Sunday, August 13, 2023

According to the 14th Amendment, Section 3; Trump is already disqualified



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. -- United States Constitution, 14th Amendment, Section Three

In other words, notwithstanding any alleged popular polling lead he reportedly may hold at any time heretofore, the former president (i.e. Trump), as a result of his actions while in office, is DISQUALIFIED FROM ever holding any elected or appointed office in the United States, into perpetuity (i.e. forever).  

This is not a figment of your (or my) imagination. It is not the whim of CREW or Prof. Robert Reich. It is the considered analysis of two prominent Federalist Society legal scholars, William Baude and Michael Stokes Paulsen.

This law review article is set for publication in 2024 by the University of Pennsylvania Law School and has already been characterized (by Steven Calabresi, law professor at Northwestern and Yale Law Schools, and a founder of the Federalist Society) as a "Tour de Force."

The abstract of the article:

Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.
First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress (or courts). It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.

The full (126 page) text of the Law Review Article can be downloaded/read at this link.

From the Salon piece:

Noah Bookbinder, CREW's executive director, explained that disqualification under Section 3 of the 14th Amendment is "not a punishment."

"The constitution sets out qualifications for the good of our republic," he tweeted. "Just like a 30-year-old would be disqualified from being president, Donald Trump disqualified himself when he incited insurrection."

The article similarly notes that Section 3 is "self-executing, operating as an immediate disqualification from office."

Aid and comfort? Would that include those Members of Congress who, on January 5th gave reconnaissance tours of the Capitol? Would it reasonably include those members of either chamber of Congress who knowingly voted against accepting the lawful votes of states like Arizona, Georgia, or Michigan (or any other state)?

****

WHAT will follow?

Contrary to what many professional centrists and hope-peddlers in the American mainstream news media and political class would like to believe, the Jan. 6, 2021 attack on the Capitol was not the climax of the Age of Trump. In reality, Jan. 6 was a proof of concept for how the Republican fascists will use political violence to obtain and keep power against and over the democratic will of the American people in an increasingly diverse society. In all, Jan. 6 was not the end of something but rather the next chapter in what journalist Jeff Sharlet has described as a "slow civil war" here in America.

To that point, in response to his indictment for his alleged crimes of Jan. 6 and the larger plot against democracy, Trump has been escalating his threats of violence, both direct and implied, against Special Counsel Jack Smith, Attorney General Merrick Garland, Judge Tanya Chutkan and the other prosecutors, members of law enforcement, and potential jurors who are attempting to hold him accountable under the law. Law enforcement and other experts in domestic terrorism and national security are continuing to warn that Trump, his MAGA followers and the larger white right constitute an extreme danger to the country's security. On Wednesday, for example, the FBI said that a Utah man who had made threats to President Biden and several prosecutors on different Trump criminal cases was shot and killed during an FBI raid.

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