[Opinion - Legal Analysis] The Constitution bars Trump from holding public office ever again - Donald K. Sherman ( thehill.com )

Anticorp , 10 months ago

Idk why this is treated as an opinion piece. This is an agreed-upon interpretation of the constitution. If he is found guilty, then he can’t be president. It’s not debatable.

Arotrios OP , 10 months ago

I presented it as opinion because the article itself is an op-ed with a link back to the legal analysis. Just trying to follow the rules of the sub.

But I agree with you - it's not a real debate, as the other side has no argument other than "nuh uh!"

admiralteal , 10 months ago

The "other side" here, aside from the fascists who just want to shout 'nu-uh!':

No enforcement mechanism is present in the amendment. The op-ed writer declares this means the amendment is self-enforcing, but self-enforcing is just not a thing. Enforcement would require state action -- either the individual states refusing to count his votes or send forward his electors or an act of Congress to disqualify him (for example, the Senate declaring they will not accept votes for him). Neither of those scenarios is going to happen in such a way as to sway the election. Alternately, a lawsuit that would end up at the SCOTUS who would certainly defer to Congress on the issue. Assuming you could even find someone willing to raise that lawsuit who had standing (and who even would? Joe Biden isn't going to do it).

Either way, nothing will happen. This disqualification is moot.

Arotrios OP , 10 months ago

I'm going to point you at my comments here because I already provided a response to this argument when it was posited by @madison_rogue.

admiralteal , 10 months ago (edited 10 months ago)

That does not address my point.

At the end of the day, someone needs to take action with the blessing of their state to execute the disqualification. You say a "GA election official" could just unilaterally disqualify him -- but that isn't true. A GA election official would need to go through proper channels in their own state to remove someone from the election, or else face immediate removal and replacement. They would need to go through the Sec State office channels. No one can individually snap their fingers and make it happen logistically. If that were possible, some MAGA type would've done it in 2020 or 2022 just to sow confusion. Lord knows they try to steal elections through every other immoral method available to them.

In short: 14th amendment disqualification is (properly) extremely rare and has no process. Congress or the many states would need to pass laws to outline a process to create a mechanism of enforcement for your vision of an individual election official throwing the switch to work. Otherwise you are relying on lawsuits or malfeasance so heinous that it defies politics to make it happen (and there is clearly no amount of malfeasance from Trump that the current GOP couldn't stomach).

The state will need to take action. All three branches of the state government would need to work together to make it happen. Any one of them could pooh it away. And THEN you would also go on to have a federal lawsuit, where again, the SCOTUS would certainly enjoin the move pending a case, and in that case anyone who knows anything about the court could predict the outcome would be a deferral to Congress to clarify the amendment. Assuming they don't just outright ignore parts of the amendment as they have many times done elsewhere for politically inconvenient or unclear language.

Maybe this would happen somewhere progressive enough. Maybe Massachusetts will disqualify him, but that won't impact the election results. (PS: if National Popular Vote were a thing, this would be WAY more compelling). But MA refusing to cast electoral votes for Trump is not going to affect any election.

Which is why I described the point as moot. It's not wrong. What you are saying is almost certainly technically correct, on the whole. It just doesn't matter. Whether you are right or wrong will not impact any outcomes.

kick_out_the_jams , 10 months ago

Section Three requires no prior criminal-law conviction, for treason or any other defined crime, as a prerequisite for its disqualification to apply.

There's no requirement for a conviction though.

Arotrios OP , 10 months ago

Ain't that just the most delicious part of it? What's really fun is that in GA, the same officials who provided evidence for the indictment, including Raffensberger (who Trump dragged through the mud) are the ones who are going to be determining his eligibility for the GA ballot.

So they've already seen the evidence, and the GA GOP is mighty pissed off that Trump cost them a Senate seat. Those good ole boys know how to hold a grudge, and I wouldn't be surprised if they gave him the finger on this one.

Madison_rogue , 10 months ago

That's because it's A. implied, and B. covered by the Fifth, Sixth, and Fourteenth Amendment. Legally, Trump did not commit insurrection until it's proven in court. Then he is ineligible. He has the right of Due Process, and Presumption of Innocence.

Arotrios OP , 10 months ago

Except that it's already been tested in court against Madison Crawford - spoiler warning, he lost:

Hailing a “major victory”, Free Speech For People, the group which brought the case, said: “This ruling cements the growing judicial consensus that the 1872 Amnesty Act does not shield the insurrectionists of 6 January 2021 – including Donald Trump – from the consequences of their actions.”

Madison_rogue , 10 months ago

That case went only to appeal. You bet that Trump will take the case to SCOTUS. How do you think they'll judge the case considering Trump gave them the conservative supermajority they now enjoy?

Arotrios OP , 10 months ago

Except you're missing the point. The Supreme Court doesn't decide the qualifications to initially get on the ballot, the state does.

Whether or not he's qualified for the ballot is determined by the state officials, who don't need a conviction to disqualify him. This is awfully inconvenient for Trump, as instead of Cawthorn's case, where the Free Speech for People brought the case against the decision of the state officials, Trump would have to start the case and fight his way through appeals - while fighting 3 felony cases in different courtrooms at the same time.

This means that if state officials disqualify him, he has to file the case, and wait for it to either resolve or go through the appeals process, likely all the way to the Supreme Court just to get on the ballot. When you consider the timing, it's highly likely that the case wouldn't resolve or make it to the Supreme Court until after the election. The fact that Trump cost GA a senate seat, and dragged Raffensberger through the mud makes it more than a bit likely that GA election officials will disqualify him, as some of those same people are the ones who provided evidence for the indictment.

The other element comes down to the Supreme Court itself. It's loyal to Trump, but loyal enough to condone open rebellion at the cost of its own legitimacy? That's difficult political calculus for any institution of government, much less the Judical Branch, which has no enforcement arm and no legitimacy beside what Congress chooses to give it (the Constitution only states that a Supreme Court be established, and leaves it to Congress to establish it, which they did with the Judiciary Act of 1789 ). Roberts is already on the line, and a decision like this would prompt Congress to act on the ethics conflicts he's been desperately trying to sweep under the rug.

Right now, it's most convenient for almost every GOP official to have Trump go away. Yes, they were happy to ride his coattails into power, but now their power is directly threatened by his incompetence. On top of which, he's destroyed the party's finances. A lot of establishment Republicans are ready to throw him under the bus, and this may be their opportunity.