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Notes -
A 126 page legal analysis of section 3 of amendment 14 of the constitution was released yesterday, arguing that Donald Trump, among others, is ineligible for public office, including the presidency. The authors are conservative, active in the Federalist society.
For reference, the relevant part of the constitution is
Among the arguments made were that it is legally self-executing—that is, it applies, like the 35 year old minimum age, without an explicit system to handle it to be set up by congress. Further, they think that people at almost every step along the process, from state officials deciding who goes on the ballots, to those capable of bringing an Amendment 25 complaint have a duty to ensure that this provision is fulfilled.
In reference to Trump, they argued that the events on and surrounding January 6th intending to overturn the election would constitute "insurrection or rebellion" as understood at the time of the passing of the amendment.
I can't see this not being important, but I'm not sure how exactly it'll play out—we could get court cases, possibly going up to the supreme court (no idea how that would play out). We may see state officials refuse to put Trump on the ballot. I expect this to lead to a substantial increase in support for Trump if this is seen as illegitimate, as it undoubtedly will be. At the same time, if this happens during the primary elections, and Trump is not even on the ballot in some states, it might make it significantly easier for another candidate to become the Republican nominee, unless the national Republican party interferes with it.
Note on the link: the pdf isn't opening for me right now and the wayback machine isn't helping. It was fine earlier, not sure what the issue is.
It's entirely not important. It's Logan Act or Emoluments Clause levels of sophistry. The idea that someone could be disqualified from office for something with a definition very close to that for treason (which, you may note, requires two witnesses to the same act, or confession) without any sort of formal determination that they did that is absurd. If there's 126 pages, it's to bury that simple absurdity in bullshit.
You thinking it's absurd doesn't mean it's not important. As long as other people take it seriously, it'll have effects.
If they're correct (which I'm not certain about), I believe they'd have no objection to Trump or others presenting suits to argue that he is, in fact, eligible, if people try to remove him from ballots or take other actions, which might mitigate some of your concern about no formal determination? The authors go into its civil war era application for some examples of how it played out.
That it is absurd means it's not important. That it is absurd means there's at least 6 and maybe 7 members of the Supreme Court who are going to throw it out quickly if anyone manages to get a lower court ruling based on it.
No. A formal determination would involve either Congress declaring him attainted (which has other Constitutional problems) or some sort of criminal trial. If the clause is self-executing it means one can skip to actions removing him from the ballot without any prior determination that he has engaged in insurrection. That is, any judge can make a determination (probably by a preponderance of the evidence) with the same effects as impeachment. This is not what that clause was for.
I'm not going to get down in the weeds of parsing the arguments in a 126 page document about this; that's like trying to engage with Time Cube.
There's already a lower court ruling based on the same legal theory: https://www.citizensforethics.org/wp-content/uploads/2022/09/D101CV202200473-griffin.pdf
It appears they got prevented from appealing to Federal court for lack of standing, the usual procedural nonsense. They won't be able to pull that off with Trump. It's still absurd.
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