Supreme Court Must Decide: Is Trump An Insurrectionist?

I've heard a lot of prognostications that the Supreme Court will find some procedural justification to ignore the 14th Amendment and keep Trump on the ballot. That probably means they will ignore whether or not Trump is an insurrectionist.

If they do find some way to keep Trump on the ballot, maybe we can at least put to rest the farce that conservative justices are textualists and believe in originalism.

If they allow him on the ballot for some weak procedural issue, is it to much to ask them as individuals to state whether are not he is an insurrectionist as defined by the 14th Amendment?

The 14th Amendment does not require a jury trial or proof beyond a reasonable doubt.  If they leave Trump on the ballot, every voter will have to decide whether or not Trump engaged in insurrection or rebellion against the United States or gave aid or comfort to someone who did.  

As justices of the United States Supreme Court they have sworn to defend the Constitution against all enemies, foreign and domestic.  Their legal training, experience and oath to the Constitution should demand that they state clearly whether or not they believe that by the text of the 14th Amendment Trump is an insurrectionist or gave aid or comfort to an insurrectionist.

This issue it before the court and they swore an oath to defend the Constitution.  If they can't say if he is or is not an insurrectionist, what good are they?

Don't Give In To Threats Of Political Violence

I've been seeing comments that using the 14th Amendments to keep Trump off the ballot is unconstitutional and will lead to violence.

As everyone should know, the 14th Amendment is part of the United States Constitution.  So using the 14th Amendment is literally constitutional!

As for violence, Trump lied about the 2020 election being stolen from him and then attempted to stop the transfer of power and in doing so incited violence.

So if he is kept off the ballot we can expect violence.

If he loses the 2024 election we can expect claims the election was stolen again and violence.

If he wins the 2024 election he will implement the plans he has been telling about and we can expect violence.  Violence from Trump's retribution and, possibly, violence from people who refuse to let him: 

 

* Destroy the non-partisan FBI

* Destroy the independent DOJ

* Destroy the rule of law

* Destroy our non-partisan and independent judiciary (he will ignore the courts)

* Use the military for domestic control

* Put his political opponents in jail

* Shut down media that criticize him.

Basically the same goals he had for his first administration, but now with better execution and still no Republican party that will rein him in.

Threats of violence should not be allowed to further any domestic political goals. So I vote to keep him off the ballot and use our intact FBI, DOJ and independent judiciary to handle any domestic violence he incites.

14th Amendment Was Written For Trump

After carefully reading the 14^th Amendment, Section 3, I was struck by how it seems to be perfectly written to fit the situation we currently find ourselves in.

I'm obviously not a Constitutional or legal scholar, but as I hear the comments from people who are experts I'm taken by how we are facing issues similar to those that legislators faced after the Civil War when the 14^th Amendment was written and adopted.

The South was defeated and brought back into the Union, but there were many southerners who would never concede they were wrong or they actually lost (sound familiar?). What was to stop these people from picking up where they left off before the war started and again elect people to state and federal offices to continue to try to break or harm the Union?  Congress believed laws were needed to prevent this. I've heard several ideas were floated and rejected before the 14^th Amendment was adopted (with some later changes). I'll admit the amendment language seems somewhat out of step with other parts of the Constitution, but I think it was intentional.

Let me conjecture why I think the amendment was written as it was and so clearly matches our current needs. The 14th Amendment applies to certain federal and state office holders (civil and military).  For this discussion I'm focusing primarily on the presidency.

The amendment says people are disqualified from holding office again "if previously taken an oath, as a member of Congress, or as an officer of the United States,... to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.".

These are people who have shown they can't be trusted.   They broke their oath.

The amendment does not require that an insurrectionist be convicted of a crime. I'm guessing that this may have been for several reasons.  The number of people who could have been taken to court for engaging in an insurrection or rebellion after the civil war would have been in the millions.  How could you find enough unbiased jurors in the south to hear the cases?  Most southerners were themselves insurrectionists or had given aid or comfort to an insurrectionist.

Another reason for not requiring a conviction was that in general it was obvious who was an insurrectionist.  Most people did not hide what they believed and what they did.  In fact they were defiantly proud of their actions.  Again, sound familiar?

Since the vast majority of the population of much of the country were obvious insurrectionists the authors set the bar low for disqualification. If a person has engaged in an insurrection or rebellion against the U.S. the 14^th Amendment finds the person is disqualified from holding office again. That disqualification could then be appealed to Congress. This put the onus for prompt action to reverse their disqualification on the insurrectionist rather than on election officials or courts.

Why didn't the authors add text that said if an insurrectionist were elected by voters, that should override the disqualification language of the 14^th Amendment? As stated above, in former Confederate states, how many Confederate officers (civil or military) would be overwhelming elected or selected again?  Many voters would clearly believe that insurrectionists had done nothing wrong. They agreed with the insurrectionists. So the 14^th Amendment does not disqualify insurrectionists from voting, it just says you can't vote for a former insurrectionist. Punish the oath breakers not the average voter.

Trump brags that he could shoot someone in a public space and his followers would still vote for him. Or he could be convicted of a felony and they would vote for him. Those supporters are telling us clearly that many of them will vote for him even though his participation in an insurrection is obvious to anyone willing to objectively look at the facts. These voters seem to believe that a person who did not honor their oath to uphold the Constitution or the rule of law should be allowed to further damage our country.

Donald Trump publicly tried to stop the peaceful transfer of power. If you don't believe that, you have to be willfully ignorant. On an almost daily basis he tells us how little he believes in the Constitution and the democratic institutions that have made us the leader of the world. He tells us how he will use his presidential and political power to remake our country. He had one term as president and we know how it went.  It ended with him trying to stop the peaceful transfer if power, a hallmark of our country

If we allow him to be elected again, and he begins to reshape our country in the illegal ways as he is promising, what do we do? (And no, he is not joking. Trump is only about Trump. Anything he says or does is just to help Trump.). Unless Democrats have super majorities in the House and Senate the constitutional solution of impeachment will not be an option (remember, we already tried that).  That will leave Donald Trump free to work very hard to remake this country in his image (as he is telling us he will) with few restrictions on his efforts. 

The Constitution make is clear that there are some candidates that are disqualified from holding office (age, citizenship, impeachment conviction, insurrection). Why should we make an exception for an insurrectionist Donald Trump?

14th Amendment Is Not Unfair to Trump Or Voters

This blog entry is a follow-on to my previous blog on whether the 14^th Amendment should be used to prevent Donald Trump from being president again.

Many Republicans believe that voters should be allowed to make the decision about Trump's fitness to be president again. They think it is unfair and possibly undemocratic to keep him off the ballot using the 14^th Amendment.

Of course they know that the Constitution disqualifies people from the presidency who were not citizens from birth or who are less then 35 years of age. I can only guess why the authors of those provisions thought it was important to include those restrictions in the Constitution. Certainly there are many foreign born, naturalized citizens who are obviously fully qualified to run for the position, but those restrictions are in the Constitution and will be enforced until they are amended.

Conviction in the Senate of impeachment carries the possibility of a sentence that includes the disqualification from holding office again.

So the argument that the use of the 14^th Amendment is merely a political maneuver by Democrats is false. Using the 14^th Amendment is proper use of Constitutional law just as disqualification based on age or citizenship status.

Should Voters Determine Trumps Fate?

Many Republicans are upset with the possibility that Donald Trump may not be allowed to run for the presidency because of his participation in an attempted insurrection. They believe the voters should decide whether or not he is fit to be president.

I'm somewhat sympathetic to that argument. But then I believe Al Gore and Hilary Clinton should have been president because more voters voted for them then for their opponents. Unfortunately, the Constitution and the archaic Electoral College dictated different winners.

I would be more sympathetic to Republican voter complaints of the unfairness of the 14^th Amendment if they coupled it with calls to replace the Electoral College with a simple counting of the votes for each ticket. 

I think the authors of the 14th Amendment specifically meant to exclude voters being allowed to vote for an insurrectionist candidate.  More to come...

14th Amendment Disqualifies Trump From Presidency

You don't see presidential candidates who are less than 35 years old or who are not US citizens by birth because those qualities are required by our constitution. Thanks to former president Trump there is another constitutional requirement that applies to presidential candidates that needs to be considered this cycle.

The 14th Amendment, Section 3 of the US Constitution makes it clear that a former office holder who has taken an oath to defend the Constitution and then participates in an insurrection or gives aid or comfort to a participant is disqualified from holding office. The 14th Amendment does not specify the criteria for imposing disqualification. It also does not require the legal standard of proof beyond a reasonable doubt or a conviction. We may eventually want an amendment, law or Supreme Court ruling to make this more clear, but for now we are faced with an immediate need and the Constitution provides a solution.

One obvious answer of who would enforce this requirement and decide what criteria they would use might be the person or offices in each state who would determine if a candidate meets other requirements to be on the ballot (such as age and citizenship).  I think the person who makes those decisions in most states is the Secretary of State.

Another option is a court ruling. A court in Colorado was asked to remove Trump's name as a presidential candidate from the Colorado ballot. The judge agreed that former president Trump “incited” the January 6, 2021 riots and backed that with evidence including testimony given to the House January 6^th Committee.

After clearly stating that former president Trump had participated in an insurrection, the judge accepted the defense claim that the presidency was not an office as required in the amendment. The judge agreed that if the authors of the amendment intended for it to apply to a former president they would have explicitly said that. The judge then refused to remove Trump from the ballot.

Granted that the amendment wording is very vague, but that sounds like a judge searching for a way to not remove Trump's name from the ballot. This will have to go to the Supreme Court and would have even if the judge's decision had gone the other way and had removed Trump's name from the ballot.

The most important thing is the judge clearly said former president Trump had participated in an insurrection. Of course, the January 6^th Committee also proved he incited an insurrection. I would argue there is stronger and more timely proof that Trump incited an insurrection.

Former president Donald Trump was impeached by a bipartisan majority in the House (including ten Republicans) for “incitement of insurrection”. Although there were not enough votes in the Senate to convict him, there was a bipartisan majority in the Senate (including seven Republicans) who believed he was guilty as charged. Every Representative and Senator who voted to impeach or convict knew that their vote would not remove former president Trump from office. President Biden had already been sworn in before the final Senate impeachment vote. However, their vote did show they believed former president Trump had participated in an insurrection and should not be allowed to be president again (impeachment conviction means the person is removed from office and disqualified from holding office again).  Their votes had nothing to do with the 14th Amendment, but they clearly declared he had participated in an insurrection and should not be allowed to serve again.

I believe the bipartisan majority votes for impeachment in the House and Senate are enough by themselves to satisfy the constitutional requirement to disqualify former president Donald Trump from becoming president again on a national basis, not just the state level. As I said, this will need Supreme Court approval, but a clear reading of the text should support his disqualification.

I hear a lot of claims that Trump's fitness to hold office again should be decided by voters.  I'm sympathetic to that claim, but the 14th Amendment was written after the Civil War to prevent southern sympathizers from electing people to offices in a government they violently tried to destroy.  That sounds close to the situation we face today.  We have a large segment of the citizens who seem very willing to re-elect a man who lies that the last presidential election was stolen, incited an insurrection, tried to overthrow the validly elected government (as certified by all state governments and many court cases) and continuously brags he will take unconstitutional actions if re-elected. The 14th Amendment is still in the Constitution and until it is revised  or revoked we should use it to counter a charlatan who seriously threatens our country.

 

Text of the 14^th Amendment, Section 3, to the United States Constitution

“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 highlights are mine.