Is Trump disqualified for the N.H. primary? The secretary of state is seeking legal advice
Is Trump disqualified for the N.H. primary? The secretary of state is seeking legal advice
“I will be asking the attorney general’s office for their input,” Secretary of State David Scanlan told the Globe. “And ultimately whatever is decided is probably going to require some judicial input.”
“I will be asking the attorney general’s office for their input,” Secretary of State David Scanlan told the Globe. “And ultimately whatever is decided is probably going to require some judicial input.”
A debate among constitutional scholars over former president Donald Trump’s eligibility for the 2024 presidential race has reverberated through the public consciousness in recent weeks and reached the ears of New Hampshire’s top election official.
Secretary of State David Scanlan, who will oversee the first-in-the-nation presidential primary in just five months, said he’s received several letters lately that urge him to take action based on a legal theory that claims the Constitution empowers him to block Trump from the ballot.
Scanlan, a Republican, said he’s listening and will seek legal advice to ensure that his team thoroughly understands the arguments at play.
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14th Amendment to the US Constitution, Section 3:
Section 3 Disqualification from Holding Office
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
This does not require judicial input. The language is clear. Trump is, along with many co-defendants, disqualified from holding any civil or military office.
The judicial input is on whether Trump qualifies to be included in that described group which is disqualified. The problem with the self-executing clause here is that of course the described group of people are barred but who decides who qualifies?
That is for state officials whose duty it is to ensure that only qualified persons are on the ballot to enforce. Indeed, if those state officials refuse or neglect to enforce the US Constitution, they could be held personally responsible.
He's not yet been convicted. If he gets on some ballots, wins those states' Republican primaries, and then gets convicted (and thus disqualified) the party will have to decide who of the other candidates gets their nomination. If different candidates came in second in different states, that could get interesting.
As I have said many times elsewhere, 14A S3 does not state that a conviction is required.
This is not about "being a criminal, guilty of specific crimes." This is about having engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof, and that behavior disqualifying a person from holding office.
Not until proven guilty, legally speaking, surely?
The language specifically does not require any conviction. A conviction would make 14A S3 undeniably apply, but a lack of conviction doesn't make it not apply.
You kinda just said that it can be denied that it applies without a conviction. I think it's tenuous at best, but I'm not a lawyer. I just know that, typically, you can't say someone did a thing if it hasn't been legally proven.
Sure you can. Trump is a rapist. He raped e jean Carrol with his fingers. Wasn't convicted but facts are facts.
The Jan 6th commission is enough to show he participated in an insurrection.
If the amendment had required a conviction of some kind, that requirement would have been stated. It is not.
This is a really weird rule. So we are going to have 50 separate decisions each one, at least on paper, independent of each other?
Elections for president, senators, and representatives are run solely by the states. It's why we have multiple different "kinds" of federal elections. The election process depends on what state you're in, and how the state legislature has determined to organize that election. Most states - but not all - are "winner take all" for electoral college votes. Maine and Nebraska split those votes based on proportion of popular vote.
So, because states are the only place where federal elections are operated, each state would need to adjudicate who is eligible to be on the ballot for a given office. Coincidentally, this is exactly why Mark Meadows' claim that he was performing the duties of his office as White House Chief of Staff when participating in the pressuring of Brad Raffensperger to change the outcome of the Georgia presidential election fails. Nobody in the federal government has any business being involved in elections operated by a state. Doing so is, by definition, not part of the duties of any federal position.
Yes, fifty separate decisions, in theory. However, the moment one state (especially one where Trump has any chance of winning the popular vote therein, so not California, for example) decides to disqualify Trump from being on the ballot for president, there will be a legal challenge to that action. And because the rule here is one enshrined in the US Constitution, the case would likely be very quickly passed up to or appealed to federal court, possibly SCOTUS.
But federal courts may decline to hear the case, since, as above, states decide how to run elections. And if a state has determined that someone is ineligible to be on the ballot, ... nobody in the federal government has any business there.
New Mexico has already made moves to remove someone at state level from the ballot for being in the Capitol on Jan 6. That case didn't go all the way through, the election happened and the guy lost, so it was moot. But they did get as far as positively defining Jan 6 as an "insurrection," and seemed ready to follow through with disqualification.
In practice, only a handful of swing (or red, somehow) states would need to disqualify Trump to prevent him from being elected. If you fall short of 270 electoral college votes, you lose. You don't have to disqualify all states, just enough to make 270 electoral votes a statistical impossibility.
Thanks for the well written post
That is what the 50 states are for. If not then why not just get rid of them and relieve the expense of your middle layer of government?
I just think it is a weird freaken rule I also am surprised it hasn't been abused the hell out of especially given that nearly every president we have ever had was in government prior for years before office.
Don't get me wrong I don't think he should be able to run again I just didn't know that a state official could just decide that. I thought it had this long long process.
It doesn't say "convicted of...".
I doubt they put every Confederate on trial. Still I imagine there must be some court ruling for this to be the case. IANAL but a state court may make this decision and bar him from running in their state.
"But that was only an amendment and it was written so long ago!" - Somebody with the second amendment printed out and framed above their gun masturbatorium.
The gun Masturbatorium is a sacred workshop of Cult Masturbatio of the Adeptus Mechanicus, they are in charge of "Jacking" the most ancient and revered ranged weapons. Youre thinking of the Techno-lustris run jointly by the Adeptus Mechanicus and the Dark Mechanicum.
And his remedy is a two thirds vote qualifying him.
The vote is to remove the disqualification.
You're absolutely right, but we live in a time where just recently poor people could have their lives DESTROYED over a joint, while on the other hand, a president can 100% knowingly tell an enormous crowd who he knows wants violence to "go to the capitol and fight fight fight" and that's somehow completely a grey area and our hands are just tied.
Somehow all the testimony that he was watching the coverage of it gleefully doesn't matter. The fact that even ignoring everything else it ought to be a crime that he didn't ask them to stop. Oh it's all just our opinion that he committed treason don't you see?
Most of the legal minds I've heard discuss this think it's pretty interesting philosophically, but not at all actionable. Former US attorneys Preet Bharara and Chuck Rosenberg mentioned it in a recent podcast that I found super insightful.
The only reason it isn't actionable is because the SCOTUS's current concept of standing leaves entire provisions of the Constitution unenforceable. If no one has standing to sue for an unconstitutional act or omission, then it renders the provision meaningless. Which is absolute and utter bullshit. Every single election official that lets Trump on the ballot should be sued in federal court seeking a writ of mandamus forcing them to follow the requirements set upon them under the Constitution.
Here's the tiny mention in there:
Chuck Rosenberg:
No, you’re referring to Section 3 of the 14th Amendment. It’s not self-executing. I’m not sure what the triggering mechanism would be, and I agree with you. It ain’t going to happen. Interesting intellectual exercise. It sounds a lot like my three years in law school. If you look at my transcript, you would see it didn’t go that well.
Except that it very clearly is self-executing. I'll paste it in here again for easy reference:
Section 3 Disqualification from Holding Office
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Breaking it down:
What is the disqualification from office stated in the section title? "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, ..."
Who does this apply to? Anyone "who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
What is the remediation for this disqualification? "Congress may by a vote of two-thirds of each House, remove such disability."
As a comparison, Article II, Section 1, Clause 5 reads:
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
If a 23 year old Frenchman decided to run for US President, what would happen? Would there need to be some kind of trial or judicial review? No - state officials would disqualify Mr. Young French from appearing on the ballot. And then, if Mr. Young French wanted to protest that decision, he would initiate a court filing, after having been disqualified.
14A S3 is self-executing. The reason Rosenberg in the podcast says he's "not sure what the triggering mechanism would be" is because there isn't one.
I'm a complete layman when it comes to law so forgive me if this is an ignorant question, but would the official in question have to be actually convicted of insurrection/rebellion before this comes into effect? I assumed that's what they meant by "It's not self executing" because otherwise would it not just be up to each state officials individual discretion to exercise this? Thanks so much for the detailed breakdown, Preets podcasts have turned me into a bit of an uneducated legal nerd so this is all fascinating to me.
IANAL, but I'd say yes. Conviction should be required, if it weren't politicians could just accuse their opponents to disqualify them.
There is nothing in the text of the amendment which requires any criminal conviction, civil settlement, judicial review. If you're interested in a really detailed breakdown and argument for why Trump (and many others) are disqualified from holding office, I highly recommend reading The Sweep and Force of Section Three, which was the paper that really set all of this 14A S3 discussion in motion. It is very long, and very detailed, but it's a relatively easy read, in mostly plain language. I haven't even gotten all the way through it yet, I'm still working on it. Much of my understanding of this issue comes from this paper, but believe me when I say I'm not just waving it aloft and declaring that it's gospel. What it says makes sense.
With regard to your question about each state officials' discretion to exercise, there's another comment in this mess of a thread where I go into some more detail on that. I also made note somewhere that, because this is constitutional law, state officials who refuse or neglect to follow the Constitution may be in a position where they could be held personally responsible for failing to apply the law if they don't disqualify people who are disqualified by 14A S3.
Edit: For the record, Rosenberg stated early in that podcast that he favored Ford pardoning Nixon. That pardon played a huge part in the situation we find ourselves in today. It set a precedent that presidents can commit crimes without consequences. We had an opportunity to set a fair and equal precedent, and we did not. Rosenberg being okay with kicking that can down the road doesn't give me a great deal of confidence in his opinions.
Unrelated, but is your name a psych reference??
You know that's right
Come on, son!
Don’t be exactly half of an 11-pound Black Forest ham.
This is an easy one for anyone capable of critical thinking and knows "innocent until proven guilty".
He hasn't been convicted of anything, only accused.
14A S3 does not require a conviction.
Bullshit. Otherwise you could just accuse your political rivals of crimes to prevent them from running.
You need to go back to internet lawyer school.
Can you show me which part of the 14th amendment, section three, requires a conviction of any kind?
Disqualification from office is not a criminal punishment.
Edit: Protip: The full text of 14A S3 is posted at the very beginning of this thread.
Can you show me in any part of the constitution where it says any civil punishment or penalty requires a conviction? Can a right wing DA accuse Hillary of the same crimes and remove her eligibility to office?
Not without a conviction.
District attorneys are probably not the people at the state level who determine ballot eligibility. Secretary of State would be likely, there are other election officials who could enforce constitutional law in this context.
People who are under 35 years of age are also disqualified from holding the office of President of the United States. Nobody needs to be "convicted" of being under the age of 35. If someone under the age of 35 meets all other prerequisites to run for president, they should not be allowed on the ballot, because it says so in the Constitution. No court case is required, no conviction is required, no accusation of any crime is required.
The same applies to people "who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
Excellent work ignoring my question and retorting with a question that doesn't even make any sense. In case you happened to miss it:
Can you show me which part of the 14th amendment, section three, requires a conviction of any kind?
Edit: Oh wait, I think I see what you're asking now. Are you asserting that disqualification is a civil penalty? It's not. It's not a penalty. There is no "right" to aspiring to or holding office.
Tha constitution is the basis of law, not law itself. Someone too young to run for president would obviously be unconstitutional, so there is no need to make a law specifically for that. But what you don't apparently understand is that Trump hasn't committed any of the things he has been accused of until he is convicted in a court. Regardless of the fevered dreams of the media and the far left, he is innocent of the charges so far. You could be on video robbing a bank, 20 eyewitness to the crime, cash in your possession when arrested, and you aren't guilty until 12 people on a jury say you are. He can't be disqualified yet.
Tha constitution is the basis of law, not law itself.
There are some things which are "Constitutional law."
But what you don’t apparently understand is that Trump hasn’t committed any of the things he has been accused of until he is convicted in a court. Regardless of the fevered dreams of the media and the far left, he is innocent of the charges so far.
Having acted in a specifically defined way and being convicted of a crime are two different things.
You could be on video robbing a bank, 20 eyewitness to the crime, cash in your possession when arrested, and you aren’t guilty until 12 people on a jury say you are.
This is the only true thing in your comment.
He can’t be disqualified yet.
Yes he can, because it's not about being accused of a crime and being either convicted or acquitted. It's about having participated in a specifically defined behavior, and being disqualified from office because of it. As I have previously explained, people do not have a "right" to asipre to run for or hold office. Certain people are disqualified from holding the office of President by the Constitution, for reasons which are unrelated to criminality.
Trump may also be criminally convicted of actions related to "participating in isurrection or rebellion against the [United States], or giving aid or comfort to the enemies thereof," but that's a completely separate issue.
And since you mentioned "the fevered dreams of the media and the far left," I'll remind you that three of the four legal experts I cited above are super right wing.
I'll ask a third time:
Can you show me which part of the 14th amendment, section three, requires a conviction of any kind?
Can you show me any enforcement mechanism in 14A Sec 3 of the constitution?
The Arizona Supreme Court disagrees with you (Though the Sec of State disagrees). https://thehill.com/homenews/state-watch/4179561-trump-cant-be-barred-from-arizonas-2024-ballot-says-democratic-secretary-of-state/
Other Blue leaning states may agree with your reasoning, but Trump wasn't going to win those anyway.
It is self-executing. It has the same enforcement mechanism as the part in Article II which states that only people who are over the age of 35 can hold the office of President.
And it's not "Blue state" reasoning. The reason this all came up was because of the paper The Sweep and Force of Section Three, written by two Federalist Society (way way way conservative) guys. It's long, but it's in relatively clear language.
Let's see how you decide to dodge ask number four:
Can you show me which part of the 14th amendment, section three, requires a conviction of any kind?
Trump is, along with many co-defendants, disqualified from holding any civil or military office.
Want to prove that? Last I checked he's not been found guilty of any crime?
Would you support this if it was Biden or Hillary in the same legal situation? How about we respect the judicial proceeding and stop trying to jump the gun, before it's made into a political maneuver?
The amendment does not require formal conviction of a crime, and after the Civil War it was used extensively without formal convictions.
And obviously we’d support that if Hillary Clinton or Joe Biden tried to stage a coup. Would sort of insane bozo would still support a candidate after that?
The sort of insane bozo that is every member of the GOP. If the Dems ever try to regain power in my state, I am going to loudly demand ranked-choice voting and non-partisan redistricting as state constitutional amendments. I care more about the possibility of a representative government than I do about permanently cementing my party's dominance forever.
We should definitely respect the judicial process.
... But I'd absolutely support this if Biden or Hilary were in the same situation.
Would you support this if it was Biden or Hillary in the same legal situation?
It's funny how you guys think we're as devoted to Democrat politicians as you are to your chunky messiah.
We're devoted to democracy, to the Constitution. Not to any individual politicians.
The right always acts like it's some big gotcha "what about Biden/Hillary/whatever". They don't realize that most of the left has little emotional attachment to "their" politicians and if anything, a lot of Democrat politicians are simply adequate. Sometimes they're straight up the lesser of two evils.
But even when politicians are beloved, I don't think the left is nearly as fanatical of unwilling to change their minds. Eg, Obama in 2008 was huge. He had a massive cult following and I remember being really hopeful for him myself. But he ended up being kinda lackluster. The ACA was an improvement over the then-status quo, but as a Canadian, I always viewed the ACA as a laughably half hearted attempt at reform. And oof, the warmongering? Nobody on the left shys away from hiding that unfortunate fact about Obama.
The right treats their political leaders like they treat their pastors - with reverence and deference. The left occasionally has an Obama that captures imaginations for a while, but at this point everything is so fucked that most lefties just want pols that don't use hate and fear, and that will avoid entering into wars that have no honest justification. You're correct, though. One of my greatest joys of the Biden admin is simply NOT HEARING THE PRESIDENT every day. Or relaxing a bit because we're back to our normal level of US fuckery, rather than malicious, hate-dripping drivel fuckery shot out the tiny little asshole mouth of Trump. Would I like concrete change? Sure! Is there a damn thing I can do about it? Nope! I live in a gerrymandered-forever state and I have zero hope of things getting better, though I will keep voting even though my vote doesn't matter for anything at all, despite people who vote like me being vastly greater in number than the red fucks.
If you were devoted to democracy and the constitution, then you're remember that in this country there's a presumption of innocence, as well as right to a trial. But I mean you must know that since you're so devoted right?
And thinking I'm a Trump supporter because I simply want him to legally be found guilty before we bar him from public office... I guess if you aren't completely on your side, then you must be an enemy, kind of a shitty way to live your life, but you do you.
You know the Constitution is a real document that you can actually read, right? It's not just an idea or a metaphor. The 14th Amendment makes zero mention of a trial.
I watched it live. I don't need a court to tell me what I already know. And neither should you. If the evidence wasn't so damn clear it might require subpoenas or evidentiary rulings to find out the truth but we do not need any of it. He's on tape working to overthrow the election. Why do YOU need more?
There is no "right" to aspire to elected office, or to hold one.
And disqualification from office is not a criminal punishment.
The constitution isn't a law. All laws I've read describe the punishment for breaking the law. The constitution does not. The government can't limit speech (within bounds). The government can't limit guns (within bounds). The government can't allow insurrectionists to run the government.
They're telling you that it isn't written to require criminal guilt determined by a court.
The entire south seceded. Those people were not tried, and in fact were given blanket pardons. But they still couldn't hold office again.
This is a political process. It will be political, same as an impeachment.
Trump was literally dancing during the insurrection and there is a video of it. Dude was gleefully happy about one of the darkest days in American history.
It's not jumping the gun, you just have your head in the sand.
It is. I'm sorry your opinion of this shit doesn't matter. Legally he's allowed to run for president, the minute he's not he should be stripped of it. It's not your decision it's the courts.
It’s not a court’s decision, it’s a matter for the official deciding who is eligible to be on the ballot, following the constitution. Of course it can be challenged in court, like just about everything else.
Just remember that when a Democrat gets removed because some official decided who was eligible...
You clearly don't see the red flag or the future problem, but I'll keep repeating it in the hope some piece of it will get through to one of you.
IT IS IN THE FUCKING CONSTITUTION, DUDE. READ IT. Oh, let's just ignore that we have a 1st Amendment (or 2d Amendment, if that floats your boat more), and fuck the 4th and 5th Amendment too, since the Rehnquist court forward has fucked them both so hard. The 14th Amendment was broadly written to keep insurrectionists from gaining power. The court CAN be involved, to consider challenges to an election official's act or lack of action. But no court is initially involved.
And if a democrat was an insurrectionist, they SHOULD be prevented from taking office. And if a fuckhead election official decides to call a Dem an insurrectionist for no reason at all? Their act would be subject to judicial scrutiny.
If an insurrectionist Democrat gets removed as per the constitution, good. Typical Republican thinking that I'm backing a team.
Anyway, the problem is current, is addressed by the 14th amendment and is, once again, not a court's decision.
It doesn't say found guilty. Read the Constitution. It's plain.
If it is true that either of them "engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof," then yes.
Again that's for the courts to decide, not random posters on the internet.
Once He's convicted, you're correct. But no what "Nougat thinks" doesn't matter.
It's not for the courts to decide. If it were, there would be a court-based requirement in the amendment. There is not.
It is a disqualification from office, just as being under the age of 35 is a disqualification from the office of president. No court ruling is required.
Edit: Other people who agree with me:
- J. Michael Luttig, conservative former judge of the US Court of Appeals, Fourth Circuit
- Laurence Tribe, legal scholar and professor emeritus at Harvard
- William Baude, legal scholar and professor of law at University of Chicago Law School, Federalist Society
- Micahel Stokes Paulsen, Distinguished university chair and professor of law at University of St. Thomas, Federalist Society
In case it wasn't clear enough, the Federalist Society is THE (with capitals T,H,E) society for republican jurists and their members are movers and shakers of the world. I'm not from the US but the influence of US policy permeates into every aspect of life everywhere.
It’s not for the courts to decide.
Ok, so hey, Biden said something that sounded seditious... I guess we'll bar him from running for office... oh don't worry about it, just trust me he said it....
See why it IS a matter for the courts and not just something random people should be allowed to decide? Or again, do you want this to be wielded as a weapon in the next election against politicians you favor... Because it will. Legally prove him guilty before banning him, otherwise you look like he's something to fear, and that will only bring more support to his side... but hey, you know I'm sure this will ONLY matter this one election and never be used again or weaponized... That's exactly how things like this work, right?.... right?
Are you going to ignore the long list of legal scholars he posted? Yeah? Ok, you're not arguing in good faith.
Four scholars... I'm pretty sure we can find four scholars to agree with pretty much anything, but go on. Appeal to authority is still a logical fallacy.
Actually, in law, appeal to authority is how the law fucking works. If there's controlling authority, great. If there's non-controlling authority that is particularly well thought out, that authority might be adopted whole cloth, or with some caveats. A law journal article, for example, was the source of the "transformation" standard for derivative works under copyright law.
Well, if Biden ever incites an attack on the Capitol with the goal of overturning the election, then we can bar him from office.
Happy?
Except you can't find four legal scholars that agree with you.
Again, if there was a requirement for a conviction, 14A S3 would specify it. It does not.