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Is Trump disqualified for the N.H. primary? The secretary of state is seeking legal advice
(www.bostonglobe.com)
this post was submitted on 28 Aug 2023
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14th Amendment to the US Constitution, Section 3:
This does not require judicial input. The language is clear. Trump is, along with many co-defendants, disqualified from holding any civil or military office.
Not until proven guilty, legally speaking, surely?
The language specifically does not require any conviction. A conviction would make 14A S3 undeniably apply, but a lack of conviction doesn't make it not apply.
You kinda just said that it can be denied that it applies without a conviction. I think it's tenuous at best, but I'm not a lawyer. I just know that, typically, you can't say someone did a thing if it hasn't been legally proven.
Sure you can. Trump is a rapist. He raped e jean Carrol with his fingers. Wasn't convicted but facts are facts.
The Jan 6th commission is enough to show he participated in an insurrection.
If the amendment had required a conviction of some kind, that requirement would have been stated. It is not.
This is a really weird rule. So we are going to have 50 separate decisions each one, at least on paper, independent of each other?
Elections for president, senators, and representatives are run solely by the states. It's why we have multiple different "kinds" of federal elections. The election process depends on what state you're in, and how the state legislature has determined to organize that election. Most states - but not all - are "winner take all" for electoral college votes. Maine and Nebraska split those votes based on proportion of popular vote.
So, because states are the only place where federal elections are operated, each state would need to adjudicate who is eligible to be on the ballot for a given office. Coincidentally, this is exactly why Mark Meadows' claim that he was performing the duties of his office as White House Chief of Staff when participating in the pressuring of Brad Raffensperger to change the outcome of the Georgia presidential election fails. Nobody in the federal government has any business being involved in elections operated by a state. Doing so is, by definition, not part of the duties of any federal position.
Yes, fifty separate decisions, in theory. However, the moment one state (especially one where Trump has any chance of winning the popular vote therein, so not California, for example) decides to disqualify Trump from being on the ballot for president, there will be a legal challenge to that action. And because the rule here is one enshrined in the US Constitution, the case would likely be very quickly passed up to or appealed to federal court, possibly SCOTUS.
But federal courts may decline to hear the case, since, as above, states decide how to run elections. And if a state has determined that someone is ineligible to be on the ballot, ... nobody in the federal government has any business there.
New Mexico has already made moves to remove someone at state level from the ballot for being in the Capitol on Jan 6. That case didn't go all the way through, the election happened and the guy lost, so it was moot. But they did get as far as positively defining Jan 6 as an "insurrection," and seemed ready to follow through with disqualification.
In practice, only a handful of swing (or red, somehow) states would need to disqualify Trump to prevent him from being elected. If you fall short of 270 electoral college votes, you lose. You don't have to disqualify all states, just enough to make 270 electoral votes a statistical impossibility.
It doesn't say "convicted of...".
I doubt they put every Confederate on trial. Still I imagine there must be some court ruling for this to be the case. IANAL but a state court may make this decision and bar him from running in their state.
"But that was only an amendment and it was written so long ago!" - Somebody with the second amendment printed out and framed above their gun masturbatorium.
The gun Masturbatorium is a sacred workshop of Cult Masturbatio of the Adeptus Mechanicus, they are in charge of "Jacking" the most ancient and revered ranged weapons. Youre thinking of the Techno-lustris run jointly by the Adeptus Mechanicus and the Dark Mechanicum.
The judicial input is on whether Trump qualifies to be included in that described group which is disqualified. The problem with the self-executing clause here is that of course the described group of people are barred but who decides who qualifies?
That is for state officials whose duty it is to ensure that only qualified persons are on the ballot to enforce. Indeed, if those state officials refuse or neglect to enforce the US Constitution, they could be held personally responsible.
He's not yet been convicted. If he gets on someballots, wins those states' Republican primaries, and then gets convicted (and thus disqualified) the party will have to decide who of the other candidates gets their nomination. If different candidates came in second in different states, that could get interesting.
As I have said many times elsewhere, 14A S3 does not state that a conviction is required.
This is not about "being a criminal, guilty of specific crimes." This is about having engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof, and that behavior disqualifying a person from holding office.
And his remedy is a two thirds vote qualifying him.
Most of the legal minds I've heard discuss this think it's pretty interesting philosophically, but not at all actionable. Former US attorneys Preet Bharara and Chuck Rosenberg mentioned it in a recent podcast that I found super insightful.
Here's the tiny mention in there:
Except that it very clearly is self-executing. I'll paste it in here again for easy reference:
Breaking it down:
What is the disqualification from office stated in the section title? "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 does this apply to? Anyone "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."
What is the remediation for this disqualification? "Congress may by a vote of two-thirds of each House, remove such disability."
As a comparison, Article II, Section 1, Clause 5 reads:
If a 23 year old Frenchman decided to run for US President, what would happen? Would there need to be some kind of trial or judicial review? No - state officials would disqualify Mr. Young French from appearing on the ballot. And then, if Mr. Young French wanted to protest that decision, he would initiate a court filing, after having been disqualified.
14A S3 is self-executing. The reason Rosenberg in the podcast says he's "not sure what the triggering mechanism would be" is because there isn't one.
I'm a complete layman when it comes to law so forgive me if this is an ignorant question, but would the official in question have to be actually convicted of insurrection/rebellion before this comes into effect? I assumed that's what they meant by "It's not self executing" because otherwise would it not just be up to each state officials individual discretion to exercise this? Thanks so much for the detailed breakdown, Preets podcasts have turned me into a bit of an uneducated legal nerd so this is all fascinating to me.
Unrelated, but is your name a psych reference??
You know that's right
There is nothing in the text of the amendment which requires any criminal conviction, civil settlement, judicial review. If you're interested in a really detailed breakdown and argument for why Trump (and many others) are disqualified from holding office, I highly recommend reading The Sweep and Force of Section Three, which was the paper that really set all of this 14A S3 discussion in motion. It is very long, and very detailed, but it's a relatively easy read, in mostly plain language. I haven't even gotten all the way through it yet, I'm still working on it. Much of my understanding of this issue comes from this paper, but believe me when I say I'm not just waving it aloft and declaring that it's gospel. What it says makes sense.
With regard to your question about each state officials' discretion to exercise, there's another comment in this mess of a thread where I go into some more detail on that. I also made note somewhere that, because this is constitutional law, state officials who refuse or neglect to follow the Constitution may be in a position where they could be held personally responsible for failing to apply the law if they don't disqualify people who are disqualified by 14A S3.
Edit: For the record, Rosenberg stated early in that podcast that he favored Ford pardoning Nixon. That pardon played a huge part in the situation we find ourselves in today. It set a precedent that presidents can commit crimes without consequences. We had an opportunity to set a fair and equal precedent, and we did not. Rosenberg being okay with kicking that can down the road doesn't give me a great deal of confidence in his opinions.
IANAL, but I'd say yes. Conviction should be required, if it weren't politicians could just accuse their opponents to disqualify them.
The only reason it isn't actionable is because the SCOTUS's current concept of standing leaves entire provisions of the Constitution unenforceable. If no one has standing to sue for an unconstitutional act or omission, then it renders the provision meaningless. Which is absolute and utter bullshit. Every single election official that lets Trump on the ballot should be sued in federal court seeking a writ of mandamus forcing them to follow the requirements set upon them under the Constitution.
You're absolutely right, but we live in a time where just recently poor people could have their lives DESTROYED over a joint, while on the other hand, a president can 100% knowingly tell an enormous crowd who he knows wants violence to "go to the capitol and fight fight fight" and that's somehow completely a grey area and our hands are just tied.
Somehow all the testimony that he was watching the coverage of it gleefully doesn't matter. The fact that even ignoring everything else it ought to be a crime that he didn't ask them to stop. Oh it's all just our opinion that he committed treason don't you see?
Want to prove that? Last I checked he's not been found guilty of any crime?
Would you support this if it was Biden or Hillary in the same legal situation? How about we respect the judicial proceeding and stop trying to jump the gun, before it's made into a political maneuver?
Trump was literally dancing during the insurrection and there is a video of it. Dude was gleefully happy about one of the darkest days in American history.
It's not jumping the gun, you just have your head in the sand.
It is. I'm sorry your opinion of this shit doesn't matter. Legally he's allowed to run for president, the minute he's not he should be stripped of it. It's not your decision it's the courts.
It’s not a court’s decision, it’s a matter for the official deciding who is eligible to be on the ballot, following the constitution. Of course it can be challenged in court, like just about everything else.
Just remember that when a Democrat gets removed because some official decided who was eligible...
You clearly don't see the red flag or the future problem, but I'll keep repeating it in the hope some piece of it will get through to one of you.
It's funny how you guys think we're as devoted to Democrat politicians as you are to your chunky messiah.
We're devoted to democracy, to the Constitution. Not to any individual politicians.
If you were devoted to democracy and the constitution, then you're remember that in this country there's a presumption of innocence, as well as right to a trial. But I mean you must know that since you're so devoted right?
And thinking I'm a Trump supporter because I simply want him to legally be found guilty before we bar him from public office... I guess if you aren't completely on your side, then you must be an enemy, kind of a shitty way to live your life, but you do you.
The amendment does not require formal conviction of a crime, and after the Civil War it was used extensively without formal convictions.
And obviously we’d support that if Hillary Clinton or Joe Biden tried to stage a coup. Would sort of insane bozo would still support a candidate after that?
The sort of insane bozo that is every member of the GOP. If the Dems ever try to regain power in my state, I am going to loudly demand ranked-choice voting and non-partisan redistricting as state constitutional amendments. I care more about the possibility of a representative government than I do about permanently cementing my party's dominance forever.
This is an easy one for anyone capable of critical thinking and knows "innocent until proven guilty".
He hasn't been convicted of anything, only accused.
14A S3 does not require a conviction.
Bullshit. Otherwise you could just accuse your political rivals of crimes to prevent them from running.
You need to go back to internet lawyer school.
Can you show me which part of the 14th amendment, section three, requires a conviction of any kind?
Disqualification from office is not a criminal punishment.
Edit: Protip: The full text of 14A S3 is posted at the very beginning of this thread.
Can you show me in any part of the constitution where it says any civil punishment or penalty requires a conviction? Can a right wing DA accuse Hillary of the same crimes and remove her eligibility to office?
Not without a conviction.
District attorneys are probably not the people at the state level who determine ballot eligibility. Secretary of State would be likely, there are other election officials who could enforce constitutional law in this context.
People who are under 35 years of age are also disqualified from holding the office of President of the United States. Nobody needs to be "convicted" of being under the age of 35. If someone under the age of 35 meets all other prerequisites to run for president, they should not be allowed on the ballot, because it says so in the Constitution. No court case is required, no conviction is required, no accusation of any crime is required.
The same applies to people "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."
Excellent work ignoring my question and retorting with a question that doesn't even make any sense. In case you happened to miss it:
Edit: Oh wait, I think I see what you're asking now. Are you asserting that disqualification is a civil penalty? It's not. It's not a penalty. There is no "right" to aspiring to or holding office.
Tha constitution is the basis of law, not law itself. Someone too young to run for president would obviously be unconstitutional, so there is no need to make a law specifically for that. But what you don't apparently understand is that Trump hasn't committed any of the things he has been accused of until he is convicted in a court. Regardless of the fevered dreams of the media and the far left, he is innocent of the charges so far. You could be on video robbing a bank, 20 eyewitness to the crime, cash in your possession when arrested, and you aren't guilty until 12 people on a jury say you are. He can't be disqualified yet.
There are some things which are "Constitutional law."
Having acted in a specifically defined way and being convicted of a crime are two different things.
This is the only true thing in your comment.
Yes he can, because it's not about being accused of a crime and being either convicted or acquitted. It's about having participated in a specifically defined behavior, and being disqualified from office because of it. As I have previously explained, people do not have a "right" to asipre to run for or hold office. Certain people are disqualified from holding the office of President by the Constitution, for reasons which are unrelated to criminality.
Trump may also be criminally convicted of actions related to "participating in isurrection or rebellion against the [United States], or giving aid or comfort to the enemies thereof," but that's a completely separate issue.
And since you mentioned "the fevered dreams of the media and the far left," I'll remind you that three of the four legal experts I cited above are super right wing.
I'll ask a third time:
Can you show me any enforcement mechanism in 14A Sec 3 of the constitution?
The Arizona Supreme Court disagrees with you (Though the Sec of State disagrees). https://thehill.com/homenews/state-watch/4179561-trump-cant-be-barred-from-arizonas-2024-ballot-says-democratic-secretary-of-state/
Other Blue leaning states may agree with your reasoning, but Trump wasn't going to win those anyway.
It is self-executing. It has the same enforcement mechanism as the part in Article II which states that only people who are over the age of 35 can hold the office of President.
And it's not "Blue state" reasoning. The reason this all came up was because of the paper The Sweep and Force of Section Three, written by two Federalist Society (way way way conservative) guys. It's long, but it's in relatively clear language.
Let's see how you decide to dodge ask number four:
That's a hilarious legal argument. This will likely end up in front of Scotus.
I think I'll go with what at least one state Supreme Court has decided over some rando on the internet.
I guess SCOTUS can actually read section 3 of the 14th amendment.
9-0.