Leading Dem eyes new route to banning Trump from public office

[babylonsister]

Leading Dem eyes new route to banning Trump from public office
According to the Constitution, those who "engaged in insurrection or rebellion," or aided them, can't seek elected office. This is relevant anew.
Feb. 19, 2021, 11:05 AM EST
By Steve Benen


For many of Donald Trump's critics, last week's impeachment trial was about more than simply holding former president accountable for inciting an insurrectionist riot. It was also about the vote that could've soon followed the trial.

If Trump had been convicted, Congress could've proceeded with a measure to ban Trump from ever again holding public office. That, obviously, is no longer an option.

But if there were another way? Rep. Jamie Raskin (D-Md.), a former constitutional law professor who led the team of House impeachment managers in last week's trial, talked to ABC News this week about Section 3 of the 14th Amendment being used to block Trump from running again.

Section 3 of the 14th Amendment bars any public official who swore an oath to protect the Constitution from holding office if they "engaged in insurrection or rebellion" against it or gave "aid or comfort to the enemies thereof."

The constitutional language, of course, was in response to the Civil War. The point at the time was to bar those who threatened our democracy and took up arms against the United States -- and their allies -- from trying to return to elected politics.

The provision hasn't been especially relevant in recent years, but it's hardly a stretch to think it could be applied to Trump.

more...

https://www.msnbc.com/rachel-maddow-show/leading-dem-eyes-new-route-banning-trump-public-office-n1258340

[Maru Kitteh]

1. This should be used but I have a question

Who would have the authority to disqualify him? What would that look like?

[FBaggins]

5. Under current law - the answer is easy.

He would have to be charged and tried for insurrection and found guilty by a unanimous jury. (and, of course, lose any appeals)

[lagomorph777]

8. That's a lot of assumptions. I see nothing in the Constitution even hinting at that.

[qazplm135]

12. and I see nothing in the Constitution

that says Congress can simply declare someone a criminal.

Does it lay out a process? Nope. Is it a majority vote or a 2/3ds vote? Doesn't say because again there's nothing to indicate that the amendment in question was designed to be about Congress deciding.

It simply says, people who do these things can't run. How do we determine if someone has done an act? We try them in court.

[lagomorph777]

13. It does say Congress can UNdo it. That would imply they can DO it.

It doesn't mean they are declaring him a criminal, in the technical sense. They are declaring him ineligible for office.

But hey, if you believe Trump should be protected, tell me more.

[qazplm135]

14. ineligible because they have committed a crime

those things listed are crimes and have been crimes for a long, long time.

And no, the fact that they can override it does not imply that they are the arbiters.

The executive branch can undo a criminal conviction by the judicial branch, does that imply that the executive can convict you of a crime? Same logic.

[FBaggins]

16. There is no "imply"

It would be lousy logic anyway - but note that section 5 gives congress the power to implement the amendment through legislation. They long ago did so. Insurrection is a defined federal crime. There is therefore no "imply" that some other process would apply it. Congress already defined how someone becomes liable for the consequences of insurrection.

The discussion below was on a hypothetical re-implementation legislation that might try to create an alternative legislative implementation.

[Hotler]

2. Quit talking about it an do it. Blind side them. If it doesn't work or stick...

move on and try something else. I wish we would stop telegraphing strategy.

[magicarpet]

3. This is great,... sure hope the Fascist ReThugs can not filibuster this endlessly.

[FBaggins]

4. Doesn't really matter how many trial balloons try this same theory

It is more than a stretch to think that it could be applied by Congress.

Congress could keep him from being seated in the House or Senate based on 14A - though that vote would have to occur after he wins some imagined race in the future. But they can't "invoke" the 14th Amendment. The closest that they could come would be to pass new enacting legislation (per section V) creating some new process for designating someone guilty of insurrection... but that would almost certainly be unconstitutional and wouldn't get past a filibuster anyway.

[qazplm135]

6. It would also be an ex post facto law

if applied specifically to Trump.

He has to be convicted.

[FBaggins]

7. One of many reasons why it would almost certainly be unconstitutional

It's hard to get too specific without actual legislative text to critique - but we can look at some generalizations

The constitution explicitly contemplates removing/disqualifying a president. There's no way to convince SCOTUS (certainly not this SCOTUS) that Congress can modify that scheme with legislation. Even legislation that purports to merely implement an amendment. There would have to be evidence from the amendment ratification process showing that the authors anticipated using it as an alternative to impeachment.

Then the same concern would come up for the scheme itself. Create a panel of judges who can decide by majority vote that someone is guilty of insurrection... and now you have a due process issue and would have to convince the court that the authors intended to amend that language.

Congress's power to enact implementing legislation is not unlimited. Otherwise, we would see republicans redefining "insurrection" to include community organizing... and half of our candidates would be gone.

[lagomorph777]

9. So...the Constitution is unconstitutional?

[FBaggins]

10. Don't be silly

What would be unconstitutional would be legislation changing the constitution - whether as a stand-alone act or under the guise of "implementing" an amendment in a way that was inconsistent with either the amendment itself or with other parts of the constitution that were not amended. (e.g., as 21A explicitly repeals 18A)

[lagomorph777]

11. I agree with that. The 14th Amendment needs no extra legislation.

Apply it directly.

[FBaggins]

15. There are only two ways to "apply it directly"

He can be charged with the crime and convicted by a unanimous jury (and lose on any appeal)... or Congress could apply it when exercising their power to determine their own membership (IOW - in seating a newly-elected Senator Trump).

What they can't do is say "51 senators think that you're guilty so we hereby apply it"

And anyone who thought (for even 30 seconds) about McConnel controlling that power would agree that Congress can never be allowed such powers.

[marie999]

17. The 14th Amendment does not mention the president.

The president is in the impeachment Article 2 Section 4 and not in the 14th Amendment. Why would they leave the president out of the 14th Amendment when Congress is in it. The 14th Amendment even lists state legislature and judicial officers, but it doesn't bother to list the president. Also in the Supreme Court case of Free Enterprise Fund V. Public Accounting Oversight Bid, Chief Justice Roberts wrote "The people do not vote for the Officers of The United States. Rather Officers of the United States are appointed exclusively pursuant to Article 2 Section 2 procedures. Also Buckley v. Valeo the Supreme Court defines that "officer of the United States" is an appointee and excludes elected officials, that is why the 14th Amendment has to include members of Congress. If Congress applies the 14th Amendment to keep Trump from office, it will certainly be a case for the Supreme Court. And considering how the Supreme Court has ruled before, I doubt that Congress will be allowed to keep Trump from office.