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

 

[SaintForLife]

Oh how cute. Look at you acting like you support states rights to try to excuse this authoritarianism.

 

[SaintForLife]

This idea that I’m seeing everywhere from MAGAs that this is a Democratic scheme to keep Trump off the ballot is just stupid. The plaintiffs were mostly registered Republicans and an Independent or 2, IIRC. No Democrats would be able to file this, as I understand it, since it was concerning the primary.

It was a Democrat scheme. It was CREW who filed the lawsuit which is a left wing organization. Did they think recruiting some Colorado Republicans would make people think it wasn't Democrat scheme?

Some background: On July 18, 2023, CREW published a report titled, “The case for Donald Trump’s disqualification under the 14th Amendment.”

The 90-page report breathlessly claimed that “on January 6, 2021, President Trump caused a violent insurrection that nearly overthrew an election and shattered our democracy.”

To prove their entire case, CREW relied on a 2016 paper from Bookbinder's Brookings collaborator & CREW co-founder Norman Eisen.

The paper by Eisen targeted Trump on the emoluments clause which targets corruption - particularly when linked to a foreign State.

But of course, there was a big problem with this line of attack - because the emoluments clause fit the crimes committed by Joe Biden in Ukraine, China and Romania - not anything Trump did.

So they quickly ditched that argument and simply began claiming that "legal scholars agree" the 14th Amendment applies to Trump. They are now pushing those arguments at the State Court level.

Bookbinder & Eisen previously collaborated on two Brookings reports (Vol I & II) titled “Presidential Obstruction of Justice: The Case of Donald J. Trump,” which outlined, among other things, a scenario wherein Mueller would refer his obstruction findings to Congress, which would then take up the matter and continue investigating.

The reports also discussed ways in which Congress could impeach the president, mentioning the word “impeachment” a total of 90 times.

The first Brookings report, published on October 10, 2017, looked at all the statutes that applied to obstruction, but their second, more lengthy report on August 22, 2018, focused more tightly on Section 1512.

The use of obscure and overly broad Section 1512 was first touted in an article by Ben Wittes (also a Brookings Fellow) in a June 2017 article titled, “Does an FBI Investigation Qualify Under the Obstruction of Justice Statutes? A Closer Look.”

It's therefore no surprise that Mueller's March 2019 Report focused in on Section 1512 and dedicated more than 20 pages to defending the use of Section 1512 and adopting the broadest interpretation possible.

In many respects, the Brookings second edition provided direct parallels to the Mueller report, with its lengthy section on “What are the relevant facts?” and a very detailed timeline contained in a 204-page appendix.

Eisen was later retained by House Judiciary Committee Chairman Jerry Nadler on a consulting basis as special oversight counsel to the Democrat majority staff during Trump's first impeachment.

Bookbinder remained at CREW.

 

[SaintForLife]

It may not hold up. But if it is overturned, then we will know that the originalists on the Supreme Court are simply political lackeys. This does meet the criteria to be disqualified from holding office, and there definitely are qualifications to hold office. It will be fascinating to see what the proud Federalists do with this, how they can overturn it without abandoning their principles.

Seriously? You think their overreaching opinion is somehow orginalist?

 

[SaintForLife]

I can't wait to hear the excuses about why Jack Smith didn't charge Trump with inciting an insurrection.

 

[SaintForLife]

Here is Judge Wallace's ruling -- the one overturned by the CO Supreme Court.

https://t.co/RbCRONyiQa

 

[Optimus Prime]

 

[coldseat]

Good ruling by the Colorado SC. Would love for more states to follow and the SC to uphold the ruling, but I have no expectation that will happen.

Let none of us forget that this mess and Trump’s continued threat to democracy are all the fault of Senate Republicans. If they could have once, when it was most important, summoned the spine and the fortitude to uphold their responsibility to the country and oaths to the constitution by convicting Trump of the charges he was impeached for and then barred him for running again, we wouldn't have all this turmoil and testing of constitutional boundaries. Not to mention the dangers these MAGA's expose us all too.

At this point, anything that stops Trump I'm good with.

 

[Optimus Prime]

the narrative is going to be "Dems know they can't beat Trump if he's on the ballot, so they'll just remove him from the ballot. They already stole one election, what's one more?"

If SCOTUS upholds this and other states follow suit the rhetoric will be scary

And the GOP won't be able to corral that anger into voting for Nikki Haley or DeSantis

 

[Bigdaddysaints]

if it upholds, and multiple states take him off the ballot, it'll be epic cry fest, but by the 2028 election no one will care.
it'll actually be the most positive thing that can happen to the Republican party..

 

[superchuck500]

You are the legal expert around here, but how can a lawsuit against Trump be considered due process?

Jack Smith threw every charge he could at Trump, but he didn't even charge Trump with inciting an insurrection. Why would these Colorado judges think they should be the ones determining that?

Don't you think it's a bit of a stretch to try to apply section 3 of the 14th ammendment to Trump considering it was written after the Civil War to prevent former Confederate members from being members of Congress?

It's definitely election interference and it was a horrible decision to do that at all much less in a state that Trump wasn't going to win.

Don't be surprised when Trump gains even more support and gets another bounce in the polls.

Anyone who supports this decision should never be able to claim they are trying to protect democracy.

Because ballots are managed at the state level - per the Constitution, in the Elections Clause ("the manner in which" elections are held is for the states). That manner in which they are held is, therefore, a state issue, subject to the prescriptions in the Constitution. There are four eligibility criteria in the Constitution for president: (1) must be 35, (2) must be natural born, (3) must have lived for at least 14 years, which are from Article II, and (4) must not have engaged in insurrection or rebellion, or given aid or comfort to America's enemies, from the Section 3 of 14th Amendment (presuming that the president is an officer for this purpose, which I admit is also a legal question).

Whether someone is 35, natural born, have lived in the US for at least 14 years, or have engaged in insurrection or rebellion may be a subject of debate and when it is, the vehicle to challenge a person being on the ballot of lack of eligibility is a state court action on those grounds. Ultimately, because the language in question is in the federal Constitution, the SCOTUS will have final jurisdiction should the parties take it that far . . . but to answer your question about why the Colorado court "thinks they should be the ones determining that" is because that's precisely the process. Justice Gorsuch, while on the 10th Circuit, expressly stated that it is within the state's election holding prerogative to exclude candidates who do not meet the constitutional criteria. (Hassan, 495 F. App'x. 947).

There are no limitations on Section 3 to post-Civil War candidates. The purpose is clearly to keep people who have demonstrated their proclivity to participate in insurrection or rebellion from holding office again. Similarly, there is no requirement that Section 3 be based on a criminal conviction on an insurrection charge - and Jack Smith has nothing to do with Trump's ballot eligibility. Prosecutors make charging decisions based on their own case management and expectations, we don't know exactly what charges Smith considered or why he may have declined some but not others . . . but it's irrelevant.

Section 3 says what it says - just like the other criteria in Article II say what they say. If it were determined that Barack Obama wasn't actually a natural born citizen, he would have been excluded from the ballot, regardless of how much support he had at the time. It wouldn't have been election interference to say he's ineligible . . . you're either eligible or you're not. The most appealing person in the world could never be president if they aren't eligible - it isn't election interference, and the Constitution provides the framework for our democracy, we don't just ignore it based on someone having popular support.

The only fair argument here is that Trump didn't participate in insurrection. But any reasonable person would have to agree that we have never seen any presidential candidate do what Trump did with the very clear purpose of derailing the election certification process called for by the Constitution and federal law for the conduct of American presidential elections and the peaceful transfer of power. Does that conduct qualify as insurrection? The Colorado Supreme Court has ruled that it does. It is now before the SCOTUS (presuming Trump takes a writ) but it's all proper as a matter of procedure and it's a genuine question of interpreting clear constitutional language.

You know how Trump could have avoided this? By not trying to go outside of the law to detail the election process. He's the only one to have ever done that. Why are you so willing to let that slide? If it doesn't meet the definition of insurrection, good - providing a peaceful and systematic process to define these premises and their impact is what our system is designed to do.

 

[MT15]

Here is what MAGA is arguing.

 

[MT15]

MAGA world is really scrambling here. They are panicking.

SFL: what do you think the tweet by Ryan Grim that you posted means? Why did you include it?

 

[MT15]

Michael Tracey seems to think it’s a great argument that Trump didn’t commit insurrection because he has not yet been charged with it. So does that mean I can rob a bank, yet if I don’t get charged with robbing the bank it didn’t really happen?

It‘s a nonsensical argument. We all saw what happened and we are finding out what Trump and his fellow criminals did or did not do. Nobody should ever listen to Michael Tracey.

 

[SaintForLife]

Because ballots are managed at the state level - per the Constitution, in the Elections Clause ("the manner in which" elections are held is for the states). That manner in which they are held is, therefore, a state issue, subject to the prescriptions in the Constitution. There are four eligibility criteria in the Constitution for president: (1) must be 35, (2) must be natural born, (3) must have lived for at least 14 years, which are from Article II, and (4) must not have engaged in insurrection or rebellion, or given aid or comfort to America's enemies, from the Section 3 of 14th Amendment (presuming that the president is an officer for this purpose, which I admit is also a legal question).

Whether someone is 35, natural born, have lived in the US for at least 14 years, or have engaged in insurrection or rebellion may be a subject of debate and when it is, the vehicle to challenge a person being on the ballot of lack of eligibility is a state court action on those grounds. Ultimately, because the language in question is in the federal Constitution, the SCOTUS will have final jurisdiction should the parties take it that far . . . but to answer your question about why the Colorado court "thinks they should be the ones determining that" is because that's precisely the process. Justice Gorsuch, while on the 10th Circuit, expressly stated that it is within the state's election holding prerogative to exclude candidates who do not meet the constitutional criteria. (Hassan, 495 F. App'x. 947).

There are no limitations on Section 3 to post-Civil War candidates. The purpose is clearly to keep people who have demonstrated their proclivity to participate in insurrection or rebellion from holding office again. Similarly, there is no requirement that Section 3 be based on a criminal conviction on an insurrection charge - and Jack Smith has nothing to do with Trump's ballot eligibility. Prosecutors make charging decisions based on their own case management and expectations, we don't know exactly what charges Smith considered or why he may have declined some but not others . . . but it's irrelevant.

Section 3 says what it says - just like the other criteria in Article II say what they say. If it were determined that Barack Obama wasn't actually a natural born citizen, he would have been excluded from the ballot, regardless of how much support he had at the time. It wouldn't have been election interference to say he's ineligible . . . you're either eligible or you're not. The most appealing person in the world could never be president if they aren't eligible - it isn't election interference, and the Constitution provides the framework for our democracy, we don't just ignore it based on someone having popular support.

The only fair argument here is that Trump didn't participate in insurrection. But any reasonable person would have to agree that we have never seen any presidential candidate do what Trump did with the very clear purpose of derailing the election certification process called for by the Constitution and federal law for the conduct of American presidential elections and the peaceful transfer of power. Does that conduct qualify as insurrection? The Colorado Supreme Court has ruled that it does. It is now before the SCOTUS (presuming Trump takes a writ) but it's all proper as a matter of procedure and it's a genuine question of interpreting clear constitutional language.

You know how Trump could have avoided this? By not trying to go outside of the law to detail the election process. He's the only one to have ever done that. Why are you so willing to let that slide? If it doesn't meet the definition of insurrection, good - providing a peaceful and systematic process to define these premises and their impact is what our system is designed to do.

I'm aware that Jack Smith doesn't have anything to do with Trump's ballot eligibility. My question to you is if he clearly incited or participated in an insurrection as the left claims, why wouldnt Jack Smith charge him with that. I'm guessing he wouldn't be able to prove it.

Another fair argument is that it was a riot and not an insurrection.

What do you think about the judges opinion that the Colorado Supreme Court overturned?

 

[MT15]

Seriously? You think their overreaching opinion is somehow orginalist?

Once again you are twisting words. I said the originalists on the Supreme Court will have a hard time with this case. That’s because it is applying an Amendment as it was meant to be applied. Plus it checks the states’ rights box that they love so much.

They may well overturn this decision, but doing so has the risk that it will expose them for not actually believing in their own ideology and just being totally political actors.

This case will be a challenge for them.

 

[efil4]

I'm aware that Jack Smith doesn't have anything to do with Trump's ballot eligibility. My question to you is if he clearly incited or participated in an insurrection as the left claims, why wouldnt Jack Smith charge him with that. I'm guessing he wouldn't be able to prove it.

Another fair argument is that it was a riot and not an insurrection.

What do you think about the judges opinion that the Colorado Supreme Court overturned?

you can incite a riot.

The riot then becomes an insurrection when it is targeting authority/government.

In this case, the validation of electors in Congress.

its really simple stuff here.

 

[SaintForLife]

MAGA world is really scrambling here. They are panicking.

SFL: what do you think the tweet by Ryan Grim that you posted means? Why did you include it?

I'm not scrambling, but I can tell you are excited.

Grim was being sarcastic by mocking people who support this move while also saying it's to protect democracy.

 

[fooferdoggie]

It's definitely election interference and it was a horrible decision to do that at all much less in a state that Trump wasn't going to win.

Don't be surprised when Trump gains even more support and gets another bounce in the polls.

Anyone who supports this decision should never be able to claim they are trying to protect democracy.

anything bad said about trump is election interference. Funny the man that tried to over throw the election is so mad if he this others is doing what he actually did.