For the record, I'm not keen on the Colorado Supreme Court's decision that the insurrection clause of the 14th Amendment bars Donald Trump from office. My reason is simpler than most: unless you were an officer of the Confederacy, I think the 14th Amendment should apply only if you've been convicted of some insurrection-like act. Trump hasn't—not yet, anyway.
A few days ago the Washington Post ran an instructive piece on the history of the clause. Outside of its original purpose of barring Confederates from office, it's been used a grand total of twice. The first was a congressman convicted of disloyalty during World War I and the second was last year: a county commissioner convicted of personally participating in the January 6 assault on the Capitol.
The WWI case was bogus, but nonetheless there was a conviction. And Jack Smith has every hope of convicting Trump of insurrectionish activity sometime soon. But he hasn't yet, and until then Trump should be allowed to run. Outside of the Civil War, "self evident" insurrection just isn't good enough. Our country's long history of hysterically abusing supposedly self evident beliefs should be enough to give us all pause, even if Donald Trump is the beneficiary.
The 14th amendment doesn't specify the process whereby an insurrectionist is barred from federal office, but "proper adjudication at the state level using evidence uncovered in congressional hearings and reaffirmed by the federal judiciary" seems like a pretty solid process! Especially when keeping him off the ballot is optional (no state will be forced to bar Trump), especially when there is ample time for Republicans to choose a less risky nominee. Why should federal courts save the Republican Party from its own refusal to act in a politically rational manner?
I agree. Kevin is wrong here. First of all, the 14th Amendment bars from office those who "engaged in" an insurrection. There is no statute that prohibits "engaging in" an insurrection, so a legal nit-picker could argue that even if he is convicted of one of the crimes he's charged with, it would not fit that particular semantic -- much like the argument that the president didn't swear an oath to "support" the Constitution, just to "preserve and protect" it.
But even more fundamentally, as Larry Tribe points out, disqualification from office is not a punishment. A 34-year-old doesn't have to be convicted of anything to be disqualified from office. Furthermore, this is a civil, not a criminal matter; the burden of proof is a "preponderance of evidence," not "proof beyond a reasonable doubt." By Kevin's reasoning, Rudy Giuliani should NOT be required to pay damages to Shaye Moss and Ruby Freeman because he has not been convicted of a crime! The decision of the CO supreme court is analogous to the summary judgment against Giuliani, in that a court found sufficient evidence in the public record -- especially on the stipulation against "aid and comfort" in the 14th Amendment. There is no need to show, in a criminal trial, that trump said the things he said (and continues to say) about the J6 convicts being "hostages" that he would like to pardon.
My last point is that the election looms near. It's quite possible that trump's criminal trials may be delayed even until after the election. What happens then if he is convicted? Then will the SCOTUS order him removed from office? Picture that, and picture the presidency being then handed to Vice President Tucker Carlson or maybe Don Jr.
Strongly reasoned, and unlike Kevin's opinion, quite convincing.
ONE OF THE MANY CASUALTIES of Donald Trump’s chaotic, never-ending assault on reality is our collective ability to call a spade a spade. The challenge to Trump’s eligibility to be president under the Fourteenth Amendment, Section 3 of which bans insurrectionists who previously swore an oath to support the Constitution from ever holding state or federal office again, is a case in point.
https://plus.thebulwark.com/p/use-constitution-protect-fourteenth-amendment
Don’t be a coward. Defend yourself with every means available.
“That’s the same naïveté that got us into this mess in the first place. It presumes that, if he loses next year, Trump will gracefully concede, making a dignified speech as he exits stage right, and the Republican party will magically revert to some form of sanity. If only.”
"ONE OF THE MANY CASUALTIES of Donald Trump’s chaotic, never-ending assault on reality is our collective ability to call a spade a spade."
This is one of your posts with which I agree 100%.
There was another statement in a comment to a Washington Post article which is comparable in its truth to your opening statement.
"Trust me, the fascists will not stop being fascist because you sufficiently surrendered to their demands."
The insurrection clause of the 14th amendment protects America from demagogues. Protecting the Republic from demagogues like Jefferson Davis was its intention. Using it to protect America from demagogues like Trump is legitimate without any conviction. The amendment requires no conviction. What the constitution does not do is protect America from oligarchy. That was also its intention.
Oh come on. The guy tried to stop the peaceful transfer of power. That's pretty much the basis of the American system right there. If you can obstruct that and still run for president, then there's nothing you can't do.
I get the idea of trying to appease the right, but it's pretty obvious this right doesn't want to be appeased. It's like having kids. They're gonna have meltdowns and drive you crazy. Doesn't mean you should always give them candy. Set some bottom lines and stick to them. They'll learn.
I get it. Wait until the knife is in to the hilt first!
As others have noted, the biggest flaw in this thinking is that it is very possible that there would not be a conviction before the election, and none of the current pending charges include insurrection.
So there is no possibility of convicting him prior to the election, and if he is elected, no chance after. If he is not elected - maybe.
I get the sentiment but I am perplexed by all the opposition to utilizing a tool in the constitution. It is part of the checks and balances.
The idea that this somehow makes things better for Trump is silly. Trump would just focus on the Federal charges, or Georgia, or the Russian hoax.