Could Merrick Garland use the Fourteenth Amendment to bar Trump from the presidency? | The Hill

  

Category:  News & Politics

Via:  jbb  •  6 days ago  •  45 comments

By:   Merrill Matthews, Opinion Contributor (The Hill)

Could Merrick Garland use the Fourteenth Amendment to bar Trump from the presidency? | The Hill
I don't think Trump should run again, but an attorney general has no business trying to ensure he can't.

S E E D E D   C O N T E N T


by Merrill Matthews, Opinion Contributor - 11/23/22 10:00 AM ET
by Merrill Matthews, Opinion Contributor - 11/23/22 10:00 AM ET

Two days after Donald Trump announced his campaign for the 2024 presidential election, Attorney General Merrick Garland said he was appointing a special counsel to investigate possible crimes relating to Trump's taking of classified documents to his Florida residence at Mar-a-Lago, and with respect to Trump's actions related to the Jan. 6 riot at the U.S. Capitol.

The timing was no coincidence. "Based on recent developments, including the former president's announcement that he is a candidate for president in the next election and the sitting president's stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a special counsel," explained Garland.

Wait, why is it in the "public interest" to appoint a special counsel only if Trump is running for the presidency? If he committed crimes, shouldn't the attorney general be prosecuting him anyway?

And why is Biden's likely candidacy a factor? Is the attorney general using the power of his office to protect Biden from a Trump challenge? If that were the case, it's Garland who should be prosecuted and removed from office.

And how would the attorney general stop Trump from running again? The answer may be that Garland is hoping to invoke the Fourteenth Amendment.

It wouldn't be the first time Democrats pushed that step.

Democrats were all abuzz in late 2020 and early 2021 with the prospect of using the Fourteenth Amendment to bar Trump from ever holding office again.

On Jan. 10, 2021, House Speaker Nancy Pelosi (D-Calif.) wrote to Democratic members of the House of Representatives, "I look forward to our Caucus call tomorrow. I am grateful to all Members for the suggestions, observations and input that you have been sending. Your views on the 25 th Amendment, 14 th Amendment Section 3 and impeachment are valued as we continue." Section 3 is the Fourteenth Amendment's Disqualification Clause.

One major difference between now and when Pelosi wrote that letter is that the attorney general appears willing to proceed with efforts to keep Trump on the presidential sidelines. And the most likely avenue would be to use the Fourteenth Amendment's insurrection provision, which states in part, "No Person … shall hold any office … who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same. …"

The nonpartisan Congressional Research Service (CRS) has published a short analysis — interestingly, updated on Sept. 7, 2022, presumably because members of Congress are asking questions. CRS examines the history of the amendment, which was ratified by the states in 1868, addressing issues relating to the Civil War.

The problem for Democrats is that it isn't at all clear how to initiate a Fourteenth Amendment challenge against a former president: Who manages the process? What actions meet the standard of "engaging in insurrection"? And could anyone prove Trump's actions on or before the Jan. 6 Capitol riot rose to that level?

The amendment and other related statutes provide little guidance, and there are only a few existing precedents. Congress last used Section 3 in 1919 to deny a seat to a congressman accused of "giving aid and comfort" to Germany during World War I, according to the CRS. Thus, applying the amendment to the current situation with a past president's previous actions, either real or perceived, puts us in uncharted waters.

The CRS does say that Congress could pass legislation that would clarify some of these questions, but the House will be in Republican hands come January. And even though there is a growing number of Republicans who don't want Trump to run again, it seems extremely unlikely they would vote with Democrats to bar him from returning to office.

In short, it's likely no one knows how a Fourteenth Amendment challenge would work given the current circumstances. But the CRS does say Congress might enforce the Disqualification Clause by "relying on federal criminal prosecution for insurrection or treason." That's where Garland might play a role, and it provides a reason why he would appoint a special counsel.

More importantly, Garland's actions raise serious questions, not so much about Trump but about the attorney general himself. Having never accepted Trump's victory in 2016, Democrats have been on a years-long quest to (1) kick him out of office when he was president (hence two impeachment trials and consideration of a Twenty-Fifth Amendment removal) and (2) keep him from ever holding office again.

I don't think Trump should run again, but an attorney general has no business trying to ensure he can't. If that's Garland's motive, he's the one who should be on trial.

Merrill Matthews is a resident scholar with the Institute for Policy Innovation in Dallas, Texas. Follow him on Twitter @MerrillMatthews.

Tags Donald Trump Fourteenth Amendment to the United States Constitution Indictment January 6 riots Justice Department Merrick Garland Merrick Garland Nancy Pelosi special counsel

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Tags

jrDiscussion - desc
[]
 
JBB
Professor Principal
1  seeder  JBB    6 days ago

Yes, he can and he definitely should. Just Do It!

 
 
 
devangelical
Professor Principal
1.1  devangelical  replied to  JBB @1    6 days ago

it won't get that far. the big money in the GOP are looking for a patsy now, the only problem is that any of those crazy enough to do it are all trump supporters...

 
 
 
squiggy
Junior Quiet
1.2  squiggy  replied to  JBB @1    6 days ago

I remember waaaaay back on Tuesday when if Trump ran, Biden would win. Y'all don't realize who is keeping Trump's room full of oxygen.

 
 
 
JBB
Professor Principal
1.2.1  seeder  JBB  replied to  squiggy @1.2    6 days ago

No, nothing has changed. If the gop eventually nominates Trump then I believe they insure that Biden wins a 2nd term! The question remains, will the gop manage to nominate Trump? Merrick Garland may nip that in the bud before it ever happens...

 
 
 
Jack_TX
Masters Quiet
1.2.2  Jack_TX  replied to  JBB @1.2.1    6 days ago
If the gop eventually nominates Trump then I believe they insure that Biden wins a 2nd term

It's probably the only way he wins a second term, and even that wouldn't be a sure thing.

 
 
 
arkpdx
Professor Participates
1.3  arkpdx  replied to  JBB @1    6 days ago

Do you think he should open an investigation into the events surrounding Hunter Biden and any connections to Joe?

 
 
 
Sunshine
Professor Participates
1.4  Sunshine  replied to  JBB @1    6 days ago
Yes, he can and he definitely should. Just Do It!

What is the crime Garland is investigating?

 
 
 
Jeremy Retired in NC
Professor Guide
1.4.1  Jeremy Retired in NC  replied to  Sunshine @1.4    4 days ago
What is the crime Garland is investigating?

They are still making it all up.  You know, like the last time a special counsel was appointed.

 
 
 
Jack_TX
Masters Quiet
1.5  Jack_TX  replied to  JBB @1    6 days ago
Yes, he can and he definitely should. Just Do It!

He won't.  The Democrats need Trump too much.

 
 
 
TᵢG
Professor Principal
1.5.1  TᵢG  replied to  Jack_TX @1.5    5 days ago

Trump is a gift from the GoP to the Ds.   Thing is, the GoP does not seem to realize this.

 
 
 
Ronin2
Professor Quiet
1.5.2  Ronin2  replied to  TᵢG @1.5.1    4 days ago

Don't sell the Democrats and their media lemmings short. Trump is every bit as much of their creation as he is the Republicans.

 
 
 
TᵢG
Professor Principal
1.5.3  TᵢG  replied to  Ronin2 @1.5.2    4 days ago
Don't sell the Democrats and their media lemmings short. Trump is every bit as much of their creation as he is the Republicans.

Even if so, Trump's looming challenge for the nomination harms the GoP and helps the Ds.    Many in the GoP do not seem to realize this.

I have to wonder why you wrote your comment.   Is it more important for you to blame the Ds than to detach from the Trump parasite?

 
 
 
Tessylo
Professor Principal
1.5.4  Tessylo  replied to  TᵢG @1.5.3    4 days ago

All he has is projection and blame President Biden and Democrats, excuse me, fascist Democrats, for EVERYTHING

 
 
 
JBB
Professor Principal
1.5.5  seeder  JBB  replied to  Tessylo @1.5.4    4 days ago

Putin and his stooges label anyone who opposes them as fascists and Nazis...

 
 
 
Drinker of the Wry
Freshman Principal
1.5.6  Drinker of the Wry  replied to  JBB @1.5.5    4 days ago

Exactly, he and his stooges are like some liberals here in that way.

 
 
 
arkpdx
Professor Participates
1.5.7  arkpdx  replied to  Ronin2 @1.5.2    4 days ago
Trump is every bit as much of their creation as he is the Republicans. 

I think he is even more so a Democrat creation. While I don't have any solid proof, I truly believe that there were democrats in that voted republican in open primaries states and changed party affiliation where necessary in order to make him the republican nominee in 2016 because they thought he would be easier to beat than any of the other Republicans running. It backfired on them. 

 
 
 
arkpdx
Professor Participates
1.5.8  arkpdx  replied to  JBB @1.5.5    4 days ago

Hey sounds like the democrats and other liberals here

 
 
 
JBB
Professor Principal
1.5.9  seeder  JBB  replied to  arkpdx @1.5.8    4 days ago

original

 
 
 
arkpdx
Professor Participates
1.5.10  arkpdx  replied to  JBB @1.5.9    3 days ago

Oh sorry. I forgot to laugh. And boy that was a real knee slapper. /s

 
 
 
arkpdx
Professor Participates
1.5.11  arkpdx  replied to  JBB @1.5.9    3 days ago

In order for you to insult me I must first value your opinion. It was a nice try though. 

 
 
 
Sean Treacy
Professor Expert
2  Sean Treacy    6 days ago

Lol. Santa clause isn’t real.

 
 
 
Mark in Wyoming
Professor Silent
3  Mark in Wyoming     6 days ago

Only IF he can get a conviction in court of treason and /or sedition , then the 14th would apply , court of public opinion doesnt count .

 Now before im accused of defending the indefensable , never voted for trump never will, its just the facts of the matter .

 
 
 
George
Freshman Participates
4  George    6 days ago

If i was a democrat i would definitely want trump to run against Biden, It's a sure win for Biden......Right? All this desperation from the left just proves that they realize they shit the bed electing the moron in chief, they desperately want republicans to nominate someone who can beat Biden to save them from themselves.

 
 
 
Mark in Wyoming
Professor Silent
4.1  Mark in Wyoming   replied to  George @4    6 days ago

remember , they cheered when he won the nomination and ran against hillary, thinking it would be a landslide for hillary, i remember election eve 2016, i played a drinking game , every state they called for trump i took a shot ,i will never play that game again . some people here might remember me that night ....

 just as republicans cheered when joe won the nomination they thought it would be a trump win , funny how things dont work out the way one thinks or wants ....

 
 
 
George
Freshman Participates
4.1.1  George  replied to  Mark in Wyoming @4.1    6 days ago

It’s amazing isn’t it? 300 plus million and the best the 2 major parties can do is a narcissist scumbag and a senile old fool.

 
 
 
squiggy
Junior Quiet
4.1.2  squiggy  replied to  George @4.1.1    6 days ago

... and they call a third party a spoiler...

 
 
 
TᵢG
Professor Principal
4.1.3  TᵢG  replied to  squiggy @4.1.2    5 days ago

Unfortunately that is reality.   The best success a 3rd party can have in our nation (currently) is to spoil one of the major party candidate's run.    I wish this were not so, but it is.

 
 
 
Ronin2
Professor Quiet
4.1.4  Ronin2  replied to  squiggy @4.1.2    4 days ago

How long has it been since the last 3rd party or independent candidate spoiler for president?

Ross Perot was the last one with a legitimate shot; and he wrecked Bush Sr. Even he only managed 18.9% of the popular vote. 

Now 3rd parties are only for people to waste their votes on. 

The Establishment has won. You can either chose from shit candidate from the Democrats; or shit candidate from the Republicans. Either way the Establishment wins while the rest of us suffer.

 
 
 
TᵢG
Professor Principal
4.1.5  TᵢG  replied to  Ronin2 @4.1.4    4 days ago

In a close election, a third party candidate could most definitely affect the election.   If Trump were to go third party his celebrity coupled with the cult-like thinking of his supporters would be significant and would draw votes from the GoP.   In result, the D party thanks all those who continue to allow Trump to be relevant.

 
 
 
TᵢG
Professor Principal
4.2  TᵢG  replied to  George @4    5 days ago
If i was a democrat i would definitely want trump to run against Biden, It's a sure win for Biden......Right?

Exactly, Trump as the nominee almost guarantees a win for the Ds.   And if you were an independent you would likely want Biden to NOT run and Trump to NOT run.

... they desperately want republicans to nominate someone who can beat Biden to save them from themselves.

LOL.   That is ridiculous.   You are just joking, right?

 
 
 
Jeremy Retired in NC
Professor Guide
5  Jeremy Retired in NC    6 days ago

And exactly what section of the 14th would they use to justify it? 

Section 3?  Can't use that since a true investigation was just started in the past few days (Oh and that's already run into problems because of the Special Counsel's past).

 
 
 
Tacos!
Professor Guide
6  Tacos!    6 days ago

It seems to me that appointing a special counsel is actually the answer to all the political concerns expressed in the seed. Any standard investigation, which would ultimately be overseen by the AG, would be subject to conflict of interest concerns - and rightly so. Appointing a special counsel is really the best possible course.

 
 
 
evilgenius
Professor Guide
6.1  evilgenius  replied to  Tacos! @6    6 days ago
Appointing a special counsel is really the best possible course.

I wonder why the partisans can't see that. Never mind. I know why...

 
 
 
Ender
Professor Principal
6.2  Ender  replied to  Tacos! @6    6 days ago

I thought it was the right move. Anything Garland did or didn't do would be attacked as being partisan.

 
 
 
Jack_TX
Masters Quiet
6.3  Jack_TX  replied to  Tacos! @6    6 days ago

You kinda have to wonder why it hasn't happened before now.  

 
 
 
Ronin2
Professor Quiet
6.4  Ronin2  replied to  Tacos! @6    4 days ago

The special counsel Garland chose is already in political hot water.

He is tied up with the IRS scandal and Lois Lerner. 

He also went to the Bill Clinton school of stretching definitions when the Supreme Court overturned his conviction against Bob McDonnell. 

Smith did serve as prosecutor for the Hague; and is known as a legal pit bull.

I have no doubt Garland talked to Smith at length before naming him. Garland demands a conviction- rules and laws (as always with Trump) are not a factor. We will see how far Smith is willing to go to get Trump.

 
 
 
arkpdx
Professor Participates
7  arkpdx    6 days ago

Do you think he should open an investigation into the events surrounding Hunter Biden and any connections to Joe?

 
 
 
JBB
Professor Principal
7.1  seeder  JBB  replied to  arkpdx @7    6 days ago

It has been investigated. Joe Biden did not gain and did not profit from Hunter's business deals and Hunter has settled his taxes with the IRS...

The family of politicians can still legally profit from foreign business deals. It kind of stinks of selling access to power, but it remains legal and the gop certainly is not willing to change it. It is as legal for Don Jr and Ivanka as for Hunter...

 
 
 
George
Freshman Participates
7.1.1  George  replied to  JBB @7.1    6 days ago
It has been investigated. Joe Biden did not gain and did not profit from Hunter's business deals and Hunter has settled his taxes with the IRS...

Do you have a link to that? who investigated it? CBS just this week admitted that Hunter may or may not have had a laptop at some point.  So please show us who investigated it?

 
 
 
arkpdx
Professor Participates
7.1.2  arkpdx  replied to  JBB @7.1    6 days ago
It has been investigated 

When? By who? Do post a link to the report?

 
 
 
arkpdx
Professor Participates
7.1.3  arkpdx  replied to  JBB @7.1    5 days ago

[Deleted]

 
 
 
Ronin2
Professor Quiet
7.1.4  Ronin2  replied to  arkpdx @7.1.3    4 days ago

The US attorneys in Delaware are handling the investigation into Hunter Biden.

As for charges- it depends on who you ask; and the media isn't asking anyone it seems. Funny on how many leaks there were during the Mueller investigation into Russian Collusion.  And even more leaks during the House impeachment case over the Trump phone call to Ukraine.

Federal prosecutors believe they could charge Hunter Biden with tax crimes and a false statement but a final decision still has not yet been made by the US attorney in Delaware, according to sources familiar with the matter.

The case against Biden narrowed earlier this year, and was a matter of discussion in early summer between FBI and IRS investigators, prosecutors in Delaware and the Justice Department, CNN previously reported. The discussions included assessing the strength of the case and questioning whether more work was needed before deciding on charges, according to sources who spoke to CNN in July .

Prosecutors have not yet made any charging decisions on the case and have not met since early summer to discuss the federal investigation, according to two sources familiar with the matter. A decision is not expected before the midterm election.

Willing to bet there will be formal charges against Trump by Smith well before the DOJ even thinks about charges against Hunter Biden; and a possible investigation into Brandon's involvement?

I mean the whole Hunter Biden investigations has only been going on since 2018. 

Two sources familiar with the investigation tell CBS that the "tax" investigation of Hunter Biden began in 2018. The sources explained that that during the election season the investigation went quiet, otherwise known as going "covert," and noted that it would have violated policy at the FBI and Department of Justice by taking any said "overt" steps that would affect the election.

And people bitched about John Durham slow walking his investigation. 

Maybe Garland will decide to prosecute Hunter just ahead of the 2024 elections if Brandon isn't running. That way Hunter can be pardoned before Brandon leaves office. If Brandon is running expect the investigation to go dark again until after 2024. Can't have the DOJ interfering with presidential candidates during election time; unless that candidate's name is Trump that is. 

 
 
 
bugsy
Professor Participates
7.1.5  bugsy  replied to  arkpdx @7.1.3    4 days ago
Why not just admit you made your comment u

Well, then by default, he would have to admit all of his posts are false.

 
 
 
arkpdx
Professor Participates
7.1.6  arkpdx  replied to  Ronin2 @7.1.4    3 days ago
The US attorneys in Delaware are handling it  It has been investigated. 

You do realize the difference between those two phrases don't you. 

The first one (yours) indicates that it is currently being looked into..

The second (JBB's) is past tense playing it has already been investigated. 

In the second case proof was asked for by bothe myself and by George and as of this date no response has been received. 

 
 
 
Kavika
Professor Principal
8  Kavika     5 days ago

I don't know why the Alaska ranked voting system is so confusing to some. Good for Senator Murkowski and Representative Peltola we should know soon if the both held their leads and have been re elected.

Just checked both Murkowski and Peltola held their leads and are now officially Senator and Representative from the state of Alaska.

 
 

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