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

 

[Optimus Prime]

from george Conway
================

When I review divided appellate-court decisions, I almost always read the dissenting opinions first. The habit formed back when I was a young law student and lawyer—and Federalist Society member—in the late 1980s, when I would pore (and, I confess, usually coo) over Justice Antonin Scalia’s latest dissents.

I came to adopt the practice not just for newsworthy rulings that I disagreed with, but for decisions I agreed with, including even obscure cases in the areas of business law I practiced. Dissents are generally shorter, and almost always more fun to read, than majority opinions; judges usually feel freer to express themselves when writing separately.

But dissents are also intellectually useful: If there’s a weakness in the majority’s argument, an able judge will expose it, sometimes brutally, and she may make you change your mind, or at least be less dismissive of her position, even when you disagree. Give me a pile of Justice Elena Kagan’s dissents to read anytime—I love them even when she’s wrong, as I think she often is. You can learn a lot from dissents.

Last night, I reviewed the three separate dissents in Anderson v. Griswold, the landmark 4–3 Colorado Supreme Court case holding that Section 3 of the Fourteenth Amendment prohibits Donald Trump from ever serving again as president of the United States. I had been skeptical of the argument, but not for any concrete legal reason. To the contrary, I believed the masterful article written by the law professors (and Federalist Society members) William Baude and Michael Stokes Paulsen had put the argument into play.

And I had read (not to mention heard, at length, on the phone) and took quite seriously what my friends Judge J. Michael Luttig and Professor Laurence H. Tribe had to say about it here in The Atlantic—that the Fourteenth Amendment clearly commands, in plain language, that Trump never hold federal office again.

Their points were strong. But much as I never want to see Trump near the White House again, I wasn’t quite buying them. The argument seemed somehow too good to be true. And frankly, from a political standpoint, it would be better for the country if Trump were thrashed at the polls, as I think he ultimately would be. There had to be a wrinkle. I just knew it.

But last night changed my mind. Not because of anything the Colorado Supreme Court majority said. The three dissents were what convinced me the majority was right.

The dissents were gobsmacking—for their weakness. They did not want for legal craftsmanship, but they did lack any semblance of a convincing argument.

For starters, none of the dissents challenged the district court’s factual finding that Trump had engaged in an insurrection. None of the dissents seriously questioned that, under Section 3 of the Fourteenth Amendment, Trump is barred from office if he did so. Nor could they.

The constitutional language is plain. You can’t be president if you previously took an oath “as an officer of the United States … to support the Constitution of the United States” but “engaged in insurrection or rebellion” against, or have “given aid or comfort to the enemies of,” that Constitution or the nation it charters.

Nor did the dissents challenge the evidence—adduced during a five-day bench trial, and which, three years ago, we saw for ourselves in real time—that Trump had engaged in an insurrection by any reasonable understanding of the term.

And the dissenters didn’t even bother with the district court’s bizarre position that even though Trump is an insurrectionist, Section 3 doesn’t apply to him because the person holding what the Constitution itself calls the “Office of the President” is, somehow, not an “officer of the United States.”

MSN

The Colorado Ruling Changed My Mind

The strongest argument for throwing Trump off the ballot is the weakness of the counterarguments.

www.theatlantic.com

 

[SystemShock]

I don't think yall are familiar enough with the right wing rhetoric. I have family that dwells in that ecosystem, (redstate.com, drudge, comes to mind) and they regularly throw this out. That BLM courthouse incident has been used to demonstrate 1. BLM and left wingers' violent tendencies and lawlessness and 2. as a whataboutism to Jan 6.

And some of you are forgetting the context of that incident. I'm not saying that assaulting the courthouse is justified, but there was context. We have a user here that reported the peaceful nature of those BLM protests until Trump enflamed it by sending in DHS agents (Immigration agents). There were reports from those arrested that some agents were unidentified and masked while using unmarked vehicles. At times they would snatch protesters leaving the protest that was otherwise peaceful.

That incident and what he did in DC, particularly the fake church photo opportunity that angered Milley, showed Trump's autocracy. That is what's at risk here.

DHS sent more than 750 federal officers, spent millions responding to Portland protests

A new report finds DHS was unprepared when out-of-town federal law enforcement officers first arrived in the city. But the inspector general found DHS did have the legal authority to send officers to protect federal property.

www.opb.org

https://www.npr.org/2020/07/19/892826853/like-adding-gasoline-oregon-officials-blast-trump-response-to-portland-protests

Trump admin defends use of federal agents in Portland protest crackdown

Homeland Security officials defended their use of riot control tactics and unmarked vehicles as part of the department’s response to another night of unrest in Portland.

abcnews.go.com

If by y'all you mean me, I am very familiar with right wing rhetoric. And yes, there was context to that event, but then again, there is "context" for every such event, whether righteous or unjust.

I get that there was a provocation, and that DHS (which isn't just immigration) was taken people away from the protest... but even that it was an abuse of authority, that is not "context" to try to burn a building with people in it.

And I get that it was an isolated event, and that this isolated event should not paint the entirety of BLM in the same picture.

But because radicals use it to paint the entire BLM movement as violent, or as a whataboutism for Jan 6, it doesn't mean I can't recognize that particular incident as violent and wrongful.

 

[MT15]

I thought this response by Biden was really good. He makes it clear that whatever the court decides will be followed, yet offers the actual truth of what we all know he did.

 

[UriUT]

If by y'all you mean me, I am very familiar with right wing rhetoric. And yes, there was context to that event, but then again, there is "context" for every such event, whether righteous or unjust.

I get that there was a provocation, and that DHS (which isn't just immigration) was taken people away from the protest... but even that it was an abuse of authority, that is not "context" to try to burn a building with people in it.

And I get that it was an isolated event, and that this isolated event should not paint the entirety of BLM in the same picture.

But because radicals use it to paint the entire BLM movement as violent, or as a whataboutism for Jan 6, it doesn't mean I can't recognize that particular incident as violent and wrongful.

[Edit to be less combative:] Nope not targeting anyone specifically, and the "reminder" comment was more tongue in cheek. Before you correct me further, I think you should read carefully what I wrote and quoted. I thought it was a general reminder of that environment with folks asking about the courthouse. That the motives were drastically different from Jan 6th.

 

[UriUT]

I think it's all about the purpose. Another example is when the ranchers led by the Bundy family occupied the Malheur Wildlife Refuge in Oregon. This was a political act - and a protest. They took over federal property in protest of what they view as federal agency activity (mainly by the Bureau of Land Management) that exceeded the agency's authority - and was supposed to result in eventual relinquishment of authority to the western states.

This wasn't insurrection. There was no attack on a fundamental operation of government that if successful, would have derailed (even if temporarily) a function essential to the American constitutional system. The only question for the feds was how long to allow them to hold it and how to best arrest them without causing a violent incident.

The same elements are associated with racial injustice protests, even as some of them became violent and destructive - and aimed to occupy federal property. But January 6 is not the same. The purpose of January 6 was to rally Trump's supporters to march down to the Capitol to intimidate and influence by threat of violence or actual violence a disruption of the electoral count process that happens on January 6 by federal law as a component of the constitutional system for electing a president. And the purpose of this was to keep the count from happening so that the president that lost the election could have more time to continue to attempt to manipulate the process or the officials involved so that he could remain president despite having lost the election.

There are two questions in this case: whether Section 3 applies to the presidency and whether what Trump did constitutes participating in insurrection. It's possible that the Court concludes that those activities weren't insurrection - though this seems to be substantially in question and for good reason. It's quite possible that the Court decides the first question and then doesn't have to decide the second because it certainly has many of the elements of what we would think insurrection is.

But equating it to BLM or Malheur is totally off the mark.

When this was first brought up, I had my reservation on this interpretation of the 14th amendment. I felt uncomfortable that it is without an indictment or a legislative procedure. However after chewing it over, the difference is just who decides the merit, whether it be a 12 person jury or a politically charged legislature. Here the argument is the judicial branch. And quite possibly, their methods are more rigorous than can be afforded via a jury or legislature.

 

[SystemShock]

[Edit to be less combative:] Nope not targeting anyone specifically, and the "reminder" comment was more tongue in cheek. Before you correct me further, I think you should read carefully what I wrote and quoted. I thought it was a general reminder of that environment with folks asking about the courthouse. That the motives were drastically different from Jan 6th.

For the record, nothing that you wrote was offensive or seemed combative to me.

 

[fooferdoggie]

No I don't agree that democracy is on the line. He said that because he's mocking Democrats that claim democracy is on the line while supporting authoritarian measures like removing a presidential candidate from the ballot.

so trump saying he will be dictator for a day and take over the whole government and go after his political opens and far more is somehow not authoritarian????

 

[Bigdaddysaints]

so trump saying he will be dictator for a day and take over the whole government and go after his political opens and far more is somehow not authoritarian????

but he'll be doing it with good intentions, so it doesn't count.

 

[samiam5211]

No I don't agree that democracy is on the line. He said that because he's mocking Democrats that claim democracy is on the line while supporting authoritarian measures like removing a presidential candidate from the ballot.

Do you think the case in Colorado has something to do with Democrats?

 

[Lapaz]

No I don't agree that democracy is on the line. He said that because he's mocking Democrats that claim democracy is on the line while supporting authoritarian measures like removing a presidential candidate from the ballot.

So you don’t think he tried to prevent bites from being counted? You don’t think any of his actions were an attempt to subvert our democracy? You don’t think if the state authorities didn’t rebuke Trump, the state electors would I been illegally awarded to Trump? Do you think Putin is legitimately elected?

 

[MT15]

So, in Michigan Trump himself is recorded trying to get local election officials to refuse to certify valid election results. He even offers to get them lawyers when they are charged.

Of course it was an insurrection. He was doing everything he could to change the results of the election. He was working against the Constitution and in violation of his oath.

 

[FullMonte]

It wasn't an insurrection. It was a riot.

Did the individuals who were rioting have an intention to stop Congress from counting the electoral votes and certifying the results of the election? (For reference: They had just left an event named "Stop the Steal.")

 

[MT15]

 

[Taurus]

The thing to me is that it's irrelevant whether Cheato is actually guilty of insurrection. He without question provided aid and support to insurrectionists. He did it on the day and has been doing it ever since.

He did nothing while the violence was happening. That's aiding them, that's preventing a response to the violence in hopes it would succeed. He's offered pardons, that's certainly a comforting act. He has posted and/or stated his support almost every single day.

According to the plain English of the Amendment, he's disqualified himself.

 

[Bigdaddysaints]

Did the individuals who were rioting have an intention to stop Congress from counting the electoral votes and certifying the results of the election? (For reference: They had just left an event named "Stop the Steal.")

and to add, the fact he got people to attempt to be fake electors to LIE about the certification, and that fact isn't even in question.

 

[Optimus Prime]

The decision by the Colorado supreme court to ban Donald Trump from the Republican primary has received pushback from some predictable and some not-so-predictable quarters.

The former president’s supporters of course consider him the great Maga martyr, temporarily hindered by nefarious elites from his rightful return and revenge; in this morality play, the US supreme court, besieged with accusations of being undemocratic, can now play the savior by putting him back on the ballot and making the people Trump’s ultimate judge.

Some liberals also fuss about the political fallout of the decision, worried that barring Trump from running will provoke chaos and violence. And the left, suspecting a “liberal plot against democracy”, is not happy either: they reproach the liberals who welcome Trump’s disqualification for wanting to short-circuit the political process – thereby revealing deep distrust of democracy or at least defeatism about confronting Trump in an open contest. All these concerns are mistaken.

The Colorado supreme court comprehensively refuted Trump’s claims, especially the ones bordering on the absurd. The justices patiently argued that parties cannot make autonomous, let alone idiosyncratic, decisions about who to put on the ballot – by that logic, they could nominate a 10-year-old for the presidency. They also painstakingly took apart the idea that the now famous section three of the 14th amendment covers every imaginable official expectation of the president. In terms clearly tailored to appeal to justices on the US supreme court, they explain that plain language and the intent of the drafters of the amendment suggest that insurrectionists – including ones at the very top – were not supposed to hold office again, unless Congress voted an amnesty with a two-thirds majority.

The court’s majority also made the case that the House of Representatives’ January 6 report is not some partisan attack on poor Trump and hence could be admitted as evidence; they then drew on that evidence to show that Trump had clearly engaged in insurrection; they did not have to prove that Trump himself had led it (of course, he didn’t valiantly enter the Capitol to “save democracy” – his words – but tweeted the revolution from the safety of the White House).

We know that few Maga supporters will be swayed by the evidence – in fact, the entry ticket to Trump’s personality cult is precisely to deny that very evidence. But it is more disturbing that liberals still think that prudence dictates that Trump should run and just be defeated at the polls.

For one thing, the same liberals usually profess their commitment to the constitution – and the Colorado court has given an entirely plausible reading of that very document. Should it simply be set aside because supporters of a self-declared wannabe dictator threaten violence?…….

Is barring Trump from office undemocratic? Let’s assess point by point | Jan-Werner Müller

Some liberals and leftwingers have joined conservatives in skepticism about the Colorado court decision. But the ruling is carefully considered

www.theguardian.com

 

[superchuck500]

The Colorado Supreme Court Decision Is True Originalism

And that should theoretically appeal to the Supreme Court’s conservative justices.

www.theatlantic.com

 

[MT15]

I am firmly of the opinion that we shouldn’t use politics to make legal decisions. The reason we are in this mess is because Republicans have thwarted various systems and norms every single time Trump broke them. They thwarted both impeachments. The second time McConnell argued that it was proper for the courts to hold Trump to account and now that this process is beginning all of the GOP attacks the courts and the legal system as “politicized”.

I also disagree with those who say we shouldn’t allow the legal system to work as intended to keep him off the ballot because we need to let the election play out. I do think Trump would be defeated in the general and I don’t think it would be as close as last time, BUT we all saw what he did when he lost in 2020 and there’s no evidence he wouldn’t do it all again. In fact I think he and his goons would be emboldened. So him losing the election is no guarantee he would step away and quit inciting violence.

Sarah Longwell said on a podcast that she fears we have entered a situation where there is no good direction to go. That each option that could happen will lead to bad outcomes.