GORGEOUS 3 BD 2 FULL BTH 2 HALF BTH COUNTRY FARM HOUSE W/HEATED AND COOLED 700 SQ FT OFFICE/STUDIO OVER 3 CAR GARAGE, IN-GRD HEATED POOL, 5 STALL BARN ON OVER 7 ACRES IN THE HEART OF BEDMINSTER. $6,000 month as opposed to almost three times that if Secret Service is writing the check. Via Zillow.
Hi, it's Stupid1 to say Section 3 of the 14th Amendment does not automatically disqualify Donald Trump from running for president. Or rather maybe it does, in some really elegant logical sense, the way St. Anselm's ontological argument really does prove that God exists2, but it doesn't make any real-world difference, and it's irritating as hell to keep talking about it as if it did.
Section 3 is the last bit of the 14th Amendment, adopted in 1868 to establish equal protection under the law for all citizens, most particular the formerly enslaved; but Section 3 denied a particular right to some citizens, those who had sworn an oath before the Civil War to uphold the US Constitution, and then broken it during the Civil War by supporting the rebellious states:
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.
That's not to say you couldn't disqualify somebody from holding a civil or military office for supporting some different rebellion. The Civil War is just the historical context within which it was written. I'm sure, indeed, that the Trump faction's efforts to annul the 2020 presidential election do constitute an insurrection, and that since he did in fact take the oath to the Constitution in January 2017 and did in fact break the oath through his participation in the insurrection he's strictly not qualified to serve as president under this provision. I just want to know in the first place how you're planning to put it into effect.
I say this as somebody who watched him disqualify himself from the presidency for four years running, 24/7, by accepting emoluments from foreign governments from Saudi Arabia to China and back, and no doubt Russia as well, through his hotel and resort businesses and real estate rentals, in blatant disregard of Article I, Section 9, Paragraph 8 (I imagine he had some flunky at GSA write a memo saying it was OK, because it was some of his 500 LLCs that owned the businesses, not him, but no, it obviously was not OK). Not only did he not stop being president as a result of this forbidden conduct, he doubled down on it, demanding domestic emoluments too, in violation of Article II, Section 1, Clause 7, in the form of extortionate charges to the Secret Service for protecting him on his Florida and New Jersey weekends and holidays, of
anywhere from 100% to 300% over market rate. Which is what makes it unarguably illegal: because you might say he has a right to take his days off wherever he wants, and the Secret Service has to protect him wherever he chooses to go, as they do other presidents but he doesn't have a right to profiteer off it, certainly not in secrecy.... Added to the $400,000 spent at Trump properties during the same period by the Defense and State and Commerce departments during the same period, and however much he was getting by diverting Air Force refueling missions to Prestwick Airport in Scotland and having the crew spend the night at his Turnberry resort,
as I was pointing out on the blog in February 2020. You can scream about it until you're hyperventilating, but who're you gonna call?
So now there's this argument out from two Federalist Society law professors, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of Saint Thomas, "The Sweep and Force of Section Three" (preprint of a paper to appear in University of Pennsylvania Law Review 2024, from SSRN), purporting to tell us who to call: Nobody. It's already done!
Nothing more needs to be done in order for Section Three’s prohibitions to be legally effective. Section Three requires no implementing legislation by Congress. Its commands are enacted into law by the enactment of the Fourteenth Amendment. Where Section Three’s legal rule of constitutional disqualification is satisfied, an affected prospective officeholder is disqualified. Automatically. Legally.
Which is as laughable on its face as the proposition that Trump can't be president if he sells martinis to Turkish diplomats. He could, and did! It was obviously illegal, but he did it anyway, because that isn't enough, as Baude and Paulsen ultimately acknowledge. Somebody has to enforce it, and the sole example they offer of somebody successfully enforcing Section 3 in modern times isn't very encouraging.
That's the case of Couy Griffin, head of the "Cowboys For Trump" organization and participant in the January 6 Capitol invasion, who was removed from office as a commissioner of Otero County, New Mexico.
A group of New Mexico citizens filed a quo warranto action against Griffin under New Mexico law, seeking his removal from office. The New Mexico district court took evidence, received legal arguments, and then concluded that Griffin was disqualified under Section Three. More precisely, and quite correctly, it held that Griffin had been disqualified since the day of the January 6 insurrection, and ordered his immediate ejection from office, and permanently enjoined him from seeking or holding any other covered position.
That lays out quite clearly what needs to be done; you need an individual or group with standing to file the action, which was a controversial issue in White v. Griffin, and a court has to consider it: did an insurrection or rebellion or other hostility take place? Had the person in question taken an oath to support the Constitution? Had the person engaged in the hostilities against it? And the defendant and his attorney have to be given an opportunity to disprove the allegations (Baude and Paulsen don’t mention that, but it is what happened). And then the court can issue an order.
But the court has to ascertain the truth of what happened: it has to confirm that there was an insurrection. A very substantial minority of the US population doesn’t believe there was, and Special Counsel Smith hasn’t so far charged anybody with making one (I’ve got a vague hope some more seditious conspiracy counts could be on the way, including for Trump himself, but don’t put any money on it), and what’s clear to a judge in Santa Fe is not clear to a judge in Marion County, Kansas.
Then, that’s for removing a person from office (and it’s already failed in the cases of M.T. Greene). How do you remove Trump from the ballot before he has a chance of getting elected (as failed in 2022 in the cases of Reps. Mark Finchem, Paul Gosar and Andy Biggs)? Do you do it by county? Do you do it by state? Do you do it during the primary campaign (NeverTrump Republicans) or save it for the general (allowing the defense to argue that you showed during the primary that you didn’t really care)? How many cases? How many appeals? What kind of patchwork electoral map do you come up with? How do you deal with appeals from the Michigan or California voters who claim they’re being deprived of their right to vote Trump while Iowas and Alabamas get to do it?
It’s just not automatic at all, it’s a huge process, and a guarantee of chaotic results if it gets anywhere at all, which I doubt it will.
People were allowed to vote for socialist Eugene V. Debs for president in 1920 when he was serving time in the federal penitentiary for crimes under the Espionage Act:
Eugene Debs delivered a public speech that incited his audience to interfere with military recruitment during World War I. He was indicted for violating the Espionage Act of 1917 for allegedly attempting to cause insubordination and refusal of duty in the US military. He was also accused of attempted obstruction recruitment and enlistment. He appealed his conviction on First Amendment grounds…. In a unanimous opinion by Justice Oliver Wendell Holmes, the Court upheld Debs’s conviction. The Court reasoned that Debs's case was similar to Schenck v. United States (1919), in which the Court had concluded that the arrest of an individual for distributing leaflets encouraging readers to oppose the draft was constitutional. The Court found Debs's sympathy for individuals convicted of opposing the draft and obstructing recruitment analogous to the situation in Schenck. Thus, his conviction was valid.
So he wasn’t able to vote himself, but the citizens couldn’t be stopped under Section 3 from voting for him.
The most irritating thing about the plan, though, is where its support is coming from; those Federalist Society professors and the NeverTrump world of The Bulwark and such. (Charlie Sykes: “Section 3 is real. And it’s fabulous.”)
It’s another one of those deus-ex-machina plans for pretending we’re going to rid of Trump without putting any work into it that we’ve been excitedly waiting for ever since we were counting the days to indictments of Dick Cheney and Karl Rove coming down the chimney on “Fitzmas” in 2005. Those things never come through, and still less when it’s Republicans that are boosting them. Their plan is the exoneration of the Republican Party by putting all the blame on Donald Trump, and don’t forget it.
Does anybody remember the old-time blogger who used to use this as an opening? I think it was somebody at Kos, but I can’t remember. Anyway I’ve taken to using it myself once in a while.
Imagine a being that is perfect in every conceivable way: such a being must exist, because if it didn't exist it would not be perfect. I claim this is true, but (I like big buts and I cannot lie) that concept of God isn't a concept you can actually use for anything. It's like a spiritual black hole from which no light can emerge.
Thanks for the links to the cases -- so the Federal Court found no standing by US citizens to bar Griffin, but the State Court did because citizens are given standing under the State's "quo warranto" law. I wonder about Biden's standing -- wasn't Trump trying in injure him? And hasn't Trump's (continued) insurrection undermined Biden's legitimacy as President?
Of course, even if a perfect being exists, there's not the slightest guarantee that he's anything even remotely resembling the god that St. Anselm worshipped.