The 14th Amendment, passed after the Civil War, says this:
No person shall...hold any office...who, having previously taken an oath, as a member of Congress, or as an officer of the United States...shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.
After the Civil War this was a pretty easy provision to interpret: it applied to anyone on the Confederate side of the war.
But what about now? Did Donald Trump give "aid and comfort" to the January 6 insurrectionists? Does that disqualify him from the presidency? Can a state election officer remove him from the ballot upon a finding of disqualification?
It's a popular notion these days, but it belongs in approximately the same category of bullshit as the trillion-dollar coin. The insurrection clause of the 14th Amendment is no different from any other law that declares something illegal. That is, it's not self-enforcing by any old citizen who happens to feel strongly about it. It requires a finding of guilt by a court of law.
This really ought to be pretty obvious to everyone. But even if it's not, it's still true in practice. If, say, the New Hampshire secretary of state decides to remove Trump from the ballot, Trump will sue and the case will.......end up in court. Eventually it gets to the Supreme Court, where I'd say there's about a zero percent chance of a ruling that allows any old state election officer to remove Trump from the ballot in the absence of conviction by a court.
In other words, this ends up in court one way or the other. Got it?
I guess we’ll just have to hope for some unfortunate event, then. Got it?
Maybe they're playing his game against him? With the speed of the system, by the time it's cleared up, the election will have been long past.
Shadow docket. This would definitely be taken up by SCOTUS within days of it occurring, with a ruling consisting of no explanation issued a few days after that.
And they say there aren't two different systems of Justice in America!
That seems like odd semantic quibbling to me. Of course this would always end up in front of the SCOTUS.
Couy Griffin got to argue his case in court, just like every other US American is entitled to do. Of course Don Trump will to.
I'm not sure "Self-executing" means what you think it means.
No, it's not self-enforcing or self-executing. But a state Secretary of State could make a decision not to put Trump's name on the ballot (just as they make decisions not to include the names of would-be candidates under age 35), and then someone with standing would immediately sue, and that's how it gets into a court of law. A state Secretary of State -- or some other state officer empowered by the state Constitution or state law to make this sort of decision -- is not "any old citizen" who gets a hankering to omit Trump's name.
There is nothing in the 14th Amendment that requires a conviction for insurrection or seditious conspiracy or something similar. Yes, someone in the position to do so would need to make a finding that Trump's participation in Jan. 6 qualified as engaging in insurrection or rebellion but that doesn't imply a conviction, nor would such a finding be a "finding of guilt." It would just be a finding of fact, like any other finding of fact. (Findings of guilt are limited to criminal proceedings.)
So, as stated, a state Secretary of State might make the initial finding of fact pursuant to which Trump's name would be excluded from that state's ballot, and then once that decision was challenged, a court would take it from there. Would a court somewhere along the way decide a prior conviction was required? Maybe. But that requirement is not in place now.
I hope it's also clear that such a proceeding would not itself result in a conviction or finding of guilt.
I agree it would end up in the U.S. Supreme Court. And ... well, who knows from there.
Yikes. I meant to say that the language of the 14th Amendment does not provide an enforcement mechanism so in that sense it *is* self-executing, just like the requirement that a candidate for President be at least 35 years of age. That doesn't mean that the decision keeping a candidate's name off the ballot -- for whatever reason -- can't be challenged.
Of course a decision keeping a person off a ballot can be challenged. For instance, although no presidential candidate in US history has been young enough for age to be a plausible issue, it could happen that a candidate very near the age of 35 gets nominated. It would then be up to the relevant election officials, mostly secretaries of state, to determine if the candidate would be over 35 on the relevant date (I'm not off-hand sure if the relevant date is election day or inauguration day) and keep the candidate off the ballot if too young. The candidate could certainly seek judicial review of such a decision but no crime would even have to be alleged, much less proved. Initially, the finding that the candidate is disqualified is done administratively, not judicially, and I would bet that when the matter got to court the standard of proof would be the civil standard, not the criminal one.
I will also bet that issues of fact relating to an asserted 14A3 disqualification will be decided on the civil standard; proof of a crime is simply not required.
Yes. This whole "it requires a conviction" nonsense is motivated-reasoning can-kicking. There's nothing in the text of the amendment that says it requires a conviction. So why are we supposed to believe it requires a conviction? ("Because I am afraid of what happens if Trump gets disqualified and Republicans commit acts of violence over it, so I am inventing my own personal lawyerly MacGuffin to convince everyone it's not the kind of thing Very Serious People believe" may be the truthful response to this, but what it is not is germane to the issue of whether a criminal conviction is actually, legally required.)
Adding: the idea that the law is whatever 5 Supreme Court justices say it is, the explicit text of the Constitution be damned, is certainly a valid, coherent take about the mechanics of American jurisprudence. But it's also one that should instantly disabuse us of the notion that the law has any moral legitimacy whatsoever: if the law is purely determined by the whims of 5 judges whose legal reasoning in politically consequential cases is always contorted however it might be required to have Republicans always win, then the law has no moral animating force at all, and people should feel free to break it whenever they think they can get away with it.
the first amendment explicitly says "congress shall make no law," yet we have volumes of law books telling us what those plain words mean in context of freedoms of speech, press and religion. the law is not a simple thing.
I agree it would end up in the U.S. Supreme Court. And ... well, who knows from there...
Who knows? Are you serious? We all know perfectly well the outcome: at least five Republican SC votes that order Trump to be placed on the ballot.
We do NOT know that would be the outcome. Trump has a long losing record at SCOTUS. They do not love him and do not see themselves as under any obligation to help him.
They do not love him and do not see themselves as under any obligation to help him.
They don't love Trump, that's true. But they do love the GOP, and that's why when there are hard political outcomes at stake, they decide in favor of Republicans. Keeping the Republican nominee off the ballot might make the election a foregone conclusion in favor of the Democratic nominee. Which is why it won't happen.
Keeping Trump off the ballot would significantly enhance the Republicans' chance of recapturing the presidency. They're going to decide this in time to get a different Republican name on the ballot.
The logical "or" is not hard to understand. This
"No person shall...hold any office...who, having previously taken an oath, as a member of Congress, or as an officer of the United States...shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof"
means that if Trump has done any one or more of the following
1 engaged in insurrection against the U.S.
2 engaged in rebellion against the U.S.
3 given aid or comfort to the enemies of the U.S.
then he can be barred from office if anyone's got the balls to take it to court. If it can be proven that Trump committed offense 1 or offense 2 or both then it doesn't matter if Trump has committed offense 3. That is what "or" means. Kevin is smart enough to know this.
then he can be barred from office if anyone's got the balls to take it to court.
There's no need to "take it to court." A state elections official could simply declare Trump isn't eligible to be placed on that state's ballot. To buttress the legality of such an action, the state legislature could pass a law in advance explicitly empowering the relevant state official to enforce the provisions of the 14th amendment.
None of this would be allowed by the GOP Supreme Court majority, of course, but if our Republic weren't so banana-ish, it would work.
No person shall...hold any office...who, having previously taken an oath, as a member of Congress, or as an officer of the United States...**shall have engaged in insurrection or rebellion against the same**, or given aid or comfort to the enemies thereof.
You forgot to read this part. The problem is that he needs to be convicted of it first. They're all panicking about Biden's poll numbers and putting the cart before the horse. Maybe if everyone didn't wait so damn long to bring up charges against the Tangerine Mussolini things wouldn't feel so dire.
People who are afraid of people taking up arms after his removal from the ballot are silly. They already attempted it, and will likely attempt something if he loses again.
And, it's obvious it'll end up before the Supreme Court and they'll come up with some mental gymnastics on it. The mistake will be letting them decide before he's convicted, and it looks like that'll happen.
The problem is that he needs to be convicted of it first.
No. Nothing in the language requires a conviction.
Trump hasn't won at SCOTUS in years.
Additionally, the assumption -- it requires a finding of guilt by a court of law -- is likely wrong.
At the end of the Civil War, very few people who'd participated in it on behalf of the Confederate were prosecuted. To be prosecuted you had to have committed specific war crimes beyond fighting. Yet, it was clear that Confederate officials could not run for office except if Congress voted to allow it.
Kevin isnt wrong that this would end up with judges weighing in....but this is true for almost all laws. Generally, no parts of the constitution have self-executing mechanisms that arent reviewable by a court and appealable to a higher court.
Im not sure what point Kevin thinks hes making here. Was anyone anywhere under the impression that the constitution, or any laws really, can be enforced without judicial oversight?
Without a doubt, it'll end up in front of SCOTUS. I think the vote would be 7-2 against him.
I do not think an SoS will unilaterally block Trump, however. I think it'll require a lawsuit seeking a permanent injunction by a citizen-lawyer, once Trump has been certified for a state's primary ballot. That will be the trigger to all of this.
Was anyone anywhere under the impression that the constitution, or any laws really, can be enforced without judicial oversight?
No, although only because Trump is famous and has access to a lot of money with which to hire lawyers.
Laws are enforced without judicial oversight on the poor and increasingly the middle class all the time, because the government knows they won’t get lawyers to challenge it.
Administrative action is usually not judicially reviewed, mostly because most administrative action complies with the law. However, where there is an egregious abuse repeatedly inflicted on people without the resources to seek judicial review, a public interest group tends to come along with a test case. That is how, for instance, issues relating to homeless people have wound up in court.
But he gives aid and comfort to those lunatics daily, promising to pardon them, promising revenge, --and so do half the other Republicans, and all the Republicans running for anything.
"That is, it's not self-enforcing by any old citizen who happens to feel strongly about it. It requires a finding of guilt by a court of law."
Why? There's nothing in the Constitution that says a guilty verdict is required. Congress didn't require a legal finding of guilt for the Confederates who had taken an oath, as you note in your piece. Were there a guilty verdict requirement, "it's obvious" would not obviate that requirement as it certainly did by the very people who wrote and passed the 14th amendment..
On the same point, being insurrection-free after taking an oath is simply a condition of being eligible to be president, like being 35 or older, and a natural born citizen. A Secretary of State does not have to go to court to block a 20 year old or a naturalized citizen or a non-citizen. They just do it. If the person blocked from the ballot wishes to contest it, then they can go to court. But the SoS doesn't need to go to court, because the Constitution clearly gives the power to run elections to the states. The SoS isn't "any old citizen", but the Constitutionally and statutorily office empowered to determine ballot eligibility.
Secondly, if your guilty verdict theory WERE true, there have been court adjudications of guilt for insurrection regarding the effort to overturn the 2020 election, including Trump has not only promised to pardon them if he is reelected but has also held fundraisers to fund their defenses. He has also lauded them publicly and encouraged others to help them. That is aid and comfort.
The facts are clear that: 1) people have been barred from holding office under 14. 3 without a court determination by the very people who WROTE the 14th amendment; 2) Trump has provided aid and comfort in the form of money and promises and public support to people who are guilty of attempting an insurrection to prevent the rightful and peaceful transfer of power and overturn the United States government; and 3) that the US Constitution gives the states the rights to oversee elections, and those states give the SOS the power to determine ballot eligibility.
14.3 applies to Donald Trump, even if it is an astonishing and terrifying thing. It doesn't have to be applied (it wasn't to Eugene Debs) but a Secretary of State would be within her or his rights to refuse to place Trump on the ballot. Trump could be placed on the ballot by the courts after, but the SoS can do it.
I don't believe that Debs had previously held public or military office so he probably hadn't "previously taken an oath", so the clause wouldn't have applied to him.
The clause in the 14th Amendment which applies to Trump is "shall have engaged in insurrection." The rebellion and aid clauses are not required to disqualify a citizen from holding public office in my interpretation.
I think you're largely wrong on this one. Yes, I agree that SCOTUS would find some tortured reason to toss any SecState efforts or independent lawsuits filed to keep Trump off the ballot. But I think you're wrong in that given a different (and less corrupt) court makeup, removal via the 14th Amendment would be legitimate and wholly consistent with the text as written. As other commenters have already pointed out, there's no mention in the text of "conviction", which makes sense considering it was designed to apply to more than 100,000 confederates who never faced a trial. Furthermore, there is no crime of "insurrection", meaning the act of engagement itself is left to interpretation via either SecState authority or adjudication through the courts. That we're living under the thumb of a corrupt federal judiciary does not itself imply that removal of Trump via the 14th amendment is in anyway an illegitimate exercise.
The easy fix is to require all candidates, prior to the ballot being finalized, to affirm that they are eligible.
That is:
they are 35 years of age
are a natural-born US citizen
meet residency requirements
have not engaged in insurrection etc against the US
have not already twice been elected President.
I don't see Trump certifying that last...
🤣
No one appears to have mentioned here yet that two of the country’s most respected legal scholars agree that Trump’s actions on January 6 plainly disqualify him from running for president. That would be retired federal Judge Michael Luttig and Lawrence Tribe of Harvard Law School. You can easily find online what they wrote, which contradicts many of the off-the-cuff comments here. And they based their joint opinion on a 100 page law journal article by two Federalist Society member legal scholars. Trump will not be re-elected.
Picky detail, but the 14th applies to people
“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,”
Officers of the US are appointed by the President. Article 2 Section 2 Clause 2. So, regrettably, the President is not an officer. Nor does he meet any other classification. Bit of a loophole it seems.
So with a little more research, I see that Article 2 Section 2 Clause 2 is not the final determination of who is an officer.
And during the debate on the 14th amendment, it was discussed whether the President is covered, and it was agreed that he was.
There is no doubt that Trump endulged in insurrection on Jan 6 and before (fake electors, inciting violence etc.). So his behavior is doubtless covered by the 14th amendment.
But here is the first problem: It took a VERY LONG TIME for someone to find this passage. Where were all these connaisseurs of the constitution all these months? it is not a terribly long document (as constitutions go). If this idea had been brought up on Jan 7 it might have worked. Someone like Raffensperger could have him declared "guilty" and the Supremes might even have agreed back then.
Problem number two: It becomes more and more clear that liberals have to live not with the constitution we have but with the constitution conservatives wish we had.
Pingback: Bohrleute 57 - Und täglich grüßt das Murmeltier: wird 2024 ein Rematch von 2020?, mit Christian Lammert - Deliberation Daily