McClatchy: Dems Plan B: invoke 14th

[Laura PourMeADrink]

https://www.mcclatchydc.com/news/politics-government/white-house/article249077830.html


WHITE HOUSE
Democrats have a back-up plan in case the Senate doesn’t convict Trump on impeachment
BY MICHAEL WILNER
FEBRUARY 08, 2021 02:38 PM, UPDATED 5 HOURS 6 MINUTES AGO
Play VideoDuration 2:57
A timeline: The insurrection at the Capitol

On Jan. 6, 2021 the U.S Capitol was breached for the first time since 1812. Here are the most pivotal moments of one of the darkest days in American history. BY TREVIN SMITH

WASHINGTON
House and Senate Democrats may push ahead this week with a censure resolution to bar former President Donald Trump from holding future office over his role in the U.S. Capitol riot, anticipating acquittal in the Senate impeachment trial, several sources familiar with the matter told McClatchy.

The effort to draft the resolution that would invoke a provision of the 14th Amendment began quietly in January and gained momentum over the weekend, as Democratic Sen. Tim Kaine of Virginia and Republican Sen. Susan Collins of Maine gauge whether the measure could attract bipartisan support.

The reception has been lukewarm so far from Democrats, who would prefer to see the former president convicted in the impeachment trial, and from Republicans, who fear political consequences in barring Trump from office.

[servermsh]

1. I'm not an expert but I don't see how censure triggers the 14th Amendment.

I'd assume it would take a conviction in a court.

[regnaD kciN]

11. Agreed...

I’m sure the courts would quickly throw out such a move — and they should. Otherwise, the next time the Republicans gain Senate control, they could ensure holding power forever by simply invoking the same sort of measure against any Democratic nominee.

[StarfishSaver]

14. Exactly

This would be a blatant violation of the Due Process Clause and separation of powers.

[Laura PourMeADrink]

16. The censure would be to affirm the insurrection?

Their attention has focused on Section 3 of the 14th Amendment, a rarely cited Civil War-era provision which allows Congress to bar individuals from holding office if they have “engaged in insurrection.” A resolution to censure Trump would require a simple majority vote to pass in the House and Senate.

[brooklynite]

2. Might want to change your title: this story has nothing to do with the 25th Amendment

[Laura PourMeADrink]

5. Linked but It wasn't explained

The effort to draft the resolution that would invoke a provision of the 14th Amendment.

????????

[brooklynite]

7. There's no reference in the title or link.....

"Democrats have a back-up plan in case the Senate doesn’t convict Trump on impeachment
BY MICHAEL WILNER

Read more here: https://www.mcclatchydc.com/news/politics-government/white-house/article249077830.html#storylink=cpy

[Laura PourMeADrink]

8. Duh.... Fixed thanks ! Got 25th on the brain.

[TwilightZone]

3. There's nothing in the article about the 25th.

It's irrelevant now since he's gone.

[Laura PourMeADrink]

9. Thanks. Yes 14th not 25th

[Karadeniz]

4. There was another post whose link said the senate could vote to convict Trump of insurrection

And then go for the 14th.

[Laura PourMeADrink]

10. Yes

[StarfishSaver]

15. The Senate's power of punishment for impeachment is limited to conviction and disqualification

They do not have the power to unilaterally invoke the 14th Amendment without a court conviction.

[StarfishSaver]

12. I don't see how they can do this without a judicial determination that Trump committed insurrection

It would violate the 14th Amendment due process clause and separation of powers for Congress to unilaterally find someone guilty of insurrection and bar them from holding office.

They could probably do that to a member of Congress or a senator because they're in the same branch and they have a lot more discretion over who can serve in their body. But I don't see how they can bar someone from serving in the executive branch under this clause without a court ruling that they committed insurrection.

[Laura PourMeADrink]

17. Evidently they think the censure would affirm the insurrection.

[StarfishSaver]

19. But it wouldn't

Congress does not have the power to declare someone guilty of a crime and to meet out punishment outside of the impeachment clause, which limits their ability to punish an executive to impeachment, removal and disqualification. If they can't managed to disqualify someone through the impeachment clause, they can't just declare them guilty of a crime and bar them from office

[Laura PourMeADrink]

20. Evidently Tim Kaine thinks so?? Who knows? Sure there's many

more details they aren't disclosing?

[StarfishSaver]

21. If Tim Kaine thinks the Senate can bar Trump from office through censure and then invoking the 14th

Amendment without any judicial ruling that Trump committed a crime, he's wrong.

Congress can't just declare a president guilty of insurrection through a simple majority vote and then boot them out of office or prohibit them from serving again.

And Cohen's comment is ridiculous - “I know there was some concern about it being a bill of attainder, but I’m not concerned about that because what he did was the most horrific thing that a president of the United States has ever done to this country.” Bills of attainder are unconstitutional and they don't magically become constitutional because the person did something "horrific."

[Laura PourMeADrink]

22. Last ditch effort to hold him accountable? Think it's great when

they are willing to try anything to rid us of him. Some have powerful passion and know right from wrong instinctively..

[StarfishSaver]

24. This won't hold him accountable

A censure resolution is great and should be done if he's acquitted. But a censure resolution can't be the basis for preventing him from running again.

I don't know why they're going through these motions, but it isn't going to stop him from running again unless a court declares him guilty. And I don't need an empty show of passion. I need them to get things done.

[Laura PourMeADrink]

25. Ok, clear you're in the "Do nothing is better than trying something" group

Other serious people are in the "let's try everything we possibly can to keep this monster out of govt ever again" crowd.

https://www.pressherald.com/2021/02/08/trump-censure-promoted-by-sen-collins-is-still-on-the-table-as-trial-is-set-to-begin/?rel=related

As the likelihood of Trump’s acquittal has grown, so too have calls within the Democratic caucus for an alternative path to prevent Trump from holding office again.

Rep. Debbie Wasserman Schultz of Florida first raised the idea of a dual-track process that would reserve a second constitutional pathway. Kaine then began exploring the idea on the Senate side.

Their attention has focused on Section 3 of the 14th Amendment, a rarely cited Civil War-era amendment which allows Congress to bar individuals from holding office if they have “engaged in insurrection.” A resolution to censure Trump would require a simple majority vote to pass in the House and Senate.

Constitutional scholars including Michael Gerhardt, Lawrence Tribe, Bruce Ackerman and Erwin Chemerinsky have advised lawmakers on the plan.

Ackerman, a professor of constitutional law and political science at Yale University, told McClatchy that President Biden would not be required to sign the resolution — but that nothing would stop him from voluntarily endorsing the effort, “vindicating the Constitution’s continuing importance.”

[StarfishSaver]

26. And I'll put you in the "If Dems don't do this futile act, I'll accuse them of doing nothing" camp

And, FYI, I never said they shouldn't try it. My point is that if they don't include a requirement for a judicial finding of guilt, it won't work. I'm pretty sure the scholars who are advising them have told them that.

[Laura PourMeADrink]

27. Yup. Nothing begets nothing! Totally agree!!!

[tritsofme]

13. I don't think this would pass muster. What would stop a GOP Congress from disqualifying an entire

Democratic presidential primary field with a concurrent resolution?

[StarfishSaver]

18. Exactly

There is no way a court would allow Congress to skirt the 14th Amendment and impeachment clause by declaring a person ineligible for federal office because they unilaterally decreed them guilty of a crime.