States may move to keep Trump off the ballot based on 14th Amendment disqualification (1 Viewer)

[superchuck500]

Section 3 of the 14th Amendment:

There is a growing movement in some states to conclude that Trump is already disqualified under the 14th Amendment and they may remove him from the ballot. This would set-up legal challenges from Trump that could end up at the SCOTUS.

The 14A disqualification doesn’t have any procedural requirements, it simply says that a person that does those things can’t serve in those offices. It a state says it applies to Trump, it would then be on Trump to show that it didn’t (either because what he didn’t doesn’t amount to the prohibited conduct, or that president isn’t an “officer” as intended by the amendment).

States are in charge of the ballots and can make eligibility determinations that are subject to appeal - there is actually a fairly interesting body of cases over the years with ballot challenges in federal court.


More on the legal argument in favor of this:

The Sweep and Force of Section Three

Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range

papers.ssrn.com

The Constitution Prohibits Trump From Ever Being President Again

The only question is whether American citizens today can uphold that commitment.

www.theatlantic.com

 

[MT15]

Colorado SOS threatened also.

Colorado Secretary Of State ‘Extremely Concerned’ About Pro-Trump Violence

Jena Griswold received 64 death threats and more than 900 threats of abuse within three weeks of the case being filed to keep Trump off the state ballot.

www.huffpost.com

 

[SaintForLife]

Dude....

There were guns. That was one of the MAJOR points that separated the Oathkeeper lot from the rest of the rioters. You made 9 billion post on this topic, yet don't know basic facts about Jan 6th? That entire twitter thread is either wrong, or a fantasy.

Oath Keepers jury hears about massive weapon cache on Jan. 6

A member of the Oath Keepers who traveled to Washington before the Jan. 6 attack on the U.S. Capitol testified Wednesday about a massive cache of weapons the far-right extremist group stashed in a Virginia hotel room.

apnews.com

The weapons were in the hotel room and they didn't bring them to the Capitol right?

 

[Bigdaddysaints]

SFL, do you think if they got a hold of Pelosi or Pence a number of others who were gonna certify the election, do you think they would have harmed them? or you think they would have just had a meaningful discussion?
and yes or no: does an insurrecion have to have guns in hand to be considered an insurrection?

 

[SaintForLife]

It was an auto-coup attempt. If Pence had played along, which Trump was counting on, the election would’ve either been reversed by him throwing out the valid electors and accepting the fake ones, or thrown to the House by Pence simply throwing out the states with two sets of electors. Which would have elected Trump.

His back up plan was on Ted Cruz - who eagerly played along and argued for a 10-day “pause” before counting the electoral college votes, to give them time to get state legislatures to “rescind” their true electors (which really isn’t a thing). The mob was another delay tactic - stop the count, while Trump and his sycophants worked the phones to get what they wanted.

So all this talk that an insurrection has to involve the military is just nonsense. Trump wanted to be able to count on the military, but he had been shut down by Milley on that front, so he knew he couldn’t count on them. Powell and Flynn wanted him to invoke the Insurrection Act, seize the voting machines and re-run the election under military control, and he would have done it in a minute if he thought he would get away with it.

You keep clinging to that. It’s not a bad idea to prepare yourself though. Most legal scholars don’t think that’s a strong point. It’s pretty weak, actually.

Auto-coup is also called an autogolpe. There wasn't any military threat so it wasn't an autogolpe. It was a riot.

Foreign Policy’s editor-at-large Jonathan Tepperman spoke to Naunihal Singh, a professor at the Naval War College and the author of Seizing Power: The Strategic Logic of Military Coups.

Jonathan Tepperman: What’s the right term for what’s happening in Washington right now? Given President Donald Trump’s clear but indirect incitement, does it qualify as a coup or an autogolpe, or is it sedition? And why does it matter what we call it?

Naunihal Singh: This is not a military coup because that would involve the president using the military or the Secret Service or some armed branch of the government to get his way. Nor would I argue that it is what some people have called a civilian coup or an executive coup. Even autogolpes involve the threat of military force.

Why This Wasn’t a Coup

Here’s the right language for what’s happening in Washington—and why the terminology matters.

foreignpolicy.com

 

[SaintForLife]

So unless someone is charged with a specific crime, they didn’t commit that crime? That is a supremely immoral take. If you kill someone, it doesn’t count unless you are charged with murder? That is simply depraved. Completely without morals.

What in the world does that mean? If someone commits a crime then they get charged with that crime right? Do you think you can determine someone is guilty of a crime without due process?

 

[SaintForLife]

It's cute how Democrats are suddenly supporters of originalism because they think somehow that it's an argument to use the 14th ammendment against Trump.

 

[MT15]

What in the world does that mean? If someone commits a crime then they get charged with that crime right? Do you think you can determine someone is guilty of a crime without due process?

You are the one trying to use that ridiculous premise. That because Smith didn’t charge Trump with sedition or insurrection, it means he didn’t commit that crime.

It’s entirely possible to commit a crime and not get charged for that crime. Happens all the time.

It’s nonsense to say that.

 

[MT15]

Auto-coup is also called an autogolpe. There wasn't any military threat so it wasn't an autogolpe. It was a riot.

Foreign Policy’s editor-at-large Jonathan Tepperman spoke to Naunihal Singh, a professor at the Naval War College and the author of Seizing Power: The Strategic Logic of Military Coups.

Jonathan Tepperman: What’s the right term for what’s happening in Washington right now? Given President Donald Trump’s clear but indirect incitement, does it qualify as a coup or an autogolpe, or is it sedition? And why does it matter what we call it?

Naunihal Singh: This is not a military coup because that would involve the president using the military or the Secret Service or some armed branch of the government to get his way. Nor would I argue that it is what some people have called a civilian coup or an executive coup. Even autogolpes involve the threat of military force.

Why This Wasn’t a Coup

Here’s the right language for what’s happening in Washington—and why the terminology matters.

foreignpolicy.com

I can’t read the article because it’s paywalled. But I notice it was written on Jan 6, 2021. I kid you not.

At that point in time this guy didn’t know what he and we all know now had happened and what had gone on before. So, yeah, it’s his opinion in that snapshot of time.

What does he think now?

I gave you the definition of an auto-coup. It does not need military involvement.

 

[SaintForLife]

I'm not saying you came up with it out of thin air.

I'm asking if that is your belief. Like you think that it makes any sort of logical sense that people would create an Amendment clause that specifically deals with making people who have engaged in insurrection or rebellion against the Constitution (or given aid to enemies of the US basically) ineligible for any federal or state office, but they would specifically NOT want that to apply to only one office, meaning the office of the President, being the highest office in the whole country.

For one it wasn't an insurrection. It was a riot.

Also, how do you determine someone committed a crime without due process?

Like YOU, SFL, personally think that and that it makes rational sense.

Because it absolutely does not.

Yes, it was an insurrection. It was a violent rebellion against a government, specifically against the peaceful transfer of power and an attempt to prevent the certification of election results and replace electors with frauds in order to keep Trump in power. That was the whole point of the riot. People involved and convicted have ADMITTED to seditious conspiracy -- that is what an insurrection IS.

I disagree. It was a riot. If it was an insurrection, why didn't Jack Smith charge Trump with inciting or participating in an insurrection?

And that SC case you keep posting ad nauseum -- you do know that says "officer" and not "office" correct? There's an extra letter there that you seem to be missing.

And that the SC case has ABSOLUTELY nothing to do with the 14th Amendment right?

I know it says officer and that's what I've posted multiple times. Where did I say it said office?

The 14th ammendment says officer and not office. I'm unclear about what your point is.

Yes I'm aware what that case is about, but it talks about what officer means in the Constitution.

In Free Enter. Fund v. Pub. Co. Accounting Oversight Bd. (2010), Chief Justice Roberts observed that "[t]he people do not vote for the 'Officers of the United States.'" Rather, "officers of the United States" are appointed exclusively pursuant to Article II, Section 2 procedures. It follows that the President, who is an elected official, is not an "officer of the United States."

...Moreover, there is some good authority to reject the position that Section 3's "officer of the United States"-language extends to the presidency. In United States v. Mouat (1888), Justice Samuel Miller interpreted a statute that used the phrase "officers of the United States." He wrote, "unless a person in the service of the government, therefore, holds his place by virtue of an appointment by the president, or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not strictly speaking, an officer of the United States." Justice Miller's opinion, drafted two decades after the Fourteenth Amendment's ratification, is some probative evidence of the original public meaning of Section 3's "officer of the United States"-language. Miller's opinion is some evidence rebutting any presumption of post-1788 linguistic drift with respect to the phrase "officer of the United States." Likewise Mouat rebuts the position that, circa 1868, the obvious, plain, or clear meaning of the phrase "officer of the United States" extended to the presidency.

The Executive Branch has long relied on Justice Miller's discussion of "officers of the United States" in Mouat. In 1943, Attorney General Francis Biddle cited Miller's opinion, and explained that "under the Constitution of the United States, all its officers were appointed by the President . . . or heads of departments or the courts of law." (emphases added). Biddle's reading of Mouat did not distinguish "officers of the United States" as used in a statute from "officers of the United States" as used in the Constitution. In 2007, the Office of Legal Counsel reaffirmed this position. The Executive Branch has long taken the position that the phrase "officers of the United States" does not extend beyond persons appointed pursuant to Article II, Section 2 procedures. A memorandum by the Biden Administration's OLC or an argument by House managers that the President is an "officer of the United States" would be in tension with prior DOJ memoranda.

Justice Miller and the Department of Justice are not alone. There is additional evidence that is roughly contemporaneous with the ratification of the Fourteenth Amendment. During the 1876 impeachment trial of William Belknap, Senator Newton Booth from California observed, "the President is not an officer of the United States." Instead, Booth argued, the President is "part of the Government." And David McKnight's 1878 treatise on the American electoral system reached a similar conclusion. McKnight wrote that "t is obvious that . . . the President is not regarded as 'an officer of, or under, the United States,' but as one branch of 'the Government.'" These sources tend to rebut any argument in favor of post-1788 linguistic drift with respect to the phrase "officer of the United States." Likewise, these sources provide some evidence that in the period following the Civil War the phrase "officer of the United States" did not extend to elected positions, including the presidency.

So far, advocates for Section 3 disqualification of President Trump have not advanced comprehensive or systematic evidence that the President is an "officer of the United States." They have the burden to establish that the "officer of the United States"-language of Section 3's jurisdictional element extends to the presidency. They should also rebut the evidence we have put forward in this post (and elsewhere, on many prior occasions).

Is the President an “officer of the United States” for purposes of Section 3 of the Fourteenth Amendment?

Update: In December 2021, Seth and I published an article in the NYU Journal of Law & Liberty, based on this blog post. You can download our article

reason.com

 

[MT15]

Being afraid to enforce the Constitution because a decent portion of MAGA are violent is just not acceptable. I say enforce it, if the SCOTUS thinks it is correct, and let them stew. If we cannot enforce our constitution we have lost our country anyway.

 

[MT15]

Oh and her point is correct. It’s nowhere near 50%. Closer to 20% if I had to guess.

 

[Bigdaddysaints]

SFL, if Antifa stormed the White House in 2017 after Trump took office, would you have called it a riot?

 

[SaintForLife]

SFL, if Antifa stormed the White House in 2017 after Trump took office, would you have called it a riot?

They came close to that, but it still would have been a riot.

Government drops charges against all inauguration protesters

"The solidarity we showed as defendants won out," said one activist whose charges were previously dropped.

www-nbcnews-com.cdn.ampproject.org

Was Antifa attacking the federal courthouse an insurrection or a riot?

 

[MT15]

It's cute how Democrats are suddenly supporters of originalism because they think somehow that it's an argument to use the 14th ammendment against Trump.

He didn’t say he supported originalism, he is merely pointing out that the argument for disqualifying Trump from running for President is an originalist argument.

 

[MT15]

Was Antifa attacking the federal courthouse an insurrection or a riot?

That has already been discussed in this thread. It was a riot. Not even close.

Oh, and the violence that sprang out of protests after Trump’s inauguration were riots as well.

As said, already, it has to do with intent. Nobody was trying to prevent Trump from being inaugurated. Nobody was trying to take over the courthouse, in fact it was after hours. It has to do with intent.

 

[MT15]

Let’s turn this the other way:

 

[MT15]

 

[MT15]

This is just unacceptable. MAGA thugs.