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Is Donald Trump Ineligible to Be President?

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noblepa
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Is Donald Trump Ineligible to Be President?

#26

Post by noblepa »

I think Trump DID commit insurrection on January 6.

I think that the 14th Amendment SHOULD be invoked to prevent him from running.

It ain't gonna happen.
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Is Donald Trump Ineligible to Be President?

#27

Post by humblescribe »

The way the accounting department reads Section Three:

Senators and Representatives are specifically mentioned. Electors for president and vice-president are specifically mentioned. Executive and judicial officers of any state is mentioned. But there ain't no mention of a President.

I am thinking that if a sitting President had violated his Constitutional oath, that he would be impeached and convicted with the Senate adding further disqualification from public office.

So, I would agree that the courts and especially this particular iteration of the Supreme Court would conclude that if Congress and the States so wished to disqualify a person from the presidency, that the amendment would have been written to include president.

But then, that highly respected legal research source, Wikipedia, goes on to cite 18 USC 2383 disqualifying insurrectionists from federal office. Is the Presidency a federal office?

There is the "Executive Office of the President of the United States" replete with flag and official seal that is overseen by the President's Chief of Staff. This further complicates the situation. I think one could argue that since this was established in the 30s that the Presidency should be considered a federal office.

Yanno, sometimes I think these complicated laws and constitutional amendments should have proofreaders and other grammarians to parse what is written to what the legislators intend.
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Is Donald Trump Ineligible to Be President?

#28

Post by Gupwalla »

This is a very dangerous topic, in a similar way to how birtherism was a very dangerous topic.

The Constitution lists certain qualifications for the office of President, and the 14th Amendment (arguably) extends these qualifications to include “has not committed insurrection.”

But, the Constitution does not provide an enforcement mechanism nor does it lay out procedures and adjudicators for any supposed violation of the qualifications. Perhaps ballot challenges in individual states might be an enforcement route; but there be dragons. Birthers did not find success on this path, though birthers also had the problem that their position was contrary to fact. A claim that a candidate is disqualified for being an insurrectionist could also fail, though, if there is no legal finding - such as a conviction for a crime related to insurrection - to back it up. And absent a clear-cut legal finding, there is the even bigger dragon of: each state’s government just gets to make up its own rules and definitions. Eck. States sometimes wind up with crazy lopsided legislatures with pretty sketchy ideas.
humblescribe wrote: Mon Nov 28, 2022 5:46 pm So, I would agree that the courts and especially this particular iteration of the Supreme Court would conclude that if Congress and the States so wished to disqualify a person from the presidency, that the amendment would have been written to include president.
This is possibly true, but a federal court will not go there. A federal court would first conclude that this is a political issue that needs to be resolved by the political branches. And failing that, a federal court would say that Congress had a chance to make a certain finding of insurrection, and to impose disqualification, during Trump’s second impeachment. They didn’t do so, so from a legal perspective Trump has been politically acquitted of the political charge of insurrection. Nothing more for the courts to review or entertain.

And so that’s my position. Barring a criminal conviction for insurrection, or additional Congressional action against Trump following on from the JAN6 committee report, he’s not certain enough to be an insurrectionist to prevent him from serving as President, should he win enough votes in a future election. Any challenge to his election on 14th Amendment grounds would fail unless there is some criminal or Congressional finding that imposes a disability on his holding office.
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bob
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Is Donald Trump Ineligible to Be President?

#29

Post by bob »

humblescribe wrote: Mon Nov 28, 2022 5:46 pmBut then, that highly respected legal research source, Wikipedia, goes on to cite 18 USC 2383 disqualifying insurrectionists from federal office. Is the Presidency a federal office?
Section 2383 is almost certainly unconstitutional as applied to elected federal offices, including the president. For basically the same reason a law can't impose term limits or a show-me-the-birth-certificate requirement (i.e., a constitutional amendment would be required for those).
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Is Donald Trump Ineligible to Be President?

#30

Post by Ben-Prime »

bob wrote: Mon Nov 28, 2022 6:52 pm
humblescribe wrote: Mon Nov 28, 2022 5:46 pmBut then, that highly respected legal research source, Wikipedia, goes on to cite 18 USC 2383 disqualifying insurrectionists from federal office. Is the Presidency a federal office?
Section 2383 is almost certainly unconstitutional as applied to elected federal offices, including the president. For basically the same reason a law can't impose term limits or a show-me-the-birth-certificate requirement (i.e., a constitutional amendment would be required for those).
One couldn't argue that 18 USC 2383 is basically a legal enabling mechanism for the 14th Amendment?
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Is Donald Trump Ineligible to Be President?

#31

Post by noblepa »

IANAL, and perhaps I am stupid, but I don't understand how anyone can argue, with a straight face, that the President is not an officer of the United States.

To say that the 14th doesn't specifically mention the President, while it does mention others, is a bit like tax-deniers or sovcits arguing that the phrase "includes a, b and c" means that a, b and c are the ONLY things included, to the exclusion of all else. The 14th doesn't say that the President is excluded from those insurrectionists barred from office.

And, IMHO, it would be complete intellectual dishonesty for this SCOTUS, with all the "originalists" on the court, who believe that the Constitution means what the authors meant it to mean and that provisions remain in effect until removed or modified by an amendment, were to declare that the 14th was only meant to apply to the immediate aftermath of the civil war. To do so would, among other things, put the whole concept of birthright citizenship in doubt. Had the authors of the 14th meant that, they could have simply added a phrase like "for a period of 50 years following the ratification of this amendment". They didn't, so by originalist logic, the authors must not have meant that.

Of course, that doesn't mean that this SCOTUS won't rule that way.
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bob
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Is Donald Trump Ineligible to Be President?

#32

Post by bob »

Ben-Prime wrote: Tue Nov 29, 2022 2:38 am One couldn't argue that 18 USC 2383 is basically a legal enabling mechanism for the 14th Amendment?
One could argue that, but it would still run into the argument that the president isn't covered by the 14th Amendment. It almost certainly can't be applied to the president without resorting to the 14th Amendment.

* * *
noblepa wrote: Tue Nov 29, 2022 10:16 am IANAL, and perhaps I am stupid, but I don't understand how anyone can argue, with a straight face, that the President is not an officer of the United States.
Reason: Is the President an "officer of the United States" for purposes of Section 3 of the Fourteenth Amendment?
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bob
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Is Donald Trump Ineligible to Be President?

#33

Post by bob »


IMO, "as soon as the law allows" is a nod to the issue not being ripe until he qualifies to appear on a ballot.
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Is Donald Trump Ineligible to Be President?

#34

Post by Ben-Prime »

bob wrote: Tue Nov 29, 2022 5:26 pm IMO, "as soon as the law allows" is a nod to the issue not being ripe until he qualifies to appear on a ballot.
Would primary vs general election matter in this particular, um, matter?
But the sunshine aye shall light the sky,
As round and round we run;
And the truth shall ever come uppermost,
And justice shall be done.

- Charles Mackay, "Eternal Justice"
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bob
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Is Donald Trump Ineligible to Be President?

#35

Post by bob »

Ben-Prime wrote: Wed Nov 30, 2022 1:07 am
bob wrote: Tue Nov 29, 2022 5:26 pm IMO, "as soon as the law allows" is a nod to the issue not being ripe until he qualifies to appear on a ballot.
Would primary vs general election matter in this particular, um, matter?
I want to say to no, but I fear a judge could split that difference.
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