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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.
I don’t see how this could be “self executed” as in not requiring a process to apply it, simply because the earlier amendments require things like trials and forbid self incrimination. In short you’d have to convict Trump of these particular crimes before he’s actually disqualified. I can say Biden is giving aid and comfort to China, but my say so doesn’t mean anything unless I can show that he helped China in some way that actually harmed the USA. Anything else violates the spirit of the laws requiring trials, and runs dangerously close to giving the majority party cart Blanche to simply refuse to put opponents on the ballot on the pretext of some supposed high crime or misdemeanor or aid and comfort.
I can’t imagine that Trump or his supporters aren’t going to fight pretty hard against anyone refusing to put Trump on the ballot. It’s definitely against the spirit of free elections to refuse to put a declared candidate who meets the qualifications in state law on the ballot. In most states, having signatures of a fairly small percentage of the voters by law qualifies a candidate for the official ballot. Without a conviction, and one that’s specifically mentioned in the constitution as disqualification for office, they’d have a very strong case.
They argue that if it conflicts with other portions of the constitution, it satisfies or supersedes them. I think they still think there are processes for dealing with these things and challenging actions of this sort, it just doesn't have to start with a conviction.
Certainly, as they should.
Sure. But it might be what the constitution requires, if they authors are right on this. Keep in mind also that the constitution is "the supreme law of the land."
This is another basis for disqualification from office.
In practice the Constitution is what the Robed 9 say it is. Three of them were appointed by Trump, and three more aren't going to buy this one either. Not even John Roberts. That a person can be disqualified from the office of President because their political opponents can get one judge, with no trial, to say that person committed rebellion is not going to fly. Hey, I know -- instead of impeaching Joe Biden over Hunter, the Republicans can find a judge to declare the Iran deal to be giving aid and comfort to the enemies of the United States, and bam he's out of office. Of course Democrats know Republicans are unwilling to try brazenly corrupt maneuvers like that, which is why the Democrats don't worry about the shoe is being on the other foot, but it's at least as supportable as any case against Trump.
It is not. The Supreme Court has ruled in past cases that states may not add qualifications for the offices of President and Vice President. And the Constitution does not state that those convicted of crimes (state or Federal) may not stand for those offices.
Fair point about the first half, although I'm somewhat less confident on what the supreme court's takes would be—I think several, at least, like to consider themselves impartial, so won't do things merely out of a sense of personal loyalty.
As to the second, I don't see how that's the case? Isn't this clearly a case of the constitution disqualifying people? You can argue that it doesn't apply to the current case, or that it requires more than what the authors say, but you can't just say that the Constitution doesn't impose ineligibility for committing those acts after swearing an oath.
This would be a clear case of a person convicted of aiding an enemy or being involved in insurrection. Two problems being that: no legal ruling has declared 1/6 an insurrection, and Trump has not been tried or convicted of insurrection. Which are both clearly required. Our legal system is based on the presumption of innocence, meaning that the government must first prove a crime took place, and secondly that the accused actually did said crime. I cannot accuse someone of murder unless I can show pretty conclusively that the person I’m accusing you of killing is actually dead, and that the best explanation of the evidence is that you did it. Even then, I’d have to get a jury conviction. I can’t just blanket claim that the crime you committed requires 5 years in jail, that the law is “self-executed” and haul you away.
I don't see that they're clearly required. When determining eligibility, the government doesn't have to consider due process - it doesn't have to prove anything beyond a reasonable doubt. And due process is to do with rights. There's no right to run for president.
If there's a liberty interest in running for office, then there's a due process consideration.
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Assertion without evidence. Why isn’t there a right to run for president? Moreover, it seems like doing constitutionally protected “things” (eg advancing legal theories or speech) cannot count as something that is disqualifying.
Directly inciting rebellion (which is more or less what his opponents accuse him of) is illegal and not protected by the Constitution. I don't believe Trump incited rebellion, but I think he did act through others to obstruct the lawful operation of the Senate, which is probably illegal, but not disqualifying.
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If there is one, it's a right that is routinely denied to those 34 and below. I don't see any reason why it couldn't be similarly denied to insurrectionists.
A relevant part of the paper (pages 93-94) addresses this point with historical evidence:
In this particular case Brown was rejected by the House Committee on Elections, but not under section 3 (as it would not come into force until the following year). Nonetheless, it clearly shows that those who wrote and adopted the 14th amendment understood it to be possible and acceptable to disqualify a person from elected office purely on the basis of speech.
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