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wilwheaton · 4 months

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In this essay, I address the anti-Constitutional discourse that appears in the media: that the Constitution should be displaced by the fears of people who appear on television. This form of opposition to the Constitution poses as expertise. It takes the form of advice to the Court: find some way to allow Trump to be on the ballot, because otherwise people will be upset. Because we are used to hearing endless conversations about politics on television, where everyone seems to be a political advisor, it can seem normal to reduce sections of the Constitution to talking points. But we must pause and consider. In fact, rejecting the legal order in favor of what seems to be politically safe at a given moment is just about the most dangerous move that can be made. It amounts to advocating that we shift from constitutional government to an insurrectionary regime. Indeed, it amounts to participating in that shift, while not taking responsibility for doing so. Let me try to spell this out. In advising the Court to keep Trump on the ballot, political commentators elevate their own fears about others' resentment above the Constitution. But the very reason we have a Constitution is to handle fear and resentment. To become a public champion of your own own fears and others' resentments is to support an insurrectionary regime. The purpose of the insurrection clause of the Constitution (the third section of the Fourteenth Amendment) is not to encourage insurrections! If we publicly say that that Supreme Court should disregard it because we fear insurrections, we are making insurrections more likely. We are telling Americans that to undermine constitutional rule they must only intimate that they might be violent. To advocate pitchfork rulings is to endorse regime change; to issue pitchfork rulings is to announce regime change.

The Pitchfork Ruling - by Timothy Snyder

I’ve pushed fair use here, because I *really* want you to go read the rest of this essay.

#uspol #trump is disqualified under the 14th amendment #constitutional law #timothy snyder #fascism

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eternalistic · 9 months

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A pair of conservative legal scholars argue in a newly released paper that, under Section 3 of the 14th Amendment, former President Donald Trump is disqualified to hold office again, echoing a case long made by progressive experts and watchdogs.

In an in-depth analysis of Section 3, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas contend that the clause "remains of direct and dramatic relevance today"

The clause states that "no person shall be a senator or representative in Congress, or elector of president and vice president, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."

Only a two-thirds vote by both chambers of Congress can lift the disqualification.

In their new paper, Baude and Paulsen wrote that Section 3 of the 14th Amendment—known as the insurrection clause—is "self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress."

"It can and should be enforced by every official, state or federal, who judges qualifications," Baude and Paulsen argued, rejecting the notion that the First Amendment shields those who have engaged in or incited insurrection from disqualification under Section 3.

The clause, the pair added, "covers a broad range of former offices, including the presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election."

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mudwerks · 8 months

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(via Trump’s Actions Have Already Disqualified Him From The Presidency)

The key to all of this is the 14th Amendment to the Constitution, which states that “No person shall … hold any office, under the United States … who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Trump took that oath at his inauguration on Jan. 20, 2017.

The 14th amendment makes it clear - you took the oath - you broke the oath. You cannot hold any official US office.

He will need to have his fellow traitors (that are unbelievably still in office) amend the 14th amendment to allow him to take a government office in the US.

#trump #Disqualified From The Presidency #14th amendment #constitution #legal

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suzilight · 3 months

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25 of the world’s greatest Civil War legal scholars have banded together and wrote to the United States Supreme Court that the drafters of the 14th Amendment in 1868 would be SHOCKED that Trump was not INSTANTLY DISQUALIFIED and banned from the ballot by his actions on January 6th.

VIDEO Michael Popok of Legal AF explains their key historical arguments and why they should defeat Trump’s half baked theories that a president can’t be disqualified without an act of congress.

READ THE BRIEF SENT TO US SUPREME COURT

2/1/24 This gives me hope. Thank you

I'm sharing it everywhere. It's the most positive thing I've seen in recent years.

14th Amendment, Section 3 reads:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

#good news #14th amendment #us constitution #us supreme court #amicus brief #25 historians #Trump is unfit for office #take Trump off the ballot #insurrection #disqualified

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rabbithaver · 4 months

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really funny day to be a Coloradoan tbh

#rabbit.txt #our state supreme court decided trump couldn't be on the ballot here. which basically disqualifies him from running in the state of colorad #cope and seethe @ republican shits!!!

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originalleftist · 2 months

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Today, The Supreme Court of the United States voted unanimously to force states to keep Trump on the ballot, despite the 14th Amendment to the Constitution clearly disqualifying him as an insurrectionist oath-breaker.

Worse, a majority of 5-4 voted that no state could EVER remove a Federal candidate- effectively shielding every insurrectionist with a single stroke.

Some thoughts:

This is the absolute death of SCOTUS's legitimacy. Every justice, and I include the "liberal" ones in that, has arguably violated their oaths of office to the Constitution, and earned impeachment. The Supreme Court is increasingly acting as, effectively, an arm of the Republican Party- which is to say, of Trump and Vladimir Putin.

The Constitution does not change because SCOTUS chooses to ignore it, and neither do the oaths of office of officials who swore to uphold it. Any office-holder who's oath was worth more than the paper its printed on has a duty to refuse to recognize Trump's eligibility, regardless of SCOTUS.

I'm calling it now, Biden will win the 2024 election- as he will be the only eligible major party candidate. If the disqualified felon gets more votes... well, I think that very unlikely, but if so he would still be ineligible, and see above re duty of officials not to recognize or obey him.

This makes it all the more vital that Biden win the most votes and electors, to avoid a catastrophic Constitutional crisis where there is no clearly legitimate President-elect.

We must prepare for further SCOTUS rulings ignoring the Constitution to advance fascism, including a possible ruling that Trump has immunity for crimes he committed, and attempts to overturn the election if Republicans don't win.

Voting is still vital. Best case scenario, Trump loses by such a landslide Republicans can't overturn it on a technicality, and don't dare try. Worst case scenario, it will help motivate people, and provide further moral and democratic legitimacy to resist a MAGA coup attempt.

Prepare to resist. I want to be very clear that I am NOT advocating for violent resistance here, and this is not merely a disclaimer for legal purposes. There are very few evils worse than civil conflict, it often hurts the most vulnerable worst, and it and rarely leads to a swift or equitable solution, and the side that leaps to it first will lose a great deal of legitimacy and support. If there is violence, let MAGA fire first, not us. But Blue state officials need to be preparing to resist a Trumpian coup attempt. And every patriotic America needs to be preparing for mass protest and acts of civil disobedience come November. If you are in a union, look into what plans, if any, your union has made to call a general strike should Republicans attempt a coup (some unions made such plans in 2020, which were never activated).

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dreaminginthedeepsouth · 8 months

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Not communists, as it turns out, but MAGA Republicans.

* * * *

Disqualifying Trump under Section 3 of the 14th Amendment.

Last week, I criticized a scholarly article by two law school professors (William Baude and Michael Paulsen) who contend that state election officials can unilaterally disqualify Trump from ballots based on their independent “duty” to enforce Section 3 of the 14th Amendment. Section 3 provides that no person may hold federal office if—after having taken an oath to uphold the Constitution—they

shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

After I wrote my piece last week (which is here: The only path forward . . . . - by Robert B. Hubbell (substack.com)), Professor Laurence Tribe and retired federal court of appeals Judge Michael Luttig published an article in The Atlantic that praised and endorsed the article by Baude and Paulsen. The article by Professor Tribe and Judge Luttig is here: The Constitution Prohibits Trump From Ever Being President Again. (The article should be accessible to all.)

While Professor Tribe and Judge Luttig agree with Baude and Paulsen, they admit a practical consideration that is not front and center in the article by Baude and Paulsen, who emphasize unilateral action by state officials unbounded by due process and the First Amendment. Professor Tribe and Judge Luttig write,

As a practical matter, the processes of adversary hearing and appeal will be invoked almost immediately upon the execution and enforcement of Section 3 by a responsible election officer.

Dozens of readers sent me copies of the article in The Atlantic and asked me to comment on (read: dispute) the legal analysis by Professor Tribe and Judge Luttig.

Come on, people! I am not that stupid! You will not bait me into disagreeing with Professor Tribe and Judge Luttig on legal matters.

Instead, I will change the terms of the debate.

I believe that attempting to enforce Section 3’s disqualification clause by urging state officials to unilaterally and variously block Trump from the ballot (or not) is a bad idea from a political standpoint.

Why?

I believe there is no scenario in which Trump will be disqualified from enough state ballots to preemptively determine the outcome of the election in the electoral college. The most likely result is that Trump will be disqualified in a few deep blue states that he has no chance of winning in any event. But if he thereafter loses an election in which he has been barred from the ballot in a handful of states controlled by Democrats, tens of millions of Americans will believe that the election result is illegitimate. Without agreeing that Republicans would be correct in their view of the illegitimacy of the election, a reasonable observer should be able to see why Trump supporters would feel aggrieved in that scenario.

After the bruising attack on the legitimacy of the 2020 election, inviting disputes over the 2024 election based on a contested legal theory does not seem to be the best political path forward.

As before, I remind readers that I believe Trump engaged in insurrection and should be disqualified from holding the office of president and that Section 3 is still operative today. But as much as I believe those premises, we must recognize they are not shared by tens of millions of Americans. Setting aside the legal analysis about whether Trump engaged in insurrection, let’s examine whether there is a solid footing for a political consensus on that point such that unilateral enforcement of Section 3 would not damage the legitimacy of the 2024 election. I won’t bury the lead: I do not believe that such a political consensus exists.

Let’s begin by recognizing that, as applied to Trump, Section 3 includes two elements that must be satisfied: (1) That the events of January 6th constitute a rebellion or insurrection, and (2) that Trump “engaged” in that rebellion/insurrection or gave “aid or comfort to the enemies” of the United States.

Those who oppose the disqualification bar would say that the question of whether Trump has engaged in insurrection has been answered in the negative by Congress and the DOJ, for the following reasons:

The Senate acquitted Trump in his second impeachment of the charge of “incitement to insurrection.” In so doing, the Senate refused to apply the very remedy that proponents of the Section 3 bar would nonetheless apply.

The January 6th Committee recommended that the DOJ indict Trump for engaging in insurrection or rebellion in violation of 18 U.S. Code § 2383 (Rebellion or insurrection). See also DOJ Referrals | Jan-6.com.

Although the DOJ did indict Trump on other grounds recommended by the January 6th Committee, it has not indicted Trump for “rebellion or insurrection” under Section 2383, as recommended by the J6 Committee. A reasonable observer should be able to see why Trump supporters would feel that the DOJ’s apparent decision not to charge Trump with “rebellion or insurrection” means that—in the view of the DOJ— January 6th was not an insurrection and Trump is not guilty of having engaged in insurrection on January 6th.

Indeed, the DOJ has not indicted anyone for “rebellion or insurrection” under Section 2383. True, some defendants have been indicted and convicted for “seditious conspiracy” under Section 18 USC § 2384, which legal commentators would rightly note is effectively “the same thing” as planning an “insurrection or rebellion.” Fair point. But the DOJ has not indicted Trump for seditious conspiracy. As before, a reasonable observer should be able to see why Trump supporters would feel that the DOJ’s apparent decision not to charge any defendants (including Trump) with “rebellion or insurrection” means that—in the view of the DOJ— January 6th was neither.

Against that backdrop, arguing that state election officials should nonetheless unilaterally conclude—as a matter of constitutional certainty—that Trump engaged in rebellion or insurrection on January 6th is a proposition ripe with the potential for political strife.

And we haven’t even begun to discuss the impracticalities of urging secretaries of state to bar Trump from the 2024 presidential ballot. Republicans hold the secretary of state seat in twenty-six states, including the swing states of Georgia and Pennsylvania. Democrats hold the secretary of state seat in twenty-two states, including the swing states of Arizona, Michigan, Wisconsin, and Nevada.

We cannot assume that each of the secretaries of state has the authority under state law to determine which candidates appear on the ballot. One reader wrote to the Washington State Secretary of State urging them to bar Trump from the ballot and received this reply:

Political parties submit the candidate names to appear on the Presidential Primary ballot. That’s in RCW 29A.56.031. The Office of Secretary of State has no statutory power to evaluate a candidate’s qualifications for the office, which are set in federal law.

But let’s assume for argument that the secretaries of state in the four swing states of Arizona, Michigan, Wisconsin, and Nevada bar Trump from the ballot in those states. If that happens, Trump would have no realistic chance of gaining the electoral votes necessary to be elected president.

The net result is that four individuals holding the office of secretary of state in four states may decide who will serve as our next president.

Really?!

Even if that result is ultimately adjudged to be the correct outcome from a legal standpoint, the question remains whether that is what our democracy needs at this contentious moment in our history. I do not believe it is.

I have done my best to avoid crossing legal swords with Professor Tribe and Judge Luttig. Indeed, I agree with their ultimate legal conclusions. My point is that their view of the law will be rejected by tens of millions of Americans given the actions by Congress and the inaction by the DOJ described above. The law is not a popularity contest (nor should it be)—but political legitimacy is. Given those facts, I believe it would be a political mistake to follow a strategy with a low probability of electoral success and a high probability for undermining the outcome of the 2024 election. As I wrote last week,

Here is the point: There is only one way to ensure that Trump does not hold the office of the presidency again: We must beat him decisively at the ballot box. I worry that the emotional energy that readers are investing in a contested legal theory is a distraction and a setup for disappointment. The argument regarding the “self-enforcing” feature of Section 3 is contested and, in my view, bristling with unintended consequences. Keeping Trump off the ballot is not going to work; and if it does, it will result in retaliatory actions by MAGA secretaries of state. Let’s not go there. Let’s beat Trump at the ballot box. That is the only path forward . . .

I recognize that many readers will disagree with my views. I have heard from many of you already. I hope that I have convinced you (at least) that the legal theory will be challenged, and that the political fallout will be substantial. If you nonetheless support the effort, that is obviously a legitimate choice with substantial legal support. But, please, let’s recognize the political realities of attempting to enforce Section 3 through state election officials applying their own views about whether Trump engaged in insurrection or rebellion.

[Robert B. Hubbell Newsletter]

#Robert B. Hubbell #Robert B. Hubbell Newsletter #DOJ #14th Amendment #Professor Tribe and Judge Luttig #disqualifying Trump #armed insurrection

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