quote:

I didn’t “imply” what you “inferred”. And those two words may be the most important ones in Trump’s Jan. 6 trial.

I don't think so.

I think it's the word "intent" you are looking for. There's plenty of evidence for Trump's intent regarding what happened on 1/6.

Foremost, there would be no trial if the prosecution didn't have a good case for intent, one that met the approval of grand jury, etc.

We have enough knowledge in the public to know what his intent was. More will be shown during trial.

But, let's not get confused.

The 1/6 trial is on a different plane than the decision before SCOTUS about the Colorado case, re scc3/14th.

Here's an update on the 1/6 trial:

https://www.usnews.com/news/na...has-its-day-in-court

Trump’s Presidential Immunity Claim Has its Day in Court
A decision by a three-judge federal appeals panel on whether Donald Trump can invoke wide-ranging presidential immunity in his criminal trials promises to be of historic significance.

By Lauren Camera
|
Jan. 8, 2024, at 3:21 p.m.

https://www.msnbc.com/all-in/w...-appeal-203527749612

'Sigh of frustration': Trump Jan. 6 trial delayed pending immunity appeal

Here's a new article explaining some history and perspective on how the case from Colorado, relating to sec3 of the 14th got to where it is today.

The article is rather long, but interesting, and fact-filled.

https://www.msn.com/en-us/news...c1d11075a0b903&ei=68

Video:

https://www.msn.com/en-us/vide...ocid=socialshare&t=0

Here's how 2 sentences in the Constitution rose from obscurity to ensnare Donald Trump
Story by By NICHOLAS RICCARDI, Associated Press • 8h ago

Here's an interesting excerpt from the article:

Wallace issued her decision on Nov. 17. She ruled that Trump had “engaged in insurrection” but found that — contrary to Magliocca's testimony — it wasn't certain that the authors of the 14th Amendment meant it to apply to the president. Section 3 refers to “elector of President and Vice President,” but not specifically to the office itself.

Wallace was hesitant to become the first judge in history to bar a top presidential contender from the ballot unless the law was crystal clear.

“It was a loss that only a lawyer could love,” Sus recalled.

CREW was just a legal sliver away from victory — it just needed the Colorado Supreme Court to uphold all of Wallace's ruling besides the technicality of whether the president was covered.

Back to the immunity claim Trump has made and is now before the appeal court, and has delayed the Trial re Jan 6 - here's an update:

https://youtu.be/uGHNb6_ggkI?si=A4eLmLjnvFSUZ-7D


Feb 5, 2024
Judge Chutkan in the DC Election interference case against Trump is ready to CANCEL HER JULY VACATION to try the Trump criminal case if the appeals court and Supreme Court rules against Trump by end of April on whether Trump has presidential immunity from criminal prosecution. Michael Popok of Legal AF explains why “indefinite postponement” in the Court’s recent order doesn’t mean what people think it means.

https://youtu.be/4SipJLjCgWU?si=zc1Mesvoh3qrErK9

Jen Psaki Highlights: Feb. 5

https://www.msn.com/en-us/news...5092389922e3b7&ei=47

“Bizarre”: Legal experts warn Trump’s Supreme Court argument is a “massive tactical blunder”
Story by Igor Derysh • 23h

Former President Donald Trump’s legal team on Monday filed a brief urging the Supreme Court to keep him on the Colorado ballot.

Trump’s lawyers argued that Section 3 of the 14th Amendment, which bars certain elected officials, including an “officer of the United States,” from holding office if they have “engaged in insurrection” does not apply to him because a president is not an “officer” of the United States.

Trump’s team also argued that Section 3 is a prohibition on “holding” office, not running for office, and claimed that “Congress can waive this prohibition between now and the end of the next presidential term” on Jan. 20, 2029.

“So no court or litigant can declare that President Trump is ‘presently’ disqualified from holding office without assuming or predicting that Congress will refuse to lift any section 3 disability that might apply,” the brief said, adding that neither the Colorado Supreme Court nor the U.S. Supreme Court “can declare a candidate ineligible for the presidency now based on a prediction of what Congress may or may not do in the future.”

The Supreme Court is scheduled to hear arguments on Thursday. MSNBC legal analyst Jordan Rubin noted that Trump’s lawyers littered the filing with “arguments that have largely been picked apart by briefs already filed on the high court docket in this case, including the ahistorical notion that the president isn't an ‘officer’ who can be disqualified under the 14th Amendment.”

Conservative attorney and frequent Trump critic George Conway called the filing “bizarre” and a “sign of weakness.”

“This strikes me as a massive tactical blunder,” tweeted University of Texas Law Prof. Lee Kovarsky.

Georgia State Law Prof. Eric Segall said it is “true” that Section 3 does not explicitly mention the president.

“It’s also true it doesn’t mention horses, foreigners, or accountants. That’s because everyone knew POTUS was obviously covered,” he tweeted.

Former longtime conservative Judge J. Michael Luttig, who served as an adviser to former Vice President Mike Pence, wrote that he “would not have made the revealing, fatuous, and politically and constitutionally cynical, concluding argument that the former president and his lawyers made to the Supreme Court.”

Luttig said the filing is “tantamount to an acknowledgment that the former president and his lawyers have all but concluded that their arguments have become so weakened by the briefing of respondents… that they believe the Supreme Court is likely to hold the former president is disqualified under the Fourteenth Amendment.

“What else could possibly explain this eleventh-hour, Hail Mary argument that not even the Supreme Court of the United States can ever decide whether the former president is disqualified from the presidency,” he added. “Not now. Not ever.”

Still, most legal observers “think it’s unlikely” the Supreme Court will uphold the Colorado court’s ruling “despite the letter of the law” because it “feels undemocratic,” wrote former U.S. Attorney Joyce Vance.

“That's an odd view for a Court full of textualists to take, but there are some off ramps that would let them duck deciding the question head on,” she tweeted.

George Washington University Law Prof. Randall Eliason said that is the reason Trump’s filing “probably makes tactical sense.”

“Holding that the president is not an officer subject to the disqualification clause allows the Court to rule for Trump while avoiding taking any position on whether he engaged in an insurrection. It's their easiest off-ramp,” he wrote. “To be clear - I'm not saying I think that would be a good or reasonable ruling. Just that it's one this Court might bite at, so I can understand that focus on it in their brief.”

Let us assume this majority of the S.Ct., takes this not an officer off ramp.

Like I said in the beginning, pushing this issue to this majority was just set up to make bad law and kill of the Insurrection Clause.

The general voter, person will not accept or delve into the nuance of such a decision. They will just know the effect. The effect being President Trump is deemed by the Supreme Court to stand for election to President.

No one will care that the majority may say, “ We take no position on the actions of the former president on Jan 6 as analyzing those actions to insurrection are not required to reach our ruling.”

quote:

Let us assume this majority of the S.Ct., takes this not an officer off ramp.

If SCOTUS takes ANY off-ramp, it will be obvious, and IMO many, perhaps most by far, will care, and it will make Putin and Tucker happy.

https://www.aol.com/ex-federal...preme-161540284.html


Ex-federal judge says Supreme Court has no ‘legitimate off-ramps’ to avoid Trump decision

NICK ROBERTSON
February 8, 2024 at 11:15 AM

“The Supreme Court finds itself in a very precarious position today,” Luttig said in an MSNBC interview. “Undoubtedly, it doesn’t want to decide this case, and it will be looking for all legitimate off-ramps to decide that the former president is disqualified. But there are no legitimate off-ramps to that decision.”

Legal scholars have predicted the court could rule that the 14th Amendment clause does not apply to the presidency, or that the clause is not self-executing, as possible ways to avoid a complete ruling on the merits of the matter.

https://thehill.com/regulation...ualify-trump-ballot/

Supreme Court signals reluctance to disqualify Trump from ballot
BY ZACH SCHONFELD, ELLA LEE AND CAROLINE VAKIL - 02/08/24 12:44 PM ET

The justices spent almost no time debating whether Trump engaged in insurrection through his actions surrounding the Jan. 6, 2021, Capitol attack, which various lawsuits contend requires Trump’s disqualification under the 14th Amendment.

Instead, the court during the two-hour argument largely delved into various off-ramps that would doom the various challenges without requiring the justices to reach that politically fraught question.

Here's two more good analysis of todays' oral arguments:

https://youtu.be/pYUhk-I81ZI?si=-oFio9_EYzJNKEJs

What Supreme Court justices signaled in hearing on removing Trump from Colorado ballot

PBS Newshour

https://youtu.be/Tduo4IRr_rk?si=Ih23Q0Cr5QTMC3Rd

Conway reacts to Justice Kavanaugh's concerns raised in Trump ballot case

CNN

SCOTUS has already taken an "off ramp" with the election irregularity when goofy Joe was elected.....

Despite your continued lies, President Biden best President Trump fair and square. Just like Fetterman beat Doc Oz.

Policy matters, and the fact the nation has rejected MAGA and President Strunk supported candidates upsets you.

Yes, between President Trump and President Biden in that vacuum, President Biden was the better candidate. He also won legitimately.

The problem is that if Trump is allowed to be on the ballots, by means of whatever off-ramp SCOTUS takes, the wording of Sec3 is holding office.

So, that means if he is elected the provision of Sec3, preventing him from holding office may be right back to SCOTUS.

I'm pretty sure they will cover that somehow.

I'm also sure it will come down to letting the voters decide. That will entail a flood of lies, from election integrity to whatever Trump dreams up. He could say anything and folks will believe it.

For example, he now blames Pelosi for the insurrection.

Anyway, here's two articles explaining my points:

https://www.msn.com/en-us/news...1edb4e0826d7b&ei=257

A Grand Bargain Is Emerging in the Supreme Court’s Trump Cases, but Chaos May Be Ahead
Story by Richard L. Hasen • 13h

https://www.msn.com/en-us/news...32e7bf20d11f03&ei=10

Donald Trump makes ominous warning as Supreme Court hears case to kick him off the ballot

Simple reading of the 14th amendment pretty much nullifies the whole remove from the ballot argument per an attorney I know…

The amendment states that congress gets to vote on whether or not to allow a successionist to take the office.

So they can’t prohibit someone from running. They can’t stop them from winning. SCOTUS has no say in that, nor does congress directly.

But congress can refuse to let a successionist take office by not having 2/3 allowing him to be seated.

Of course if it gets to that point, god only knows how you settle it at that point. Say a minority of the congress refuses to let a popularly elected president be seated… who ends up as POTUS and how? It isn’t defined in the 14th… re run an election? Have the winning candidate’s VP be seated? Let congress select a president?

Sounds like we might be heading to where Rome was.

You've got that backwards. It says Congress can override the Sec. 3 prohibition by 2/3 vote.

Look it up.

I just reread it.

It seems to be saying (IANAL) that you cannot take the office not that you cannot run or get votes… and that congress can let you take office by 2/3 concurrence.

Notably this seems (to me) to indicate that a presidential pardon doesn’t remove the disability, only 2/3 of Congress would allow you to be seated (or get a military commission or other federal office)… seems a bit more wide ranging than I thought.

Assuming the Majority option states only Congress by a 2/3rds vote can remove insurrectionist after winning office.

This matter will not make it back to the Supreme Court.

Why, 2/3rds of Congress will not vote to do remove President Trumps. There will be no one with standing the Supreme Court will recognize. Maybe the defeated opponent could have standing. However, the S. Cr., will say this is the exclusive realm political application of Congress, and the Court will not intervene. This is the route the S. Ct., took w impeachment.

I believe a decision requiring a 2/3rds removal vote post election is a distinction w a difference from saying Congress has to pass a law to give the Insurrection Clause affect.

quote:

Originally posted by crbutler:
I just reread it.

It seems to be saying (IANAL) that you cannot take the office not that you cannot run or get votes… and that congress can let you take office by 2/3 concurrence.

Notably this seems (to me) to indicate that a presidential pardon doesn’t remove the disability, only 2/3 of Congress would allow you to be seated (or get a military commission or other federal office)… seems a bit more wide ranging than I thought.

We know that is incorrect bc ex confederate officers stood for federal office and governor, was elected, and took office so a 2/3rd approval of the outgoing Congress. I agree w Rolland.

posted 10 February 2024 05:20 Hide Post
"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."

Plan reading to me the elements of
Officer,
Oath,
And Insurrectionist

have to be met and adjudicated (in some manner). This creates the disability for Congress to remove the disability.

Congress under the Insurrection Clause is not creating the disability by a 2/3rds vote.

Somehow the disability has to be adjudicated for Congress to remove the disability by 2/3rds vote.

That’s, when a person is pardoned the disabling factors cannot be met by the adjudicating body.

Thus, I agree w Rolland. If Congress had to by 2/3rds vote remove a self evident elected person, no Confederate Officer who had been an officer in the U.S. Military could have taken a House seat. We know that is not true nor how it was applied historically.

Read this:
https://constitutioncenter.org...nsidered-by-congress

In the case summarized above Congressional Committee appears to agree the Amnesty Act concerning ex confederates permitted ex confederates to hold elected office, but Act did not repeal the Insurrection Clause. The Act merely made the IC not apply to ex confederates.

Berger had been convicted under the Espionage Act and the full House barred him from taking the Seat. However, he was re-elected. The S.Ct., voided his conviction, and Berger took his seat after another election post S. Ct., voiding his conviction so opposition in the House. The S, Ct., never ruled on how the IC clause was applied to him. I note Berger had a conviction under the Espionage Act when the House voted under the IC to deny him and vacate the seat.

I still cannot find an actual S.Ct., case that addresses the IC in any manner.

quote:

Originally posted by Magine Enigam:
[QUOTE]I didn’t “imply” what you “inferred”. And those two words may be the most important ones in Trump’s Jan. 6 trial.

I don't think so.[QUOTE]

You dont think mangina, you are told........

Note that in your cited case they did not remove Berger from the ballot. They refused twice to seat him, and by overwhelming margins.

Subsequently he was returned a third time and they did not object as his prior conviction had been thrown out.

It appears that none of the Berger case issues ever went to SCOTUS or court over their refusal to seat him. You say so in your post.

The way the 14th amendment is written to a nonlawyer, it looks like they can refuse to seat a officer unless 2/3 agree that he can be seated- in other words, if someone who is ineligible is sent to take office, 2/3 can say it is OK, let him be seated.

That's different than congress as apparently congress itself can refuse to allow someone to join its body. I don't think that's a constitutional item, but rather how congress has worked.

Unfortunately, to me it looks like congress itself in deliberation gets to decide what is a violation and who is an officer of the US when they feel like it. It kind of looks like they almost wrote the 14th as an inverse of impeachment... if we think you are guilty, you are until 2/3 agree you are not... then we can let you have office.

If you took an oath of office under the US, then subsequently engaged in insurrection (undefined) or rebellion (undefined), or given aid and comfort to the enemies thereof (again undefined) and then were elected or appointed to any government office (state or federal) that required swearing an oath, you are prevented from being seated in that office unless then congress could allow you to be seated by removing your disability with a 2/3 vote.

It seems logical that anyone could run, and be elected... but then congress had to say OK.

It did not give an enforcement statement, but then I agree that lots of the older laws left it as being a understood situation.

In the Berger case, despite congress refusing to admit him, he was allowed to run again while under conviction, and then again after his conviction had been nullified.

In all these cases, he was not voted to be allowed to be seated, but rather they either voted he could not or just admitted him, so they did not follow the law, and thus it really isn't "precedent" of the 14th, but rather of the allowance of the congress to admit to the body only the people it wishes to allow.

The amnesty act is pretty odd... how can it repeal the effect of a constitutional amendment without voiding out that amendment? I presume it did not go through the process that an amendment does (approval by 2/3)

quote:

Originally posted by LHeym500:
posted 10 February 2024 05:20 Hide Post
"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."

Plan reading to me the elements of
Officer,
Oath,
And Insurrectionist

have to be met and adjudicated (in some manner). This creates the disability for Congress to remove the disability.

Congress under the Insurrection Clause is not creating the disability by a 2/3rds vote.

Somehow the disability has to be adjudicated for Congress to remove the disability by 2/3rds vote.

That’s, when a person is pardoned the disabling factors cannot be met by the adjudicating body.

Thus, I agree w Rolland. If Congress had to by 2/3rds vote remove a self evident elected person, no Confederate Officer who had been an officer in the U.S. Military could have taken a House seat. We know that is not true nor how it was applied historically.

Read this:
https://constitutioncenter.org...nsidered-by-congress

In the case summarized above Congressional Committee appears to agree the Amnesty Act concerning ex confederates permitted ex confederates to hold elected office, but Act did not repeal the Insurrection Clause. The Act merely made the IC not apply to ex confederates.

Berger had been convicted under the Espionage Act and the full House barred him from taking the Seat. However, he was re-elected. The S.Ct., voided his conviction, and Berger took his seat after another election post S. Ct., voiding his conviction so opposition in the House. The S, Ct., never ruled on how the IC clause was applied to him. I note Berger had a conviction under the Espionage Act when the House voted under the IC to deny him and vacate the seat.

Trump was not convicted of violating 18 Sec. 2383 so he is not Berger. In their hysteria to stop Trump, they forgot the proper order of things. Cart THEN horse.

I think Section 3 should be enforced by the courts just like the rest of the 14th Amendment. There must be hundreds of federal and state cases involving application of the Equal Protection clause.

Why should Section 3 be treated differently from the rest of the amendment when it comes to enforcement?

This is interesting, especially the analysis exchange between crbutler and LHeym500 above.

Compare the sections of law below:

https://www.law.cornell.edu/uscode/text/18/2383

18 U.S. Code § 2383 - Rebellion or insurrection
U.S. Code
"Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States ."

(June 25, 1948, ch. 645, 62 Stat. 808; Pub. L. 103–322, title XXXIII, § 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147.)

Also: https://law.justia.com/codes/u....,645%2C%2062%20Stat.

2012 US Code
Title 18 - Crimes and Criminal Procedure
Part I - CRIMES (§§ 1 - 2725)
Chapter 115 - TREASON, SEDITION, AND SUBVERSIVE ACTIVITIES (§§ 2381 - 2391)
Section 2383 - Rebellion or insurrection

TREASON, SEDITION, AND SUBVERSIVE ACTIVITIES - 18 U.S.C. § 2383 (2012)
§2383. Rebellion or insurrection
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States .

(June 25, 1948, ch. 645, 62 Stat. 808; Pub. L. 103–322, title XXXIII, §330016(1)(L), Sept. 13, 1994, 108 Stat. 2147.)

Historical and Revision Notes
Based on title 18, U.S.C., 1940 ed., §4 (Mar. 4, 1909, ch. 321, §4, 35 Stat. 1088).

Word “moreover” was deleted as surplusage and minor changes were made in phraseology.

Amendments
1994—Pub. L. 103–322 substituted “fined under this title” for “fined not more than $10,000”.

======================================

Note: I highlighted and struck through parts (below) for the sentence structure to stand out. The point is to show that it (or hold any office) is catch-all and applies to POTUS and VP as well as other offices.

Originally posted by LHeym500:

14th 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. "

=========================================================

As I understand it the U.S. Code above (18 U.S. Code § 2383) is criminal code. And it was passed much later than the 14th amendment, sec 3.

The Colorado case found Trump to be an insurrectionist, and that has not been challenged in appeal or by SCOTUS. However, the Colorado case was civil .

I don't know enough about law to reconcile those (presumed) facts, however, as I read it, Amendment 14, sec 3 is not criminal code, thus it does not presume criminal conviction per title 18 to be in or have effect. Nor does the criminal code, Title 18, supersede the 14th amendment sec 3. Thus, sec3 of the 14th is civil. The Colorado case was civil, and factually found Trump to have engaged in insurrection.

Also, I wonder why has Trump not been indicted under 18 U.S. Code § 2383 ?

=================================================================

Looking at the big picture:

https://en.wikipedia.org/wiki/...t_in_Washington,_D.C.

Indictments against Donald Trump

(excerpts)

In 2023, four criminal indictments were filed against Donald Trump, the president of the United States from 2017 to 2021. Two indictments are on state charges (one in New York and one in Georgia) and two indictments (as well as one superseding indictment) are on federal charges (one in Florida and one in the District of Columbia).[1] These indictments amount to a total of 91 felony charges.[2]

Neither the indictments nor any resulting convictions would disqualify his 2024 presidential candidacy; [7][8] (see footnotes)

https://en.wikipedia.org/wiki/...ion_obstruction_case)

Federal prosecution of Donald Trump (election obstruction case)

United States of America v. Donald J. Trump is a pending federal criminal case against Donald Trump, the president of the United States from 2017 to 2021, regarding his alleged participation in attempts to overturn the 2020 U.S. presidential election including his involvement in the January 6 Capitol attack.

On August 1, 2023, a grand jury indicted Trump in the District of Columbia U.S. District Court on four charges for his conduct following the 2020 presidential election through the January 6 Capitol attack: conspiracy to defraud the United States under Title 18 of the United States Code , obstructing an official proceeding and conspiracy to obstruct an official proceeding under the Sarbanes–Oxley Act of 2002, and conspiracy against rights under the Enforcement Act of 1870.[1][2][3] The indictment mentioned six unnamed co-conspirators. It is Trump's third indictment and the first indictment against a U.S. president concerning actions while in office.[4] Trump appeared at an arraignment on August 3, where he pleaded not guilty.[5] The charge with the longest sentence carries a maximum of 20 years in prison.[6]

quote:

Originally posted by crbutler:
Note that in your cited case they did not remove Berger from the ballot. They refused twice to seat him, and by overwhelming margins.

Subsequently he was returned a third time and they did not object as his prior conviction had been thrown out.

It appears that none of the Berger case issues ever went to SCOTUS or court over their refusal to seat him. You say so in your post.

The way the 14th amendment is written to a nonlawyer, it looks like they can refuse to seat a officer unless 2/3 agree that he can be seated- in other words, if someone who is ineligible is sent to take office, 2/3 can say it is OK, let him be seated.

That's different than congress as apparently congress itself can refuse to allow someone to join its body. I don't think that's a constitutional item, but rather how congress has worked.

Unfortunately, to me it looks like congress itself in deliberation gets to decide what is a violation and who is an officer of the US when they feel like it. It kind of looks like they almost wrote the 14th as an inverse of impeachment... if we think you are guilty, you are until 2/3 agree you are not... then we can let you have office.

If you took an oath of office under the US, then subsequently engaged in insurrection (undefined) or rebellion (undefined), or given aid and comfort to the enemies thereof (again undefined) and then were elected or appointed to any government office (state or federal) that required swearing an oath, you are prevented from being seated in that office unless then congress could allow you to be seated by removing your disability with a 2/3 vote.

It seems logical that anyone could run, and be elected... but then congress had to say OK.

It did not give an enforcement statement, but then I agree that lots of the older laws left it as being a understood situation.

In the Berger case, despite congress refusing to admit him, he was allowed to run again while under conviction, and then again after his conviction had been nullified.

In all these cases, he was not voted to be allowed to be seated, but rather they either voted he could not or just admitted him, so they did not follow the law, and thus it really isn't "precedent" of the 14th, but rather of the allowance of the congress to admit to the body only the people it wishes to allow.

The amnesty act is pretty odd... how can it repeal the effect of a constitutional amendment without voiding out that amendment? I presume it did not go through the process that an amendment does (approval by 2/3)

quote:

Originally posted by LHeym500:
posted 10 February 2024 05:20 Hide Post
"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."

Plan reading to me the elements of
Officer,
Oath,
And Insurrectionist

have to be met and adjudicated (in some manner). This creates the disability for Congress to remove the disability.

Congress under the Insurrection Clause is not creating the disability by a 2/3rds vote.

Somehow the disability has to be adjudicated for Congress to remove the disability by 2/3rds vote.

That’s, when a person is pardoned the disabling factors cannot be met by the adjudicating body.

Thus, I agree w Rolland. If Congress had to by 2/3rds vote remove a self evident elected person, no Confederate Officer who had been an officer in the U.S. Military could have taken a House seat. We know that is not true nor how it was applied historically.

Read this:
https://constitutioncenter.org...nsidered-by-congress

In the case summarized above Congressional Committee appears to agree the Amnesty Act concerning ex confederates permitted ex confederates to hold elected office, but Act did not repeal the Insurrection Clause. The Act merely made the IC not apply to ex confederates.

Berger had been convicted under the Espionage Act and the full House barred him from taking the Seat. However, he was re-elected. The S.Ct., voided his conviction, and Berger took his seat after another election post S. Ct., voiding his conviction so opposition in the House. The S, Ct., never ruled on how the IC clause was applied to him. I note Berger had a conviction under the Espionage Act when the House voted under the IC to deny him and vacate the seat.

Yet, the full House voted and not the Senate as the language clearly requires vacated his seat up election. Now, since the S. Ct., never addressed procedure of applying the IC, this procedure could have been flawed. It is clear that Berger having been convicted of the Espionage Act chose to focus his appeals on the conviction and not IC application.

The plain language is Congress removed the disability. They do not adjudicate the disability. Now, that is not what happened in Berger unless Congress considered the conviction to have triggered the IC. Yet, they still voted and only in one Chamber to apply the IC clause and not to remove the disability. Now, Berger lost in the House so bad, he probably could not get enough votes in the Senate to reach 2/3rds total needed to remove the disability. So, the Senate may have decided it is moot and not hold a vote. I am sure w a little math we can figure that out.

I agree with the courts apparent position a state cannot apply the IC. The Federal Courts should first adjudicate the elements listed above with Congress being able to withdraw anyone who is declared by the Courts disabled a 2/3rds vote. That is the most consistent and ratindl plain language reading of the IC Claude with the entire 24th Amendment.

quote:

Originally posted by Navaluk:
Trump was not convicted of violating 18 Sec. 2383 so he is not Berger. In their hysteria to stop Trump, they forgot the proper order of things. Cart THEN horse.

I agree w this. No prosecutor charged President Trump w serious conspiracy, treason, or insurrection. However, a charge is not necessary as we see with the historical application to ex confederates who were pardoned, granted amnesty, and permitted to run and hold office wo a vote in Congress. None of these people were able to run wo convictions. They could only run or at least hold office after amnesty.

A few like Lee and Jefferson were denied this political amnesty.

quote:

No prosecutor charged President Trump w serious conspiracy, treason, or insurrection. However, a charge is not necessary as we see with the historical application to ex confederates who were pardoned, granted amnesty, and permitted to run and hold office wo a vote in Congress. None of these people were able to run wo convictions. They could only run or at least hold office after amnesty.

I apologize in advance, and don't mean to be too critical.

But, let me re-phrase what you said and see if you agree, and I understand:

Former president Trump has not been charged with insurrection under US criminal code, Title 18. However, such charge or conviction is not necessary (prerequisite) for the 14th/sec3 to have affect. None of the former confederates were able to run (per 14th/sec3) regardless of convictions. Amnesty cured that. (except Lee and Jefferson)

Did I get your meaning right?

Let's take it further:

If I read you right, then it seems that running for office is one thing, holding office if elected is another. And the holding of office is the issue, Should Trump win the election, the 14th/sec 3 (civil) bars him from holding office absent amnesty by 2/3 vote, both houses.

In addition, if they had run and won office, Congress, both Chambers, could have voted on the individual ex confederate that the IC applied removing the disability by 2/3rds vote.

Someone or something still has to decide when the IC Claude applied to a person standing for election. The factors in the I.C., are:
1) prior oath to the Constitution,
2) had been an officer of the United States,
3) and have engaged in insurrection and rebellion.

The person had to meet the elements founded in the IC clause before Congress could vote to remove the disability.

In Berger, it appears to me the House jumped that step and simply assumed the conviction satisfied the IC. It may, a criminal conviction has a higher burden of proof and more due process rights then a civil adjudication by a judge.

My opinion, concurring in result and dissenting in part would be that the Federal Courts, and not the state, are sufficient and proper to apply the elements of the IC. I would state those elements as I have above, and an adjudication of those elements in court being a prerequisite to Congress voting to remove the disability when do adjudicated.

I would also have a section on standing because to my mind and reading of standing precedent only the defeated candidate has standing.

Now, caselaw would develop to define the factual scope of the elements for when they are satisfied.

In my opinion, I would state that element 3 is satisfied by certain convictions and then list them.

I think maybe you have answered most of my questions.

However, it's difficult to sort out how you would like to have it vs how it is now.

I think "standing" goes far beyond the defeated candidate. I think we all have standing.

When you say "certain convictions" in your last sentence, do you mean fed convictions exclusively? I also presume that civil finding like in Colorado are not to be confused with criminal conviction, in your best scenario.

Yes, certain fed convictions.

Treason,
Sedition,
Insurrection,
Espionage,
or
conspiracy or facilitation thereof.

These convictions would satisfy element 3. However, the Fed district courts would be the appropriate jurisdiction to adjudicate all 3 factors absent a conviction. Notwithstanding a qualifying conviction to element 3, the other two factors would have to be adjudicated. This would be through the fed district trial courts.

How it is now based on the Court’s oral argument is that Congress or at least the House is going to have to pass a bill of attinder against the person post election.

I just cannot concur w that.

Trump has been charged with conspiracy to defraud, under Title 18.

If convicted, where does that fit in?

Also, I'm sure it could be just me, but I have difficulty following your lines of analysis, for several reasons.

Your lingo is too attorney-like.

I'm sure you are working from a mobile device which spell/corrects some of your words into some that don't fit. I can decipher that, but it interrupts understanding.

Other things like "Bill of Attender" seem like a zinger. I looked the meaning up and it doesn't seem to fit here.

quote:

Originally posted by LHeym500:

quote:

Originally posted by Navaluk:
Trump was not convicted of violating 18 Sec. 2383 so he is not Berger. In their hysteria to stop Trump, they forgot the proper order of things. Cart THEN horse.

I agree w this. No prosecutor charged President Trump w serious conspiracy, treason, or insurrection. However, a charge is not necessary as we see with the historical application to ex confederates who were pardoned, granted amnesty, and permitted to run and hold office wo a vote in Congress. None of these people were able to run wo convictions. They could only run or at least hold office after amnesty.

A few like Lee and Jefferson were denied this political amnesty.

I disagree. There is no way that trump is an insurrectionist until he is criminally convicted of it under that statute. Due process, (see the 14th Amendment) requires nothing less. It cannot be a 50% plus a grain of sand civil proof standard. It has to be proven by the approximately 98% certainty of the criminal standard. Don’t even get me started on his right to appeal all valid issues related to a criminal conviction. Would he not be allowed appeal just like any convicted murderer? You do not need to be convicted of a crime before being pardoned for the crime. See Nixon.

That is not what is required. One can be adjudicated civilly of being an insurrectionist. The Supreme Court agree with that. There issue is a state does not appear to be the body to make that adjudication.

That is different then saying done has committed the Federal crime thereof.

Just like you can be impeached but not convicted of a high crime.

One is not dependent upon the other.

Now, my opinion would satisfy element 3 (my articulation of the elements) by convictions stated above. The other 2 elements would still require analysis.

https://constitution.congress....protections.-,See,S1.

Amdt14.S1.3 Due Process Generally

================================================

Here's an article that explains it so I can understand. That doesn't mean it's correct, of course.

But at least it covers the topic of burden of proof, and the application of Sec3 of the 14th.

https://reason.com/volokh/2023...ges-of-insurrection/

Why Section 3 Disqualification Doesn't Require a Prior Criminal Conviction on Charges of Insurrection [Updated]
The reason is a combination of the general structure of our legal system and the original meaning of Section 3.

The reasons a conviction would satisfy element 3 in my articulation is bc a) criminal conviction of the listed crimes has a higher burden of proof being beyond a reasonable doubt, and b) has more due process protection then a civil adjudication.

We already do this on the law. If you are convicted of intentional assault at a criminal trial, then that conviction stands in the shoes of liability at a civil trial for damages due to the assault.

quote:

On August 1, 2023, a grand jury indicted Trump in the District of Columbia U.S. District Court on four charges for his conduct following the 2020 presidential election through the January 6 Capitol attack: conspiracy to defraud the United States under Title 18 of the United States Code , obstructing an official proceeding and conspiracy to obstruct an official proceeding under the Sarbanes–Oxley Act of 2002, and conspiracy against rights under the Enforcement Act of 1870.

So, certainly Jack Smith's prosecution will have to sustain a very high burden of proof.

If convicted, will that evidence (proof) stand the test of insurrection per the civil aspects of the 14th sec 3 ?

IOW, will it take congressional action, 2/3 vote each house, to "remove such disability"? That's assuming the first two factors on your list are affirmative.

I do not believe so. The charges are too disconnected to the type of behavior the IC touches. However, you may be right as Espionage Act worked once kind of.

Procedurally, removal would be easier to just impeach. The House only needs a majority. The Senate needing 2/3rds to convict. That seems both easier and has better caselaw support.

Hence my list. It will be moot if the Supreme

As you observe, the Supreme Court has to decide both of the other element be it oath or officer is not satisfied.

There is nothing that says they will adopt my 3 element conjunctive test. I expect them to pick one aspect of the IC. They will say that one aspect is not present, and hold anything else is not addressed because it is not necessary to address it to reach a decision.

I hope I am wrong.

No, if convicted, President Trump can still be elected.

The venue to remove him will be impeachment or the 25th Amendment.

I fully expect t him to be granted bail while on appeal. I would hope the Supreme Court on the federal charges would expiate appeal before the inauguration.

The state cares are more difficult. The state appellate courts should get first crack at appeals even when federal, incorporated due process rights violations are raised.