[Ed] Is Trump disqualified from the ballot by the 14th Amendment?

[jt512]

The New York Times is reporting that "two prominent conservative law professors have concluded that Donald J. Trump is ineligible to be president under a provision of the Constitution that bars people who have engaged in an insurrection from holding government office." According to the professors, he can not even appear on ballots, and any state election official who allows him to can be sued.

The Washington Post has published two opinion pieces largely siding with this view, and one of the pieces states that it "now seems inevitable" that this challenge to Trump's eligibility will be tested by the Supreme Court.

Media all over the political spectrum are reporting on this, and none that I have seen are calling the idea wrong.

Sources:
https://www.nytimes.com/2023/08/10/us/trump-jan-6-insurrection-conservatives.html
https://www.washingtonpost.com/opin...e-14th-amendment-unconstitutional-presidency/
https://www.washingtonpost.com/opinions/2023/08/17/dangers-of-trump-disqualification/
https://www.newsweek.com/donald-trump-could-disqualified-running-2024-supreme-court-1819108

 

[The Great Zaganza]

Sure, local election committees could leave Trump off the ballot.

That would assure that Republicans would do the same for Biden where they can, triggering a wave of lawsuits.

I think election workers have enough to do already.

 

[Orphia Nay]

Sounds good, although I have a question.

Wouldn't he have to be convicted of insurrection before this applies?

He's only been charged so far.

 

[crescent]

Sounds good, although I have a question.

Wouldn't he have to be convicted of insurrection before this applies?

He's only been charged so far.

That's what I was thinking. That whole innocent until proven guilty thing.

 

[jt512]

Sounds good, although I have a question.

Wouldn't he have to be convicted of insurrection before this applies?

No. Not according to the law professors who wrote the article. Under the 14th Amendment, anyone is barred from holding office if they took an oath of office and subsequently engaged in an insurrection. There is nothing in the Amendment requiring a criminal conviction.

 

[jt512]

I think election workers have enough to do already.

So you think they're too busy to uphold the Constitution.

 

[The Great Zaganza]

So you think they're too busy to uphold the Constitution.

Some motivated right-wing law professors version of it?

Yes, absolutely

 

[jt512]

Some motivated right-wing law professors version of it?

Yes, absolutely

Amazingly blinded by ideology.

 

[The Great Zaganza]

Amazingly blinded by ideology.

Thinking that they know what the constitution would let them do is exactly what the election workers in Coffee county did and what they will probably serve prison time for

And everything a member of the Federalist Society does is politically motivated

 

[jt512]

Thinking that they know what the constitution would let them do is exactly what the election workers in Coffee county did and what they will probably serve prison time for

And everything a member of the Federalist Society does is politically motivated

I greatly admire the way you have engaged with the substance of the authors' arguments.

 

[Puppycow]

No. Not according to the law professors who wrote the article. Under the 14th Amendment, anyone is barred from holding office if they took an oath of office and subsequently engaged in an insurrection. There is nothing in the Amendment requiring a criminal conviction.

That is one of the dumbest things I've heard in a long time regarding the law.

So, OK. How do we determine whether a person engaged in an insurrection?

If I simply declare that So-and-So engaged in an insurrection, is that sufficient grounds to bar them from holding office? A conviction, you say, is not necessary. So what is necessary? For any random person to accuse someone of having engaged in an insurrection?

There has to be due process. That's just blindingly obvious.

 

[psionl0]

No. Not according to the law professors who wrote the article. Under the 14th Amendment, anyone is barred from holding office if they took an oath of office and subsequently engaged in an insurrection. There is nothing in the Amendment requiring a criminal conviction.

That sounds like a great idea. If you don't want somebody to run for POTUS then say that they "engaged in an insurrection" (conviction not necessary - just the accusation will do).

 

[Susheel]

That sounds like a great idea. If you don't want somebody to run for POTUS then say that they "engaged in an insurrection" (conviction not necessary - just the accusation will do).

On the other hand....perfectly fine to declare candidature just to escape criminal liability.

 

[Lurch]

On the other hand....perfectly fine to declare candidature just to escape criminal liability.

And crime to such an extent that the sheer number of charges and/or co-conspirators, and the mountain of evidence, require years to conduct a trial. Or trials. This could be something of a boon for Donnie Two Scoops. And I'm not convinced yet that the Orange Mange doesn't have a frightful chance at squatting in the WH again.

 

[Orphia Nay]

The 126-page paper is here:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751

I haven't read it all.

 

[Puppycow]

The 14th amendment also has a "Due Process Clause" which states that:

...nor shall any State deprive any person of life, liberty, or property, without due process of law.[

Similarly, the 5th Amendment states:

No person shall ... be deprived of life, liberty, or property, without due process of law.

There has to be a formal legal process to determine whether a person "engaged in an insurrection" under the due process clauses of the constitution.

If anyone wants to read the full 126-page argument, I found it:

https://shorturl.at/diAIZ

(Orphia Nay beat me to it)

 

[Armitage72]

Like everything else Trump did that was "against the Rules", the response would be, 'Yeah? What is someone going to do to stop me?"

Emoluments 14th Amendment? Who ever heard of that before?

 

[Puppycow]

The 126-page paper is here:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751

I haven't read it all.

It's very long, but here's the first paragraph of the 'Conclusion' on page 124:

Conclusion
Despite its long slumber, Section Three of the Fourteenth Amendment is alive and in force. It remains fully legally operative. It is constitutionally self-executing—that is, its command is automatically effective, directly enacted by the Constitution itself. And it is sweeping: It sweeps over earlier and inconsistent constitutional provisions. It sweeps in a broad range of conduct attacking the authority of the United States. And it sweeps in a broad category of former oath-swearing officeholders turned insurrectionists or aiders and comforters of insurrection or rebellion. It is enforceable by anybody whose duties provide occasion for judging legal eligibility for office. Indeed, each of these actors has a duty to faithfully apply Section Three. All possess legitimate constitutional interpretive authority to construe and apply this constitutional prohibition, many of them independently of other actors, including courts.

So he's saying that "anybody whose duties provide occasion for judging legal eligibility for office" has the "authority to construe and apply this constitutional prohibition" "independently ... of other actors, including courts."

Good luck with that.

 

[The Great Zaganza]

I greatly admire the way you have engaged with the substance of the authors' arguments.

Unlike some, I don't pretend to be an expert legal scholar

 

[The Great Zaganza]

It's very long, but here's the first paragraph of the 'Conclusion' on page 124:



So he's saying that "anybody whose duties provide occasion for judging legal eligibility for office" has the "authority to construe and apply this constitutional prohibition" "independently ... of other actors, including courts."

Good luck with that.

Sounds more like a prescription for Democrats to get disqualified because the local cops found a freshly busted taillight on their car m

 

[Puppycow]

Sounds more like a prescription for Democrats to get disqualified because the local cops found a freshly busted taillight on their car m

Or anyone of any party with an ax to grind.

 

[psionl0]

The 14th amendment also has a "Due Process Clause" which states that:


Similarly, the 5th Amendment states:

There has to be a formal legal process to determine whether a person "engaged in an insurrection" under the due process clauses of the constitution.

And that is why the police can stop your car, seize your property without any process and place the onus on you to prove that your property is innocent of a crime.

Oh, wait . . . . .

 

[The Great Zaganza]

And that is why the police can stop your car, seize your property without any process and place the onus on you to prove that your property is innocent of a crime.

Oh, wait . . . . .

Given that no one in the US even knows how many law enforcement agencies their are, trying to keep them corruption free is illusionary

 

[Segnosaur]

Sounds more like a prescription for Democrats to get disqualified because the local cops found a freshly busted taillight on their car m

Or anyone of any party with an ax to grind.

But here's the thing:

In the past few decades we have seen the republicans spearhead an impeachment against Bill Clinton over oral sex (ok, technically perjury but still, a far cry from the "whitewater" case they were investigating), threaten to "lock up" Hillary during elections, and talk about impeaching Joe Biden because, well, something about a laptop that might not have even belonged to his son?

On the other hand, Democrats impeached Trump for trying to blackmail a foreign country into interfering in the election and then trying to overthrow the government. (In other words, serious transgressions. And this doesn't count all the things Trump did wrong for which they DIDN'T push for impeachment or criminal charges... see for example the Mueller report.)

So if there is any sort of law or rule in place:

- The Democrats use it as intended, in situations that are warranted, and even even then perhaps not as frequently as they could/should

- The Republicans abuse the rule, use it in ways that are frivialous and/or for a political advantage, but when the rule is applied to them they squeal like stuck pigs

So in theory it could be used by someone of either side "with an axe to grind". In practice though, recent history suggests that the only side that will abuse the process is the republicans.

 

[Darat]

Did they cover the legal point of "you and whose army" of how this could be enforced even if the dog catcher in Ohio decides Trump did an insurrection?

 

[jt512]

That is one of the dumbest things I've heard in a long time regarding the law.

So, OK. How do we determine whether a person engaged in an insurrection?

The answer to your question is in the articles in they "dumb" NYT, WaPo, Time, and Newsweek that I linked to.

 

[jt512]

That sounds like a great idea. If you don't want somebody to run for POTUS then say that they "engaged in an insurrection" (conviction not necessary - just the accusation will do).

Because, obviously, it's either a criminal conviction or just an accusation. There couldn't be anything in between. If you want to know what that is, read the links in the OP.

 

[jt512]

The 14th amendment also has a "Due Process Clause" which states that:

.".nor shall any State deprive any person of life, liberty, or property, without due process of law."

Good thing that denying someone high public office is none of those things.

 

[theprestige]

It's the legal theory that each branch of the government is co-equal in its authority to interpret the constitution, absent any challenge from one of the other branches.

So, okay, how do you apply this theory?

Say you're an election official that absolutely hates Trump. The idea that he might win an election fills you with anxiety. You'll do anything that isn't illegal, unconstitutional, or unethical*, to prevent him from campaigning, and to prevent him from winning if he does campaign.

You read the opinion of these two legal scholars. What do you do next? Do you block Trump's candidacy in your jurisdiction? Why or why not?

What do you think happens if you do block his candidacy? Do you think everyone says, "yeah, that's cool", and carries on?

 

[theprestige]

Good thing that denying someone high public office is none of those things.

Denying someone the right to campaign for high public office is probably one of those things, though.

So is denying someone the right to assume the high public office to which they've been elected. Remember, this isn't just about the candidate's rights. It's also about the rights of every citizen, to have the candidate they elected represent them.

 

[Hercules56]

Trump has not been convicted of sedition, let alone charged with sedition. So no he is not ineligible to run for president.

 

[Thermal]

As I'm reading the logic here, the provision was to keep Confederates from taking office. The claim.of "participating in an insurrection" would have already been legally established at the time, as the succession was already legally declared an insurrection, yes? So it wouldn't apply to Trump here and now.

 

[Fidelio]

DT will not ever be convicted of anything. The moneybags and the "well regulated milita" will see to that.

 

[Thermal]

DT will not ever be convicted of anything. The moneybags and the "well regulated milita" will see to that.

Agreed, but the "militia" won't do **** but prance around impotently. The checkbook holders stand to lose money with any major civil unrest, so Trump doesn't get a cell. He walks with his pee pee firmly smacked and everyone bitches about it and goes on with their day.

 

[JayUtah]

No. Not according to the law professors who wrote the article. Under the 14th Amendment, anyone is barred from holding office if they took an oath of office and subsequently engaged in an insurrection. There is nothing in the Amendment requiring a criminal conviction.

But how do we decide whether someone actually "engaged in an insurrection?" Who makes that decision and enforces it, and by what authority? If one person's insurrection is another person's political protest, then the decision may not be straightforward. Per Marbury v. Madison, the Constitution is just a law like any other—albeit the highest one. The determination whether someone's actions violate a law is not just a matter of a law professor's dicta. Courts decide all the time whether someone's actions are described by passages in the Constitution or other laws. That's their job in those cases and would be also in this case. As many others have noticed, Due Process applies here just as it would anywhere else. Courts have consistently held that seeking public office is a right protected by the First and other amendments.

Now that doesn't mean that a specific criminal conviction is required. But you can guarantee that a prospective candidate barred from seeking office by some official with the authority to do that will seek redress in the judiciary, forcing that official to prove to some legally cognizable extent that the prospective candidate did indeed "engage in insurrection." A judicial finding of fact on that point is inevitable. And if a court finds as a matter of fact that a person engaged in an insurrection within the meaning of the 14th Amendment, it is entirely possible that the person is also guilty of insurrection under 18 U.S.C. § 2383, which is what gives statutory effect to the 14th Amendment as well as prescribing a criminal penalty irrespective of office-seeking.

 

[crescent]

If we did this without the need for a conviction or documentation of having served in something as obvious as the opposing army in a Civil War, then it would be used against Democrats with the only "evidence" being dumb conspiracy theories.

As far as these people are concerned, Obama is a terrorist, Killary is, well, Killary. Biden leads a crime family.

Conspiracy theories are the bread and butter of the activist wing of the Republican party and more than a few have been elected to office. I have no doubt at all that given a lower standard of evidence, at least a few GOP officials would use to it to keep a Democrat off the ballot.

 

[Segnosaur]

So, OK. How do we determine whether a person engaged in an insurrection?

The answer to your question is in the articles in they "dumb" NYT, WaPo, Time, and Newsweek that I linked to.

In my opinion, it is generally good practice to quote at least part of a referenced article here in the forum (subject to copyright restrictions on length, etc.)

Even if your source might contain the answers, people don't know just how long the referenced article is, whether it actually contains the information directly, etc. (This goes double for sources like the NYT. It is a reliable source of information, but it is behind a paywall.)

The 14th amendment also has a "Due Process Clause" which states that:

.".nor shall any State deprive any person of life, liberty, or property, without due process of law."

Good thing that denying someone high public office is none of those things.

I suspect that baring someone from running from office would be seen as a violation to "liberty" (a concept which is generally seen as broader than just "can I walk around unchallenged?")

 

[JayUtah]

So he's saying that "anybody whose duties provide occasion for judging legal eligibility for office" has the "authority to construe and apply this constitutional prohibition" "independently ... of other actors, including courts."

Good luck with that.

The criteria by which legal eligibility for office is judged, and by whom, are still a matter of statute and still historically subject to judicial findings of fact and due process. The Constitution in general infamously grants no office the power to enforce its provisions directly without specific language. Specifically, the executive may only enforce laws created by Congress. The Constitution was not created by Congress and is not therefore directly enforceable by anyone whose authority flows from Article II. This includes officers who administer elections. The judiciary may enforce provisions of the Constitution directly, but only as they apply to other laws.

This misfeature of the Constitution is why the 14th Amendment famously introduces the Enforcement Clause, and why we have 42 U.S.C. § 1983, by which a civil cause of action may arise in federal courts for infringement of a right granted by the Constitution or any other law. The 14th Amendment grants to Congress the power to remove the ineligibility that arises under it, and Congress seemed to feel themselves mandated and empowered by the Enforcement Clause to create a federal statute (supra) that creates appropriate criminal liability and thereby empowers the federal executive to enforce the provisions of the amendment under its Article II authority. The notion that this passage of the Constitution grants to an executive an unfettered authority to deny the right of candidacy is absurd. I'm interested to see how these professors reconcile such a claim with Moore v. Harper in which the Supreme Court is generally skeptical of claims to unreviewable actions on the part of any office or power created by a constitution.

That some eligibility criteria are straightforward (e.g., age) doesn't mean that others are not—residency, for example. These are certainly contestable, and many have been contested throughout history, giving us not only case law governing what may be considered a reasonable impediment to seeking office, but also the contours of the right to seek office and where it resides in the Constitution. Where one provision of the Constitution seems to burden another, that is the proper site of due process and judicial finding.

 

[JayUtah]

I suspect that baring someone from running from office would be seen as a violation to "liberty" (a concept which is generally seen as broader than just "can I walk around unchallenged?")

Specifically, some courts have found that seeking public office is a right protected under the First Amendment (speech and association), and may not be unreasonably burdened by such things as exorbitant application fees, loyalty tests, and so forth. Obviously this is not an absolute right; we still have the notion of reasonable criteria both in statute and in our various constitutions. But where one provision of the U.S. Constitution is interpreted to grant a right to seek office, and other provision is interpreted to make a certain person ineligible on the basis of alleged actions, that person would seem to be entitled to a due-process trial of the facts surrounding those allegations.

 

[bruto]

It certainly seems like an interesting issue, depending on what axe you want to grind. On the one hand, if one is reasonable, one would, I think, assume that a conviction would be required here. Then again it would also be reasonable to assume that a lying, raping insurrectionist who has openly vowed to destroy democratic rule, has acted accordingly and even told us how he plans to do it again, would not be a viable candidate for president. A reasonable person might consider that even though the amendment has some ambiguities and oddities of expression, owing to its provenance, it means what it ought to mean, but then again we have a Supreme Court that makes no such allowance, at least where its own agendas are concerned.

Campaigning is likely a free speech right, but holding office is not. Many disqualifications exist for various offices, which are not inherently punitive, and may not require the due process that is linked to punishment.

e.t.a. not having read the post right above, i would indeed assume that one has the right to contest allegations of ineligibility, but if the issue is not a criminal one, does the "innocent until proven guilty" principle still hold? Clearly if the allegations are not contested, no contest is required, even to the extent of saying it. If someone says you can't be president because you're 16 years old, a trial is not needed. One might, for example, recall that the Republican snotgobblers who alleged that Obama was not American born were perfectly happy to consider their allegation a final disqualification unless disproven, and even direct disproof was not enough to shut them up.

It's important to remember here that people like Jay Utah are not running the government. Ordinarily it would be crazy to think too far out of the box, but this box is on fire.