Capitol Hill Blue Forums Political Issues Constitutional Issues The 14th Amendment and Donald Trump

Shame is, I think most people don't even know it, or believe that it could happen here.

Maybe a reality check or two? How many democracy loving Americans do you think there are. On average 45% of all Americans never bother to vote in a presidential election. That increases to 60% who don’t vote in the midterms and in local elections not held with the presidential or midterms elections, around 80% never vote. Last school board election along with splosh tax approval in July here, voter turnout was 14%. If one doesn’t even bother to vote, would you classify them as democracy loving Americans? Perhaps most Americans take democracy for granted?

As for “Trump is out to destroy democracy,” many folks out there who do pay some if any attention to politics take this as a democratic party and Biden’s reelection campaign slogan, a vote for me slogan. Another negative campaign political ad or something akin to that. People have become use to negative political campaigns ads, negative personal attacks, they take them in stride, pay little if any attention to them. Our elections are saturated with negative ads. About the only people this is resonating with is politically active democrats who dislike Trump.

Perhaps this general lack of attention to politics and most Americans non-active roles in politics to include voting is why Trump is leading Biden in the polls today. People going by whether they like a candidate or not, not what each stand for? It’s a fact most Americans dislike and don’t want neither Biden nor Trump as their next president.

https://www.realclearpolling.com/polls/president/general/2024/trump-vs-biden

LOL ... coming from a person who pooh poohed the idea Trump could possibly think about not leaving the WH and could possibly lead an insurrection against the Constitution and the US .... yikes!!!!

So lets consider your stats. I believe I have always referred to my favorite non scientific stat most Americans are too ignorant to vote and you verify that with numbers. This leaves a small number of people to actually consider. A large percent of these folks are partisans i.e. they follow the party line with their talking points, propaganda, etc. So when I refer to Democracy loving Americans I am referring to only a very small group of people. Remember it was a small group of future Americans who actually participated in the Revolutionary War. My conclusion has always been there is but a very small number of people who think on a philosophical level of the nature of the idea of Democracy. The rest are as you suggest either take Democracy for granted or have, as you did not suggest, become anti-Democratic.

Regarding "negative campaign ads": if the information contained in the ad is accurate and the intention is to alert voters to deficiencies in an opponent on a number of levels, then I have no problem with them. I am sure you can think of some examples but I'll type a couple for your consideration. If the presidency is all about a person of character and one candidate is a habitual liar, sexual predator, fraudster, etc I think it would incumbent on that persons opponent to warn people of such bad character ... if character is important to the office. Another example would be if one candidate rails against the very institutions which embody our Democracy with calls for weaponization of the government to go after political opponents unjustifiably or to put it a different way, someone who is an existential threat to Democracy, I think people should be alerted to the dangers of that person .... if Democracy has any importance.

I have fairly good understanding of why people support Trump but no idea why he would be polling at 50%. Spitballing ... people have become enamored with autocracies ... people actually believe the vile elixir coming from his mouth ... people are completely ignorant or partisan (see above) ... or ???

As for a number ... 1 ... yep I know I am such a person and I feel I may become an enemy of the state if Trump should be elected

So, the Supremes can mess with State Supremes. All this talk about the Supremes make me very antsy. I wonder, has anybody considered that this stuff just might, eventually, end if with a group assigned to re-consitute the Supreme Court (there is a term for the which slips my mind). Anyway, think about this. I scares the hell out of me. Once can only wonder if a specific group were to be assigned to such. I also suspect there are some already considering such.

One piece has fallen into place...

Michigan Supreme Court rejects case to remove Trump from 2024 ballot

Well, it seems this thread is seriously in need of an update!

I am going to throw up a bunch of links to bring it up to speed, and sometime in the near term a rather lengthy opinion about what is about to happen. The Supreme Court has accepted Certiorari of Trump's appeal from the Colorado Supreme Court decision in Anderson v. Griswold. The question accepted by the Supreme Court was simply:

"Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?"

Subsumed within that question are a number of specific issues. In its Order, the Colorado Supreme Court listed its conclusions succinctly:

"We hold as follows:

•The Election Code allows the Electors to challenge President Trump’s status as a qualified candidate based on Section Three. Indeed, the Election Code provides the Electors their only viable means of litigating whether President Trump is disqualified from holding office under Section Three.

•Congress does not need to pass implementing legislation for Section Three’s disqualification provision to attach, and Section Three is, in that sense, self-executing.

•Judicial review of President Trump’s eligibility for office under Section Three is not precluded by the political question doctrine.

•Section Three encompasses the office of the Presidency and someone who has taken an oath as President[.]

•The district court did not abuse its discretion in admitting portions of Congress’s January 6 Report into evidence at trial.

•The district court did not err in concluding that the events at the U.S. Capitol on January 6, 2021,constituted an “insurrection.”

•The district court did not err in concluding that President Trump “engaged in” that insurrection through his personal actions.

•President Trump’s speech inciting the crowd that breached the U.S. Capitol on January 6, 2021,was not protected by the First Amendment.

The sum of these parts is this: President Trump is disqualified from holding the office of President under Section Three; because he is disqualified, it would be a wrongful act under the Election Code for the Secretary to list him as a candidate on the presidential primary ballot."

The Trial Court below conducted a five-day trial on the merits, including testimony of a number of witnesses, and issued a comprehensive order on the merits: Final Order

The Maine Secretary of State reached very similar conclusions.

This is probably the most interesting legal issue I have dealt with recently, as there are so many parts to it - legal, factual, and constitutional. Also, I am very opinionated on the subject, but I am going to try to be as strictly neutral in this thread as I think I can be. There is a very good chance that the Supreme Court will find a way to avoid the question, and I have a suspicion how they will do it. But before I get to that, I thought I'd lay out what I think the issues that are included will be.

In the interim, the D.C. Circuit is going to be deciding the Immunity claim that Trump has made, and I think that case is going to catch up and be consolidated with this one. It only makes sense.

The first Question is: Does the 14th Amendment apply to the President? If not (as the Colorado District Court held), then the case is over. This turns on the wording of the 14th Amendment itself:
Section 3 Disqualification from Holding Office
No person shall ... 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,... 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.

The argument that Trump has made is that this does not apply to the President. I think that argument is absurd, but it is just the kind of thing that can persuade a judge (or Justice). The argument turns on whether the "Presidency" is an "office" and the President an "officer" of the United States. Since the Constitution, in 25 separate instances refers to the "Office of the President", it seems pretty obvious to anyone, but there is a way out of it, because Congress members are specifically mentioned, but the President is not.

In dealing with this issue, the Colorado Supreme Court did a very careful analysis: "Section Three applies to President Trump only if (1)the Presidency is an “office, civil or military, under the United States”; (2) the President is an “officer of the United States”; and (3) the presidential oath set forth in Article II constitutes an oath “to support the Constitution of the United States.”

Without repeating all of their citations, they concluded, "our reading of both the constitutional text and the[b] historical record[/b] counsel that the Presidency is an “office... under the United States” within the meaning of Section Three." In that regard, they have a pretty good point.

In determining, additionally, that "the President" is an "officer" they listed "four reasons":

"First, the normal and ordinary usage of the term “officer of the United States” includes the President. As we have explained, the plain meaning of “office...under the United States” includes the Presidency; it follows then that the President is an “officer of the United States.”"
....
"Second, Section Three’s drafters and their contemporaries understood the President as an officer of the United States."
....
"Third, the structure of Section Three persuades usthat the President is an officer of the United States."
....
"Fourth, the clear purpose of Section Three—to ensure that disloyal officers could never again play a role in governing the country—leaves no room to conclude that “officer of the United States” was used as a term of art."

Finally, the Colorado Supreme Court determined that "The Presidential Oath Is an Oath to Support the Constitution", specifically because "Article VI of the Constitution provides that “all executive and judicial Officers... of the United States . .. shall be bound by Oath or Affirmation, to support this Constitution.” and that "The language of the presidential oath—a commitment to “preserve, protect, and defend the Constitution”—is consistent with the plain meaning of the word “support.” U.S. Const. art. II, § 1, cl. 8."

Thank you for the interesting summary. Not meaning to be rude and maybe I didn't understand what you are saying properly, but I don't see the part about how the supreme court will avoid the question.


I am not an attorney, and do not know much about lawyering, but it seems to me that if it is a requirement, like being at least 35 years old and being a natural born citizen, it is pretty obvious how Trump manipulated his followers to commit insurrection and attempt to stop the change of power in our government that day. Thus, he did take part in the insurrection - a large part!

And, I do believe they will avoid the question and ignore the constitution and it will be interesting to see how they do it. And another piece will fall in to place for Trump to make his way to dictatorship in America.

You are right, I hadn't gotten to that part, yet. There are just so many issues to address, it is hard to even list them all!

The dilemma I see for the Court is this: it only takes 4 votes to accept Certiorari, and there are diametrically opposed motivations for doing so. Chief Justice Roberts, in particular, will want to reach unanimity on such a weighty issue, and that will be extremely difficult given the sharp ideological differences on the Court , and the myriad of issues to resolve. As Jennifer Rubin put it in You can bet on the Supreme Court’s abject partisanship (WaPo): "By any objective reading of the Constitution, four-times-indicted former president Donald Trump should be disqualified from holding office under Section 3 of the 14th Amendment. The U.S. Supreme Court will have a hard time reversing the Colorado Supreme Court’s decision applying Section 3, but that doesn’t mean it won’t."

"While the court could wade into the substance – either endorsing the Colorado Supreme Court finding that Trump "engaged in insurrection" on Jan. 6, 2021, or overturning it with a contrary analysis of the facts – a swift narrow or technical decision may be the most advantageous approach for a court looking to avoid being cast as interfering with the election." Might the Supreme Court try to sidestep key Trump 14th Amendment questions? ANALYSIS (abc)

Here are some of the "ducks" they might employ:

1) The easiest, and least satisfying "off ramp" for the Court - but one that they take all too frequently - is to determine the issue is not yet "ripe" at the "access to the ballot" stage. Or that the Petitioners didn't have "standing" to raise the issue. That may indeed have been the motivation for some of the Justices to accept Certiorari, since the cases below are effectively "stayed" awaiting their determination. Like Trump, they are big fans of delay. Why decide today what can be put off to tomorrow?

The NRSC is urging that position: "Even if the Colorado Supreme Court were correct that President Trump cannot take office on Inauguration Day, that court had no basis to hold that he cannot run for office on Election Day," [Former Trump Solicitor General Noel] Francisco wrote in a friend-of-the-court brief on behalf of the National Republican Senatorial Committee." (Same source)

2) They may see this as a "political question", best left to the vicissitudes of elections and Congress to decide (through the election processes), and hope that it becomes moot because Trump might not get elected. I think that is a cop out, but something they are prone to do, nonetheless. I can see them using all kinds of platitudes to say that it is the "most democratic" solution.

"There's a fairly good chance that they'll find a way to duck that," said Harvard Law professor emeritus and constitutional scholar Laurence Tribe. "They'll say it's a political question, not for us, for the voters. Or, they might try to say it's ultimately a constitutional question for the voters to decide." (Same source)

I think that is the weakest, and most dangerous, position to take, because it puts an insurrectionist closer to actually getting power again. After all, it was on that very stage that January 6, 2021 occurred. It would be inviting a repeat. It is also the same excuse that the Senate used to duck the second Impeachment.

3) They may also determine that it is an issue that has to be resolved at the federal level, since this is a federal office, thus distinguishing many of the previous cases which dealt with State officers, and remand it for such consideration below. I think this, too, is a cop out, and inconsistent with the provisions of the Constitution. But being consistent with the Constitution is, of late, not their forte.

4) They may also say that it is up to Congress to set a standard for what constitutes disqualification - that Section 3 is not "self-executing" - even if that is completely the opposite of its history and intent. The argument that "he hasn't been convicted" is frequently raised by Trump apologists, but that has never been the standard - or expected standard - in Section 3's history. ("contrary to Trump apologists, there is no requirement in the text requiring a conviction before the disqualification. Had the framers intended to make that a precondition, they surely would have said so." - Rubin)

That position is also implicit in the RNC argument, and, again, extremely dangerous. Congress is completely unfunctional right now. Do you think they could make such a weighty decision when they can't even pass a budget?

It's also really bad analysis, because the language presupposes that a determination of "insurrection" has already been made as it is up to Congress to remove that disability, so it's begging the question, "who decisdes?". But, again, pushing difficult questions back to Congress is something that this Supreme Court is wont to do.

As Jennifer Rubin puts it: "An honest originalist would be compelled to agree with the Colorado Supreme Court. Our democracy disallows certain candidates for president — e.g., foreign-born people, insurrectionists. As constitutional scholar Rep. Jamie Raskin (D-Md.) said on CNN’s “State of the Union,” “I have got a colleague who’s a great young politician, Maxwell Frost. He’s 26. He can’t run for president. Now, would we say that that’s undemocratic? Well, that’s the rules of the Constitution. If you don’t like the rules of the Constitution, change the Constitution.”"

For those really into reading, I think the Maine Secretary of State's decision is a succinct and compelling analysis:
https://www.maine.gov/sos/news/2023...20Presidential%20Primary%20Petitions.pdf