Tweet of the night:

[applegrove]

Link to tweet

[Takket]

1. someone has to actually convict him of doing that first............

[unblock]

2. I don't think that's the case.

A conviction for such an offense would certainly make the matter very straightforward, but I don't think it's necessary.

The original intent of this section was to prevent any confederate soldiers or officers from holding public office. They didn't need to have a trial and find specific offenses beyond a reasonable doubt. Simply wearing the uniform was enough.

I would think that an opposing candidate could challenge the candidacy and a court would decide, probably based on a preponderance of evidence, whether or not the candidate violated the clause.

Ianal

[StarfishSaver]

7. Yes - there would have to be some kind of a judicial determination of violation

That finding under a preponderance standard - or any standard less than beyond a reasonable doubt - could not be used in any criminal context (for example, as evidence in a criminal trial), but I think it would be sufficient to meet the 14th Amendment guarantee of due process and disqualify someone from holding office.

That said, I don't think that under the current law, a candidate could bring an case since the provision is it self-exciting and there is no existing legal provision for such an action. Congress would have to pass an enabling statute setting up this procedure, as provided for under the 14th Amendment.

[unblock]

8. Surely there is some precedent from shortly after the civil war?

[StarfishSaver]

10. Not really

This was applied to Confederate soldiers, who were a specifically identifiable group based upon their official enlistment in the Confederacy, which was by definition an act of insurrection - the amendment was intended to applied to them. Applying this to them did not raise due process issues.

Because this would be applied to people based on their individual acts, there would have to be a legal mechanism on place for them to be found to be guilty of or culpable in an act of insurrection. Congress and individuals can't just declare that. And currently there is no such procedure.

[PoliticAverse]

3. People might want to read the January 29, 2021 report from the Congressional Research Service...

specifically on "The Insurrection Bar to Office: Section 3 of the Fourteenth Amendment" before deciding who can or can't be a congressperson:

(.pdf) https://crsreports.congress.gov/product/pdf/LSB/LSB10569

[reACTIONary]

4. Thanks. Very interesting. nt

[calimary]

5. Keeping this link. Thanks!

Bookmarking so I’ll know where this is!

[spanone]

6. that applies to tfg

[brush]

9. Hope his Dem opponent in the next election uses that in campaign ads.

It might also have to be used if he also tries to run for the republican nomination for president as I'm sure that was part of his calculus in going after magat voters with that raised fist stunt in case trump doesn't run in '24.