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this post was submitted on 30 Dec 2023
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I don't expect them to argue against him inciting an insurrection. I think they will argue that the office of the president isn't a civil office of the United States as laid out in the constitution, as has been a common legal argument brought forth as of late. So they will probably have to argue that the rattifiers of the ammendment were so worried about insurrectionists taking over government that they wanted to prevent it, but not enough they thought the presidency should be barred to insurrectionists.
Except we have the record for for their debate saying that the 39th Congress who passed the 14th Amendment knew that the Office of the President was indeed an office to be guarded. The reason they enumerated the others in Clause 3 was because multiple people wanted to ensure that those folks too were covered.
But even if the President isn't enumerated Trump has this problem.
— US Constitution, 10th Amendment
So it not being specified by the Constitution nor being codified by Congress as law, how States want to look at the 14th is up to them. So even if SCOTUS wants to play the "The President is not listed" card. It's not explicitly denied. The tenth amendment indicates that if it's not denied, States get to run with it.
What SCOTUS can rule upon is "due process" which is asserted by the 14th clause 1. SCOTUS could indicate that the process by which Colorado took doesn't meet this bar. But then, SCOTUS would kind of be on the hook for indicating "well what is the official process?" And if they say "Well Congress has to make it up" then we fall back into the "if Congress doesn't say anything, States get to run with it" problem that the 10th amendment grants.
See Colorado isn't trying to impose their will unto everyone, which means this squarely falls into a "State's rights" kind of thing. And that's going to get tricky for the Conservatives to word salad themselves out of that corner they've painted. That's not to say they won't, but it's going to be an interesting read to say the least on how they rule.
I can understand their hesitancy to rule with Colorado because then it'll open a floodgate that we all know that particular states will attempt to abuse. But boy oh boy have they been so strong on States should get to do what they want so hard that this kind of thing was just waiting to come back and bite them on the ass.
Which is some rank fucking bullshit, no way that should be unanimous.
I'm sure they're gonna abandon all pretense of the principled "states decide" position that they used to gut the Voting Rights Act, but that should be a party line vote.
Obviously they will find some way to force him on the ballot; they are crooked hacks, after all.
I submit that the Presidency is an office (quotes like "I serve the office, not the man") and the person holding that office is an officer. I get that sometimes the constitution can be unclear, but that one doesn't seem like rocket science no matter how folks want to split words.
No my take is they will find he is being denied without due process. Which is arguable. Has he even been formally accused of insurrection? I mean I know we all saw it with our own eyes, but do we want to open the door to denying someone their right to run for office based on an opinion that what he did could be considered insurrection? Think about how many people trump would accuse of insurrection. Everyone that fought against him in what he would call his legitimate reelection.
So this tool needs to be used very cautiously because it could be turned to serve evil.
This is literally the entire strategy behind the crypto-fascist movement that is surrounding Donald Trump. These constant attempts to undermine legal safeguards and basterdize the rule of law is meant to erode public trust from all sides of the political paradigm. Any rational person understands that the spirit of the law is meant to prevent the kind of tin-pot dictator Donald Trump would like to become from seizing power. If this same situation had occurred at any other point in United States history he would have been charged with treason. The level of information warfare has so undermined the common sense discourse in this country that I have very little faith we will not slow walk into reality television authoritarianism with about 30% of the stupidest fucking knuckle-draggers among us cheering it on while it happens.
I appreciate what you're saying here. However one of the things Trump did was constantly abuse the power of his office. He changed the fucking weather prediction with a sharpie.
The last thing we want is to give someone a tool that can be used without sufficient checks and balances to strike at his political opponents. Because you're right it's been plain to see what he's been up to and a frightening percentage of the citizens are just fine with it.
Given that, how would you propose we, as a society, deal with someone who is willing to either circumvent or delegitimize any and every legal process that attempts to hold them accountable?
I think it is dangerous to suggest that we should not use any and all legal means provided to us within the constitution to punish those who would seek to undermine our democracy simply because we are afraid they will seek to distort the law to serve their own ends, for they will do so regardless.
At some point I believe there are things worth fighting for, dying for, and even killing for if necessary. It may get to that point, as it has innumerable times before in human history. I would prefer the civilized path where we fight with the law rather than the sword. I'm convinced those who seek to drag us into the dystopian breach are counting on the fear and inaction of the general public, and that may be our undoing.
Some fights are about the principal of the thing, and it is better to suffer the consequences that may come from trying rather than allowing society to quietly march towards fascism for the second time in as many centuries.
Edit: Also, I'm not the one downvoting you. I appreciate the dialogue even if we disagree.
There just needs to be due process to make it harder to abuse. Now arguably there has been due process at least in Colorado, it's a factual finding that he engaged in insurrection there. I'm here for it. I just suspect the Supreme Court will find a way to invalidate that, and I suspect it will hinge on the fact that he never was formally tried for insurrection, rather the case was essentially "we all saw him commit the crime so he can't hold the office." But we can have a murder on film with a closeup of a person's face and they still get a formal trial to defend themselves. We saw it with our own eyes is not sufficient to bypass a trial unless a trigger-happy cop feels sufficiently threatened.
Edit: that being said, when it was used against civil war criminals, I don't believe there was any official finding of insurrection there either, so that might be a harder argument than I think.
I can see where you might think that. I previously thought the same. I don't think so anymore.
Because an insurrection against the government is fundamentally a criminal act, one would naturally think that Section 3 of the 14th Amendment would require a criminal conviction to apply. For most crimes you have to be convicted before there is a penalty. This is basic due process (which, BTW, is described in Section 1 of the 14th Amendment), however I don't think that is the case here.
Section 3 of the 14th Amendment reads as follows:
Section 3 describes how participating in an insurrection will result in disqualification to hold office. It has no requirement for a criminal conviction. If a State believes that a person who previously took an oath to support the US Constitution engaged in an insurrection, then that person is disqualified from running for office. There is no due process requirement for disqualification due to age or citizenship, so there is no need for due process for any other disqualification.
If Congress feels that the person should be allowed to run for office, they can remove the qualification disability with a two-thirds vote in both houses.
The States can decide for themselves if Trump is disqualified, if Congress disagrees they alone have the ability to fix it.
Yup, Congresses vote is meant to serve as the check and balance as well as due process here. This is a civil matter, not criminal. It doesn't matter if he was convicted. As you pointed out, we don't requre such things on age or citizenship and we don't require them here either.
There needs to be due process because .. Hunter Biden … laptop … insurrection.
Now that this can of worms is open, someone will try to abuse it. Establishing due process sets a bar that future fascists know not to cross plus makes it harder to abuse for partisan manipulation
I thoroughly agree with you that the most likely argument that comes from the Supreme Court in regards to Trump's eligibility to serve will hinge on the application of due process, and what that means in the case of insurrection. As you said, there was not a formal criminal tribunal or insurrection charges filed during the post-war reconstruction. It seems to have just been defacto applied via the actual ratification of the 14th Ammendment, and was understood to unanimously bar confederate representatives from serving in government.
I think all of the historical context as well as the spirit of the law does need to be closely examined. However, my fear is that no matter what the outcome of that examination may be it will only serve to further erode public trust in the judicial system due to the (valid) perception of political corruption within the Supreme Court, as well as their continuous inaction, which serves to telegraph a lack of concern or desire to avoid the prudential and consistent application of the law.
Any due process right an insurrectionist has to appear on the ballot is vitiated (or not) by the administrative legal process for ballot access provided by each secretary of state's office.
The notice and opportunity to be heard was the notice provided by the secretary of state's office when it made the rules implementing the state's ballot access statutes.
The right to due process during the adjudication of that decision is vitiated (or not) in the administrative appeals process which usually begins within the agency and ends in the state's appellate courts and at SCOTUS.
Due process is what Trump is getting right now by bringing legal challenges.
I find this a compelling argument. Thank you. It would be really silly to argue before SCOTUS that you've been denied due process.
Sure: he was formally accused of insurrection in the Colorado case. The judges deliberated, found in favor of the accusations, and disqualified him from the state ballot.