ballots. Perhaps the most important one is that Section Three disqualification, as the New Mexico court put it, “is not a criminal penalty”; no “criminal conviction (for any offense) [is] a prerequisite for disqualification. Indeed, neither the courts nor Congress have ever required a criminal conviction for a person to be disqualified under Section Three.” (Emphasis added.) And that is, as the New Mexico court pointed out, the unanimous conclusion of every court that has examined the issue. For example, in Louisiana ex rel. Sandlin v. Watkins, the Louisiana Supreme Court removed a former-insurrectionist state judge from state office despite the fact that the judge had never been convicted of any crime. In Worthy v. Barrett, the North Carolina blocked a duly elected county sheriff from taking office because he’d engaged in an insurrection—even though he’d never been convicted of anything. And in In re Tate, the North Carolina court also blocked a duly elected judicial district solicitor from taking office based on a simple civil finding that he’d participated in an insurrection, without any criminal conviction. Disqualification under Section Three of the Fourteenth Amendment has nothing to do with criminal convictions, and that’s an important thing to keep in mind.
[cont] The Civil and Administrative Universe(s) So, again, the determination that Donald Trump engaged in an insurrection is categorically and procedurally no different than the determination that he is a natural-born American citizen; both are straightforward applications of law to fact. And, crucially, within state governments both courts and executive-branch officials make formal determinations that involve applying law to fact all the time. When courts do it in a non-criminal context, it’s called civil litigation; when executive officials do it, it’s administrative law. (And sometimes, though not always, determinations made through administrative law are the products of full-blown adversarial proceedings that look a lot like civil litigation in an actual court.) Neither civil-court nor administrative-law proceedings give a party in Trump’s position anywhere near the level of procedural protections that criminal prosecutions provide to a defendant who has been accused of a crime. For example: The standard of proof in civil and administrative proceedings is generally “the preponderance of the evidence,” which is substantially lower than the criminal “beyond a reasonable doubt” standard; A defendant does not necessarily have the right to have his case heard by a jury in civil court and (to my knowledge) never does in an administrative proceeding; Hearsay evidence is much more frequently admitted in administrative proceedings than in criminal ones; and A defendant’s invocation of his Fifth Amendment right against self-incrimination can generally be held against him in both civil court and administrative proceedings. Finally, and most significantly for our current purposes, defendants in civil and administrative proceedings are not guaranteed a trial—that is, a contested evidentiary hearing—at all. If there is no “genuine issue of material fact” in a civil or administrative case (i.e., if there is no fact issue that both (1) makes a difference for a legal question the forum must answer and (2) is subject to a genuine dispute between the parties), the judge or executive official can simply make the final decision in the case based upon the facts that all parties agree on, eliminating a trial entirely. (In civil court, this is often called either “summary judgment” or “judgment on the pleadings,” though the specialized procedures that courts use in election cases sometimes involve quick and final rulings that amount to the same thing without using those labels.) And in this case—Trump’s case—it is not clear that there are any relevant factual disputes at all. As Baude and Paulsen explain, there is an extremely strong case to be made that Trump took part in an insurrection based solely on the actions that no one disputes he carried out. If that’s true, there is no need for a trial; a judge or an administrative official can simply make a final determination on the purely legal question of whether Trump’s undisputed actions constituted participating in an insurrection. So Who Decides Who’s Eligible to Run for Office? At this point, the fact that American elections are run under fifty-one different legal regimes in fifty states plus the District of Columbia injects a huge amount of complexity into the entire process of dealing with Trump’s insurrectionist conduct. How does a state determine whether a candidate is eligible to have her name placed on its ballots as a candidate for public office? There are many different answers. Some states authorize an executive-branch official (often the secretary of state) or a group of officials to reject candidates whom they determine to be ineligible. Other states do the opposite: their laws make ballot construction a purely “ministerial” act in which the executive-branch official has no authority to determine eligibility. Instead, parties that believe that a candidate who’s slated to appear on an election ballot is ineligible to run can initiate a special (usually fast-tracked) proceeding in civil court asking the court to remove that candidate’s name from the ballot. According to the CREW-supported plaintiffs in the Section Three lawsuit filed on Wednesday, Colorado law both empowers Secretary of State Jena Griswold (a Democrat) to reject ineligible candidates from the state’s election ballots and authorizes Coloradans to file court petitions seeking to have allegedly ineligible candidates removed from those ballots. The lawsuit seeks an order from the court that would either (1) command Griswold to exercise her removal authority or (2) take Trump’s name off the March 5, 2024 Colorado presidential primary ballot under the court’s own authority. In fact, if the plaintiffs are correct about Griswold’s unilateral legal authority (frankly, I’m not convinced) and about Trump’s ineligibility (they have a much stronger case there), the lawsuit isn't even necessary: Griswold can unilaterally take Trump’s name off Colorado’s ballots, and that’s it. It’s off. Now, would Trump take that lying down? Of course not. He would obviously appeal, and thus in practical terms the case would inevitably wind up in court. (I don’t believe this is true in Colorado, but in some states the first appeal from an executive-branch official’s determination in a case like this would go to an administrative forum that’s still within the state’s executive branch, not to a court. That’s when all my blather about “administrative proceedings,” above, would come into play. But in any case, a court appeal would remain available as a backstop.) As a result, we’re looking at an all-but-inevitable future of court petitions and/or appeals in all fifty states and the District of Columbia (and perhaps a federal court or three) seeking Trump’s removal from states’ ballots in both the primary and general election. That prediction presumes, though, that the U.S. Supreme Court doesn’t short-circuit the entire thing by making a definitive ruling of its own on Section Three and Trump’s eligibility. The Supremes may very well do that—I have a few things to say about it below—but if not, it seems to me extremely likely that courts sitting in at least a few states (and in at most a lot of them) will rule that Trump is ineligible under Section Three and must therefore be removed from those states’ ballots.
[cont] So What About SCOTUS? It’s nearly inevitable that the disqualification issue is eventually going to wind up being decided by the U.S. Supreme Court. Conceivably they’ll want to duck it—by deciding that it’s a non-justiciable “political question” that lies outside of the jurisdiction of the federal courts (as they did, absurdly, regarding partisan gerrymandering) or simply by denying certiorari to Trump or anyone else who wants further review of a state supreme court or federal appeals court decision on the question. I wouldn’t bet on either of those possibilities, though. Many if not most commentators think it’s all but inevitable that the six Republican Justices will find some pretext, however absurd, on which to rule that Trump isn’t disqualified under Section Three. Liberal reporter, commentator, and editor Josh Marshall, for example, finds it “virtually certain that the Court would reject any effort to bar Trump from the ballot anywhere.” Marshall may very well be right. But I want to offer at least one cause for a small amount of uncertainty: recall that Baude and Paulsen, authors of the article advocating Trump’s disqualification, are members in good standing of the reactionary Federalist Society. It seems to me just possible that Chief Justice Roberts and at least one other Republican Justice could decide—just as those two guys appear to have—that the long-term interests of their right-wing political project would actually be served by ending Donald Trump’s career as a public official quickly and cleanly, clearing the way for Ron DeSantis (or someone) to run in 2024 and for the Republican Party to move on afterward. A Section Three case would give them a perfect opportunity to force exactly that outcome. I wouldn’t bet any money that Marshall and similar commentators are wrong. Still, it’s hard to avoid noticing that Trump’s personal interests and the political interests that Roberts/Kavanaugh/Barrett/Gorsuch hold may not be as precisely parallel as Trump would like them to be. At a minimum, that potential divergence bears watching.
https://www.wsj.com/articles/robert...idate-law-299a2590?mod=hp_opin_pos_4#cxrecs_s Robert E. Lee Could Have Been President Lawmakers had a good reason to exclude the highest office from the Insurrection Clause. By David E. Weisberg Sept. 8, 2023 at 7:03 pm ET Some of Donald Trump’s opponents are seeking to bar him from the presidential ballot in 2024 under the Insurrection Clause, Section 3 of the 14th Amendment, which provides: “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, . . . 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.” Commentators have noted that this provision specifically bars such people from serving in Congress or as presidential electors but not from the presidency or vice presidency. The anti-Trump interpretation of the clause assumes that the authors of the amendment expected the two most important offices to be included in the generic term “any office.” That’s implausible—an example of hiding elephants in mouseholes, to borrow a phrase from Justice Antonin Scalia. But why would the legislators who drafted this amendment allow an erstwhile insurrectionist to become president? Surely they didn’t want a President Robert E. Lee. There wasn’t much danger of that because elections for president and vice president are national in scope. Electors are chosen in individual states, but the president and vice president are elected only after the votes of electors from every state are tallied together. In contrast, the federal positions specifically listed in the Insurrection Clause—senator, representative, elector—all entail elections limited to individual states. It was perfectly reasonable to limit barred federal offices to those involving elections in individual states, because in 1868 unreconstructed rebel voters might have constituted majorities in formerly Confederate states. At the national level, the math was different. In the 1860 census, the aggregated populations of the states that remained in the Union was around 23 million, while the future Confederate states had populations of nine million, which included 3.5 million slaves. Roughly 5 out of 6 eligible voters in 1868 would be either freedmen or from Union states. If Lee had run for president, he would have needed to win the electoral votes of multiple states that had stayed in the Union—and every voter would have known about his role in the Civil War. Given the Unionist majority nationwide, there was no reason to deny voters a free choice. That’s why the Insurrection Clause didn’t bar anyone from serving as president—and still doesn’t. Mr. Weisberg is a semiretired attorney in Cary, N.C.
Yeah, yeah, the article is clear. But it is a bad idea. It will make our speech and our elections less free. The Constitution has got more than a couple of stinkers in it, and I'll add this one to the list. I hope the 'originalists' on the USSC can rationalize away their cognitive dissonance and find some mental gymnastics to neuter this article. After Trump is gone, it will be abused otherwise.
OT, this is false. After the Civil War, though President Andrew Johnson issued a proclamation of amnesty and pardon to the Southern rebels in 1865, it required Robert E Lee to apply separately. Lee signed the required amnesty oath for a pardon and filed an application to restore his citizenship. Nonetheless, neither was Lee pardoned, nor was his citizenship restored. Robert E Lee had died stateless in 1870. So, Robert E Lee, a stateless person, could not have been President The House of Representatives restored citizenship to Robert E. Lee, July 22, 1975.
