Forget the Trump trials. He might already be ineligible for 2024.

[homersapien 12,262]

By Edward B. Foley

August 15, 2023

 

None of the criminal prosecutions of Donald Trump, even if he is convicted, can constitutionally stop him from running in — and winning — next year’s election.

But there’s a serious argument that, separate from any criminal charges, Trump is constitutionally disqualified from returning to the White House because of his role in the Jan. 6, 2021, insurrection at the Capitol. And if the Constitution bars him from the presidency, then he’s not entitled to be on the ballot, and it becomes the job of state election officials to keep him off.

Two prominent conservative scholars have added their voices — and, more important, their extensive analysis of the relevant historical record — in support of this argument. They conclude that Section 3 of the 14th Amendment, which was adopted after the Civil War to prohibit former federal officeholders who joined the Confederacy from holding office again, applies broadly to any “insurrection or rebellion” against the United States and not solely to the South’s secession from the Union.

These scholars explain in a forthcoming law review article that the Jan. 6 attack on the Capitol was an insurrection within the meaning of this clause and, crucially, that Trump engaged in this insurrection within the clause’s meaning, by both fomenting it and failing to exercise his presidential powers to stop it once it was underway. Refuting the view that the president is not an “officer” to whom this provision applies, these scholars cogently note that John Tyler was a former president and John Breckinridge a former vice president who both joined the Confederacy, and surely the framers of the 14th Amendment intended its disqualification from future office to apply to the likes of them.

 

The Supreme Court has not ruled on these issues. The 2024 campaign is underway with Trump far ahead in national polls of Republican voters and, in polls of all registered voters, running even against President Biden in a potential general-election matchup. For the sake of the nation’s system of self-government, the Supreme Court must settle the question of whether Trump constitutionally can be president again — before the Republican convention is held next July.

Ideally, this case would be settled before the primaries begin in January. Realistically, however, that might not be possible. As long as the Supreme Court resolves this issue before the Republican delegates meet in Milwaukee for their presidential nomination convention, their party can avoid nominating a candidate who is constitutionally ineligible for the presidency. That way, voters in November 2024 would not be making a choice in which one of the two major-party contenders would be ineligible to serve if elected.

What would be disastrous for democracy would be for Trump to appear on the November 2024 ballot as the Republican nominee, then to win the election, and afterward be disqualified and denied a second term. Yet that could happen if, without a Supreme Court ruling before the GOP convention, Congress were to decide for itself that Trump was disqualified and so it must nullify the will of the voters when it convenes to count the electoral college votes in January 2025.

How then to get the case properly before the Supreme Court in time?

Lawsuits on behalf of voters are already being planned, but for technical reasons concerning the jurisdictions of courts, it would be preferable if a state election official, such as a secretary of state, made a preliminary administrative ruling of Trump’s constitutional ineligibility and then sought judicial confirmation of this determination in state court. Consistent with due process, Trump — and voters who want him on the ballot — would be entitled to challenge this administrative decision in court. Whichever way the state court ruled could be appealed all the way to the Supreme Court, whose decision would be binding on all the states.

So far, so good. But there’s one important wrinkle. State law needs to permit election officials to make this kind of decision. If a state statute has not already authorized administrative officers to seek disqualification of presidential candidates, then — as the Supreme Court signaled this year — it might be a usurpation of the state legislature’s prerogative to determine the “manner” of conducting presidential elections for these officials to assert this power on their own.

Consequently, the safest course is for a state legislature to clarify, by enacting a new statute as soon as possible, that its election officials have the power to remove insurrectionists from the presidential ballot. A new statute could create an expedited timetable to ensure that the case reaches the Supreme Court in time for a decision before the Republican convention in July.

A swing state controlled by Democrats, such as Michigan, could — and should — do this, but any single blue state would suffice. If any one state’s judiciary were to order Trump off the ballot, pursuant to this kind of statute, it would require the Supreme Court to resolve the matter for the entire nation.

Before it’s too late, a patriotic state legislature should take the step needed to avert the constitutional crisis, far greater than the Jan. 6 insurrection, that looms if voters elect a candidate whom the Constitution has made ineligible.

https://www.washingtonpost.com/opinions/2023/08/15/trump-ineligible-14th-amendment-unconstitutional-presidency/

Edited August 15, 2023 by homersapien

[AU9377 6,057]

We are earning our place as the laughing stock of the free world.

[I_M4_AU 8,980]

 

 

[auburnatl1 6,207]

The never ending litigation without any convictions stuff is going to take a guy who’s been hammered in 3 straight election cycles and do the impossible - get him elected.

[Didba 5,511]

7 minutes ago, auburnatl1 said:

The never ending litigation without any convictions stuff is going to take a guy who’s been hammered in 3 straight election cycles and do the impossible - get him elected.

Let’s hope not. 

[NolaAuTiger 3,295]

 

[auburnatl1 6,207]

Just now, Didba said:

Let’s hope not. 

Optics. The maga narrative is there’s a controlling deep state.  This feeds the hell out of it. Trump was out of favor and falling into irrelevance even at fox after the last midterms. He had gotten a loser brand. And then the subpoenas started flying, he was in the news again every day, and yep, he’s back. Trump was and is ridiculously beatable unless you feed the narrative.  And litigation that can’t convict in a timely basis is imo - incredibly risky.

[homersapien 12,262]

4 hours ago, AU9377 said:

We are earning our place as the laughing stock of the free world.

[homersapien 12,262]

3 hours ago, auburnatl1 said:

The never ending litigation without any convictions stuff is going to take a guy who’s been hammered in 3 straight election cycles and do the impossible - get him elected.

So who do you think is responsible for all this "litigation" ?

[homersapien 12,262]

3 hours ago, auburnatl1 said:

Optics. The maga narrative is there’s a controlling deep state.  This feeds the hell out of it. Trump was out of favor and falling into irrelevance even at fox after the last midterms. He had gotten a loser brand. And then the subpoenas started flying, he was in the news again every day, and yep, he’s back. Trump was and is ridiculously beatable unless you feed the narrative.  And litigation that can’t convict in a timely basis is imo - incredibly risky.

If Trump gets reelected, then we deserve him just like Germany deserved Hitler in the 1930's.

Perhaps that's the ultimate fate of most democracies?

Edited August 18, 2023 by homersapien

[auburnatl1 6,207]

40 minutes ago, homersapien said:

So who do you think is responsible for all this "litigation" ?

There isn’t a who. Just a consequence. Part of the problem. But after 2 failed impeachments, raiding his house, and countless indictments with no kill shot in sight - the DAs better start thinking these cases things through. Or there may be an epic consequence.

Edited August 18, 2023 by auburnatl1

[autigeremt 7,240]

The two party implosion continues 

[homersapien 12,262]

16 hours ago, auburnatl1 said:

There isn’t a who. Just a consequence. Part of the problem. But after 2 failed impeachments, raiding his house, and countless indictments with no kill shot in sight - the DAs better start thinking these cases things through. Or there may be an epic consequence.

There would be an epic consequence if we simply allowed Trump to act above the law.

[Mikey 16,781]

On 8/15/2023 at 10:38 AM, homersapien said:

But there’s a serious argument that, separate from any criminal charges, Trump is constitutionally disqualified from returning to the White House because of his role in the Jan. 6, 2021, insurrection at the Capitol.

First, wouldn't Trump have to be convicted of the crime of Insurrection? What legal authority can officially declare the Jan. 6th dust-up to be an insurrection? If merely pointing a finger at someone and calling them an insurrectionist can disqualify a person from holding office, the country will be filled with insurrectionists.

[homersapien 12,262]

5 minutes ago, Mikey said:

First, wouldn't Trump have to be convicted of the crime of Insurrection? What legal authority can officially declare the Jan. 6th dust-up to be an insurrection? If merely pointing a finger at someone and calling them an in surrectionist can disqualify a person from holding office, the country will be filled with insurrectionists.

Well, isn't that what most of the indictments are about?  Indictments are not just "pointing a finger", they are part of the legal process.

So, if Trump is found guilty - say in the Georgia indictments  - then someone could presumably bring a lawsuit against the Trump campaign charging he is ineligible.  That would presumably wind up in the SCOTUS.

Like I've always said, Trump represents a clear and present danger to our democracy, which this certainly confirms.

Edited August 19, 2023 by homersapien

[SaltyTiger 8,600]

12 hours ago, homersapien said:

There would be an epic consequence if we simply allowed Trump to act above the law.

Above the law? The man has been investigated since he was inaugurated in 2016. Jeez you guys don’t get it do you. 

[homersapien 12,262]

18 hours ago, SaltyTiger said:

Above the law? The man has been investigated since he was inaugurated in 2016. Jeez you guys don’t get it do you. 

This makes no sense Salty - unless you are one of the cultist who thinks Trump is actually above the law. 

I never figured you were in that group.

Maybe I don't "get it".   Please explain your point.

 

[SaltyTiger 8,600]

2 minutes ago, homersapien said:

This makes no sense Salty - unless you are one of the cultist who thinks Trump is actually above the law. 

I never figured you were in that group.

Maybe I don't "get it".   Please explain your point.

 

Aubnat1 said it best. He keeps seemingly keeps being resurrected and “no kill shot”. I was thinking the man was done but not sure now. Beginning to think he will make another close run if lands on his feet this time.

[auburnatl1 6,207]

13 minutes ago, SaltyTiger said:

Aubnat1 said it best. He keeps seemingly keeps being resurrected and “no kill shot”. I was thinking the man was done but not sure now. Beginning to think he will make another close run if lands on his feet this time.

[homersapien 12,262]

1 minute ago, SaltyTiger said:

Aubnat1 said it best. He keeps seemingly keeps being resurrected and “no kill shot”. I was thinking the man was done but not sure now. Beginning to think he will make another close run if lands on his feet this time.

Well, that sounds a lot more like the person I thought you were. 

I too am frustrated by observing how well Trump avoids responsibility for his actions.  But he's had a lifetime of practice in avoiding accountability.

But the way you wrote it, it sounded as if you thought it foolish for responsible citizens - much less his opponents - to even try to hold him accountable. That's basically saying the laws and/or mores don't - or shouldn't - apply to him. 

We are either a nation based on the rule of law or we aren't.  That's what's at stake here.

Trump's history of business and personal practices aside, he was clearly guilty of impeachable offenses as president, but the Republican party has now reached such a sorry state that they care more about retaining political power than doing what's best for the country, thus proving that impeachment is more of a political process than it is a legal process. 

But, he has yet to be tried for a criminal offense in a court of law.

He may yet avoid a conviction in the coming criminal trials, but if he does, it will say more about our legal process than it does about Trump's guilt or innocence. Considering the number of MAGA cultists in our society, a hung jury wouldn't surprise me. But if that happens, we can only hope they will retrial until a conviction is obtained.

[auburnatl1 6,207]

13 minutes ago, homersapien said:

Well, that sounds a lot more like the person I thought you were. 

I too am frustrated by observing how well Trump avoids responsibility for his actions.  But he's had a lifetime of practice in avoiding accountability.

But the way you wrote it, it sounded as if you thought it foolish for responsible citizens - much less his opponents - to even try to hold him accountable. That's basically saying the laws and/or mores don't - or shouldn't - apply to him. 

We are either a nation based on the rule of law or we aren't.  That's what's at stake here.

Trump's history of business and personal practices aside, he was clearly guilty of impeachable offenses as president, but the Republican party has now reached such a sorry state that they care more about retaining political power than doing what's best for the country, thus proving that impeachment is more of a political process than it is a legal process. 

But, he has yet to be tried for a criminal offense in a court of law.

He may yet avoid a conviction in the coming criminal trials, but if he does, it will say more about our legal process than it does about Trump's guilt or innocence. Considering the number of MAGA cultists in our society, a hung jury wouldn't surprise me. But if that happens, we can only hope they will retrial until a conviction is obtained.

Most DAs strive for a 85% conviction rate. And timing has to be part of the calculus on whether to  prosecute. If they can’t convict before the election don’t be an idiot and indict - you’re just making him a more of a Christ figure to the nutties.  And adding more and more non nutties who don’t like the persecution optics. Same with the impeachments - if you don’t have the votes, don’t.  I understand the idealistic rule of law comeback to this. But it’s time people start getting practical quick. Net, net - DAs and dems:  is what you’re doing getting you what you want? Because at this point, it’s the exact self destructive opposite.

Edited August 20, 2023 by auburnatl1

[SaltyTiger 8,600]

8 minutes ago, homersapien said:

Well, that sounds a lot more like the person I thought you were. 

I too am frustrated by observing how well Trump avoids responsibility for his actions.  But he's had a lifetime of practice in avoiding accountability.

But the way you wrote it, it sounded as if you thought it foolish for responsible citizens - much less his opponents - to even try to hold him accountable. That's basically saying the laws and/or mores don't - or shouldn't - apply to him. 

We are either a nation based on the rule of law or we aren't.  That's what's at stake here.

Trump's history of business and personal practices aside, he was clearly guilty of impeachable offenses as president, but the Republican party has now reached such a sorry state that they care more about retaining political power than doing what's best for the country, thus proving that impeachment is more of a political process than it is a legal process. 

But, he has yet to be tried for a criminal offense in a court of law.

He may yet avoid a conviction in the coming criminal trials, but if he does, it will say more about our legal process than it does about Trump's guilt or innocence. Considering the number of MAGA cultists in our society, a hung jury wouldn't surprise me. But if that happens, we can only hope they will retrial until a conviction is obtained.

Something you may or do not understand is that all prior and potential Trump supporters are not “MAGA cultists”. IMO they are not very engaged at all other than the obvious news and current events, economy, etc. Everyone is not on your level politically and that does not mean they are idiots. You’re not going change the “Maga cultist” and they alone are not going to elect Trump. Combined with the group I mentioned and he could very well be your president again. 

[auburnatl1 6,207]

Ah @homersapien, and here I naively thought Icanthearyou was the only one who disliked and facepalmed. 😇

Edited August 20, 2023 by auburnatl1

[LPTiger 5,494]

8 minutes ago, auburnatl1 said:

Ah @homersapien, and here I naively thought Icanthearyou was the only one who disked and facepalmed. 

Can we start a contest to see who can gather the most dislikes and face palms from Homer and Icant?

[homersapien 12,262]

4 minutes ago, SaltyTiger said:

Something you may or do not understand is that all prior and potential Trump supporters are not “MAGA cultists”. IMO they are not very engaged at all other than the obvious news and current events, economy, etc. Everyone is not on your level politically and that does not mean they are idiots. You’re not going change the “Maga cultist” and they alone are not going to elect Trump. Combined with the group I mentioned and he could very well be your prtesident again. 

I beg to disagree, anyone who continues to fervently support Trump out of ignorance is either an idiot or the politically functional equivalent of an idiot.

This - contrary to Auburnatl1's position - is exactly why I think it's important to conduct these trials before the election. I have enough faith in our legal system for it to present the facts of the cases adequately, even if a conviction is not reached.

If Salty is right, and there are enough of all these classes of Trump supporters to coalesce and elect him POTUS despite the facts that will be displayed in these trials, then we deserve the consequences as a country. 

But for all our faults, I'd prefer to think we are not a country of idiots.

Maybe I'm wrong, but I am willing to take that chance. (Of course, it's easier for me to do that, as I am relatively wealthy and I have no children to consider.)