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I want to preface this by saying I think he is absolutely guilty and should suffer the maximum consequences for it. BUT- I do not like the precedent of not allowing someone on the ballot if they have been indicted but not found guilty or innocent yet. This could apply to all sorts of politicians that people want to conveniently get out of the way. I think it's a bad idea.
Now- when, and I am certain it will be a when at this point, he is found guilty, please do bar him from office.
14A S3 is not about punishment for a crime. It is about disqualification from office for a specfied condition, exactly in the same way that people who are under the age of 35 years (the condition) are disaqualified from the office of President. People who, having previously taken an oath to uphold the Constitution for the office they held, and then having engaged in insurrection or rebellion against the United States, or having given aid or comfort to the enemies thereof (the condition), are disqualified from office.
The condition described in 14A S3 may also be a criminal matter, but that is a wholly separate concern.
Great, again, what's to stop a Republican in a red state from indicting someone who was, for example, at a Black Lives Matter protest for insurrection because they want to bar them from office? Because that is the precedent being set if you don't wait for a verdict.
This is 100% my take as well. Conviction is how the government proves a person did something. Absent that, all you have are allegations, and we really don't want to open up the possibility of disqualifying people because of unproven allegations of sedition.
What about the "truths" he truthed on his shitty twitter knockoff about needing to terminate the constitution?
This is still just an allegation until these posts have been presented in court and he has been convicted. You really don't want to set a precedent ignoring presumption of innocent.
I seem to recall we've been over this before.
Elections are handled in the states. The people who are responsible, in a given state, to determine whether someone is qualified to hold office are the ones who make that determination - whether the disqualification comes from Article II of the US Constitution (where the criteria for POTUS qualification are described) or from the 14th Amendment to the same US Constitution.
If someone feels they have been wrongly disqualified - regardless of why they were disqualified - have recourse to seek relief from that condition through state courts (and possibly federal courts, since it's in the area of constitutional law, but I have other thoughts on that). Or, in the case of 14A S3, for each house of the US Congress to remove that disability each by a two-thirds vote.
In your example, if someone becomes disqualified from the ballot for being at a BLM protest, based on 14A S3, they would seek relief in one of those ways. And I would bet that they would be immediately successful, because BLM protests were not attempting to subvert the federal government, or interfere with the legal operation of federal government official business.
If someone feels they have been wrongly disqualified - regardless of why they were disqualified - have recourse to seek relief from that condition through state courts (and possibly federal courts, since it’s in the area of constitutional law, but I have other thoughts on that). Or, in the case of 14A S3, for each house of the US Congress to remove that disability each by a two-thirds vote.
Good thing conservatives don't control those or anything...
So what's your answer then? Just not enforce any laws at all because Republicans might do it in bad faith? They're gonna act in bad faith no matter what.
The answer has been said in this thread already: conviction rather than allegation.
There is a difference between "following the law" and "achieving the political outcome you desire," and that difference is kind of what got us where we are in the first place.
Because insurrection has a definition and one meets that definition and the other doesn't.
or not even a BLM protest. It could be the most peaceful protest in the world. hell, they're already retaliating with calls for impeaching biden, and stuff.
(I'm reminded of some amazon worker protests that showed up to an office building near my work. they did the rant. they did the chant. they had some fun confetti things. When they were done, the swept up and left. gotta respect that, lol.)
Because a protest is not an insurrection. It has a definition.
That can be clearly established and ruled in by a judge to set precedent if need be.
and then having engaged in insurrection or rebellion against the United States, or having given aid or comfort to the enemies thereof (the condition), are disqualified from office.
the rub is that the 14S2 provides for due process. until he's convicted in court there will always be a question if that really was an insurrection, in the minds of his supporters.
Flying Squid is absolutely right in that the republicans will retaliate with nonesense charges. (in fact, they already are.)
14S2? Do you mean Section Three?
And I am unclear on what you mean by "provides for due process."
Sorry, I was wrong, it's section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (emphasis mine.)
Okay ... that is really interesting, and something I hadn't noticed. And it's not the part you think.
... nor shall any State deprive any person of life, liberty, or property, without due process of law; ...
Even if "liberty" here includes the liberty to hold office (which it may not), the law we're talking about is constitutional. It is not a State who would be depriving the liberty, it would be the United States.
The part that is still catching me up, however, is this, just preceding the above:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ..., without due process of law."
If, like in the other clause, the liberty to hold office is a "privilege," does this prohibit States from enforcing this constitutional law? Because when the constitutional law has everything to do with elections, which are run only by the States, no body has jurisdiction to enforce.
If "due process of law" necessarily means "a judicial hearing" (not necessarily a criminal trial), that means that there must be input from a court before someone is disqualified.
So, we have two questions that need answering:
Both of those have to be "yes" in order for the disqualification under Section Three to be self-executing (the disqualification being immediate once the described conditions are met). Someone would have to make a legal and binding judgment.
However, if A14 S3 is not self-executing because of this kind of reasoning, then neither are any parts of the Constitution regarding qualification for office. Junior high kids could gain the office of Governor. Arnie could be President.
Even so, the person or group that would make that judgment might arguably be the State process for qualifying people from office, and the judgment could be communicated and recorded by the disqualification itself by that person or group.
Anyway - those bulleted questions above would need to be answered in order for me to go any further. I suspect one or the other of those answers is "no," but I can't really say. The kind of deep legal history study that would be required to answer those two is way beyond what I know.
This is the first time I've been plain stumped by this disqualification thing.
Yup. It’s all entirely untried- were in unknown waters.
That said, given the current composition of the SCROTUS, I’m fairly certain that any rulings that do come out will be extremely politicized. And not in the favor of democracy
Well, not really unknown. Section Three was used plenty to disqualify former Confederates, but that was easy, because everyone knew what they were talking about then. There had been an awful war.
Being able to hold office is not a right. Nothing is being deprived. The state is not enforcing anything. They are denying a request to be on the ballot. It is not a right.
State elections commissions should decide this correctly.
No trial is needed and there is nowhere that says it is to determine insurrection.
This is in no way a criminal matter. It is extremely black and white in this case.
I wholly agree with you (as a walk through my comment history will demonstrate), but that "No State shall ... enforce" part definitely deserves a very close look by people much smarter than I am.
It's not a precedent. The entire reason Amendment 14 is there is because they needed something broad after the Civil War happened. They needed wording that would apply to all of the people who had been on the other side in the Civil War even without convictions. Applying the same standard to Trump is just treating him like they treated all of the people in the past who were elected officials who took up arms against the country or gave aid and comfort to those who did.
Good points. If he is in prison, he would get 25thd until he got out. So the election will be between Biden and Trump's running mate
This is a very reasonable response. It's a very difficult issue to work through, and hopefully this all shakes out in a way that doesn't create a terrible precedent, but still puts the correct traitors in jail.
Comforting an insurrectionist isn't really a crime in and of itself, however, it is a disqualifier for holding office.
The process to do so via political action was via impeachment and removal from office.
But they fucked that one up. So here we are.
I also agree with you it should carry a guilty verdict of some suitable crime, because other precedents would be ripe for abuse.
The conservative argument for when the law is clear and bad? "let the legislature fix it" lol
I think declaring that if he's reelected he would lock up his political enemies should be automatic disqualification.
Not to the American voter it's not
i hate to say it...and i am not implying the intent matches reality but this is...sort of...the intent of the electoral college.
I'm sick of articles saying things like "a case could be made". Just fucking do it already. Someone needs to start suing to to get Trump off the ballot and not just talk about it.
actually...a lot of people need to do something. which is the purpose behind talking about it first. getting support and consensus for possibly making a case can lead to cases actually being made. it's not like on TV where the district attourney of america walks up to the judge of america and convicts him. educating people why there are arguments and convincing them they are powerful don't happen overnight.
A lawsuit isn't required, if the state election officials do the right thing.
An insurrectionist is an ineligible candidate for US president, just like a non-citizen or someone who's not 35 yet. The states merely need to follow that existing law, just as they would do if a teenager named Pierre from Paris filed to run for US president. They wouldn't have to be sued to say no; and Pierre wouldn't have to be convicted of anything — they'd just say no, he's not eligible, he doesn't get listed on the ballot.
Trump is not eligible, just as Pierre is not eligible. Trump's ineligibility rests on his own actions rather than his age or nationality. But all of those are (dis)qualifications spelled out in the Constitution; they're not civil or criminal penalties from a court. It's the job of election officials to enforce them, and a lawsuit only makes sense if they fail to do their job correctly in the first place.
I suppose a lawsuit isn't required until the appropriate election official announces a decision, but Trump & co will definitely contest it if he's not going to be on the ballot, and I really hope someone will contest it if he is.
So much this. It feels like 2015-2016 all over again and I'm so sick of it already.
Republicans will fight it tooth and nail. They don’t actually care about the law unless they can manipulate it to benefit them in some way.
Let them fight it; it is their right to do so, in the courts. That is where legal disputes are adjudicated. It would be appropriate for courts, if so requested, to determine as a finding of fact, whether the Jan 6 invasion of the US Capitol for the purposes of preventing legal federal business is an "insurrection" (NM already decided that it was), and whether the actions of a given person rise to the level of "participation," or "giving aid or comfort to the enemies of the United States."
The answers to the above are ones that it would be good for the judicial system to rule on, no matter what answer(s) come out of such hearings. The sooner we get to that point, the better.
That's true but in this case, the republicans in power would like nothing more than to have him gone. The best way that could play out for them is this but blame the Democrats for it after it's done.
I don’t think Republican voters care.
I mean, its the literal text of the constitution, plain as day. Watching people in "shall not be infringed" t shirts try to backpedal is gonna be fun, but they're conservatives so they'll figure out a way the law doesn't apply to them just like how they carve out an exception for their pornographic bibles in the obscenity laws they write.
I mean, they're perfectly willing to ignore parts of the constitution *cough*well-regulated*cough*
Once again, just like the Bible
Doesn't matter. Trump's SCOTUS would never interpret it like that.
For real. You could have the best argument in the world, and Thomas etc al will just say, "No"
https://www.politico.com/news/2022/12/05/trump-terminate-constitution-00072230
Shouldn't this be enough? He quite literally claims the constitution needs to be terminated.