Confused: are we sure the 14th amendment is off the table?

[soothsayer]

Link to tweet

?s=21


Max Burns
@themaxburns
·
Feb 13, 2021
Gee just gonna leave my @NBCNews column from January 13 here for no reason at all.

"The 14th Amendment could be the key to preventing a president who contributed to a domestic terrorist attack from ever receiving a position of public office again."

Opinion | Here's the fastest, easiest way to keep Trump from ever holding office again
nbcnews.com

Max Burns
@themaxburns
Glad to see Majority Leader Schumer is seriously considering invoking Section 3 of the 14th Amendment, which would require only a majority vote of the Senate.

It would also disqualify Trump from ever seeking an office of public trust again. That's critical.
9:49 PM · Feb 13, 2021


https://t.co/Sdgoqxbmmn?amp=1

Snip
In an op-ed for The Post, Foner laid out the straightforward mechanics of a 14th Amendment charge: Legislators file a resolution, then both chambers vote. In that sense, it would be a triumph of the regular democratic process — the process Trump's thugs tried to undermine — that delivers a final defeat to the president's stained legacy.

The case for applying the language to Trump may also be clearer than that of impeachment, because the 14th Amendment's permanent ban on future public service emphasizes for all future generations the severity of Trump's treachery and doesn't require the Senate to take a separate vote, as during the impeachment process.

That's not to say there won't be challenges to invoking the 14th Amendment. Any effort to hold Trump accountable is likely to face strong Republican opposition, though the extremity of Trump's conduct seems to be fracturing party loyalties. The GOP will also likely challenge the application of such a rarely used piece of legal machinery. The Supreme Court will almost certainly be called to weigh in on the inevitable flood of Republican lawsuits.

[msfiddlestix]

1. Yeppers, this is essentially what we wanted done with this failed conviction

[soothsayer]

5. Ok but it says:

Snip
In an op-ed for The Post, Foner laid out the straightforward mechanics of a 14th Amendment charge: Legislators file a resolution, then both chambers vote. In that sense, it would be a triumph of the regular democratic process — the process Trump's thugs tried to undermine — that delivers a final defeat to the president's stained legacy.

The case for applying the language to Trump may also be clearer than that of impeachment, because the 14th Amendment's permanent ban on future public service emphasizes for all future generations the severity of Trump's treachery and doesn't require the Senate to take a separate vote, as during the impeachment process.

That's not to say there won't be challenges to invoking the 14th Amendment. Any effort to hold Trump accountable is likely to face strong Republican opposition, though the extremity of Trump's conduct seems to be fracturing party loyalties. The GOP will also likely challenge the application of such a rarely used piece of legal machinery. The Supreme Court will almost certainly be called to weigh in on the inevitable flood of Republican lawsuits.

[StarfishSaver]

12. This can't be done this way

The case isn't clearer at all. There is no case for Congress to remove or disqualify a president just by getting a majority to call him/her an insurrectionist.

[soothsayer]

16. Rightio

[Indykatie]

2. Do We Know Why The Dems Didn't Use The 14th Amendment Route The First Time?

They had to know they would never get 67 votes?

[StarfishSaver]

11. Because the 14th Amendment is not something Congress can invoke by itself

The only method Congress has for disqualifying a president on its own is through the impeachment power. If they can't get the votes to do it that way, they can't just turn around and disqualify him by deciding by simple majority that he is an insurrectionist and remove or disqualify him from office.

Imagine if they could - they could have removed Obama or Clinton from office or disqualifying Hillary or Biden from running, just by declaring them insurrectionists.

[hlthe2b]

3. Neil Kayal explains:

Link to tweet

[OAITW r.2.0]

4. I get the feeling nothing is off the table. Even people in Congress who could be

implicated in creimes.

[servermsh]

6. It needs a conviction in a court.

And are people really proposing that a Republican controlled Congress could prevent a second term for a Democratic president? Really?

They would have barred Obama from running again for supposedly not having been born in the country!

[StarfishSaver]

8. Thank you

It's really frustrating seeing respected commentators continuing to push this solution without acknowledging it needs to have court involvement. They are sending people off on a fools errand - and, of course, they'll accuse the Democrats of being weak or cowards if they don't make it happen.

[TwilightZone]

14. Agreed.

MSNBC, in particular, has been pushing it hard without context. As much as I like many of their commentators, that's a common MO of theirs on multiple issues, and it's incredibly frustrating.

[TwilightZone]

21. You probably have a source already, but...

Last edited Sun Feb 14, 2021, 10:25 AM - Edit history (1)

here's an excellent one re: the 14th.

Excerpt:

"Congress cannot simply declare an official outside of that body ineligible under Section 3 without the concurrence of the courts. To hold otherwise would allow simple majorities in Congress to oust federal and state officials without judicial scrutiny and would subvert long-established constitutional principles, such as life tenure for federal judges and the limits of the impeachment process."

https://www.lawfareblog.com/14th-amendments-disqualification-provision-and-events-jan-6

[StarfishSaver]

7. This will work ONLY if a court rules that Trump is guilty of insurrection

The Congress cannot unilaterally find someone guilty of a crime and mete out a penalty.

A court court would have to find him guilty either in a criminal trial or in some other kind of proceeding before Congress could invoke this section of the 14th Amendment to disqualify him.

[soothsayer]

9. Ah. That makes sense.

[MontanaMama]

13. Forgive my ignorance on this subject,

but in what court would this trial be held? Do you think this is even a possibility? Thanks in advance.

[StarfishSaver]

15. I can think of a couple of possibilities

First, if Trump were charged with and convicted of insurrection in a regular criminal proceeding, the conviction would be sufficient (although it could be stayed on appeal).

Another method would be for Congress to pass legislation setting up a special court and proceeding for such a purpose that could adjudicate the issue - for example, a tribunal like the FISA court.

But however it's done, it would likely take awhile, so this solution isn't as simple or quick as some are making it out to be.

[MontanaMama]

18. Got it.

Thanks for the explanation. I am bookmarking this to research further. I want a little hope. This seems like a long shot but maybe not impossible. However, there isn’t much time before the next election cycle starts again.

[Vivienne235729]

46. This is what I was trying to ask. Thanks for the explanation.

[Nevilledog]

19. Where are you getting the notion that there must be a conviction?

I believe that is in error.

https://www.justsecurity.org/74657/time-to-reconsider-the-14th-amendment-for-trumps-role-in-the-insurrection/

*snip*

Impeachment vs. the 14th Amendment

The rules of the game for the impeachment trial present political and (arguable) constitutional obstacles to the home run result: conviction in the Senate. For example, an overwhelming number of Republican senators have already committed themselves to the dubious “jurisdictional” evasion that the process cannot be applied to a former office holder. Moreover, those acquittal-committed senators who do reach the merits have made it clear that they will seize upon supposed First Amendment principles – which preclude criminal liability for speech unless it expressly calls for specific and immediate acts of violence – to excuse the president’s actions from the constitutional, non-criminal remedy of impeachment and conviction.

The base path to victory in the form of a 14th Amendment, section 3 congressional resolution faces no such obstructions for two simple reasons. First, no matter how dubious the arguments against the constitutionality of convicting a former president in an impeachment trial, there is absolutely no such argument for a jurisdictional barrier to a section 3 bar. The office holding bar in section 3 is expressly intended to be prospective and apply to former officeholders.

Second, the section 3 standard of “engaging” in an insurrection or rebellion and giving “aid or comfort” to those who are enemies of the country are easily satisfied by Trump’s conduct. Former President Trump plainly was “engaged” in (meaning “involved with”) the process leading to the violent invasion of Congress. Furthermore, whatever the challenges of showing that a speech constitutes an actual criminal incitement of violent rioters, Trump’s statements during and immediately after the attack on the Capitol – including telling the rioters “We love you. You’re very special,” and “I know how you feel” – clearly reach the threshold of giving “aid or comfort” to the insurrectionists who stormed the Capitol.

Perhaps most importantly, in the critical quest to hold Trump accountable, a resolution finding that the elements of section 3 have been satisfied requires only a majority vote. This requirement should be immediately achievable in both houses of Congress, both because Democrats hold these majorities and because the purported constitutional objections to impeachment conviction which have been advanced in the Senate are “swings and whiffs” for a section 3 resolution.

*snip*

More at the link

[NYC Liberal]

20. So a Republican-controlled Congress could have banned Obama from running for a second term

by a simple majority vote? All they'd have to do is say he did something that amounted to "insurrection," no matter how vague?

Or Hillary? Republicans could have declared that she gave aid and comfort to our enemies "because Benghazi!" and banned her from office?

[Nevilledog]

22. Read the article....it goes into more detail.

Exactly what facts could they use to show Obama was involved in sedition or insurrection?

However, seeing as Republicans never face any consequences for their attempts to destroy democracy, I wouldn't say they'd never try.

[TwilightZone]

23. You think Republicans need facts? lol, no

The assertion that Congress can unilaterally use the 14th to prohibit Trump from running again is false.

"Congress cannot simply declare an official outside of that body ineligible under Section 3 without the concurrence of the courts. To hold otherwise would allow simple majorities in Congress to oust federal and state officials without judicial scrutiny and would subvert long-established constitutional principles, such as life tenure for federal judges and the limits of the impeachment process."

https://www.lawfareblog.com/14th-amendments-disqualification-provision-and-events-jan-6

[Nevilledog]

32. Impeachment was a determination.

*snip*

What’s more, the article of impeachment adopted against President Trump by the House of Representatives expressly describes what occurred as an insurrection and cites Section 3. In a Section 3 case, courts will probably defer to this conclusion, especially since the members of Congress were direct witnesses to the event. An acquittal of Trump in the impeachment trial may undercut that deference somewhat, but not fully.

*snip*

[StarfishSaver]

39. The courts would defer to Congress' conclusion, but would still make the decision

As the article you cited clearly states, this cannot be done without the concurrence of the courts - Congress does not have the power to unilaterally declare anyone outside of it's body to be disqualified from holding office. The court would make this determination.

Congress cannot simply declare an official outside of that body ineligible under Section 3 without the concurrence of the courts. To hold otherwise would allow simple majorities in Congress to oust federal and state officials without judicial scrutiny and would subvert long-established constitutional principles...

[A] concurrent resolution by Congress or a statute declaring someone ineligible under Section 3 does not make that person ineligible. Congress can only express its opinion on that constitutional point, backed by any record it might assemble, and expect deference from the courts. But expecting is not the same as guaranteeing.

[StarfishSaver]

24. The Constitution

Article I, Section 9, Clause 3 and the 14th Amendment Due Process Clause, among other things.

Congress can't just on its own declare someone guilty of a crime and take away their rights without a trial.

Do you really think that Congress has the right to, with a simple majority vote, declare a person guilty of insurrection and bar them from holding federal office? Do you think that the Republican Congress could have done that to Bill Clinton in 1998 after they failed to remove him through impeachment? Or would you have been ok with the Republican Congress declaring Obama guilty of insurrection in 2015 and removing him from office? Or voting in 2015 that Hillary Clinton, Joe Biden and Bernie Sanders were insurrectionists and barring them from running for president?

Congress does not have such power and no court would allow them to try to exercise it.

[Nevilledog]

33. From the law fare article TwilightZone referenced

https://www.lawfareblog.com/14th-amendments-disqualification-provision-and-events-jan-6

*snip*

What’s more, the article of impeachment adopted against President Trump by the House of Representatives expressly describes what occurred as an insurrection and cites Section 3. In a Section 3 case, courts will probably defer to this conclusion, especially since the members of Congress were direct witnesses to the event. An acquittal of Trump in the impeachment trial may undercut that deference somewhat, but not fully.

*snip*

Now whether Congressional Dems want to risk setting a potentially bad precedent, I don't know. I find it somewhat humorous that you don't think Republicans would try to get rid of a Dem president in the future (the byproduct of having no consequences for behavior none of us imagined possible a few short years ago).....they're okay with destroying the whole fucking government.

[StarfishSaver]

34. Also from the same LawFare article you cited

The first question under Section 3 is who decides whether someone is ineligible. The answer is that a court must determine if someone outside of Congress is subject to the disability.
...
By contrast, Congress cannot simply declare an official outside of that body ineligible under Section 3 without the concurrence of the courts.To hold otherwise would allow simple majorities in Congress to oust federal and state officials without judicial scrutiny and would subvert long-established constitutional principles, such as life tenure for federal judges and the limits of the impeachment process.

At most, Congress can exercise its Section 5 enforcement authority under the 14th Amendment to express its considered opinion that certain individuals are ineligible, with the expectation that the courts will accept that opinion under the “congruence and proportionality” standard articulated by the Supreme Court’s decision in City of Boerne v. Flores—assuming that City of Boerne even applies to the enforcement of Section 3.

There's your answer.

[Nevilledog]

36. That's talking about no impeachment proceedings. They can't just decide to use it by itself.

[StarfishSaver]

37. Did you read the whole article?

[

[TwilightZone]

10. From what I've seen, Schumer did not say he was seriously considering it.

I'm seeing that reported on a bunch of right-wing websites but not the mainstream sites.

From "normal" media sites, the story is different.

Example: "Schumer: Democrats might invoke 14th Amendment to bar Trump" is the headline, but there's nothing in the article backing up the claim.

“We’re first going to finish the impeachment trial, and then Democrats will get together and discuss where we go next,” Schumer said, as reported by Fox News."

https://www.ajc.com/news/nation-world/schumer-democrats-might-invoke-14th-amendment-to-bar-trump-if-senate-acquits/PCP67ZMZYZHV7FG5JFG3O42ZTE/

[soothsayer]

26. Gotcha

[TwilightZone]

28. Kind of odd, actually.

I wonder if the story was updated and the headline was not. AJC is usually pretty solid.

[Hoyt]

17. Certainly won't gripe if that works out, but I really think it's up to voters

at this point. They beat him in November, and they’ll beat him again.

Time to move on and take care of country’s needs and forget about the has been POS trump.

[regnaD kciN]

29. They "beat him" in 2016 as well...

...and he still became President.

Make no mistake: thanks to the electoral college, the next election will likely be on a knife’s-edge, just like the past two, the outcome of each of which came down to a few dozen thousand voters in key locations, no matter what the overall popular vote may be. And next election will not feature a Republican incumbent bearing the weight of a mishandled pandemic. If Biden suffers any setbacks, even not of his own doing (say, the economy is slow to recover from COVID), it’s quite conceivable that a crucial number of voters who went from Obama to Trump to Biden may decide the Trump years were pretty good for them personally, and that might be enough to put him back in the White House – or, if he decides the presidency isn’t worth the hassle again, elect his anointed successor.

[Hoyt]

31. OK, guess we are going to refuse to accept election results too.

I’m not worried about trump if we concentrate on doing what’s best for people and quit worrying above nailing trump. He’s history.

Besides, we beat ourselves in 2016 — ticked off primary losers who didn’t support Clinton, Dems who bashed Obama and Clinton by adopting trump’s position on trade right up til October 2016, etc. Hope we learned a lesson.

It should still be up to voters in a Democratic republic, or whatever we call ourselves.

[Fiendish Thingy]

25. Until/unless Trump is convicted of criminal charges of Insurrection, 14th is likely off the table.

[Celerity]

30. that is my understanding as well, and I doubt he will be criminally charged

[StarfishSaver]

40. He doesn't have to be criminally charged, but there does have to be a judicial

determination that he engaged in insurrection.

[Celerity]

43. Oki, poor wording upon my part.

Cheers

🖖🖖🖖

[Bettie]

27. Of course it is

because any consequences for this giant orange piece of excrement is apparently off limits.

I'm so freaking tired. There is no justice, no hope for our nation, since even this doesn't rise to the level of impeachment.

Who knows what the next guy will do since it has now been demonstrated that there is no line. Nothing that a Republican can do that will be considered "too far".

[StarfishSaver]

35. It's not off limits. But it can't be done without judicial determination of guilt

As it should be.

Unless you like the idea of a Republican Congress declaring a Democratic president and insurrectionist and removing him from office with a simple majority vote.

[Bettie]

38. He's worked the judicial system his entire life

I don't believe he'll ever face anything. I hope I'm wrong.

I wasn't talking about impeachment, I was actually talking about facing consequences elsewhere. He won't.

[NotASurfer]

41. How was this applied to the original Confederates after the Civil War?

I'm trying to wrap my head around the role of the judiciary in that process, and if it set applicable precedent. Did every one of their elected or appointed officials have to be tried and convicted of insurrection? All the veterans of their army who took up arms? Or was it some kind of statutory or regulatory determination that was upheld or maybe just challengeable in the courts?

[StarfishSaver]

44. At the time, everyone who served in the Confederacy was deemed by law to be an insurrectionist

So that situation was different. In fact, the 14th Amendment provision barring insurrectionists was intended specifically for the former Confederates.

Here, there has been no legal determination that Trump is an insurrectionist. That would have to be done by a court.

[Hotler]

45. I think if there was a will to use the 14th they would be all over it. All I hear

this morning from the talking heads is "everyone is tired and just wants to move on" blahblahblah... That's a far cry from hearing that the Dems will move forward with the 14th Monday morning and go to work on Covid bill in the afternoon.