14th Amendment Time -- It's long overdue to keep insurrectionists off the ballot

Buy1Sell2 · Mar 4, 2024

Ricter said:
Opinion: Congress has already disqualified Trump from the ballot

Opinion by Tristan Snell
5 minute read
Published 3:57 AM EST, Thu February 8, 2024

CNN legal analyst breaks down Colorado Supreme Court Trump ruling
01:02 - Source: CNN
Editor’s Note: Tristan Snell is author of the new book “Taking Down Trump: 12 Rules for Prosecuting Donald Trump by Someone Who Did it Successfully.” He is a lawyer and legal commentator who has appeared on MSNBC and CNN, and he served as assistant attorney general for New York State, where he led the investigation of, and civil case against, Trump University. The views expressed here are the writer’s own. Read more opinion on CNN.

CNN —
The Supreme Court on Thursday is weighing the question of whether former President Donald Trump has been disqualified from office by engaging in an insurrection in violation of Section 3 of the 14th Amendment to the Constitution. The constitutional text is clear: Any official who took an oath of office is disqualified if they “have engaged in insurrection” against the Constitution or “given aid or comfort to the enemies thereof.”

The Colorado Supreme Court ruled Trump to be ineligible on this basis. The ruling encompassed both the January 6, 2021, attack on the Capitol itself, which interfered with the certification of the Electoral College vote for president, and the former president’s overall scheme to overturn the 2020 election.

The case now comes to the Supreme Court following Trump’s appeal, and it could determine whether Trump appears on the ballot in up to 35 different states where his eligibility is being challenged.

There are two factual questions at the core of this case: Was January 6 an insurrection and did Trump “engage” in it?

Fortunately, the Supreme Court need not look far for answers to these questions. They can simply look across the street at the Capitol, where majorities of both chambers of Congress already found that January 6 was an insurrection and that Trump not only engaged in it but “incited” it.

This may come as a shock. When, one might ask, did Congress ever hold such votes?

Those votes came in the second impeachment of Trump, in January and February of 2021, in which majorities of both the House and the Senate backed an article of impeachment against Trump for “incitement of insurrection.”

This was a finding of fact, by majorities of our elected representatives, after a full public trial in which Trump was able to mount a defense — and it should be deemed persuasive, if not conclusive, in answering the factual questions before the Supreme Court. Indeed, for the more right-wing justices, who are often fond of pontificating that courts should not make policy judgments and should instead defer to legislatures, one would think that such a clear public pronouncement from Congress on Trump’s engagement in insurrection would be a compelling precedent.

Related article Opinion: Trump is hoping to delay his trial. The Supreme Court shouldn’t take the bait

To be clear, the 14th Amendment does not actually require anyone to have voted to disqualify an insurrectionist, whether that’s a legislature or a jury. It certainly does not require a conviction, as some have tried to argue (and such bastardization of the plain language of a constitutional provision is exactly the opposite of what conservatives normally preach).

Legally, the insurrectionist is disqualified the moment he engages in insurrection. Though “innocent until proven guilty” is a familiar standard in criminal law, it shouldn’t apply to disqualifying someone from public office, since holding office is a privilege, not a right. Indeed, the courts in Colorado found Trump engaged in insurrection, and that alone was legally sufficient for Trump to be ruled ineligible there.

Yet if we are going to look for some additional fact-based determination on whether Trump engaged in insurrection — especially one that can be applied nationally — Congress has already provided us with one, and the Supreme Court should look no further.

The congressional votes regarding Trump should satisfy those who say we should “let the voters decide” rather than applying the Constitution and removing Trump from the ballot; the voters already decided. Our elected representatives convened, heard from both sides and voted that January 6 was an insurrection and that Donald Trump not only engaged in it but incited it. This was the conclusion of 232 of 435 representatives and 57 of 100 senators.

Related article Opinion: Trump’s immunity defeat isn’t the setback it seems to be

Those majorities already represent the will of the American people. True, it was not enough for impeachment, which requires a two-thirds majority in the Senate, but it is more than enough for disqualification, where no supermajority is stipulated and thus a simple majority should suffice.

If the voters change their minds at some future date, the Constitution also provides a way to restore Trump’s eligibility for office: Section 3 of the 14th Amendment allows for a disqualified official to be rehabilitated by a two-thirds vote of each house of Congress.

Without such an effort by Congress, it makes a mockery of both democracy and the Constitution to allow Trump to run again. If he is legally ineligible, he must not be on the 2024 ballot, or else the Constitution is meaningless. We cannot cherry-pick which provisions of the Constitution we feel like enforcing at any given moment and we cannot ignore provisions of the Constitution merely because they yield difficult or inconvenient outcomes.

Therein lies the greatest danger. We must not be fooled by the “let the voters decide” argument. It sounds democratic, but a suspension and circumvention of a clear constitutional provision could be the beginning of the end for our democracy and the rule of law. If any one part of the Constitution is set aside, no part of it is sacred.

If we “let the voters decide” Trump’s eligibility, does that mean we should also “let the voters decide” whether journalists should be jailed, as Trump has called for? Should we “let the voters decide” to strip voting rights from other voters they disagree with? A democracy without a constitution and the rule of law will not remain a democracy for long. Instead, we must apply all the laws as written — including the 14th Amendment.

Get Our Free Weekly Newsletter

Sign up for CNN Opinion’s newsletter

Join us on Twitter and Facebook

We already possess a clear determination by Congress regarding Trump and January 6, and we must not ignore it. We cannot keep holding more and more votes until Trump finds one that he can win — or overturn successfully.

The Supreme Court may be wary of disqualifying Trump based solely on their own ruling as a group of unelected judges. But they do not have to do so. They can ground their ruling in the determination that Congress has already made, thus giving their decision both legal and political legitimacy. The Constitution is clear, Congress’ votes are clear and Trump’s disqualification is thus wholly justified. If some people disagree, they can push for Congress to reinstate Trump as provided by the Constitution.

What Congress did, Congress can undo. That is the genius of the 14th Amendment — which the Supreme Court should fully embrace.
More...

NOPE!!

Buy1Sell2 · Mar 4, 2024

piezoe said:
I'm puzzled. Were Colorado to allow Mr. Trump's name to appear on its ballots, Colorado would be violating Federal Law, which they are not permitted to do. Colorado has no choice other than to disqualify Mr. Trump from running for Federal Office. If Colorado does not disqualify Trump they will be just as much in violation of the Constitution as if another would-be candidate certified that they were 33 years old, but nevertheless Colorado allowed the 33-year-old's name to be on Colorado's Ballot for President of the United States.

If the Supreme Court rules against Colorado, Colorado should ignore the ruling and continue to disqualify Mr. Trump from appearing on Colorado's Ballot. Colorado has no legal choice other than to follow Constitutional law.

Conservatives love the idea of States rights and of letting States decide piecemeal 50 different abortion laws. However, there is no mention of abortion in the U.S. Constitution. There is, however, mention of an insurrectionist's disqualification to hold Federal Office. Colorado can decide its own abortion law, but it can't decide to let an insurrectionist's name appear on its ballots for federal office without breaking Constitutional law..

Our Supreme Court hasn't quite figured this out; not yet anyway.
More...

YEAH, NO!!

Buy1Sell2 · Mar 4, 2024

piezoe said:
Ah ha hah hah ha. If the supreme Court doesn't understand, why would I expect you to? I wouldn't.

For others here, the point is, and this flies right over the heads of lawyers and courts, the Constitution of the United States is as clear on this point as it can possibly be. You can't hold Federal Office if you took an oath to support or protect and defend (defend = support) the Constitution and then subsequently engaged in, or aided or abetted an insurrection. Colorado must disqualify Trump from appearing on Colorado's ballots or else Colorado will violate Constitutional law, which all States must follow! No one has any recourse against Colorado if they exclude Trump from their Ballots, Colorado must do this or be in violation of Constitutional law --- the highest law in the land.
More...

OH OH OH!!-------NO NO NO!!

Buy1Sell2 · Mar 4, 2024

Buy1Sell2 said:
There is a strong chance that Colorado's actions will be rejected by SCOTUS 8-1 or 9-0.
More...

YEP!

Buy1Sell2 · Mar 4, 2024

piezoe said:
NO, that's NOT what it says. Read it again, please.

section 5:
"The Congress shall have power to enforce, by appropriate legislation, the provisions of this article"

This say's congress has the power to enforce, if need be, the Article. I does NOT say "Congress 'shall enforce'...." It says,
Congress 'shall have the power to enforce...' But it does not require Congress to step in if the Article is already being enforced, as it must be if the Constitution is to be obeyed.

Section 3 is clearly self-executing. However if it is not executed as intended, then Congress is given the option of enforcement. This does not mean that only Congress can enforce it. And the Amendment does NOT say that.!!!!!!!!!!!!!!!

Statutes, particularly Constitutional statutes, are to be obeyed. The 14th Amendment provides a rare example of a remedy being provided for the instance where a statute is not automatically obeyed.
More...

YOU GOT IT WRONG AGAIN!!

Buy1Sell2 · Mar 4, 2024

piezoe said:
Congress having the authority, but NOT the sole authority,* to enforce laws via legislation applies universally throughout the Constitution regardless of whether this authority is specifically mentioned or not, as Congress is the only legislative body! This statement: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article, found in Section 5 of the Amendment is superfluous. It is understood to be true whether written here or not.

The word "sole" does not appear in section 5, because courts (State and Federal) also have authority to enforce the Constitution and use that authority on a regular basis. The Colorado case is an example of States exercising that same authority. The Supreme Court may strike down Colorado's decision, but it will have to be on the basis that Colorado misinterpreted Section 3. I have made the point that it is rather difficult, for anyone other than a lawyer, to misinterpret something of such obvious purpose and so clearly written as Section 3. In America's courts you will hear arguments, so often it's become tiresome, that only a lawyer would not be embarrassed to propound.

"If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table [and claim the court is 'rigged']" --- Carl Sandburg, with a little help from Donald Trump!

_____________
*Though Congress is not the sole authority with the power to enforce, it is the superior authority. Congress can exercise its power even over the courts, including the Supreme Court!
More...

GOOD LORD THAT'S WAY OFF!!

Buy1Sell2 · Mar 4, 2024

Ricter said:
Conviction is not necessary under the 14th, and as has been pointed out by others here, the Amendment does not require Congress to "enforce".
More...

AWFUL ANALYSIS!!

Buy1Sell2 · Mar 4, 2024

vanzandt said:
Ahhh... that seems open to debate.

They were writing the rules for Congress, it follows that correct "legal" grammar would include that word when spelling things out. I fail to see how you can derive any exclusivity from this sentence. It's typical legaleze.

For example: "The governor shall have the power to enforce all laws in the state."
--->That doesn't mean the DA's, detectives, and cops on the beat can't enforce said laws too.

Now if it read: "The governor shall have the sole power to enforce all laws in the state." ---- You might have a valid point. But that's not the way it was written.
More...

WOEFULLY STATED AND CONTRIVED!!

Buy1Sell2 · Mar 4, 2024

vanzandt said:
I'll allow for your retort before I issue an official "case closed" on this one.
~VZ Esquire... (wannabe)Attorney at Law.
More...

Case Closed

Buy1Sell2 · Mar 4, 2024

El OchoCinco said:
5 does not grant sole exclusive authority to Congress. Such an interpretation would indicate the Amendment has no teeth unless Congress enacts a law....Section 5 gives Congress power to ensure enforcement when 14th is not being applied correctly or if Congress oversteps its mandate. The 14th Amendment is already the law.
More...

WELL-HELL-HELL!!