this post was submitted on 28 Aug 2023
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Is Trump disqualified for the N.H. primary? The secretary of state is seeking legal advice (www.bostonglobe.com)
submitted 1 year ago by MicroWave@lemmy.world to c/news@lemmy.world
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“I will be asking the attorney general’s office for their input,” Secretary of State David Scanlan told the Globe. “And ultimately whatever is decided is probably going to require some judicial input.”

A debate among constitutional scholars over former president Donald Trump’s eligibility for the 2024 presidential race has reverberated through the public consciousness in recent weeks and reached the ears of New Hampshire’s top election official.

Secretary of State David Scanlan, who will oversee the first-in-the-nation presidential primary in just five months, said he’s received several letters lately that urge him to take action based on a legal theory that claims the Constitution empowers him to block Trump from the ballot.

Scanlan, a Republican, said he’s listening and will seek legal advice to ensure that his team thoroughly understands the arguments at play.

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[–] Nougat@kbin.social 89 points 1 year ago (19 children)

14th Amendment to the US Constitution, Section 3:

Section 3 Disqualification from Holding Office

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.

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.

[–] iAmTheTot@kbin.social 13 points 1 year ago (3 children)

Not until proven guilty, legally speaking, surely?

[–] Nougat@kbin.social 32 points 1 year ago (2 children)

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.

[–] iAmTheTot@kbin.social 5 points 1 year ago (2 children)

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.

[–] Dkarma@lemmy.world 5 points 1 year ago

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.

[–] Nougat@kbin.social 5 points 1 year ago

If the amendment had required a conviction of some kind, that requirement would have been stated. It is not.

[–] afraid_of_zombies@lemmy.world 0 points 1 year ago (1 children)

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?

[–] Nougat@kbin.social 8 points 1 year ago

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.

[–] RoboRay@kbin.social 16 points 1 year ago

It doesn't say "convicted of...".

[–] Bipta@kbin.social 2 points 1 year ago

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.

[–] Blackmist@feddit.uk 12 points 1 year ago (1 children)

"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.

[–] vaultdweller013@sh.itjust.works 2 points 1 year ago

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.

[–] OldWoodFrame@lemm.ee 12 points 1 year ago (1 children)

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?

[–] Nougat@kbin.social 6 points 1 year ago (1 children)

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.

[–] Eufalconimorph@discuss.tchncs.de 2 points 1 year ago (1 children)

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.

[–] Nougat@kbin.social 2 points 1 year ago* (last edited 1 year ago)

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.

[–] flipht@kbin.social 11 points 1 year ago

And his remedy is a two thirds vote qualifying him.

[–] SnowdenHeroOfOurTime@unilem.org 6 points 1 year ago

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?

[–] gbuttersnaps@programming.dev 6 points 1 year ago (2 children)

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.

[–] Nougat@kbin.social 5 points 1 year ago (1 children)

Here's the tiny mention in there:

Chuck Rosenberg:

No, you’re referring to Section 3 of the 14th Amendment. It’s not self-executing. I’m not sure what the triggering mechanism would be, and I agree with you. It ain’t going to happen. Interesting intellectual exercise. It sounds a lot like my three years in law school. If you look at my transcript, you would see it didn’t go that well.

Except that it very clearly is self-executing. I'll paste it in here again for easy reference:

Section 3 Disqualification from Holding Office

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.

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:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

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.

[–] gbuttersnaps@programming.dev 2 points 1 year ago* (last edited 1 year ago) (3 children)

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.

[–] WldFyre@lemmy.world 2 points 1 year ago (1 children)

Unrelated, but is your name a psych reference??

[–] gbuttersnaps@programming.dev 1 points 1 year ago

You know that's right

[–] Nougat@kbin.social 2 points 1 year ago* (last edited 1 year ago)

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.

[–] Eufalconimorph@discuss.tchncs.de 0 points 1 year ago

IANAL, but I'd say yes. Conviction should be required, if it weren't politicians could just accuse their opponents to disqualify them.

[–] DarthBueller@lemmy.world 4 points 1 year ago

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.

[–] Kinglink@lemmy.world -1 points 1 year ago (3 children)

Trump is, along with many co-defendants, disqualified from holding any civil or military office.

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?

[–] Moobythegoldensock@lemm.ee 0 points 1 year ago (1 children)

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?

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[–] Cryophilia@lemmy.world 0 points 1 year ago (1 children)

Would you support this if it was Biden or Hillary in the same legal situation?

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.

[–] Kinglink@lemmy.world -1 points 1 year ago

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.

[–] mustardman@discuss.tchncs.de 0 points 1 year ago (1 children)

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.

[–] Kinglink@lemmy.world -1 points 1 year ago (1 children)

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.

[–] DarkDarkHouse@lemmy.sdf.org 0 points 1 year ago* (last edited 1 year ago) (1 children)

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.

[–] Kinglink@lemmy.world -1 points 1 year ago

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.

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[–] iHUNTcriminals@lemm.ee 34 points 1 year ago (1 children)

I'm in NH. We still have people out on the corner with Trump flags.

NH is the Florida of the north.

[–] googlrr@lemmy.world 3 points 1 year ago

I see them in Merrimack. So cringe. How are these full grown adults out here slinging trump flags still

[–] flossdaily@lemmy.world 22 points 1 year ago (1 children)

I'm glad this is getting the attention it deserves right now, but this issue should have been front page news THE DAY Trump announced he was running.

"Donald Trump announces new big fur presidency, but may not qualify"

[–] DarkDarkHouse@lemmy.sdf.org 4 points 1 year ago

The sheer number of charges against Trump now gives conservative jurists cover to make these statements. Democrats are probably happy to let the debate over qualification drag out as it hangs a cloud over the whole Republican primary process.

[–] randon31415@lemmy.world 6 points 1 year ago

Parties are parties. The republican party could have a squid reach for ballons with candidates names on them to choose their nominee. The only thing that the consitution disqualifies him is running in the general.

Of course, if the Republicans had a rule saying only valid candidates for general can run in the primary, then there is trouble, as he won't get disqualified until after the trial, which is after the primary.

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