The 14th Amendment disqualifies Trump

[AverageOldGuy]

As has been pointed out in other DU entries as well as in a few other opinion sites, there is a body of opinion that Trump is disqualified from office by the 14th Amendment.

The 14th is one of three post-Civil War amendments that have an interesting and some would say "checkered" history:
-- the 13th abolished slavery (but did it really?).
-- the 14th cleaned up a lot of Constitutional vagaries -- who is a citizen, rights of citizens, rights before the law, etc.
-- the 15th which prohibited denying citizens the right to vote because of their race (of course, the old Jim Crow laws worked around that and now Republicans are re-instating Jim Crow, just by another name).

This month, former federal judge Michael Luttig and law professor Laurence Tribe co-authored an Atlantic magazine piece arguing that the 14th Amendment prohibits Trump -- and a host of others -- from ever holding office. Here's a link to the article, though it may be behind a paywall.

https://www.theatlantic.com/ideas/archive/2023/08/donald-trump-constitutionally-prohibited-presidency/675048/

In their article, Luttig and Tribe give a lot of credit to a forthcoming article in the Univ. of Penn. Law Review, a pre-publication copy of which is available in PDF -- all 126 pages of it.

Here is what Luttig and Tribe say:

We were immensely gratified to see that a richly researched article soon to be published in an academic journal has recently come to the same conclusion that we had and is attracting well-deserved attention outside a small circle of scholars—including Jeffrey Sonnenfeld and Anjani Jain of the Yale School of Management, whose encouragement inspired us to write this piece. The evidence laid out by the legal scholars William Baude and Michael Stokes Paulsen in “The Sweep and Force of Section Three,” available as a preprint, is momentous. Sooner or later, it will influence, if not determine, the course of American constitutional history—and American history itself.

I tried to post a link to the U. of Penn. Law Review article, however, it is a looooong URL, so, here's a link to an abstract of the law review article that has a link to the PDF at the top of the page. If you don't want to read all 126 pages, read the introduction that precedes the table of contents then go to page 124 and read the last two pages. I'm over halfway through the law review article and while a lot of legal writing is deadly reading, this one is clear, to the point, and makes sense.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751
]

Maybe if we started pounding on our members of Congress . . .

Meanwhile, the fact of the Atlantic article and the Law Review article may suggest that something is stirring below the surface.

[Silent Type]

1. Wish it were that simple. Doubt that will prevent trump from taking office IF

he wins, gawd forbid.

[dweller]

2. He can't take office if he can't run for it

Other than another coup attempt



✌🏻

[Silent Type]

3. How do you propose preventing him from running if he's not convicted?

That weak amendment is not likely to suffice. Hope it doesn’t come to it, but right now we need to be ready to beat him at polls.

[WheelWalker]

8. Read the 126 page law review paper. It is not a "weak amendment"

If you do I believe your questions will be answered. It's not a difficult read. Ignore the footnotes. That will shorten the read.

[Silent Type]

9. Don't have any questions because-- in my uneducated opinion-- it ain't

gonna work. If by chance it does, I’ll do a little dance and gladly eat crow dung.

[WheelWalker]

13. I see you are determined

to maintain an uneducated opinion. In point of fact, your post to which I replied began by positing a question, did it not? Whatever game you are playing, I am not your playmate.

[NJCher]

16. Trump isn't the only one who

Is willfully ignorant.

[Beartracks]

11. Any Trump run WOULD be another coup attempt, just using the trappings...

... of democracy to make it look legit. You know -- like the LAST time he ran, with Putin's blessing.

=============

[Polybius]

31. He already is running for it

Unless you think that his name will be kept off primaries?

[Fiendish Thingy]

4. Reality says otherwise. Nt

[wnylib]

22. See my #21.

[B.See]

5. One would THINK so...

But as we know, laws and rules don't apply to people like Trump.
They were written for US.

[scipan]

6. I read the introduction and the last 2 pages

They only mention Secretaries of State and some kind of commission ( I think decides who gets on the ballot instead of the sos). What about the voters? Tribe and Luttig allow for that. Typical conservative mindset maybe? I really wish my brain was up to reading and understanding those 126 pages, because I think it will become important very soon.

The interesting question to me is will this be tried in the gop primaries. I think it will, by conservative never Trumpers or Dems. (Some Dems may want him to be the gop pick, including duer's. I'm undecided but I tend toward the belief that any R is a danger. Look at the Heritage Foundation's writings lately.)

[WheelWalker]

7. The law review paper is a MUST read...

it'll tickle the cockles of your heart.

[Effete Snob]

10. "pounding members of Congress" to do what?

[yardwork]

36. I guess call Congress right now and tell them something.

A couple of them might agree. The majority won't. But we will have wasted a lot of time doing something other than getting out the Democratic vote. Because that's hard, and kind of boring. Whereas "pounding Congress" sounds important.

[calimary]

12. We made an ask about that for the new week's Call to Action email.

It’s our Wednesday ask. It’s a good one, and I hope it spreads! Anybody who's interested, by all means give it a test-drive! It can't hurt to have more people asking this of their Congressional reps.

Trump cannot be president again - ever.
Section Three of the 14th Amendment of the Constitution could not be clearer: “No person shall … hold any office … under the United States who, having previously taken an oath to support the Constitution … shall have engaged in insurrection or rebellion.” While Trump took an oath to reserve, protect and defend the Constitution, he violated that oath by planning and executing an insurrection in an attempt to take over the government. Recently, two well-known conservative legal scholars, both members of the Federalist Society, made the case in a law review article that Trump is constitutionally barred from serving in public office because of Section Three of the 14th Amendment. We know he must not be president again. So, what to do? We hammer our state election officials, who have the authority to bar him from the ballot, to do so. And let’s get Congress to pass legislation to keep him off the ballot.

(Use one or more of the bullet points below to compose your message)

Sens. Wyden/Merkley, Reps. Blumenauer/Chavez-Deremer Talking Points: Hi. My name is _______ and I live in __________(include ZIP Code).

- Section Three of the 14th Amendment prohibits Trump from holding office ever again;
- Congress does indeed have the authority to pass legislation to forbid Trump from holding office.
- America will not survive another four years of Trump as president, and neither will our precious democracy!
- The 2024 election will be before we know it and Trump will continue with the “Big Lie” unless we get him booted off the ballot.
- Speak to your colleagues on both sides of the aisle about this important matter and make it clear to the Republicans that they need to put country over party.

https://thehill.com/opinion/judiciary/4155537-the-constitution-bars-trump-from-holding-public-office-ever-again/ - The Hill - The Constitution bars Trump from ever holding public office again
https://www.citizensforethics.org/reports-investigations/crew-reports/past-14th-amendment-disqualifications/ - Citizens for Ethics - The precedent for 14th amendment disqualifications
https://www.vox.com/23828477/trump-2024-14th-amendment-banned - Vox.com - The Constitutional case that Trump is already banned from being president again

[NJCher]

18. This is very helpful

Thank you. I’m doing it.

[calimary]

32. Really? Well, thank you!

And by all means have at it!

[WheelWalker]

26. Damn straight ! I couldn't agree with you more, comrade. Thank you!

[calimary]

34. Anybody who wants to - by all means, use it! Just direct it at YOUR reps.

The ones listed here are Oregon's, cuz that's where our Indivisible group is and that's the area it directly serves.

But then again, hey - pile-ons can certainly be our friend.

[WheelWalker]

43. I'm Oregon, myself. Down here in Oakland, north Douglas Co.

[calimary]

58. We're in CD-5. Not far from the banks of the Willamette.

I'm still learning all its in's and out's.

There are some folks who live ON the Willamette - pretty homes tucked down closer to the river. That's not where we are. But we still have a nice view. EXTRA-SUPER nice if you like tall trees! I'm stunned, EVERY day. WHENEVER I stop and look around.

[Tarzanrock]

14. A simpler argument

I think you need a "simpler" argument so that 60 million idiots out there who have a reading comprehension below that of a 6 grade student can understand it. Something like: If you try to "fix" the World Series you are banned from Baseball for life. If you are even more "un-American" and try to "fix" the U.S. Presidential election you are banned from politics for life and you go to prison for life.

[calimary]

35. Welcome to DU, Tarzanrock!

I'd guess that'd get through to at least a few of 'em.

[ecstatic]

15. We're kind of in a bind though

Our constitution is so weak and without teeth, I think someone mentioned that the Supreme Court would have to get involved. Otherwise, it places some SOSs in the weird position of having to make unilateral decisions that affect a national election and their decisions could be challenged or even prosecuted later (it wouldn't be anywhere near as wacky as what trump's thugs tried to pull, but it could be twisted by the media to be equivalent).

The bottom line is the Senate republicans failed us. None of them are fit to serve. They should all be expelled. Well maybe mitt can stay.

[yardwork]

37. Our Constitution is weak and without teeth?

I hadn't noticed that. Why do you think this?

[Aussie105]

17. Indeed it does.

But the Dark Forces, the ones that got this excuse of a person into the White House way back then and would like to do it again, are still active.

I'm sure they will try to find a way around or through the 14th Amendment, right through to declaring the Constitution as 'Woke!' and burning every copy known to Man.

[NJCher]

19. The only ones left are trump supporters.

They are not smart enough to negotiate that nor are there any lawyers who would take it on.

[AverageOldGuy]

20. I think reality is against a 14th Amendment solution

Commenting on my own article -- I think reality is against a 14th Amendment solution, but hope springs eternal.

Would he first have to be convicted of insurrection? If he first must be convicted and then the 14th Amendment kicks in, it's probably a dead letter because of the length of time involved. I mean -- he may be found guilty of insurrection as a result of either or both Jack Smith's or Fani Willis' indictments -- HOWEVER -- we know he will appeal any convictions, and appeals can drag on and on and on, likely well past Nov 2024 (when he will be 78) and maybe past Nov 2028 (when he will be 82, if he's still alive). So -- even if he's convicted and the conviction(s) upheld, he will have run out his string because I really believe all but the most committed MAGAts are tiring of him, making Nov 2024 his last shot at public office.

Even if someone sues to keep him from running for office under the 14th Amendment -- conviction or not -- that case would have to work its way through the federal court system to the Supreme Court and God only knows what SCOTUS would do.

So, while we all would like to see it happen, I think reality is against us. Which means we must GET OUT THE VOTE in Nov 2024. Remember -- it's the Electoral College vote and that comes down to 5 or 6 states.

[wnylib]

21. According to Laurence Tribe,

the process would be this: Secretaries of state would refuse to put Trump on the ballot, based in the 14th amendment. Some citizens of the states would object and file a suit to keep Trump on the ballot. Due to the timing importance, it would be fast tracked, like Trump's 2020 challenges were, and SCOTUS would make a ruling on it. They did not favor Trump in his 2020 challenges, so they could rule in favor of the 14th amendment this time, without needing a conviction on his election interference charges.

They would not need convictions on the current charges because there are known facts that Trump himself does not dispute. He watched the Capitol attack for hours without any attempt to stop it. He approved sending protestors to the Capitol who he knew were armed. He praised them for their efforts when he did finally call on them to stand down. He pressured Mike Pence to violate the constitution. These are known facts that have been testified to under oath by witnesses.

Here are Judge Luttig and Professor Tribe discussing it on video.

https://www.democraticunderground.com/1017855727

[Fiendish Thingy]

27. If the process unfolds that way, beware

Prepare for dozens, if not hundreds of Dems to be disqualified by MAGA Secretaries of state and MAGA judges.

If Trump’s disqualification without a conviction reaches SCOTUS, I would expect them to overturn it, ruling that no finding of fact has been established under due process and the rules of evidence. They would cite as precedent the fact that every disqualification since the civil war (that is, after the initial wave of disqualifications of Confederate soldiers and officials following ratification of the 14th amendment) has required a conviction. There have only been 8 disqualifications, although there have been numerous other cases that could have met the criteria, but no relevant conviction was obtained.

I have heard no reports of a single SoS taking steps to disqualify Trump, nor do I expect to, unless he is convicted.

[wnylib]

29. I have not heard of any SoS claiming a disqualification, either.

But Luttig and Tribe are pushing the idea so somebody might try it. Tribe is a constitutional scholar so he knows much more about it than I do. However, scholars can be isolated from the workings of the real world. Also, while he is a professor and scholar of the constitution, we can't say the same for most SCOTUS members who would make the decision.

I do not think that the general public at large would accept the validity of disqualification without a court conviction, regardless of how SCOTUS would rule.
.

[Effete Snob]

42. Ah, but

Tribe is happy to explain in great detail how often the Supreme Court has gotten it wrong.

So, the Supreme Court has to live with the fact that Tribe says they are wrong. The rest of us have to live with whatever insane decisions they make.

[WheelWalker]

25. Please read and become informed.

The law review paper is written by Federalist Society scholars advancing Constitutional textualist arguments. Learn about Quo Warranto among other remedies. Expand your knowledge beyond worrisome "what ifs".

[yardwork]

39. Have you ever read the U.S. Constitution?

[WheelWalker]

45. I have read the Constitution. Have you read the law review paper?

The OP references a specific Atlantic article and a specific law review paper as the subject of this thread. Anyone who posts replies to this thread without reading them is just shooting from the lip.

[yardwork]

47. I'm not qualified to understand a law review paper.

If you've read and understood it, you can answer my question, right?

[Piratedog]

23. Problem is... I don't think he was charged with sedition or the like.

There are a lot of charges but not those.

[WheelWalker]

24. Neither criminal charges, nor a conviction are necessary. Section 3 is self-executing.

Read the Atlantic article and the law review paper, please. Be informed.

[Fiendish Thingy]

28. Those are theories and opinions, not connected with the real world

They exist as hypotheticals, as opposed to the facts regarding previous disqualifications, which did require convictions.

The 14th amendment was NOT “self executing” in any of those 8 cases.

Please. Be. Realistic.

[Effete Snob]

40. +1

Apparently an Atlantic article and a law review piece are the final word.

[Zeitghost]

55. Don't forget the Federalist Society

Who apparently get approval around here now.

[yardwork]

38. So anyone, at any time, can be accused of sedition and barred from office?

No need to prove in a court of law that the person actually committed sedition? Just the accusation is sufficient to bar them from office forever? They have no right to defend themselves?

Stop and think what that would mean.

[Effete Snob]

41. As a candidate, Barack Obama said...

…we were going to “change America and the world”.

The howler monkeys on the right used to take that as some kind of radical revolutionary manifesto. And that was on top of his being a secret Muslim.

Currently, they claim that President Biden is taking bribes from hostile foreign enemies.

Pretty sure they’d be happy to explain how both Obama, Biden and, heck, both Clintons are or should have been barred from office.

I mean, golly, President Obama wasn’t even born in the US. He was genetically-engineered in a Cuban laboratory and trained to be an America-hating gay Muslim communist, etc..

But, yeah, sure, let’s have every red state Q-spouting MAGA secretary of state decide who is allowed to run and see how that works out.

[yardwork]

48. There is quite a bit of authoritarian thinking in the country now.

I assume that Tribe is making some kind of hyper-nuanced legal theory observation that is beyond my understanding.

The number of DUers prepared to put this in motion Right Fucking Now is.... not surprising, exactly....

[WheelWalker]

44. Have you read the law review paper? Your questions considered and answered.

Please read.

[yardwork]

49. I wouldn't understand it. Could you explain in plain English?

Thanks in advance.

[gulliver]

30. "Baude and Paulsen are two of the most prominent conservative constitutional scholars..."

"...in America, and both are affiliated with the Federalist Society, making it more difficult for them to be dismissed as political partisans."

Will any of the Republican major candidates have the guts to take one for the country and sue Trump?

[Polybius]

33. If crazy people want him to run, he should be able to

It's the will of the people.

[BannonsLiver]

46. None of that counts for squat

He’s running for President and will almost certainly be on the ballot in all 50 states if he’s nominated. This is fantasyland inside baseball shit from Tribe.

[Effete Snob]

53. It depends

As I understand it, if you can get a lot of people to fly flags and have boat parades, that makes it official.

[Celerity]

52. waste of time without a legal conviction, and it would set a dangerous precedent without one

[Recycle_Guru]

54. kicking and recommending

laughing that so many are opposed to this information

[triron]

56. I'm with you. I wonder who we have here at DU?

[calimary]

57. Ha-Cha-Cha!!! We wrote about this at our Postcard Party today!

This was one of the asks! It and a few others were taken from my Indivisible group’s “Call to Action” email we wrapped up, yesterday. So those adks served extra, beyond just the members and friends who get them by email.

GREAT to see those postcards! Thirty-five of ‘em! We delivered the ones to our Congresswoman (12) on the way home, cuz her office is just a few blocks away from there. The rest gets mailed - stamps come out of our group’s budget.

We have Postcard Parties once a month at a local restaurant where we can also get lunch.

[LetMyPeopleVote]

59. California Gov. Newsome is going to seek to have TFG stricken from the 2024 ballot

This move will invite litigation that could help enforce this remedy

Link to tweet

FUN FACTS: According to FOX News, (D) 2028 presidential candidate, California Governor Gavin Newsom has become the first governor to declare that Donald Trump should be disqualified from running in future presidential elections. Consequently, Governor Newsom has requested the California State Assembly to enact a bill that will ensure Trump's name is omitted from any upcoming ballots. #DemVoice1 #wtpBLUE

[spanone]

60. republicons have no regard for our constitution or our laws.

That should be plain to see by now

[LetMyPeopleVote]

61. Section 3 of the 14th Amendment is self executing but not self enforcing

California or another state needs to disqualify TFG from the ballot based on Section 3 of the 14th Amendment and then let the SCOTUS decide

Link to tweet

[LetMyPeopleVote]

62. I read and downloaded the article cited above.

I read the article from the two members of the Federalist Society. See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751 This is an amazing law review article and is dense reading. The authors conclude that TFG is disqualified under Section 3 of the 14th Amendment.

The most politically explosive application of Section Three to the events of January 6, is at the same time the most straightforward. In our view, on the basis of the public record, former President Donald J. Trump is constitutionally disqualified from again being President (or holding any other covered office) because of his role in the attempted overthrow of the 2020 election and the events leading to the January 6 attack.

The case for disqualification is strong. There is abundant evidence that Trump deliberately set out to overturn the result of the 2020 presidential election result, calling it “stolen” and “rigged”;421 that Trump (with the assistance of others) pursued numerous schemes to effectuate this objective; that among these were efforts to alter the vote counts of several states by force, by fraud, or by intended intimidation of state election officials,422 to pressure or persuade state legislatures and/or courts unlawfully to overturn state election results,423 to assemble and induce others to submit bogus slates of competing state electors,424 to persuade or pressure Congress to refuse to count electors’ votes submitted by several states,425 and finally, to pressure the Vice President unconstitutionally to overturn state election results in his role of presiding over the counting of electors’ votes.426....

The bottom line is that Donald Trump both “engaged in” “insurrection or rebellion” and gave “aid or comfort” to others engaging in such conduct, within the original meaning of those terms as employed in Section Three of the Fourteenth Amendment. If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution. All who are committed to the Constitution should take note and say so.

The issue to me was how to enforce Section 3 of the 14th Amendment. The authors make the point that Section 3 of the 14th Amendment is self executing but it still must be enforced. Among the mechanisms discussed is the concept of a secretary of state disqualifying TFG from the 2024 election.

Anybody who seeks office will at some point need to show that they are entitled to hold that office. At every point that this occurs, Section Three governs. So, for instance, state or local election boards, and state Secretaries of State, may possess statelaw authority to make at least initial determinations as to eligibility of candidates for elected office in that state or representing that state in Congress (as authorized by Article I, section 4 of the Constitution)—and, thus, whether or not such candidates shall be placed on a primary or general election ballot.65 Those state bodies or officers are obliged, often by oath—sometimes by oath mandated by the U.S. Constitution—to act consistently with the requirements of the Constitution in the discharge of their duties.66 Accordingly, such state actors can and must apply Section Three’s disqualification in carrying out their state-law responsibilities—just as they possess the authority and duty to comply with and enforce the Constitution’s other qualificationfor-office requirements......

Finally, what about the top of the ticket? What if the President or a presidential candidate (or likewise for Vice President) is constitutionally disqualified?104 Who has the power and duty to enforce Section Three’s legal prohibition? Again, the answer depends on whether the supposedly disqualified individual is seeking election to office or already holds it. In the case of a candidate, state election officials and state election law will frequently judge that candidate’s ballot eligibility, applying Section Three as described above, and subject to the usual avenues of judicial review. That eligibility question can be a part of a state’s Article II election for electors just as much as any other state election.105 Put simply: a state secretary of state (for example) might well possess state-law authority to determine candidate eligibility for federal elective offices—President and Vice President, U.S. Representatives, U.S. Senators—selected directly or indirectly via state elections; and among those relevant eligibility criteria is whether a candidate is disqualified from the office he or she seeks by Section Three of the Fourteenth Amendment.

Bottom line, is that the only way that I see to enforce Secton 3 of the 14th Amendment is for one or more Secretaries of State to rule that TFG is not eligible to be on the ballot. There will be litigation and the case will be decided by the SCOTUS