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The argument for using it to keep Trump off the ballot: The Constitution is clear and the evidence is clear, proponents say: Trump led an insurrection to undermine democracy after swearing an oath to protect the Constitution. 'If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency,' two conservative legal scholars, William Baude and Michael Stokes Paulsen, wrote in a law review article that kicked off this debate. WAPO

But then, as Romney pointed out, the MAGAs don't care about the Constitution.

Agreed. This prima facia approach has a key flaw. For it to have any impact in keeping Trump from winning election, it would have to be exercised in a state whose electoral votes he would otherwise win. There are no odds for such an event. It has ZERO chance of occuring. Any state with enough citizens still crazy enough to vote for Trump over ANY other candidate is likely already controlled by Republicans in statewide offices including Secretary of State. And if there happens to be a sane-thinking Secretary of State (Democrat or Republican) who would even hint at exercising this authority, they would be immediately removed from office by a Republican legislative majority.

Sadly, the country's collective sense of civic morality and our checks and balances to preserve it have been so corrupted, the ONLY mechanism that can assure Trump never holds office is the ballot box. And frankly, decades of corporate media, lazy / willfully ignorant citizens and gerrymandering have created a situation where the integrity of the ONE single national election we have for President -- already compromised by the electoral college process -- is an easy target for manipulation by states whose legislatures are often PROFOUNDLY unrepresentative.

https://www.brennancenter.org/our-work/analysis-op...

In 2011, Republican legislators enacted an aggressive gerrymander that entrenched party power. Wisconsin is a closely divided state, yet Republicans have held uninterrupted control of both houses of the state legislature for over a decade. In 2012, Republicans won 60 of the 99 seats in the state assembly with just 48.6 percent of the two-party statewide vote. In 2014, Republicans won just 52 percent of the vote but garnered 63 seats.


The ballot box still is the ultimate control knob on this machine. But just barely. And possibly not for much longer.


WTH

I think that argument is balderdash, and I expect that it will be rejected by the courts pretty quickly.

The operative language of the 14th is to prohibit someone from serving in office if they "have engaged in insurrection or rebellion against the [United States Constitution]" or the United States itself (the language is a bit fuzzy). It is a very disputable point whether Trump did that. He hasn't even been charged with insurrection or rebellion. While he might have violated a number of criminal laws in his efforts to get Congress to take certain actions, it is debatable - and probably not true - whether those crimes constitute the crime of insurrection or rebellion against the United States.

A criminal conspiracy to falsify election results or get named the winner when you didn't really win the election to lead a governmental body isn't the same thing as a rebellion or insurrection against the governmental body. They're both incalculable threats against democracy, but that doesn't mean that the former is the same as the latter.

To be fair, he hasn't been convicted of anything close to insurrection yet. Presumption of innocence. Once he is convicted, the 14th would apply. I would assume someone would have to sue after his conviction to get a ruling that he is disqualified, and has to be removed from all ballots everywhere.

I'd be surprised if we get that sort of ruling in 14 months.

The 14th amendment has barred some people from office. None of these people were convicted of insurrection. There is a different level of evidence required. A criminal conviction requires "beyond doubt". A civil action like the 14th amendment has a lower requirement of 'preponderance of the evidence' (i.e. that it is more likely than not).

The 14th amendment has barred some people from office. None of these people were convicted of insurrection.

Sure - but different people did different things on January 6th, with different legal consequences. That's why some members of the Proud Boys were convicted of sedition, while Trump hasn't even been charged with it. There's a difference between overtly and directly planning violent physical activity against government officials, and engaging in a conspiracy for election fraud. The former fits far, far more easily into the basked of "insurrection" than the latter.

There is a different level of evidence required. A criminal conviction requires "beyond doubt". A civil action like the 14th amendment has a lower requirement of 'preponderance of the evidence' (i.e. that it is more likely than not).

Which is true, but not a great argument in support of no evidence required. The claim being made is that the 14th is self-executing. That there doesn't need to be any hearing or court determination or process whatsoever by which evidence is presented and evaluated by a judge, whether in a civil or criminal proceeding. That a member of elections department staff can decide to disqualify Trump from the ballot based on what they've seen on the news and in the papers, and without any requirement to give Trump an opportunity to present evidence or argument.

It's really hard to see judges - who generally place great importance on process and an opportunity to be heard - going along with that idea.

<It's really hard to see judges - who generally place great importance on process and an opportunity to be heard - going along with that idea.>

True, unless we are talking about SCOTUS...

In that case you just need to take Neil Gorsuch, Sam Alito and Clarence Thomas on a luxury fishing vacation
and/or buy their Moms house for well-above market value and they will happily go along with any idea you like.

A criminal conspiracy to falsify election results or get named the winner when you didn't really win the election to lead a governmental body isn't the same thing as a rebellion or insurrection against the governmental body.

If Trump gets convicted in that criminal conspiracy, is there anything that stops him from being reelected? From what I understand there is nothing, and this is the only potential thing that stops him. (Other than that he loses in the election)

Presumption of innocence.

That's for the court system, not for us. And yes, I know. But if the only way we have is the ballot, and we put the thumb on the side of the low populated rural, we're hamstrung. I'm bettin for the conviction at 80% chance. We should have the documents conviction (95%), and the charity (90%). I'm no waffler, Trump's guilty of the conspiracy whether they convict him (90%) or not, but I'm also betting conviction and that in spite of all my unknowns in enough time for the election (60%). Any takers? :)

If Trump gets convicted in that criminal conspiracy, is there anything that stops him from being reelected? From what I understand there is nothing, and this is the only potential thing that stops him. (Other than that he loses in the election)

Your understanding is correct. Being convicted of a crime is not a bar to running for President. If you meet the qualifications in the Constitution, and if you win the election, you get to be the President.

The 14th amendment disqualification has only been been used about 2 times beyond the Civil War aftermath, but January 6th was an unprecedented assault and so the U.S. is in uncharted waters. A majority of U.S. Senators voted "guilty" when Trump was impeached for "incitement of insurrection". This was not enough to convict, but there was substantial evidence presented. The J6 committee found even more evidence of insurrection, and the civil trials will allow all parties opportunity to present the evidence in court.

I have no doubt Trump planned and supported the January 6th United States Capitol attack, in an effort to stop the vote certification and move the election into the House. This attack caused lasting damage to the U.S., including reduced confidence in election results, dividing the country, and damage to U.S. national security.

==== links ====

Second impeachment of Donald Trump
"The House of Representatives of the 117th U.S. Congress adopted one article of impeachment against Trump of "incitement of insurrection", stating that he had incited the January 6 attack of the U.S. Capitol... Many Republican senators challenged the validity of holding an impeachment trial for a president no longer in office while proponents cited the Senate's 1876 trial of William W. Belknap, the Secretary of War under President Ulysses S. Grant, who was impeached but not convicted, after leaving office. At the trial, 57 senators voted "guilty", which was less than the two-thirds majority needed (67) to convict Trump, and 43 senators voted "not guilty", resulting in Trump being acquitted of the charges on February 13, 2021."
https://en.wikipedia.org/wiki/Second_impeachment_o...

The precedent for 14th Amendment disqualification, July 7, 2023
"Historical precedent also confirms that a criminal conviction is not required for an individual to be disqualified under Section 3 of the Fourteenth Amendment. No one who has been formally disqualified under Section 3 was charged under the criminal 'rebellion or insurrection' statute (18 U.S.C. § 2383) or its predecessors. This fact is consistent with Section 3's text, legislative history, and precedent, all of which make clear that a criminal conviction for any offense is not required for disqualification. Section 3 is not a criminal penalty, but rather is a qualification for holding public office in the United States that can be and has been enforced through civil lawsuits in state courts, among other means. "
https://www.citizensforethics.org/reports-investig...

I have no doubt Trump planned and supported the January 6th United States Capitol attack, in an effort to stop the vote certification and move the election into the House. This attack caused lasting damage to the U.S., including reduced confidence in election results, dividing the country, and damage to U.S. national security.

No it didn't. Most people who don't watch leftist media have already moved on, as a normal person would.

A majority of U.S. Senators voted "guilty" when Trump was impeached for "incitement of insurrection". This was not enough to convict, but there was substantial evidence presented. The J6 committee found even more evidence of insurrection, and the civil trials will allow all parties opportunity to present the evidence in court.

I mean, sure - but so what? The Senate impeachment trial wasn't a judicial proceeding, and they didn't render a decision of guilt; nor were the J6 committee investigations. You would never be able to walk into court on a civil proceeding against Trump and tell the judge, "Look, a majority of the Senate voted that he incited an insurrection, so I'd like you to accept that point as proven." The court would - correctly - insist that Trump should have an opportunity to mount a defense. To cross examine all witnesses, to present any defense witnesses he wanted, to make arguments on the legal points relating to the definition of "insurrection" within the meaning of the 14th Amendment, etc.

I have no doubt Trump planned and supported the January 6th United States Capitol attack, in an effort to stop the vote certification and move the election into the House.

Fair enough - personally, I doubt it very, very much. I mean, I think he was delighted that people were so enthused about his Presidency that they were willing to commit violent crimes and throw their lives away for him - what more could a narcissist want? But I think it's pretty likely that he had no idea that was going to happen, and had no idea what to do once it started happening. Nothing was in place to take advantage of the chaos - no one was prepared to use the chaos to Trump's advantage. Which is why, even though you had near-maximal disruption to the proceedings, they just went ahead and voted once things were secured.

Which is true, but not a great argument in support of no evidence required.

A majority of U.S. Senators voted "guilty"

I mean, sure - but so what?

No one in this thread has suggested that no evidence is required. I responded with the Senate vote showing that evidence has been presented and similar evidence will be presented again in the civil cases. I consider the Senate impeachment trial to be a serious undertaking, and while different than a state civil trial there are some similarities in evidence presentation and arguments. Many Senators found evidence of insurrection. I would expect many state courts to find the same.

The OP 126 page law review article says "in principle: Section Three's disqualification rule may and must be followed'applied, honored, obeyed, enforced, carried out'by anyone whose job it is to figure out whether someone is legally qualified to office, just as with any of the Constitution's other qualifications". Whatever the Secretary of State decides, a civil lawsuit will follow, and the issue will be decided in a state court, with all of the normal appeals all the way to the Supreme Court.

The Sweep and Force of Section Three, 14 Aug 2023
"Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications."
https://papers.ssrn.com/sol3/papers.cfm?abstract_i...

I consider the Senate impeachment trial to be a serious undertaking, and while different than a state civil trial there are some similarities in evidence presentation and arguments.

It is a serious undertaking - but it is not a judicial undertaking. It is thus wholly dissimilar from a state civil trial. The impeached individual has no due process rights in those proceedings - they have no right to present evidence, call witnesses, cross examine witnesses, or even provide argument. Historically, the Senate has chosen to provide some very limited procedural rights to the accused - but it's not anything like a civil trial. For the January 6th impeachment, the Senate chose not to have any witnesses at all - so neither the impeachment managers nor Trump were allowed to have witnesses (or cross-examine the others').

The OP 126 page law review article says "in principle: Section Three's disqualification rule may and must be followed, applied, honored, obeyed, enforced, carried out by anyone whose job it is to figure out whether someone is legally qualified to office, just as with any of the Constitution's other qualifications". Whatever the Secretary of State decides, a civil lawsuit will follow, and the issue will be decided in a state court, with all of the normal appeals all the way to the Supreme Court.

Yeah, that's just wrong. I work with local government staff and employees all the time (though not dealing with elections - my specialty is zoning). Universally, their job is not to interpret the U.S. Constitution. If you want to argue that some law, some decision, or some action violates the Constitution, you're welcome to go to court and get a court to tell them that there's some rule they have to follow that isn't in the ordinances or state statutes they're obligated to apply. Unless you do that, they have to follow the black letter of the law. They only get to make the decisions that state election law empowers them to make. Unless the state election law gives them the power to make the call whether someone is a rebel or insurrectionist, then it's not their choice.

DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO
Petitioners:
NORMA ANDERSON, MICHELLE PRIOLA, CLAUDINE CMARADA, KRISTA KAFER, KATHI WRIGHT, and CHRISTOPHER CASTILIAN,
v.
Respondents:
JENA GRISWOLD, in her official capacity as Colorado Secretary of State, and
DONALD J. TRUMP.

VERIFIED PETITION
UNDER C.R.S. § 1-4-1204, § 1-1-113, § 13-51-105, and C.R.C.P. 57(a)
FACTUAL BACKGROUND
"Before the 2020 election, Donald Trump lays the groundwork to reject the election results
if he loses and deploy political violence to stay in power."
"Upon learning that his supporters refused to go through security because they were armed, Trump shouted to his advance team: 'I don't [f******] care that they have weapons. They're not here to hurt me. Take the [f******] mags away. Let my people in. They can march to the Capitol from here. Take the [f******] mags away.' "
https://www.courts.state.co.us/userfiles/file/Cour...

"Before the 2020 election, Donald Trump lays the groundwork to reject the election results
if he loses and deploy political violence to stay in power."

Yep - that the argument that people claiming he's an insurrectionist lay out. But the counter-argument that Trump's team will lay out is pretty obvious - that being indifferent to whether people marching on the Capitol are armed is wholly different than being part of an insurrection. He inarguably doesn't care whether they're armed, perceiving no threat to himself - but that does not itself constitute planning, direction, participation in, or even encouragement of political violence. Nor (goes the argument) does it convert all of the other actions he was taking to try to get a determination that he had won the election into an insurrection or rebellion against the United States. There's a reason why Trump was never charged with sedition or insurrection, and this is a pretty thin reed. Despite the arguments laid out in the OP Law Review, this is not as self-evident a determination as whether someone who joined the actual government or armed forces of the Confederacy had engaged in rebellion.

Even if you stipulate that Trump engaged in criminal behavior to try to remain in power, I'm not sure that type of self-coup or autocoup falls within the meaning of the 14th Amendment - because it's not technically either a rebellion or an insurrection to stay in power, in contrast to dislodging someone else from power or overthrow the government itself.

I'll have to look over the charges again, but it seems remote that the 14th would work, as it would go to this USSC which I think would be inclined to interpret it narrowly. :( Ah well, get out the vote.

I'll have to look over the charges again, but it seems remote that the 14th would work, as it would go to this USSC which I think would be inclined to interpret it narrowly. :( Ah well, get out the vote.

Yes, get out the vote. The best way to keep someone from winning an election is to beat them in the election.

The 14th Amendment argument is a sideshow at best, and it runs the very real risk of making it harder for Democrats to win in 2024. One of the more likely outcomes (aside from the court finding a procedural reason to avoid ruling) is a decision that the plaintiffs have failed to demonstrate that the actions the plaintiff's allege Trump committed would not, even if proven, constitute an insurrection or rebellion. Which will be received as, "Court rules January 6th was not an insurrection." Which will severely undermine the Democrats' "We're the save democracy party" framing.

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