Capitol Hill Blue Forums Political Issues Constitutional Issues 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 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.

Trump's insurrection trial's jury selection begins February 9, 2024. I think these 14th amendment lawsuits came too early. They suits should have waited until Jack Smith proved that Donald Trump fomented an insurrection. Many of the J6 defendants will be a witness to Trump's DC insurrection trial as they have testified they would not have come to DC on J6 if it were not for Donald Trump's election lies of a "stolen" election.

I think you should review Luttig's remarks on the issue

I believe there is a two part reading which is an important distinction. First is as you say, the actual insurrection. According to the 14th amendment, an insurrection lead by or perpetrated by people who have not taken an oath to uphold and defend the Constitution, would not be covered. These folks would be covered by existing laws regarding insurrection against the United States. Second would be those who had taken an oath to uphold and defend the Constitution (as is the case of Trump) and participated as outlined by the 14th Amendment, those people would be held accountable according to the 14th Amendment, which would mean inability to run for or hold elected office.

Apparently the Shaman can run for office in AZ and not be taken off ballot for his participation in insurrection, but Trump because he allegedly (according to public records and evidence) participated in an insurrection can not run for elected office according to 14th Amendment.

So, what all of that means is, it is not necessary to prove he led the physical insurrection at the capitol, but rather demonstrate he participated in a plan to subvert the Constitution by promoting fake electors and stopping the Constitutional proceedings. There is enough public records and evidence to sustain the allegation, and therefore we should conclude Trump should not be allowed on the ballot.

As to the issue of timing, I suspect you are correct. It would be better to use the evidence which Smith has found and then file suit. However, the issues involved are more complex than at first reading. There is too much ambiguity in the language for mere lower courts. It will have to be brought before the Supremes seeking their imprimatur.

Yup, the suits were brought too soon.

Link

Colorado Judge Sarah Wallace’s opinion finding that Trump did engage in incitement, but can’t be disqualified because the President is not clearly an “officer” under the Fourteenth Amendment.

I'll come back to the officer part later.

Leaving the decision to remove or disallow a candidate from the ballot without a fair trial to determine guilt is open to abuse. It might get Trump off a few ballots this year, but such a precedent could provide legal cover for a swing state Sec of State or judge to keep Biden off the ballot based on allegations which might not hold up were it subject to rules of evidence.

A fair trial is foundational to our American system.

Wallace’s opinion is best understood as a punt to Colorado’s Supreme Court: a finding of facts that which they will eventually decide how to apply. She says as much in a footnote: She made the finding of fact that Trump did engage in insurrection so the Colorado Supreme Court can resolve any appeal without coming back to her.

Trump’s side did not present evidence to fight the claim of insurrection. Trump’s legal expert, Robert Delahunty presented no definition of insurrection that wouldn’t include January 6. No evidence was presented to back his claim that Trump intended to call out 10,000 members of the National Guard. Trump's side presented no evidence that criminal conviction was required before disqualification. There was no evidence presented that Trump did not support the mob’s purpose.

Finding Trump not "an officer" is a stretch given that Trump swore to uphold the Constitution of the United States when he was inaugurated POTUS on January 20, 2017.

As I wrote in the posts above this one, these suits to disqualify Trump from the ballot were brought too soon.

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.

Ultimately, the Colorado SecState will file an appeal. The Colorado's Supreme Court will make the final determination.

I certainly disagree with the judge’s strange rationale the the 14th doesn’t apply to the President, according to some contortional language gymnastics.

Here’s the oath:
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

The word “support” isn’t in there, but three words that are a fairly comprehensive definition of support are.

One comment, the 14th says an insurrectionist can’t hold an office, but it doesn’t say they can’t run.

Was Lyndon Johnson a closet insurrectionist? “If elected, I shall not serve…”

The Colorado decision took place as a hearing; not a trial. Just putting that out there.