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.
Republican lawyers, Federalist Society lawyers, brought the case in Colorado. The courts have to hear the case, whether or not Trump is convicted. If they were to decide the case should not be brought without a conviction, then that could allow an insurrectionist on the ballot in 2024 and into the White House in 2025.
What if the delays go beyond the election, and he pardons himself? What if he is not convicted for insurrection, but a dozen other counts? What if his part in the insurrection is not criminal but is traitorous, and so he can't be convicted?
There's a reason the 14th Amendment doesn't say "those convicted of insurrection" -- because it's not necessary to be convicted to have participated in an insurrection, and it's not necessarily criminal to provide aid and comfort to people (pay their lawyers, perhaps?) who have participated in an insurrection.
The courts are the right place to do this, and both the lower court that declined to take him off the ballot AND the state Supreme Court both looked at the facts and declared in their decisions that Trump did participate in an insurrection. So it has been adjudicated by the courts that he is an insurrectionist, just like it's been adjudicated by the courts in NY that he is a rapist. He just wasn't convicted of those counts.
Exactly.
The bar to not be trusted with a leadership position should be alot lower than the bar to jail someone.
Why do we need to convict someone to not let them lead?
"Republican lawyers, Federalist Society lawyers, brought the case in Colorado."
They appealed the district court decision. The original action was brought by a group of Colorado voters against the Secretary of State.
Whoops! No, I'm wrong. The original plaintiffs--a group of voters--brought the appeal.
If he pardons himself he's admitting guilt and thereby not qualified to hold office by the 14th Amendment.
Who's gonna throw him out of office?
This is correct. The problem isn't Trump. It's that Congressional Republicans won't hold him accountable or put any limits on what he can or can't do.
They can't. Their voter base will rise up and boot them to the curb. And plenty of those same voters will threaten their families and possibly get violent.
They're in a no-win situation.
He insists he isn't guilty and has a right to be president, the idea of giving himself a pardon that would be a defacto confession and that precludes him from office would tie his brain in such a knot his eyes would pop out.
Don't you want to see that?
I'd pay to see that! Like a time-travel paradox, isn't it?
"If he pardons himself he's admitting guilt"
No he would not be admitting guilt.
Technically, maybe he'd only be protecting himself from legal actions or something like that by *giving* himself a pardon, though this sets aside the considerable legal debate about whether self-pardoning is constitutional. (It might be churlish to point out that all that discussion would be 99-44/100% moot if he actually did it. Churlish, but accurate, because invalidating a self-pardon would be an impossible thing to accomplish.)
But *accepting* a pardon does, I believe, de facto admit that there is at least colorable evidence of guilt.
"he is not convicted for insurrection" there is no constitutionally valid criminal charge of insurrection. (The existing statute is ~150 years old and has never been used, As a result the language is unconstitutionally vague.) Insurrectionists are charged with seditious conspiracy.
There is a charge of Seditious Conspiracy which carries, in addition to jail time, disqualification from office.
A lower court in Colorado has already ruled on the facts of the case and found that Trump engaged in insurrection. The state Supreme Court doesn't get to re-evaluate the ruling on the facts, only the constitutional question.
It's also worth noting that the state of Colorado is the defendant in this action. A group of voters has sued the Secretary of State, challenging her authority to list Trump on the ballot.
Trump was allowed to intervene and defend the accusation of insurrection. The law required the plaintiffs to prove that Trump was an insurrectionist.
Exactly so. There has been a finding of fact by a duly constituted authority, in this case a judge rather than a jury, and that's the same thing as a "conviction" when there is a specific criminal charge. And there CAN'T be a criminal charge in this case, because "insurrection" is NOT in the criminal code. You CAN'T be "convicted" of "insurrection."
So it's a non-issue. It's word-play.
KD did not say Trump might be convicted of insurrection. He used "insurrectionish" as a place holder for various Jack Smith charges (and I would add the Georgia charges).
I think his point stands.
It think it doesn't.
The bar to lose your driver's license is lower than the bar to be convicted. Why should excluding someone from the ballot be harder than taking away their freedom by jailing them?
KD is not making a legal argument, he is saying a prior conviction makes disqualifying Trump more acceptable to the population at large.
I think he is right, it would. His point stands in the sense it is coherent and doesn't fall based on whether there is a crime called "insurrection".
I think he makes a good point, personally I'm not persuaded.
Its not clear that enforcing a Constitutional Amendments needs popular support before action is taken.
Its also very unlikely that many (any?) people will be convinced by a criminal conviction on other charges. If they arent convinced by a court finding that Trump directed an insurrection and should therefore be barred from running per the Constitution, why would they be convinced by a conviction on other charges?
That makes no sense. Magical thinking.
So you and Kevin would simply discard the Constitution in favor of a popularity contest. If you need for the stars to be aligned before you enforce the law, then you really don't need the law. Your and Kevin's reasoning is why Jefferson Davis couldn't be tried for any crime even though he was the leader of the Confederacy.
You: And there CAN'T be a criminal charge in this case, because "insurrection" is NOT in the criminal code. You CAN'T be "convicted" of "insurrection."
Me: What about 18 U.S. Code § 2383 - Rebellion or insurrection ??
Technically, insurrection is in the criminal code. It is just unconstitutionally vague as to what this encompasses since it was written 150 years go and there have been zero cases to tighten the meaning.
Thanks for enlightening me.
Judgment here:
https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf
They do discuss the facts (pages 103 - 116) and whether they show that he was "engaged in" insurection (because apparently his lawyers argues that "incited an insurrection" doesn't entails "engaged in insurrection").
the 14th amendment doesn't require he be convicted so let the SC decide. dollars to donuts they don't intervene because they are paid by the Establishment who realize Trump no longer works for them
This is exactly what I have been saying. We all know the Republican Supreme Count justices are bought and paid for. The question is, who pulls the strings. I think the powerful people who pull lots of strings hate Trump and think he will hurt their bank balances.
This is the opportunity to take Trump off the board now. In effect a bloodless coup inside the Republican party.
I don't think it's even about money directly. The Republicans donors see a guy who will turn on them like a dime and no longer trust him to do what's best for them
That's a good point too. Either way, does the Supreme Court take Trump out of the picture? I actually think they do.
How does someone become as stupid as you.
If you are going to attack someone's intelligence it would have more validity if you used proper punctuation.
This should be an interesting discussion
I'm absolutely in favor of holding Republicans to their "textualist" interpretation of the Constitution. The 14th Amendment says nothing about it being dependent on conviction, therefore there's no such dependency.
I'm 50% sure that Sam Alito will make that argument.
100% guarantee that Alito will ignore the text and say the Colorado ruling is unconstitutional based on originalism. That despite senators explicitly saying on the floor during debate on passage of this amendment that the president is included as an officer of the US. But Alito clearly understands 18th/19th century english better than the senators of the `1860s and the founders who also called the presidency an office of the US 25 times in the constitution.
See "CAbornandbred" comment above:
"We all know the Republican Supreme Count justices are bought and paid for. The question is, who pulls the strings. I think the powerful people who pull lots of strings hate Trump . . . ."
It's likely that this nails it. Witness all the large R donors six months ago who were frantically looking for a candidate other than Trump to support, and the despair in those circles when Trump took a big lead. This case might be their chance to take Trump out for good.
Alito's phone was probably ringing all day yesterday. He now has his orders.
I wish we could upvote comments. That was perfect.
That would be nice. Just go by the clear, written text. But originalism asserts that legal text should be interpreted based on the original understanding at the time of adoption. My guess is that this conservative thinking will win the day in the US SC.
Also, imagine the anger, and threats of violence, toward SC members if they declared Trump barred from the 2024 election. Perhaps this would factor in too.
You're probably right. Despite the senate explicitly saying the president was covered during debate on its passage. Don't you know that today's conservatives are much better experts on 18th and 19th century english than the people who lived at that time.
Any GOP senators groaning (privately or publicly) about Trump being the nominee had two perfect opportunities to bar him from office.
They want it done, but by somebody else.
Yep. And they'll also be happy to stand on the platform and toast his nomination at the RNC convention, and praise his greatness and fitness in interviews. All except Romney.
Trump isnt denying that he partook in insurrection like activities. Literally noone is denying what Trump did. Convicting him on different charges wont mean he is convicted of insurrection as there is no crime for insurrection.
These type of court cases are the place this matter can be determined. Requiring a conviction on different charges is pointless. If you are worried about the future abuse of this method, a conviction on different charges pre-req isnt going to help one bit.
As a country, we’re incapable of imposing accountability on elites. Even the most obvious and indisputable of traitors are never brought to justice. After the Civil War, the most blatant Confederates were returned to the Congress. We couldn’t even bring Jefferson Davis to trial.
Honestly, the courts aren’t well equipped to deal with elite malefactors. There’s absolutely no requirement of a criminal conviction and no real justification for reading one into the law.
There was a trial in this case and a finding that Trump committed insurrection.
We all have fucking eyeballs.
Hahaha.
In their majority opinion, the Colorado Supreme Court noted that the events of J6 were widely viewed on live TV. They essentially said what you said.
Agree with everything posted, consider it all reiterated.
Three points:
1) The Amendment looks like it was squarely aimed at former Confederates, and stretching it this way feels a little weak to me. And this angle gives gives weight to GOP narratives about how Dems weaponize the law.
2) How long before the GOP turns this on Dems? They have shown that facts don't matter much to them. This action opened the door for that. You think Abbot or DeSantis starts talking about it first?
3) If this sort of thing actually can be construed as costing Trump the election, look out, there is a chance for real civil war level stuff.
I'm afraid there are no short cuts to defeating Trumpism other than making him lose an election really badly.
The Colorado Supreme Court provided 100+ pages of closely reasoned opinion. They didn't rely on how it "feels" but rather what the law says.
Will the GOP try to use similar suits against Dems? Probably. Should we then forego any enforcement of laws that might be abused in retaliation?
That "feels a little weak to me."
The irony is that Trump has a less than 1% probability of winning Colorado's EV's, so the inflammation of the mouth-breathers is strictly egregious and unneeded. It is extremely unlikely that any state which would bar Trump from the ballot would have given him its electoral votes anyway. A state would have to be deep blue to grab this particular club and smash him with it.
In no swing state will he be barred from the ballot, but in ALL those swing states, this will rub some centrists the wrong way. They may not vote for Trump, but they may vote against Democrats.
Kevin is right; it's on-its-face stupidity on the part of extreme partisans.
" but in ALL those swing states, this will rub some centrists the wrong way. "
.. and it will rub some in them in the right way. It puts the insurrection back on front pages, and make it absolutely clear that it was an insurrection and he did engaged in it. Many people seem to have forgotten it, at least in the sense of ignoring it when considering who they support.
The Constitution should not be selectively enforced by determining first whether or not it helps a certain political party.
Also, using 11th dimensional chess to guess whether or not this will help Democrats is foolish.
"The Amendment looks like it was squarely aimed at former Confederates, and stretching it this way feels a little weak to me" Ys, it was driven by former confederates but like all valid laws, applies more generally. Otherwise it would be a constitutional clause of attainder. It would be quite odd to do something with an amendment that is forbidden as a bill.
edit. oops, this was supposed to be a reply to the original comment in this thread.
Colorado is not remotely deep blue.
The Colorado decision is being appealed to SCOTUS. If SCOTUS upholds the decision disqualifying Trump, it becomes the law for the whole US, not just for Colorado.
2) We shouldnt enforce the law because what if some day someone else abuses this law, makes up their own facts and does something we dont like!?
3) We shouldnt enforce the law because they might not like it!?
These are not good reasons to ignore the Constitution.
But, ultimately, yours is an argument of practicality but also mainly of timidity. Your concern isn’t that it would be unfair or inappropriate to apply the law as written to Trump. Rather, you say to give Trump a pass on his previous attempt to overthrow the government because other Republicans would be certain to abuse the law in the future. And that applying the law to Trump as it was clearly intended might cause a civil war as conservatives take up arms to protest the result of Trump’s being denied a place on the ballot.
Frankly, that’s the kind of approach that I think got us in this mess in the first place. Clearly, we need to strengthen the guardrails that protect our democracy. But that means strengthening them and being ready to face the challenges of fighting against authoritarianism.
1) No, the amendment was not "clearly intended" for this sort of situation. Rather, it appears to have been written to keep former Confederates out of office.
2) Maximalism like this may be emotionally satisfying and it's nice to say Nobody Is Above the Law, but in practical political terms, this is not a good idea.
We are not going to beat Trump and Trumpism with trick plays like this, we just gotta stomp him in the election thoroughly.
The law was written to keep confederates from returning to congress or to important governmental jobs. It didn’t want insurrectionists being able to return to power and screwup the country or untrack civil rights laws. The same reasoning applies to Trump. The amendment is intended to allow the government to protect itself against being infiltrated by insurrectionists.
If you’re going to say that Trump’s above the law, then what’s the point of opposing him politically since he and his party will eventually win and convert our govermental system to authoritarianism. If you’re unwilling to enforce the law against him, then you’re dooming the republic. Maybe not in 2024 but certainly eventually and perhaps quite soon.
"No, the amendment was not 'clearly intended' for this sort of situation. Rather, it appears to have been written to keep former Confederates out of office."
Exactly, that's why it explicitly only bars people from office who were "members or supporters of the government of the Confederate States of America." Oh wait--it doesn't.
It's almost as if the amendment was not just backward looking, but also prospectively considered so as to discourage people from doing an insurrection in the future, too.
+1
1) is 100% wrong. It was driven by confederates but meant to apply generally to any insurrectionist. The whole point of the bill of attainder clause is to squash reasoning as morally bankrupt as yours.
Glad you were there and knew their intent. Funny, it appears to me and a lot of other people (via the magic of google!) that no, it was designed with ex-Confederates in mind.
But I guess that is sufficient evidence to describe my reasoning as morally bankrupt. /smh
"Rather, it appears to have been written to keep former Confederates out of office."
If that were the case, it would have said "recently engaged in insurrection" or "supported the Confederacy", but instead it says, "shall have engaged in insurrection or rebellion". That means any insurrection or rebellion, not just he one that started in 1860 and ended in 1865.
They had just fought a war to maintain the union, and set it up for growth in the territories and to exist for centuries. Since it existed for only 90 years before the just completed rebellion, they had to expect there may be more in the future. This was written not just to keep the Confederates out, but any future rebel or insurrectionists.
And it appears that there was another one of these insurrections in 2020 to 2021, and Trump was in the middle of it.
????????????????
????
It seems certain that the authors of the amendment considered the possibility of further civil disruptions in the future, and intended the amendment to apply to them as well as to Confederates.
" How long before the GOP turns this on Dems?"
If Trump is elected he will abolish Democracy with or without "this".
If Trump is defeated and effectively gone, to "turn this on Dems" will require to convince judges that the persons involve was obviously involves in insurrection. Not that easy as long as the judiciary is at least pseudo-honest (unless these persons did engage in insurrection).
", there is a chance for real civil war level stuff."
There is a chance of a civil war without it too. Not obvious that this makes it worse.
"I'm afraid there are no short cuts to defeating Trumpism other than making him lose an election really badly."
Or suffer through 4 more years of Trump, and then see if his cult of personality and GOP MAGA mentality finally fades. A sickening feeling just writing this ... imagine 4 more years.
How long before the GOP turns this on Dems?
I'd say forever. You really think a Democrat is going to engage in insurrection? But if I'm wrong and it happens, the Constitution should be applied in that case, too. Nobody is arguing that only Republican insurrectionists should be barred from office.
Hmmm … I’m pretty sure we agree on this topic, but your comment brought me up short.
I can easily see a trump second term defining, say, Black Lives Matter protests or similar as insurrection, with various Dems guilty of giving “aid and comfort” to insurrections and thereby ineligible to run for office. Note that the amendment includes “any office, civil or military, under the United States, or under any State”.
(Btw, that “aid and comfort” reason for disqualification totally gives the lie to the supposed need for a criminal conviction).
It would also be likely that a second term would produce mass protests, offering further opportunities for declaring multiple Dems ineligible for office.
But the current effort to impeach Biden makes clear that the gop needs no serious rationale for extraordinary actions, thus that there is no possibility of appeasement actually appeasing the right.
>>>Our country's long history of hysterically abusing supposedly self evident beliefs should be enough to give us all pause
we also have a long history of scotus hysterically abusing the interpretation of the law for the benefit of conservatives (dred scott anyone?)
and even if scotus puts trump back on the ballot, that in no way guarantees the same generous interpretation would apply to a democrat in the future
look at the way the second amendment 'right to bear arms' in open carry states is selectively enforced by the local police when the party involved isn't of european ancestry
conservatives are also free to harass people at planned parenthood, but try quietly holding a sign on the public sidewalk outside an evangelical church and see how long it takes before the boys in blue show up
in the current situation, scotus could toss the case for standing, or proceed and rule that j6 wasn't an *actual insurrection, thus allowing trump to be reelected, at which point he'll be free to make all the other crimes go away
in a perfect world i'd agree with kevin, but in our world, laws and words mean different things depending on whether those six robed republicans like the cut of your jib
just to be clear, trump was found to be guilty of insurrection in the colorado case, and trump had legal representation present at the trial
starting on page 26, there's an interesting section called 'TRUMP’S HISTORY WITH POLITICAL EXTREMISTS' and his use of incitement to violence
https://www.courts.state.co.us/userfiles/file/Court_Probation/02nd_Judicial_District/Denver_District_Court/11_17_2023%20Final%20Order.pdf
one thing i have a hard time getting my head wrapped around; if scotus allows trump back on the ballot, does that explicitly give every president the green light to implement an identical strategy on every future 'january 6th' (joint session of congress to count the electoral votes)?
No, it will only green light insurrections by Republican presidents.
it was gonna be a surprise, but you just had to go and say the quiet part out loud 😉
From a southern founder perspective, Dredd Scott was legally correct. Those founders intended the constitution to protect slavery. It isn't a coincidence that the revolution started in the northern part of the 13 colonies and the southern colonies only joined after the english courts ruled slavery illegal in england in 1775.
so two generations were sent to be maimed and slaughtered over the legal definition of 'citizen' and 'human'
amazing how the freedom-hating british monarchy managed to solve the issue of slavery without a single gunshot; american exceptionalism indeed
and this was the founders' *second* attempt at writing a constitution
yeah, the founders were fucking geniuses
They intended to protect slavery while it lasted, which in 1789 was expected to be "not long," and they didn't expect to see it along the Mississippi. By the 1780s slavery was already considered unprofitable for growing tobacco (ie VA, MD, NC, and much of DE) as well as morally and ideologically dubious north of South Carolina, and slaves were being freed in large numbers in the Chesapeake. Slave labor was thought incompatible with most mixed farming, wasn't used much in mixed-farming regions, nor was it expected to move to newer mixed-farming areas like upstate New York and the Old Northwest as they developed.
Farther south, slavery was almost completely limited to coastal areas where slaveholders used their slave laborers to grow rice, long-staple cotton, and indigo, the monocrop export staples. Those crops couldn't be grown away from the coast because of the growing seasons and volume of water they needed.
So in the 1780s slavery was generally considered to be geographically limited in extent and doomed over time for economic and moral reasons. Too few people know that now. But it was one of the big reasons compromise was even possible at all in that convention.
And Eli Whitney changed it all-- not the last time we'd feel the baneful influence of Yale. But in fairness a lot of people were working on the same problem that somebody would have solved, and at about the same time.
Good Josh Marshall piece on this
https://talkingpointsmemo.com/edblog/what-to-think-about-colorado-and-the-14th-amendment/sharetoken/jw9diQviK4H8
(free link I think)
That is good, as is usual for Josh. Thanks for sharing it.
And yes, that link is free.
The cynic in me says no way will the Supreme Court disqualify Trump. Their ruling will be as rooted in law as Bush v. Gore. They are simply too corrupt and partisan.
But I like it anyway. The Court has discredited itself with terrible rulings over years now, but most of those ruling were technical and people at large didn't notice. Anything that brings its popular reputation in line with its reputation among those who pay attention is a public good. Reform will only follow public awareness. This case will make it obvious the fix is in.
I'm taking the cynic route as well, but I am going to enjoy the ride and MAGA outrage while it lasts.
In more positive news, it certainly bumped Hunter Biden off the front page 😀
"In more positive news, it certainly bumped Hunter Biden off the front page"
That is the main achievement of this ruling. It puts the insurrection on front pages again, and hopefully for a while.
"I think the 14th Amendment should apply only if you've been convicted of some insurrection-like act."
Why, exactly, are you adding a new requirement to the Amendment? Our judiciary's inability to hold rich white men accountable for anything is abundantly well-documented. The fact that one court actually managed to do it should be commended, not fretted over.
Also keep in mind that the amendment doesn’t just apply to insurrection:
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.
What crime would giving aid and comfort be? Could a person be convicted of that?
SCOTUS is faced with an interesting dilemma if they take up this case. Conservatives will be tempted to say that a state can't intervene in a federal matter as important as a presidential election. However, there's another matter lurking out there: Texas's new SB4, a recently signed law that gives the state power to stop, arrest, and jail suspected violators of federal immigration laws. SCOTUS conservatives are going to be pressured to give the state maximum leeway here.
So how will they thread the neede and say Colorado is overstepping but Texas isn't?
Good point, Quaker. In fact, the Constitution gives the several States control over elections, subject only to Constitutional minima for Federal office. There have been several Amendments that dealt with elections, but all act only through restrictions barring certain unfair practices or as minimum standards of compliance.
The Constitution is silent on "immigration" and speaks only to allowing voluntary "naturalization". Now that of course implies "immigration" by the applicant, but it does not enumerate any power of control or management to the Federal government. The country WANTED people to come at the time of the Constitution. Manifest Destinay was already beating in some hearts, but there had to be a lot more people to fill the wagon trains.
So I doubt that the Court will have trouble punting on Texas' law while swatting Colorado down. It's kind of their thing to see differences, right?
The benefit of being the final arbiter of everything in our society is that the courts is free to do what it wants without the requirement of consistency. For the past 60 years, there’s been an increasing divergence between the rules that apply to liberals and Democrats and the only that govern Republicans. I doubt whether it would even occur the Republican justices to make even a bad faith attempt to reconcile different rulings which deny women’s reproductive rights and which keep insurrectionist on the ballot.
For better or worse, Trump & Trumpism need to be rejected at the ballot box, not in courtrooms. We are one for two; we have to make it two out of three.
"Trump & Trumpism need to be rejected at the ballot box, not in courtrooms."
Disagree. Trump & Trumpism need to be rejected at the ballot box *and* in courtrooms.
+1
Trump and Trumpism WERE rejected at the ballot box, and Trump refused to accept the voice of the people. What should be the response to that?
And let's never forget Trump was rejected at the ballot box in 2016 too. Unless you are counting the silly ballot box with 538 votes.
KD: "I think the 14th Amendment should apply only if you've been convicted of some insurrection-like act"
No.
Doesn't have to be found guilty of insurrection. It's enough that he
(i) gave aid and comfort to
(ii) those convicted of seditious conspiracy
(iii) at any time - even months after the event.
Aid and comfort was being a participant in the J6 Prison Choir fundraising recording.
^^^this +1
'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.'
i also find it interesting that scotus looks like it's preparing to gut the administrative state and claim any federal agency's regulations falling outside scotus' narrowed guidelines must be rejected and any regulatory expansion requires additional legislative remedies.
given that to be the case, scotus should allow colorado to stand and point out the fact that the constitution allows for a legislative remedy (2/3 vote) if they feel the states or courts have gotten it wrong
of course i don't expect them to do that since it just gets in the way of their desired outcome
That 'aid or comfort' part could apply to the entire Republican party.
"constitution allows for a legislative remedy (2/3 vote) if they feel the states or courts have gotten it wrong"
Excellent point, which I hadn't thought about or read until now.
re cld's reply: 14th Amendment is loosely defined, which I'm not keen on, but it is what it is, so why not use it? Yes, many GOP officials have given aid and technically could be denied ballot access, but I'm okay limiting it to top-level officials (president, senator, representative).
Is this a question for the Supreme Court at all?
Isn't it purely a state case involving Republican state party ballots?
I'm not convinced by the "this only applies to Confederates" argument.
During Reconstruction, the gov't did not prosecute Confederate soldiers, with some exceptions for obvious reasons. Lincoln's attempt to make the country whole would have made it moot to include Article 14 Section 3, if its intent wasn't forward-looking. IOW, it seems quite obvious to me that the reason for including this specific provision was to prevent the government from being broken apart again -- lessons learned. Just ask yourself: If it wasn't meant to be punitive -- which Lincoln did not want -- what was the purpose of 14A Section 3? The answer is, to prevent a future collapse of the gov't.
I am also unconvinced by the "they'll do the same to us" argument. Leaving Biden (or any future Democratic candidate) off a ballot still has to pass Constitutional muster. You do that blatantly and you risk being disbarred, IMO. See: Insurrection lawyers disbarred.
Finally, it makes no sense that one has to be prosecuted for insurrection or along the edges of an insurrection. As I said, during Reconstruction most soldiers were not prosecuted. Did that make it possible for these soldiers to run for office? Obviously, no. Therefore, for that same reason, the Constitution does not require a conviction and neither should you, or me, or this country.
If that Amendment were meant only to apply to Confederates why bother making it an Amendment when a law could have effectively covered just the present living generation?
And, if it had been just a law that have required that each case be separately adjudicated, possibly tying up courts for years and refighting the Civil War each time, where as an Amendment it becomes self-executing and available for future such issues.
YUP!
Agree 90%
I'll quibble about soldiers. They could run for office. You were barred if you took an oath of office. Soldiers didn't.
Otherwise right on.
Your theory about it is interesting speculation, but it seems more plausible to me that the intent was to make sure ex-Confederates could never get near the levers of power again and try to pull some Confederacy II. Different opinions.
Not really sure that they meant it for anything more than that and we are really only speculating there, unless you have some sort of Federalist papers from back then or something. But I find it amusing how so many people here assert that it DEFINITELY MUST APPLY without hesitation or qualification, and give me quite a bit of crap about it. Especially when the Internet is filled with sincere and well-informed people who differ on this point.
Look, I loathe Trump and do not want to see him anywhere near the Presidency. But I don't think that applying something that plausibly looks like it was designed to bar ex-Confederates is the way to go here. It looks frankly like Dems are trying some trick play, and is only likely to enrage those on the right and alienate centrists without helping win the race.
IOW, it was a forward-looking document anticipating a future attempt to destroy the government.
Whether or not it only applied solely to the Confederates, in their discretion, the authors did not call out Section 3's application to be limited to the Confederates. The "plain letter of the law" is therefore that it does not apply solely to the Confederates. From what I've read, there is nothing contextually that reflects the authors' intent to limit it to the Confederates.
Combine the two -- that it was a forward-looking document and it was not explicitly called out to apply only to Confederates -- and the only conclusion is that it applies to all post-Civil War insurrectionists.
Kevin ignores there was a trial and the result of that trial was that Trump was found to have met the civil standard for having engaged in insurrection. So not diffeent to OJ having been found not guilty of murder/manslaughter but found liable for wrongful death. Except here the civil trial went first and Trump was found to have committed insurrection in that trial.
We don’t need to convict him of a crime. It’s self evident that he’s a traitor to his oath of office - which is not a crime - and so ineligible. If you don’t like the 14th amendment remedy, I guess we’re left with the 2nd amendment which allows us, I’m told, to shoot our oppressors. So there you go! Biden should offer a pardon to some agent on trumps secret service detail and call it good! I’m sure lots of liberals will fund the guys legal defense and retirement. I know I would! ????
Otherwise, the Iranians know where maralago is located. I’m sure they want revenge for something. I hear they have assassins prowling the country. That would be hilarious.
Kevin, your position is correct if the facts are in dispute, but they aren't. Someone needs to make a reasonable argument that Trump was not involved in an insurrection, then we should wait for a conviction, otherwise, no.
I personally am not one among the multitude of paranoid columnists writing fatalistic pieces about an inevitable second term for trump. Rarely does anyone ever comment on the fact that trump has never once won the vote in any of his elections: he lost the vote in 2016, 2018, 2020, 2021, and 2022.
Obviously, a political candidate can still win the presidency and wield considerable influence even while losing the vote of every single election of his entire political career; nevertheless, that much losing really does argue against any politician's viability.
Perhaps most importantly of all, trump has already lost once to Biden. Hence, while it's always good to be on alert, I personally do not see the justification for so much of the doomy, gloomy political despair that the Liberal press has been churning out at such a frantic, chaotic, and hysterical rate. I think trump is probably the weakest candidate against Biden, and I'm relatively certain that the Biden camp is in fact hoping that trump will be the republican nominee.
Which is all to say that I do not necessarily hope to see trump kicked off the ballots in the republican primaries. But, what I hope should happen and what is constitutional are not the same things. And I'm kind of with President Biden on this one: we all saw what happened. If Trump didn't engage in insurrection @ the Capitol building then I don't see how the word insurrection even has any meaning. He urged the crowd to march and take back their country. The crowd obeyed and illegally ransacked the Capitol building. People died. Congress fled. Congressional proceedings were stopped by a violent and dangerous mob. And if the 14th amendment rules out an insurrectionist then, honestly, it really would seem legit to rule against trump in this case.
Kevin - agree with you 98% of the time. But no on this. First, conviction is not mentioned in section 3of the 14th Amendment. It is not a prerequisite. Second, Trump was afforded al the proper due process in the state with essentially a trial with witnesses and a judgment and appeal. The whole point of this clause in the constitution was to stop people who were traitors from serving. We can ill afford waiting for conviction, especially when due process has been served...
Exactly. Even if Congress enacted enabling legislation specifying the procedures for barring office-holders under the 14th amendment, it would most likely rely on state level officials, since there is no such thing as a national ballot in the United States, and in any event, bills of attained are not permissible under our constitution.
I often disagree with Kevin but this time he is correct.
Since 2016, some have been searching for a legal deus ex machina to save us from American fascism. Remember all that "Mueller Time" nonsense?
But there isn't one. Trumpism is a political problem with deep roots in the cultural rot that has been weakening our society. Trump must be defeated politically and our culture must be mended.
the right has been dousing the country with gasoline for years, and trump is their match.
the dousing is widespread and harder to deal with, but we can at least refuse them the match they need to start the conflagration
and if the lawsuits land him in jail it won't matter much if we kept him off the ballot
but if scotus scuttles all of the various lawsuits, it would be better if he's not on the ballot
finally, i hear this argument that we need to let people vote for who they want, which is nonsense; we have restrictions on who can attain the presidency
we can't vote for a foreign national, we can't vote for a 12 year old, and we can't vote for a dog
likewise, the 14thA prevents insurrectionists from taking office
and personally, i'd like to vote for obama again, but we have laws that prevent that, so no, we don't always get to vote for who we want
@George Salt:
Regarding this: "Trump must be defeated politically"
Trump has been defeated politically over and over and over and over again. Remember when the 2018 midterms were an existential struggle to reclaim our country? Yeah, we trounced trump and romped to a House majority that put Democratic leader Pelosi in power. Two Trump impeachments followed.
Remember when the 2020 Presidential election was our final battle for the soul of the nation (literally Biden's explicit campaign theme)? Yeah, we trounced Trump again. That would be Trump at 0 and Soul of The Nation at (approximately) 2.
And then there was 2022 where we were repeatedly clobbered over the head with the news that the midterms were our last best hope to protect our democracy and sustain our free and fair elections. And trump went down like the Hindenburg. Every single election-denying candidate that he propped up, promoted, or endorsed in any way failed and lost spectacularly.
We have now spent approximately 6 years beating trump like a drum (as Biden might say) pretty much without fail. Exactly when does the narrative that "trump must be defeated politically" end? When he's defeated for the 6th time? for the 8th time? when exactly? He's one of the losingest losers in the entire political history of the USA. Continuing to act otherwise arguably does little if anything other than to strengthen him.
So, rather than writing one head-scratcher of a column after another nattering in nihilistic cowardice about what a big, bad bully trump is, why don't we focus on the fact that he is a world-class loser on a scale seldom seen in world history?
+1
Umm. If he is disqualified isn't he defeated?
Yeah, deep rot, lots of mending needed, no argument there.
But isn't no more president Trump, ever, a good thing all by itself?
I agree Trumpism must be defeated politically in the long-term, but that doesn’t mean we cannot take eminently constitutional actions to safeguard our democracy in the interim. Moreover, the constitution means what it says. If you don’t like that particular amendment, you’re perfectly free to urge your fellow citizens to repeal it.
Lawrence Lessig over at Slate has an interesting take, namely states can apply the 14th amendment to local and statewide races, but not national ones. A variation on the "it does not apply to the President" argument, but with more support and nuance.
https://slate.com/news-and-politics/2023/12/supreme-court-trump-ballot-removal-colorado-wrong.html
Lessig is right.
It is untenable to allow 50 states to each interpret the 14th Amendment and decide how to apply it to national elections. That will lead to the balkanization of America.
Even if that were true, in this case, the Supreme Court is going to weigh in, which would seem to establish a precedent that avoids the scenario you raise.
IANAL, but I think Section 3 should have specified who is empowered to determine that a person falls under the stated proscription.
In this case, a judge of a Federal District Court made the determination. Reed O’Connor is a judge of a Federal District Court, and a frequent issuer of nationwide injunctions. Need I say more?
the right has been mainlining trump's product for eight years now
even if he loses another election it won't break the fever; time to shut off the supply and toss him and his cartel in jail
and if he wins, imagine the creative uses he'll find for the justice dept, irs, police, army, and national guard
but at least they'll all get snappy uniforms and inspirational insignia
Sometimes I despair of Democrats.
Let's say the Colorado decision is allowed to stand. Next year, after the House impeaches Biden for influence peddling to China, what will y'all say or do when courts in red states rule that constitutes proof he gave aid and comfort to the enemies of the United States and is therefore ineligible to be on the 2024 ballot? The Texas Lt Governor has already suggested removing him from that state's primary.
Get out of the weeds of legalistic technicalities and consider the big picture. Keeping Trump off the ballot next year without him having been found guilty of insurrection after a properly conducted criminal trial would tear the country apart. Hopefully a 9-0 Supreme Court decision quashing the Colorado ruling with head off the descent into madness.
Consider the big picture, AND the big evidence. We (and the Colorado Supreme Court) have seen with our own eyes and heard with our own ears that Trump enabled the insurrection. How many benefits of the doubt do you want to give him?
This is much different than Biden getting impeached. No one is saying Trump violated the 14th amendment because he was impeached. We are saying that he violated the 14th amendment because we saw and heard him do it.
Stop being so afraid of what Trump co-insurrectionists will do. Just believe the evidence of your own experience. Let Trump deal with the consequences, and let the chips fall where they may.
were the republicans ever willing to let the chips fall where they may during the recount in florida? or did they pull every possible lever to their advantage?
and after the fusillade of lies surrounding the 2020 election were internalized and amplified by the magas, fox, and qanon, do you honestly think another trial alters their trajectory in any way?
if you don't want him in the white house, you should pull every possible lever to prevent that, and you should assume trump is doing the same to insure it
I’m sure you know that several Republicans and an independent filed this lawsuit. I certainly cheer them on, but democrats didn't do it.
"Convict Trump first, then bar him from office"
So, Trump is playing the courts trying to delay his conviction on "insurrectionish" crimes. If he succeeds, then the insurrectionist will likely become president. Probably because of the undemocratic Electoral College. And just where are you going to find a jury that would be unanimous in convicting Trump of insurrection? Everyone in the country has seen what he did and has made a judgement on it.
My God, how many chances do we give this guy to play the system? Nah, I say let's bar him from office first, and then let him go to trial to prove his innocence.
My God, how many chances are we going to give the South to win the Civil War?