Capitol Hill Blue Forums Thread Like Summary - The 14th Amendment and Donald Trump

I didn't see a thread on this, so I wanted to start one. I'll start with the opinion that this may very well have legs, and that there is some chance (some) that the Supreme Court will not undercut the effort. We'll have to wait and see on that, but it is going to get there, and likely quickly.

So, to background and concepts: The 14th Amendment, clause 3, states (in pertinent part) -
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.

A number of questions arise that may be (or have been) taken up by courts under this provision:
First, who can bring such a claim?
Second, does Congress need to create a process for this?
Third, has Congress removed such a disability?
Fourth, who has authority to reach the question (State, federal, or Supreme Court, for example, or only Congress)?

Cases that are now under consideration:
Supreme Court declines to consider longshot bid to disqualify Trump from running for president (A lower court had thrown out Castro’s case, ruling that he lacked the legal right – or standing – to bring the challenge, and his petition to the high court had asked the justices to decide whether he did have standing in the matter.) Frankly, the question Castro brought, and his standing, should have been addressed, but wasn't;

What’s next in the Colorado trial to remove Trump from the ballot based on the 14th Amendment(CNN)
'Witness testimony wrapped up Friday in former President Donald Trump’s 14th Amendment disqualification trial in Colorado, setting the stage for a historic ruling later this month.

The weeklong trial featured testimony from legal scholars who explained the history of the amendment’s “insurrectionist ban,” US Capitol Police officers who were wounded while fighting the pro-Trump mob on January 6, 2021, organizers of the Trump rally that preceded the violence, two House lawmakers and an expert on right-wing extremism.

Closing arguments are slated for November 15, and a ruling is expected soon after that.";
Trump 14th Amendment disqualification efforts reach Minnesota Supreme Court(The Hill)
"Efforts to keep former President Trump off the ballot under the 14th Amendment reached the Minnesota Supreme Court on Thursday, with several justices during oral arguments appearing wary that they should be the ones to determine Trump’s eligibility.

The case, brought by a left-leaning nonprofit, is one of multiple across the country seeking to prevent Trump from returning to the presidency under the clause, which provides that anyone who took an oath to support the Constitution but then “engaged in insurrection or rebellion” cannot hold office.

Thursday’s arguments concerned several legal issues the nonprofit must prevail on so their case can move ahead: Does the clause apply to presidents? Can the provision be enforced without legislation from Congress? Is the issue a political question outside of the court’s authority?

Five Minnesota Supreme Court justices, four of whom were appointed by Democrats, are weighing the case after two others on the court recused. Several justices Thursday expressed concerns about the various threshold issues.

“I think your argument about the political question doctrine is — I think that’s a very serious problem for the other side on this case,” Justice Barry Anderson told Trump’s attorney."

I typed the words some 8 years ago, that people need to have brought suits against Trump for every conceivable Constitutional perversion he would attempt pre-emptivey, in order not to have to deal with so many issues in such a constrained time span prior to an election.

And guess what we have .... Constitutional splatter

I think everyone should find Judge Luttig's remarks, as it clarifies what I believe is an inaccuracy reporting the the "crime".

Judge Luttig believes the phrase "shall have engaged in insurrection or rebellion against the same" refers to the Constitution, not the United States. He argues you don't have to prove Trump led the riot, or incited the riot, etc, but rather prove he conspired to subvert the Constitution itself by concocting a plan to retain power in contravention to the Constitutional process.

Looks straightforward to me (of course after all the legal questions have been answered mentioned above).

I typed words to the effect in 2016, that every possible legal possibility Trump may subvert the Constitution be brought before courts, so all the legal questions would be preemptively answered for the eventuality Trump would actually act in direct contradiction to the Constitution. Seems I was correct in my thinking.

You were right, in the good old days. Now we may have another chance, with a LOT more information! Jack Smith, the guy going after Trump for the feds, is, exactly doing the right thing right now. He is trying to get the Supremes to do their job on Trump and skip all the other stuff in the middle. That is an excellent start and makes great sense as the Supremes will end up with everything anyway. If he gets that one there is no reason that he can't also get the main one dealt with as well, thereby skipping, again, all the stuff Trump does to stretch it and then forgive himself when he becomes president (seems his chances of becoming president might be good). If he actually gets convicted, especially for going against the constitution a whole new deal will appear. Right now, I think, its being discounted and that will continue until he is actually convicted.

I am, incidentally, assuming that they have Trump to rights.

I also suspect that his chances might decline if the Democrats wake up, smell the roses, and start to fight back. So far such is few and far between. They just don't seem to be getting it.

Should, I guess, also mention that the Supremes are kinda in a mess due to their own greed and not give a damn. This whole thing will change that if they actually agree to go after Trump right now! Then, of course, the real question is going to be which indictment will be acted upon first (there are a LOT of indictments!). On the other hand they might not go after Trump, thereby giving Trump enough time deal with all his problems. If they do that they are going to be in a pile of pain I suspect.

I also wonder, if Trump becomes president can, he only save himself from federal stuff or can he also free himself from those indictments from states.

I have a hard time getting my head around this ruling. To me, Trump either did or didn’t give aid or abetted in an insurrection, he either is or isn’t an insurrectionist. The 14th seems all encompassing to me.

The ruling makes no sense to me. Outside of punting the problem to a higher court. Or perhaps allowing Trump on the ballot for the primaries which isn’t electing anyone to office. The ruling allowed Trump to run for the GOP nomination in Colorado and perhaps in the general election. Colorado even if Trump is allowed to run in the general election isn’t about to win that state anyway. If Trump is on the ballot or not in Colorado is kind of a moot point. But the ruling only applies to Colorado and not the other 49 states. You could have a situation where Trump isn’t on the ballot in Colorado and perhaps a couple or more other states, but is on the rest.

It seems this ruling didn’t mean much as to Trump running for the presidency, but it did rule or classify Trump as being an insurrectionist. Only in the state of Colorado, not the rest. Ultimately, the SCOTUS will have to decide all of this. So, I guess I just sit back, relax, have a cup of coffee or two and wait and see what happens.

There is no need of a trial. It a was a qualification hearing. Does candidate satisfy all the requirements to run for office, including the test that he had taken an oath of office to defend etc the Constitution and then not participated in an insurrection against the Constitution. In this case and only in this state was the candidate questioned over the requirement of 13th Amendment Sec 3. Due process is accorded by the fact there was a hearing of determination and it was predetermined that which ever way the judge ruled, there would be an appeal to higher courts. That there was no trial does not abrogate actual due process. The judge made a finding i,e, Trump did participate in an insurrection, which carries enough weight throughout the due process to be pursued. Trump had an opportunity to testify but didn't. In MTG case Appeals Court dismissed the challenge. In other states an election board makes the determination.

There is plenty of due process.

When a candidate enters an election race their goal is to win i.e take the oath of office. If a candidate had previously taken the oath of office to defend etc the Constitution and then participated in an insurrection against the same, it would incumbent on election boards to disqualify such an individual from running. How that is done is different in the several states, but in each there is due process ti ensure democracy continues and remains Constitutional.

When all of the pieces mysteriously fall in to place, and Trump is again our president, it will have no affect!
A dictator is above all of that!

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.”"

Trump supporters love the authenticity of word salad diarrhea, or are they being conned by cognitive decline.

Regardless, nothing changes the fact he is the prototypical example for narcissistic personality disorder.

Some of you Zappa fans might remember "Is that a real poncho or is that a Sears poncho?" from Cozmik Debris.
Well, after several years of MAGA projection on Sleepy Joe's mental fitness, we now realize that was the Sears poncho.
This is the REAL poncho in action.

The Trump problem needs to be done by the supremes. I know, the supremes also problems of their own. Right now I think there are about 3 specifics that they are considering. I suspect that there are, probably, 10 or 20 more that will also end up in the hands of the supremes as well. The problem is that there is no reason to think that they won't just do nothing.

I don't think the supremes are going to do the job because, basically, there isn't enough time to deal with the stuff that needs to be dealt with given how long virtually anything in the courts takes, especially the tough stuff.

I have no idea what else to say about this. The United States has a mess and the mess is not being dealt with. Trump figured it out. He is an expert in dealing with laws and courts. Its really pretty simple - extend, extend, extend until it makes no difference due to this and that. I am not even convinced that anybody actually gives a damn.

Its gonna get seriously interesting before it just all comes apart.

There are SO MANY reasons that Donald Trump is unqualified for the presidency. First, he was never qualified, and his four years in the White House demonstrated that in spades. Second, he is not cognitively well. He is unraveling before our eyes. While he has always been only marginally competent, he is fading faster than a week old mushroom left on the counter. He is certainly less competent, at this juncture, than Joe Biden. Finally, he is a disgraceful traitor to the country and the Constitution, as the 91 felony counts in four indictments demonstrate. More specifically, his violation of his oath and engaging in insurrection bar him, constitutionally, from taking office. We should be very cognizant of who he picks as his running mate.

If you believe that is a valid interpretation of the Amendment, then I will conclude based on your logic, all laws which did not specifically mention any one singularly, that law does not apply.

Open the prisons ... everyone is free to go since no law mentioned you specifically.

You're correct that many laws were passed regarding the 14th and I believe if you read the history of them, they specifically targeted former members of the Confederacy specifically, including, I believe, Jeff Davis. However, the 14th was not repealed. The amendment remains in effect and addresses, as the writers maintained, insurrection in general, although it was instigated in particular by the people who had taken an oath to uphold and support the Constitution and then fought against it in an insurrection. Thus we should conclude it applies to ALL insurrections.

Congressional interdiction by passing laws which allowed former insurrectionists to hold elected office is an example of how Trump could be allowed to hold office. The House would certainly pass a bill which exonerates Trump of any act of insurrection. The question would be, is that enough? As far as "enforcement", if a state passed a law which states any insurrectionist hold an elected office, then Congress could and should pass laws which would supersede the state law. This is how it was done regarding civil rights issues and thus, it would be how it would be done regarding Trump's Insurrection. Since no state has passed laws allowing insurrections to hold office, there is no need for Congress to address the issue and "enforce" the amendment.

I think the "punt" is to rule it is a state issue, until it becomes a federal (Constitutional) issue. Thus, for example, if the states allow him to run for the House, the House could seat him despite the fact he is an insurrectionist. The Senate would not allow him to be seated. And lastly if he wins the general, who would enforce the 14th and not allow him to take the oath? At that point the Supremes would have to rule, since he has to take the oath from the Chief Justice. Or Justice Roberts could ignore the Constitution and simply administer the oath.

Now if you believe we are still a Democracy, then I think you are sadly mistaken. You may as well install Trump as king and all in his line as kings in waiting. I suspect it is worse than I imagine. Think Texas ... JD Vance ...

Go back to mt last post. If SC overturns Colorado (and I believe they will) then we are faced with the dilemma of an insurrectionist (see your comments) taking the oath of office and the 14th amendment prohibition of an insurrectionist being an officeholder. Republicans have already tried to place a resolution declaring Trump is not an insurrectionist, as per your comment, in preparation. At what point does the prohibition initiate? Immediately after the election? After states have certified? After certificates have been counted? Before another insurrection? etc etc

When the SC opens Pandora's Box, we will begin the Age of the Death of Democracy in America. I hear the rattle.

I disagree.

The SC will pass on the 14th, which can only presage the Constitutional crisis of an insurrectionist attempting to become an officeholder, and this of the courts own making. This may not or will not matter once the election has entered the final phase of counting certificates. MAGA will object and force alternative electors be chosen or failure to return an opinion in which case it goes to the House which will become the arbiter of all elections, including Congressmen. Thus the current House can reject non-loyal Republicans as well as Democrats and maintain control of the House. Once in control they can dictate who becomes President.The political infrastructure is in place. The only think lacking is an election. This can only be good for Trump.

As for immunity, the SC may wait until the fall to take it up, in which case it will become moot. Even if they rule he has no unconditional immunity, he will force states to allow him a free pass. I'm typing about fascism. When in office he can do anything and will have the political inertia to operate as if he were the emperor. For he is above the law.

For those who think it can't happen in America ...abre los ojos!!!!!!

Trump has already been convicted as an insurrectionsist in January 2021 by the House. The Senate simply chose not to remove him.

Only a 2/3rds vote from Congress could remove that disqualification TODAY.

#TrumpIsDisqualified

It's clear the courts won't save democracy. WE have to do it ourselves. We have got to roll up our sleeves ourselves and get to work - there is a lot of work to be done.

Jamie Raskin (D-MD08) has accepted the Supreme Court's decision to have Congress decide and is reviving a bill he set forth in 2021 to deal with insurrectionists like Trump.

If House Speaker Johnson won't bring this bill to a vote, then Mike Johnson needs to be removed as Speaker.

Point of order: Actually, both the House and Senate passed a resolution that declared Jan 6 an insurrection, when they granted Congressional Gold Medals to Capitol Police Officers.

(BTW, I didn't think Gaetz's resolution was passed. Was it?) I checked. It has gone nowhere. HR 1001

The Republicans on the SCOTUS claim to be originalists, but that’s not what they did in this ballot case. In their per curium opinion (decision of a judge, or of a court in unanimous agreement) they selectively quote is one extremely small amount of the history of the 14th Amendment and ignores the rest. It doesn’t address the mountains of information provided in the two amicus briefs filed by historians. Their decision is solely based on outcomes. What Republican-SCOTUS does is invent a bunch of reasons why their preferred outcome is right.

Why is the Republican SCOTUS is in the bag for Trump? They have life tenure, a decent income, and constant security. They have enormous power, to the point that no law or rule is effective without their consent. They have a long to-do list of laws and rules destined for termination. Why waste any of their muscle on Trump?

The easy answer is that they’re corrupt. There’s plenty of evidence of that. Clarence Thomas? His insurrectionist-adjacent wife? And a free RV? Alito, with his giant salmon? Neil Gorsuch’s house? Brett Kavanaugh’s disappearing debts? John Roberts’ wife with her $10 million from BigLaw for legal recruiting? Their total indifference to ethics and the appearance of impropriety?

The per curium decision by the Court all but insures that Trump is not be subject to disqualification under the Insurrection Clause. The timetable for the absurd immunity claim, shows us that mischief that awaits us from their upcoming immunity decision is additional insurance that Trump will stay in the race for November 3024.

But ... but ... that can't happen in America

Been happening ... Democracy is in danger

Both Houses of Congress in January voted that Trump is an insurrectionist. Congress did the job.

H.Res.24 — 117th Congress (2021-2022) passed in the House.
Seven R Senators voted with ALL Dem Senators to agree that Trump is an insurrectionist. The 14th requires a majority - 66 Senators - to remove the label insurrectionist. That did not happen. Therefore, according to the '21-'22 Congressional calendar votes, Trump IS an insurrectionist.

Yes, while the vote fell 10 short to remove Trump from office, 56 Senators found Trump to be an insurrectionist and that is exactly what the 14th states needed to be done.

The SCOTUS is playing fast and loose with their Rwing interpretation of the Constitution.

I completely agree. The determination is not consistent with the language, purpose, or interpretation of the Constitution that has prevailed over 100 years. As you note, "it arrogates power to SCOTUS at the expense of Congress". This is part and parcel of the judicial takeover of the government - it is called, a "Dikastocracy"? It's one label for "rule by judges". Sometimes referred to (incorrectly, but more understandably) as "juristocracy" (mashing Latin and Greek roots together), or kritocracy/kritarchy/critocracy. Whatever label, we're living in it. And it is a recipe for Dikastophy!

You are correct. Indeed, Mark Joseph Stern discovered they were actually written that way. The Supreme Court’s “Unanimous” Trump Ballot Ruling Is Actually a 5–4 Disaster (Slate) Actually, it was both the Supreme Court and the media.

https://www.theatlantic.com/ideas/a...utm_medium=social&utm_campaign=share

The Supreme Court Is Not Up to the Challenge (Quinta Jurecic, Atlantic) - gift Article)
The decision in Trump v. Anderson is another sign that the nation’s highest court will not help the country out of its political crisis.

"The justices chose to avail themselves of an escape hatch, reasoning that the Fourteenth Amendment allows states to disqualify candidates for state office but not for federal office. This neatly allows them to dispose of the Colorado Supreme Court’s ruling by focusing on a seemingly dull, technical issue concerning the mechanics of the Fourteenth Amendment.

The problem with this reasoning is that it is wrong. Despite the justices’ paeans to history, this line of argument is deeply disconnected from what the historical record shows about the Reconstruction-era understanding and implementation of Section 3. The Court claims that the amendment wasn’t meant to allow states power over federal elections, but, for example, the election-law expert Edward B. Foley 'https://www.theatlantic.com/ideas/archive/2024/02/supreme-court-colorado-oral-argument-trump-disqualify/677408/' how Ohio’s state legislature chose in 1868 against electing a Senate candidate who was arguably disqualified for the seat under the Fourteenth Amendment. In this sense, there’s a palpable desperation to the Court’s ruling: The justices were looking for some way, any way, to get themselves out of this bind, even if their reasoning is profoundly unconvincing.
...
But the liberals’ concurrence shatters Barrett’s insistence that, “for present purposes, our differences are far less important than our unanimity.” The tone of their opinion is strikingly angry, citing both Dobbs v. Jackson Women’s Health Organization and Bush v. Gore—two Supreme Court rulings that damaged the Court’s legitimacy by giving the justices the appearance of engaging in unprincipled politicking. And they warn that “the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.”
...
The Court wants to be seen as above politics, but it isn’t. Politics has arrived at its door. The Anderson decision achieves, in its own way, a remarkable feat: It manages to expand the Court's own power while also expressing a deep uncertainty about what, in a moment of crisis, that power is actually for.
"The justices chose to avail themselves of an escape hatch, reasoning that the Fourteenth Amendment allows states to disqualify candidates for state office but not for federal office. This neatly allows them to dispose of the Colorado Supreme Court’s ruling by focusing on a seemingly dull, technical issue concerning the mechanics of the Fourteenth Amendment.[size:11pt][/size]