https://www.msn.com/en-us/news...cfb04450775882f&ei=8

Last week, law professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — both members of the conservative Federalist Society — argued in a law review article that Trump is already constitutionally forbidden from serving in public office because of Section Three of the 14th Amendment.

This section, also known as the Disqualification Clause, bars from office any government officer who takes an oath to defend the Constitution and then engages in or aids an insurrection against the United States. Only a two-thirds majority of both houses of Congress can act to remove such disability.

It should not come as a surprise that Trump meets this standard. All three branches of the government have identified the attack on the Capitol as an insurrection, with multiple federal judges, bipartisan majorities in the House and Senate, as well as the bipartisan Jan. 6 House select committee, citing Trump as its central cause.

As Baude and Paulsen note, “Section Three requires no prior criminal-law conviction, for treason or any other defined crime, as a prerequisite for its disqualification to apply.” Trump’s indictment by special counsel Jack Smith for election-related crimes only further bolsters the case for his constitutional disqualification.

The constitution also requires due process of law, so while Trump may well meet the criteria of engaging in a treasonous act, until he’s actually convicted, it’s unenforceable.

Neither you nor I are attorneys or legal scholars.

The premise of the OP title was written and supported by qualified people.

I realize the article has the caveat of "opinion".

Yet, I think there is a good probability that this part of the constitution will be tested by a lawsuit that goes through the courts, all the way to SCOTUS, if it's not dealt with another way.

I wouldn't be surprised if the Federalist Society initiated the lawsuit.

It's an escape hatch for the GOP. After all they will be the first to benefit from the relief of Trump without the wrath of his followers.

The nation will also benefit.

It is a stretch I cannot make. Certainly, Congress could impeach him if Congress (2/3 of the Senate) believes the above is true.
Y fear is he will be convicted, appeal, be released pending appeal or not, and win the election.

This is because I do not believe Congressional Republicans will vote to see him removed through impeachment on sufficient numbers, and the Cabinet, or Congress will not seat a body will as allowed, not invoke the 25th Amendment him.

The Constitution and its amendments read to requiring President Trump to remain in office assuming the above.

Republicans already had the impeachment and 25th opportunity(s) and blew it.

No balls.

Section Three of the 14th Amendment may be the way for the no-balls repugs in congress to save face.

Has it been proven legally he aided in an insurrection? Then whaddya talking about?

Did you read the article linked in the OP?

Let the experts answer your question(s).

My take on it is -- if the issue, per the 14th, is asserted appropriately, whether lawsuit or whatever, the central constitutional issue will reach a climax. And collaterally the issue of whether his actions constitute insurrection will be decided. There's plenty of evidence.

I'm thinking this is a civil case rather than criminal. Maybe some attorney herein can add their two-cents.

Just sayin'.

quote:

Originally posted by bluefish:
Has it been proven legally he aided in an insurrection? Then whaddya talking about?

Patience, young Jedi….. And in the meantime , send him more of your hard earned money…

OK. This article was published in the NYT.

I was able to access it because I have a subscription and logged in.

The link is: https://www.nytimes.com/2023/0....html?smid=url-share

I'm not sure those without a subscription can access it. So, I'll cut and paste the whole article.

I highlighted some parts in bold .

Conservative Case Emerges to Disqualify Trump for Role on Jan. 6
Two law professors active in the Federalist Society wrote that the original meaning of the 14th Amendment makes Donald Trump ineligible to hold government office.

By Adam Liptak
Reporting from Washington

Published Aug. 10, 2023
Updated Aug. 11, 2023

Two prominent conservative law professors have concluded that Donald J. Trump is ineligible to be president under a provision of the Constitution that bars people who have engaged in an insurrection from holding government office. The professors are active members of the Federalist Society, the conservative legal group, and proponents of originalism, the method of interpretation that seeks to determine the Constitution’s original meaning.

The professors — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — studied the question for more than a year and detailed their findings in a long article to be published next year in The University of Pennsylvania Law Review.

“When we started out, neither of us was sure what the answer was,” Professor Baude said. “People were talking about this provision of the Constitution. We thought: ‘We’re constitutional scholars, and this is an important constitutional question. We ought to figure out what’s really going on here.’ And the more we dug into it, the more we realized that we had something to add.”

He summarized the article’s conclusion: “Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.”

A law review article will not, of course, change the reality that Mr. Trump is the Republican front-runner and that voters remain free to assess whether his conduct was blameworthy.

But the scope and depth of the article may encourage and undergird lawsuits from other candidates and ordinary voters arguing that the Constitution makes him ineligible for office.

“There are many ways that this could become a lawsuit presenting a vital constitutional issue that potentially the Supreme Court would want to hear and decide,” Professor Paulsen said.

Mr. Trump has already been indicted twice in federal court, in connection with his efforts to overturn the 2020 election and his retention of classified documents. He is also facing charges relating to hush money payments in New York and may soon be indicted in Georgia in a second election case.

Those cases could give rise to prison time or other criminal punishment. The provision examined in the new article concerns a different question: whether Mr. Trump is eligible to hold office.

There is, the article said, “abundant evidence” that Mr. Trump engaged in an insurrection , including by setting out to overturn the result of the 2020 presidential election, trying to alter vote counts by fraud and intimidation, encouraging bogus slates of competing electors, pressuring the vice president to violate the Constitution, calling for the march on the Capitol and remaining silent for hours during the attack itself.

“It is unquestionably fair to say that Trump ‘engaged in’ the Jan. 6 insurrection through both his actions and his inaction,” the article said.

Steven G. Calabresi, a law professor at Northwestern and Yale and a founder of the Federalist Society, called the article “a tour de force.”

But James Bopp Jr., who has represented House members whose candidacies were challenged under the provision, said the authors “have adopted a ridiculously broad view” of it, adding that the article’s analysis “is completely anti-historical.”

(Mr. Bopp’s clients have had mixed success in cases brought under the provision. A state judge, assuming that the Jan. 6 attacks were an insurrection and that participating in them barred candidates from office, ruled that Representative Marjorie Taylor Greene, Republican of Georgia, had not taken part in or encouraged the attacks after she took an oath to support the Constitution on Jan 3. A federal appeals court ruled against Representative Madison Cawthorn, Republican of North Carolina, on one of his central arguments, but the case was rendered moot by his loss in the 2022 primary.)

The provision in question is Section 3 of the 14th Amendment. Adopted after the Civil War, it bars those who had taken an oath “to support the Constitution of the United States” from holding office if they then “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

Congress can remove the prohibition, the provision says, but only by a two-thirds vote in each chamber.

The new article examined the historical evidence illuminating the meaning of the provision at great length, using the methods of originalism. It drew on, among other things, contemporaneous dictionary definitions, other provisions of the Constitution using similar language, “the especially strong evidence from 1860s Civil War era political and legal usage of nearly the precise same terms” and the early enforcement of the provision.

The article concluded that essentially all of that evidence pointed in the same direction: “toward a broad understanding of what constitutes insurrection and rebellion and a remarkably, almost extraordinarily, broad understanding of what types of conduct constitute engaging in, assisting, or giving aid or comfort to such movements.”

It added, “The bottom line is that Donald Trump both ‘engaged in’ ‘insurrection or rebellion’ and gave ‘aid or comfort’ to others engaging in such conduct, within the original meaning of those terms as employed in Section 3 of the 14th Amendment.”

Though the provision was devised to address the aftermath of the Civil War, it was written in general terms and continues to have force, the article said.

Congress granted broad amnesties in 1872 and 1898. But those acts were retrospective, the article said, and did not limit Section 3’s prospective force. (A federal appeals court agreed last year in the case involving Mr. Cawthorn.)

The provision’s language is automatic, the article said, establishing a qualification for holding office no different in principle from the Constitution’s requirement that only people who are at least 35 years old are eligible to be president.

“Section 3’s disqualification rule may and must be followed — applied, honored, obeyed, enforced, carried out — by anyone whose job it is to figure out whether someone is legally qualified to office,” the authors wrote. That includes election administrators, the article said.

Professor Calabresi said those administrators must act. “Trump is ineligible to be on the ballot, and each of the 50 state secretaries of state has an obligation to print ballots without his name on them,” he said, adding that they may be sued for refusing to do so.

(Professor Calabresi has occasionally strayed from conservative orthodoxy, leading to an unusual request from the group he helped found. “I have been asked not to talk to any journalist who identifies me as a co-founder of the Federalist Society, even though it is a historical fact,” he said. I noted the request and ignored it.)

Some of the evidence the article considered overlapped with what was described in the recent indictment of Mr. Trump accusing him of conspiring to subvert the 2020 election. But that case and Section 3 address “completely separate questions,” Professor Baude said.

“The question of should Donald Trump go to jail is entrusted to the criminal process,” he said. “The question of should he be allowed to take the constitutional oath again and be given constitutional power again is not a question given to any jury.”

You can always find an expert that you agree with.

That still does not get around due process.

It’s circular logic.

If Trump was involved in an insurrection or felony that makes him ineligible, you either need to use that as grounds to impeach him or charge him with the crime.

If you try and bring an ineligibility before election, how are you doing it?

Taking him to court stating he’s ineligible to even run? Most likely the judge will say until he’s either elected or found guilty of a charge, the court has no standing.

If he’s elected as president, then he gets to fight it in court and nothing happens until the case gets through.

If he’s elected, then you get to deal with impeachment. Kind of unlikely that he would win and his supporters would not keep a more than 1/3 of the senate…

The TDS may be irreversible for some here I am afraid.

quote:

Originally posted by crbutler:
That still does not get around due process.

It’s circular logic.

If Trump was involved in an insurrection or felony that makes him ineligible, you either need to use that as grounds to impeach him or charge him with the crime.

If you try and bring an ineligibility before election, how are you doing it?

Taking him to court stating he’s ineligible to even run? Most likely the judge will say until he’s either elected or found guilty of a charge, the court has no standing.

If he’s elected as president, then he gets to fight it in court and nothing happens until the case gets through.

If he’s elected, then you get to deal with impeachment. Kind of unlikely that he would win and his supporters would not keep a more than 1/3 of the senate…

Well, the two authors of the article say he's not eligible to hold office.

They say that means he's not eligible to be on the ballot, in any state,

It's preemptive. He doesn't need to be elected for the provision to kick in.

Triggering the provision, according to the authors, doesn't involve congress or a felony conviction, or jury. The provision of the Constitution is triggered when he declares his intention to hold office. He's not eligible.

It's not circular at all. Throwing in impeachment, the 25th, etc. makes it circular.

The authors provided a road map for a lawsuit to test the issue.

It should be done right away.

The issue is not if he's elected, or moot if he's not, but whether he's eligible to be on the ballots.

Due process is achieved through the judiciary in hearing and deciding the lawsuit, all the way to SCOTUS if necessary. It's a matter of constitutional law, and really rather simple.

quote:

really rather simple.

I think there's a good probability that a lawsuit will be filed concerning the issue.

We shall see, and if it is we shall see how simple it is.

In my simplistic view, there's only two issues. Is the constitutional provision valid, and did Trump do the insurrection thing?

If the answer is yes and yes, then he's not eligible to hold office, and not even eligible to be on the ballots.

Just to make sure of associated law, I looked this up:

https://www.washingtonpost.com...n-run-for-president/

Is a felon legally permitted to run for president?

Is a convicted felon legally permitted to run for president?
— Asked March 28 in our election live chat

The constitutional qualifications for being president are being a natural-born U.S. citizen, a resident for at least 14 years and over the age of 35. A person can be disqualified by conviction in a Senate impeachment trial, but a criminal conviction does not affect eligibility.

Here's the provision in the 14th:

What Is the Disqualification Clause?
Fourteenth Amendment, Section 3:​

"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."

(there's more - a lot more)

https://constitution.findlaw.c...r%20of%20any%20State

Who would have standing in such a lawsuit? President Trump would if a state used this theory to keep him off the ballot.

Maybe an opposing candidate; maybe?

The S. Ct., does not recognize tax payer standing. You cannot just say, “I am a citizen, and I what this law enforced.”

quote:

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

No wonder all the Lefties/Communists continue to bang the 'insurrection' drum.

In case you missed it, here is what he said "I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard."

quote:

Originally posted by LHeym500:
Who would have standing in such a lawsuit? President Trump would if a state used this theory to keep him off the ballot.

Maybe an opposing candidate; maybe?

The S. Ct., does not recognize tax payer standing. You cannot just say, “I am a citizen, and I what this law enforced.”

So class action - we the people - have no standing, regardless of harm?

Anyway, now that I look into it, there's some writing about it.

Maybe this will answer your questions:

https://www.pogo.org/report/20...an-be-enforced-today

The Constitution’s Disqualification Clause Can Be Enforced Today
BY LIZ HEMPOWICZ & DAVID JANOVSKY & NORMAN EISEN | FILED UNDER REPORT | NOVEMBER 15, 2022

Here's part of it. The article is very thorough.

Disqualifying Conduct
Section 3 disqualification applies to covered individuals who participate in two categories of activities: those who have “engaged in insurrection or rebellion against” the United States, and those who have “given aid or comfort to the enemies thereof.”3 Thus, imposing the disqualification requires a finding that there was an insurrection or rebellion against the federal government and that an individual engaged in it — or, alternatively, that an individual gave aid or comfort to enemies of the United States. However, as is often the case with the Constitution, the text provides no further clarity on what circumstances or actions meet the thresholds of insurrection, rebellion, engagement, aid or comfort, or acting as an enemy of the United States.

There should be little doubt that the attack on the Capitol on January 6 rises to the level of an insurrection. In determining whether the attack triggers the disqualification clause, a New Mexico county trial court recently summarized the historical understanding of “insurrection” as: “an (1) assemblage of persons, (2) acting to prevent the execution of one or more federal laws, (3) for a public purpose, (4) through the use of violence, force, or intimidation by numbers.”4

The court’s definition is consistent with other definitions of insurrection. For instance, 10 U.S.C. § 253 authorizes the president to use the armed services to suppress “any insurrection” if it “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.”5 Notably, as the New Mexico decision observes, all three branches of the federal government have described the January 6 attack on the U.S. Capitol as an “insurrection.”6

Cases applying the disqualification clause to former Confederates after the Civil War provide some guidance about what sort of conduct rises to the level of “engaging” in insurrection. For instance, one court found that “’engage’ implies, and was intended to imply, a voluntary effort to assist the Insurrection or Rebellion, and to bring it to a successful termination,” while another defined it as “Voluntarily aiding the rebellion, by personal service, or by contributions, other than charitable, of anything that was useful or necessary” to the insurrection.7 The New Mexico judge similarly suggested that a broad swath of activity was prohibited by the clause when he ruled that a county commissioner “engaged” in the January 6 insurrection by participating in the “planning, mobilization, and incitement” preceding the attack on the Capitol, and not just the attack itself.

(there's a lot more)

You are arguing for tax payer standing. That had been rejected by the S. Ct. This majority is not going to make an exception.

quote:

Who would have standing in such a lawsuit?

Heck, if you think about that, the answer is the whole GOP. Get that hijacker off their backs. Plus practically every citizen has standing, individually and collectively. Plus the whole fed govt, maybe states too, and every agency and institution, and every employee.

The whole world has standing. By "standing" I mean stake.

Whether that constitutes "standing" in this type of lawsuit, I dunno.

quote:

You are arguing for tax payer standing.

No, I'm not.

I'm saying that the sect. 3, of the 14th can't be valid if there is no standing anywhere.

And we know, or can safely presume, the amendment and section is valid.

So there is standing somewhere. Has to be.

If "standing" can't be found given the situation, conditions, circumstances, evidence, of Jan 6, then that part of the constitution is not valid.

Okay, after reading several articles, to focus the issues as much as I can, and save others from having to labor through it all, I found this:

Scroll down to "Implementation"

It's not as simple as I thought. Regarding Trump's candidacy, and appearance on the ballots, it's possible to bar him.

But this is all untested law - new ground, but this whole thing is novel.

https://crsreports.congress.go...20federal%20criminal

The Insurrection Bar to Office: Section 3 of the
Fourteenth Amendment
Updated September 7, 2022

Novel means the S. Ct. will have to render an opinion sanctioning the theory. This Majority is not going to do that. There is no caselaw guiding a reluctant court in that direction.


If states move to bar President Strunk from the ballot, President Trumps will have standing to get to the High Court.

All this novel theory can do, if tested is strengthen President Trump.

However, there is Caselaw indicating GOP as a Party can pass rules for party nomination that would bar President a trump from the GOP nomination.

Now, if the GOP want to pass a rule that no one under Federal or State indictment for a felony during the convention can be eligible for nomination by the GOP and may not appear on GOP nomination ballot at convention; that would have more legal substance. Such a rule invites President Trump to challenge it in Court. He has nothing to lose and everything to gain. Yet, such a rule is more tested as The Court in Jones, as well as in Tashjian and Eu, asserted that the right to free association applied to political parties and that they have the right to decide with whom to affiliate.

Thus, the Party could keep President Trump off the Party’s ballot,

Also, in Jones, the S. Ct. held Parties have a right through the 1st Amendment to endorse a candidate. Nothing says the GOP National Party cannot pass a rule excluding not President Trump the person, but anyone under felony indictments.

Well, thanks for putting up with me.

Your explanations suffice, for now. But I still wonder about all these convincing articles which go to a lot of trouble to delve into it.

The sources I linked are not what one would consider BS sources. They are credible.

I do not think they are “BS.” However, the theory has no caselaw support. It is high Law College Professor thought experiment.

It is the other side of the coin that gave us the CP can stop certification and sent the Electors back to the states, or count alternates sent by someone.

Again, my main issue is there is no Standing to sue on this matter to force/test the theory. Unless a state goes through with it and by doing it lets President Trump have standing to get to the Supreme Court. Again, in that scenario, we have no caselaw to guide a reluctant Court to the outcome you want.

Now, the Party to make a rule that applies to anyone facing felony indictment making said person ineligible for Party nomination. That does have S. Ct., precedent to be applied in barring the person from the Party Nomination.

Now, in all honesty, I believe this S. Ct., majority would make a distinction and restrict not follow those precedents provided above.

That and the GOO does not have the soul to exclude a man like President Trump. If the primary voters want him, they will get him. The GOP will adopt President Strunk as their hope for the big chair, and the raw political power that comes with it. Principles, high ideals be damned. We have Judges that will overturn Marriage Equality, contraception access to stop, break Social Security as an entitlement, establish tort reform, and med mal immunity to appoint. Oh, and make your children say the state approved prayer.

The way I'm looking at it from the outside is that the constitution has two things about this.

Broadly, individuals have a right to due process.

Narrowly, to be president you cannot have been in rebellion/in arms against the government unless 2/3 of both houses of the legislature say that you are exempt from this requirement.

Given the times, that was undoubtedly so that while a ex-loyalist could be allowed to take the presidency, he would need to be given an overwhelming vote of approbation by the legislature. Remember that at the time, the president was not elected by the people of the nation, but rather by the states as a vote. Mostly it was legislators who decided.

So while you can be ineligible, you can run and the legislature can turn you down if you win. Then your running mate becomes president.

Now, how do you decide if they are ineligible? The statement of insurrection essentially was treason when they wrote it, except that the "crime" may have preexisted the law, and its ex-post facto. They banned this, so it was a way of saying even if you were not a traitor, if you had not been in support of the nation, you were not eligible.

At best, their argument is that if Trump wins election, the court will have to decide if he is ineligible, and then by succession rules, his VP becomes president, unless 2/3 of both the house and senate say "we forgive your past, and want you to be president", which we all agree is not very likely.

I don't see how the law matters in this case; if after all this Trump is freely and fairly reelected by the voters, I think the future of our nation is concluded.

And I think for many people Trump lives in there heads and is the devil incarnate and that befuddles me
Even if Trump is re-elected, our country will do just fine
If Biden is re-elected, our country will do just fine
Some of you guys need to take a break from “ Sky is falling scenarios”
Maybe go get hooker so you can clear your Mind…

quote:

Originally posted by Scott King:
I don't see how the law matters in this case; if after all this Trump is freely and fairly reelected by the voters, I think the future of our nation is concluded.

The law is always to matter. Otherwise we are no different than the all means necessary Jan 6 crowd.

quote:

Originally posted by crbutler:
The way I'm looking at it from the outside is that the constitution has two things about this.

Broadly, individuals have a right to due process.

Narrowly, to be president you cannot have been in rebellion/in arms against the government unless 2/3 of both houses of the legislature say that you are exempt from this requirement.


So while you can be ineligible, you can run and the legislature can turn you down if you win. Then your running mate becomes president.

Now, how do you decide if they are ineligible?

At best, their argument is that if Trump wins election, the court will have to decide if he is ineligible, and then by succession rules, his VP becomes president, unless 2/3 of both the house and senate say "we forgive your past, and want you to be president", which we all agree is not very likely.

I think you are making the application of sec. 3, 14th amendment way too convoluted.

I covered the "due process" thing in a previous post. Due Process will happen, and thus it's a moot point regarding whether to trigger the provision (law) and process.

Congress does NOT have to be in the process, just the judiciary.

"If Trump wins" is the convoluted part, the circular part, of your analysis. Frankly, if he wins, we are stuck with him, felon or not, incarcerated or not. Congress doesn't have the balls to bar him from office. I'm sure that won't happen.

The court can decide if he's ineligible pre-emptively. He can be barred from the ballots, not because he's under indictment, nor if convicted. He can be barred based on the vast evidence that he did the insurrection thing.

"Insurrection" is difficult to define and prosecute IF it's a criminal prosecution. In my understanding, that's why Jack Smith didn't indict using the term "insurrection" at all. Apparently, it's not legally defined, insofar as a crime. But for the instance of evoking sec 3, of the 14th, it's not the same problem.

Barring Trump from office and the ballots is not a criminal endeavor.

LHeym rightly says "standing" is the first issue. I looked it up but can't sort it out since I'm not an attorney.

To me, we all have "standing", or stake - The whole world, and all govts. and institutions therein, and the environment too, and future generations too.

The way I understand LHeym's thing about "standing" is that if ONE State, say California, refuses to put Trump on their ballots, then Trump has "standing" to bring lawsuit.

In my view, reading the provision, that's backwards, and it's too late - too little.

I read the provision as pre-emptive, given the facts that fit.

In my view, and studied analysis, Trump is barred by constitution NOW from ever holding office again. All that needs to happen is to say so, with "standing" and run it through the courts.

Per this post, and linked article, the RNC has "standing".

https://forums.accuratereloadi...3811043/m/3271065572

https://theconservativetreehou...t-the-maga-movement/

https://time.com/6305003/trump...ment-14th-amendment/

The Case for Why the Constitution Blocks Trump Being President Again

quote:

Originally posted by LHeym500:

quote:

Originally posted by Scott King:
I don't see how the law matters in this case; if after all this Trump is freely and fairly reelected by the voters, I think the future of our nation is concluded.

The law is always to matter. Otherwise we are no different than the all means necessary Jan 6 crowd.

I understand your position and I also think you understand mine. Regardless the law, if Trump is re elected, it's, "Katie bar the door!".

Here's an article on how to do it.

I hope this has momentum.

https://www.salon.com/2023/08/09/and-14th-amendment/

Here's how to ban Trump — and other MAGA cultists — from holding public office
There's a serious movement aimed at keeping Donald Trump off the ballot — and it's backed by the Constitution

PUBLISHED AUGUST 9, 2023 5:30AM (EDT)

It is gaining traction.

Soon - any day now----

Published in The Atlantic

https://www.msn.com/en-us/news...8526e867975dd8&ei=19

The Constitution Prohibits Trump From Ever Being President Again
Opinion by J. Michael Luttig
•
9h

As students of the United States Constitution for many decades—one of us as a U.S. Court of Appeals judge, the other as a professor of constitutional law, and both as constitutional advocates, scholars, and practitioners—we long ago came to the conclusion that the Fourteenth Amendment, the amendment ratified in 1868 that represents our nation’s second founding and a new birth of freedom, contains within it a protection against the dissolution of the republic by a treasonous president.

This protection, embodied in the amendment’s often-overlooked Section 3, automatically excludes from future office and position of power in the United States government—and also from any equivalent office and position of power in the sovereign states and their subdivisions—any person who has taken an oath to support and defend our Constitution and thereafter rebels against that sacred charter, either through overt insurrection or by giving aid or comfort to the Constitution’s enemies.

The historically unprecedented federal and state indictments of former President Donald Trump have prompted many to ask whether his conviction pursuant to any or all of these indictments would be either necessary or sufficient to deny him the office of the presidency in 2024.

Having thought long and deeply about the text, history, and purpose of the Fourteenth Amendment’s disqualification clause for much of our professional careers, both of us concluded some years ago that, in fact, a conviction would be beside the point . The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation. The clause was designed to operate directly and immediately upon those who betray their oaths to the Constitution, whether by taking up arms to overturn our government or by waging war on our government by attempting to overturn a presidential election through a bloodless coup.

The former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the U.S. Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again. The most pressing constitutional question facing our country at this moment, then, is whether we will abide by this clear command of the Fourteenth Amendment’s disqualification clause.

We were immensely gratified to see that a richly researched article soon to be published in an academic journal has recently come to the same conclusion that we had and is attracting well-deserved attention outside a small circle of scholars—including Jeffrey Sonnenfeld and Anjani Jain of the Yale School of Management, whose encouragement inspired us to write this piece. The evidence laid out by the legal scholars William Baude and Michael Stokes Paulsen in “The Sweep and Force of Section Three,” available as a preprint, is momentous. Sooner or later, it will influence, if not determine, the course of American constitutional history—and American history itself.

Written with precision and thoroughness, the article makes the compelling case that the relevance of Section 3 did not lapse with the passing of the generation of Confederate rebels, whose treasonous designs for the country inspired the provision; that the provision was not and could not have been repealed by the Amnesty Act of 1872 or by subsequent legislative enactments; and that Section 3 has not been relegated by any judicial precedent to a mere source of potential legislative authority, but continues to this day by its own force to automatically render ineligible for future public office all “former office holders who then participate in insurrection or rebellion,” as Baude and Paulsen put it.

Among the profound conclusions that follow are that all officials who ever swore to support the Constitution—as every officer, state or federal, in every branch of government, must—and who thereafter either “engaged in insurrection or rebellion” against the Constitution or gave “aid and comfort to the enemies” of that Constitution (and not just of the United States as a sovereign nation) are automatically disqualified from holding future office and must therefore be barred from election to any office.


Regardless of partisan leaning or training in the law, all U.S. citizens should read and consider these two simple sentences from Section 3:

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.

The Fourteenth Amendment was promulgated and ratified in the context of postbellum America when, even after losing the Civil War, southern states were sending men to Congress who had held prominent roles in the Confederacy or otherwise supported acts of rebellion or insurrection against the United States.

The two of us have long believed, and Baude and Paulsen have now convincingly demonstrated, that notwithstanding its specific historical origin, Section 3 is no anachronism or relic from the past; rather, it applies with the same force and effect today as it did the day it was ratified—as does every other provision, clause, and word of the Constitution that has not been repealed or revised by amendment.

Baude and Paulsen also conclude that Section 3 requires no legislation, criminal conviction, or other judicial action in order to effectuate its command. That is, Section 3 is “self-executing.” (Other scholars have relied on Chief Justice Salmon P. Chase’s poorly reasoned opinion in an 1869 case called In Re Griffin to support the contrary view. Baude and Paulsen decisively dismantle Griffin as a precedent.)

They conclude further that disqualification pursuant to Section 3 is not a punishment or a deprivation of any “liberty” or “right” inasmuch as one who fails to satisfy the Constitution’s qualifications does not have a constitutional “right” or “entitlement” to serve in a public office, much less the presidency. (For that reason, they argue that the section, although it does not entirely override preexisting limits on governmental power, such as the First Amendment’s ban on abridgments of the freedom of speech, powerfully affects their application.) Finally, the authors conclude that Section 3 is “expansive and encompassing” in what it regards as “insurrection or rebellion” against the constitutional order and “aid and comfort to the enemies” of the United States.

Baude and Paulsen are two of the most prominent conservative constitutional scholars in America , and both are affiliated with the Federalist Society , making it more difficult for them to be dismissed as political partisans. Thus it is all the more significant and sobering that they do not hesitate to draw from their long study of the Fourteenth Amendment’s text and history the shattering conclusion that the attempted overturning of the 2020 presidential election and the attack on the Capitol, intended to prevent the joint session from counting the electoral votes for the presidency, together can be fairly characterized as an “insurrection” or “rebellion.” They write:

The bottom line is that Donald Trump both “engaged in” “insurrection or rebellion” and gave “aid or comfort” to others engaging in such conduct, within the original meaning of those terms as employed in Section Three of the Fourteenth Amendment. If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution.

At the time of the January 6 attack, most Democrats and key Republicans described it as an insurrection for which Trump bore responsibility. We believe that any disinterested observer who witnessed that bloody assault on the temple of our democracy, and anyone who learns about the many failed schemes to bloodlessly overturn the election before that, would have to come to the same conclusion. The only intellectually honest way to disagree is not to deny that the event is what the Constitution refers to as “insurrection” or “rebellion,” but to deny that the insurrection or rebellion matters. Such is to treat the Constitution of the United States as unworthy of preservation and protection.

Baude and Paulsen embrace the “idea that men and women who swore an oath to support the Constitution as government officials, but who betrayed that oath by engaging in or abetting acts of insurrection or rebellion against the United States, should be disqualified from important positions of government power in the future (unless forgiven by supermajorities of both houses of Congress).” To them, as to us, this will forever “remain a valid, valuable,” and “vital precept” for America.

Section 3’s disqualification clause has by no means outlived its contemplated necessity, nor will it ever, as the post–Civil War Framers presciently foresaw. To the contrary, this provision of our Constitution continues to protect the republic from those bent on its dissolution. Every official who takes an oath to uphold the Constitution, as Article VI provides every public official must, is obligated to enforce this very provision.

The Baude-Paulsen article has already inspired a national debate over its correctness and implications for the former president. The former federal judge and Stanford law professor Michael McConnell cautions that “we are talking about empowering partisan politicians such as state Secretaries of State to disqualify their political opponents from the ballot … If abused, this is profoundly anti-democratic.” He also believes, as we do, that insurrection and rebellion are “demanding terms, connoting only the most serious of uprisings against the government,” and that Section 3 “should not be defined down to include mere riots or civil disturbances.” McConnell worries that broad definitions of insurrection and rebellion, with the “lack of concern about enforcement procedure … could empower partisans to seek disqualification every time a politician supports or speaks in support of the objectives of a political riot.”

We share these concerns, and we concur that the answer to them lies in the wisdom of judicial decisions as to what constitutes “insurrection,” “rebellion,” or “aid or comfort to the enemies” of the Constitution under Section 3.

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—or, for that matter, upon the failure to enforce Section 3 as required. When a secretary of state or other state official charged with the responsibility of approving the placement of a candidate’s name on an official ballot either disqualifies Trump from appearing on a ballot or declares him eligible, that determination will assuredly be challenged in court by someone with the standing to do so, whether another candidate or an eligible voter in the relevant jurisdiction. Given the urgent importance of the question, such a case will inevitably land before the Supreme Court, where it will in turn test the judiciary’s ability to disentangle constitutional interpretation from political temptation.

(Additionally, with or without court action, the second sentence of Section 3 contains a protection against abuse of this extraordinary power by these elections officers: Congress’s ability to remove an egregious disqualification by a supermajority of each House.)

The entire process, with all its sometimes frail but thus far essentially effective constitutional guardrails, will frame the effort to determine whether the threshold of “insurrection” or “rebellion” was reached and which officials, executive or legislative, were responsible for the January 6 insurrection and the broader efforts to reverse the election’s results.

The process that will play out over the coming year could give rise to momentary social unrest and even violence. But so could the failure to engage in this constitutionally mandated process. For our part, we would pray for neither unrest nor violence from the American people during a process of faithful application and enforcement of their Constitution.

If Donald Trump were to be reelected, how could any citizen trust that he would uphold the oath of office he would take upon his inauguration? As recently as last December, the former president posted on Truth Social his persistent view that the last presidential election was a “Massive Fraud,” one that “allows for the termination of all rules, regulations, and articles, even those found in the Constitution.”

[David A. Graham: The Georgia indictment offers the whole picture]

No person who sought to overthrow our Constitution and thereafter declared that it should be “terminated” and that he be immediately returned to the presidency can in good faith take the oath that Article II, Section 1 demands of any president-elect “before he enter on the Execution of his Office.”

We will not attempt to express this constitutional injunction better than did George Washington himself in his “Farewell Address” to the nation, in 1796:

The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish Government presupposes the duty of every individual to obey the established Government.

All obstructions to the execution of the Laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency …

However combinations or associations of the above description may now and then answer popular ends, they are likely, in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people, and to usurp for themselves the reins of government; destroying afterwards the very engines which have lifted them to unjust dominion.

Our first president may well have been our most prescient. His fears about “cunning, ambitious, and unprincipled men” have, over the centuries, proved all too well founded. But his even stronger hopes for the republic were not misplaced. Still today, the Constitution, through its Reconstruction Amendments, contains a safeguard that it originally lacked—a safeguard against the undermining of our constitutional democracy and the rule of law at the hands of those whose lust for power knows no bounds.

The men who framed and ratified the Fourteenth Amendment entrusted to us, “the People of the United States,” the means to vigilantly protect against those who would make a mockery of American democracy, the Constitution, the rule of law—and of America itself. It fell to the generations that followed to enforce our hallowed Constitution and ensure that our Union endures. Today, that responsibility falls to us.

https://www.msn.com/en-us/news...07fcb04352ad0f&ei=14

Sorry, MAGA: Donald Trump’s Actions Have Disqualified Him from the Presidency
Story by Joseph Ferguson and Thomas A. Durkin •
13h

(Note that this article is not presented as opinion, but fact instead. That's the traction I'm talking about.)

Here's an article that's just too good:

https://www.msn.com/en-us/news...75bcac8fb30898&ei=47

George Conway has some bad news for Donald Trump
Story by Travis Gettys •
2h

George Conway offered some free legal advice to Donald Trump, but he's probably not going to like what he hears.

The conservative attorney, whose wife led Trump's first presidential campaign and served as a White House adviser throughout most of his term, warned the ex-president that he would not likely win his arguments that he should be immune from prosecution or lawsuits -- and Conway justified his expertise.

"Sorry about the four criminal indictments, and about the civil rape case you lost to my friend E. Jean Carroll," Conway posted on his Truth Social account, tagging the former president.

"I know you’re still real mad at me for finding E. Jean the lawyer she hired to sue you, and about my telling everyone you’re a narcissistic psychopath and stuff," Conway added. "But I can help you on this presidential immunity thing, ‘cause it happens that I know a little about it. You can actually save some of the money you scammed off your supporters and have been using to pay your legal bills."

Conway reminded the former president that he had written the U.S. Supreme Court brief in 1997 that won Paula Jones the right to sue then-president Bill Clinton, and which the court repeatedly cited four years ago when it ruled that Trump had to comply with grand jury subpoenas issued by the Manhattan district attorney's office.

"I know you're really busy with all the criminal cases and had to skip the debate and don't like to read much, so I'll cut to the TL;DR here," Conway said, using the online abbreviation for "too long, didn't read." "Which is that, apart from the fact that you're no longer president – I know you hate to hear it, but you did lose to Sleepy Joe [Biden] and you know it! – you're gonna lose a presidential immunity argument in Georgia for the same reason Clinton lost to Jones and you lost to the Manhattan DA, which also happens to be the same reason why you weren't (and still aren't!) immune from being sued for raping and defaming E. Jean."

"You see, when you did all the bad things you did, you weren't acting within what the Supreme Court calls 'the outer perimeter' of your official duties and responsibilities as president," Conway wrote. "(I know 'perimeter' is a big word for you; think of it as acting like a property line in real estate. Or maybe Vanky can explain it for you?) Turns out that (like the Supreme Court told you!) presidents aren't above the law!"

"And not only were you not acting within the Outer Perimeter of Your Official Responsibilities, you were doing the OPPOSITE of what those Very Important Responsibilities required," Conway continued, using some of Trump's characteristic rhetorical flourishes. "PRESIDENTS ARE SUPPOSED TO STOP COUPS, NOT LEAD THEM!!!!"

"Anyway, hope this little explainer helps," he added. "(I used those Initial Caps and ALL CAPS and exclamation points just for YOU!!) P.S. Have fun at the Fulton County Jail this week. Hope you've been staying off the hamberders for the big mug shot and weigh-in!!"

If he wasn't on the ballot I wonder how many write in votes he'd get. Be a waste, but almost assured that the Republican candidate would lose.

Sounds like there is a at least a way to get the ball rolling.

It's a plot twist in this national drama that we didn't foresee.

look, once found guilty of of secession or insurrection, he would be ineligible for office --


but no common citizen in the 19th century would EVER pretend that accusation of a crime would be a certainty -

rule of law

But, TBH, I haven't seen a single charge of sedition against him .. i mean, if it's so easy and obvious, why not actually prove him guilty..