Hasn't Section 3 of the 14th Amendment already disqualified Trump from future office?
From archives.gov
Fourteenth Amendment to the United States Constitution
Section 3
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.
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Pretty clear, isn't it?
Perhaps that's what these two law professors are referring to ...
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The amendment doesn't say anything about a requirement for a vote in both houses.
He's already been impeached, with support for it from some in his own party, for inciting insurrection on Jan 6 with the ludicrous aim of preventing Congress from affirming the Electoral College votes and making Pence declare him the winner. Not to mention Twitter posts calling for his supporters to rally in Washington on Jan 6, and the video from Jan 6 showing him (and his henchmen) giving them their marching orders at that very rally. Finally, there's video of him watching his supporters attack the Capitol as if he was watching a football game, instead of immediately calling for them to stop.
He's guilty. People died. He's lucky he isn't in already in jail, awaiting trial for treason.
It has to be legally established that he "...shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." Meaning that you cannot just say, "He committed acts of insurrection..." but need to have a court decision stating so.
The trial in the Senate will be one thing to point to and say, as he did in the previous case, "Look! They say I did not do anything! Nothing to see here. Move along." Of course, this would be a lie, but it would be abetted by the Senate.
Trump telling the Capitol rioters, "We love you, you're very special.", sure sounds like he is comforting them.
It does appear to provide an alternative remedy to a vote following an impeachment conviction.
A member raised the point on the article I posted that a Bill of Attainder would block Section 3 of the 14th Amendment. Not being versed in American Constitutional Law, let alone American Law generally, I would not have the answer to that save to question why the two American law professors would not be aware of that.
A bill of attainder is a law which is passed to criminalize an individual or group of individuals. It is a law that declares you guilty of a crime without a trial.
To state that "a bill of attainder would block" a section of an amendment to the Constitution cannot be correct. If the person who wrote the comment meant that enforcement of section 3 of the 14th amendment would constitute a bill of attainder, that seems fairly dubious.
The reason the two law professors did not mention the issue of a bill of attainder is because it's not an issue.
Which is exactly what Congress would be doing.
But your American law, whether it is the Constitution or whatever, gives Congress the authority to do so, does it not? If it does then how can you complain? If you're not happy with the laws of the country in which you reside, you can always move to another - like Canada.
No, that is not what Congress would be doing. Congress would be exercising its constitutional power to prohibit Trump from holding office. There would be no criminal conviction, no jail sentence or fine.
It does not. We have a judicial branch of government for that.
Congress does not have the power to just exclude someone from holding public office. If it did, it could just exclude all Republicans and all their partisan problems would be solved.
That sounds like an excellent idea.
So, what is the authority supporting your position that it would not be a constitutional exercise of Congressional power under the 14th amendment to prohibit Trump from holding office?
There is a test. I think it's Lovell or Lowell v somebody. Basically, if Congress convicts somebody of a crime (as they would be doing here), ascribes a punishment (as they would here - banned from holding office), and it happens not as a result of a judicial trial (Congress is not the judicial branch), then you have a bill of attainder (or bill of pain or punishment), which is prohibited by Article I.
Congress would not be convicting Trump of a crime. Congress would be expressing its opinion that section 3 applies.
One legal scholar argues that a court would then have to make the legal declaration.
That makes some sense because if Trump were to try to run again, despite a Congressional prohibition under section 3, he would have to sue to seek to overturn the prohibition. That would probably involve a trial on the merits. But, who knows? It all remains to be seen.
That is backward to how our system works. It's not up to Trump to prove his innocence. It's up to his accusers to prove his guilt.
That would come in the context of the vote to apply section 3. I'm certain there would be a detailed text providing the factual basis for the vote.
This article provides a very good analysis:
What's not clear from that is who adjudicates the matter. Congress is expressly prohibited from that kind of thing.
See the words "Shall have engaged in?"
It does not say in the opinion of some. You would need a conviction in the Senate at the very least to prove it.
Nope. The 14th gives the Congress the power to enforce through legislation.
The same people that think it's unconstitutional, now, would not support a Senate conviction either.
Not now or ever.
Blount & Belknap walked free because even after the Senate voted that impeaching them as private citizens
was within their right, they could not muster 2/3s of the vote because there were still enough Senators
who thought the whole procedure was unconstitutional despite overwhelming evidence and admission of guilt.
The system was allowed to be corrupted by semantics.
After Blount was expelled and acquitted the Senate decided that Senators & House Reps did not fall under
the Executive or Judicial branches and were not "civil officers" having been elected,
so they effectively exempted all future Congress members from being impeached,
with expulsion from either chamber by that chamber as the only way of removing an
elected member of Congress
Apparently Rand Paul is ignorant of how the Senate works or deliberately lying to fan the flames of more civil strife.
He called for the impeachment today of Chuck Schumer and possibly other members of Congress.
Rand Paul floats impeaching Chuck Schumer (msn.com)
And by only a simple majority in both houses, which the Dems have.
No 2/3 requirement is stated.
Trumps political future should be toast because of Sec 3, regardless of the outcome of the impeachment trial in the Senate.
More like a resolution of sorts, or a declaration of disqualification via a simple majority vote, separate and apart from the impeachment proceedings.
No one ever accused Rand Paul of not being an idiot.
Yep. They can pass a resolution through both houses by a majority vote. Of course, Trump would take it to court but then he could be deposed under oath and his minions, who witnessed him watching the insurrection @ the WH would be too. They would have to admit under oath that Trump refused to take calls for help from inside the Capitol.
Crystal.....
Trump cannot run again and Hawley has got to go!
You and the left are in no position to dictate that.
Tell you what- the Democrats toss AOC, and her sisters in the 4- I can agree with Hawley being forced out. Till then the left can pound sand.
Why should we negotiate with Trumpists.... the cop killer party? Furthermore.... Beating cops with an American Flag. Yeah, that's a good look for Trump supporters...!
When the party of Trump cares to uphold the US Constitution..... give us a call. Till then, pound sand!
The cop killer party? From one incident?
Do you have any idea how many cops have been attacked or killed as a result of anti-police rhetoric and protesting over the last few years? Now, I support some of what BLM says it is trying to achieve, but you can't deny that their rhetoric and protests have led to many attacks on cops over the last few years, and especially this past year.
Are most protestors peaceful? Of course. But too many are not, and Trump supporters are certainly not "the" cop killer party.
Police officers killed surge 28% this year and some point to civil unrest and those looking to exploit it
Los Angeles police officers shot in 'ambush'
Five Dallas Officers Were Killed as Payback, Police Chief Says
Shots fired at home of two New Jersey police officers who were inside with their 10-day-old child
Warning issued by Dept. of Homeland Security after rioters look up addresses, follow BPD officers home
Boston Police officer recounts the night of the riots, when his police SUV was set on fire
'Protesters tried to kill me:' Video shows shot fired outside home of Wauwatosa Officer Mensah
Phoenix officers to patrol as 2-person units after 'attacks on law enforcement officers,' police say
Courthouse shooting suspect appears in court as accusations of BLM involvement swirls
Arrest citation details charges against Larynzo Johnson, suspect accused in LMPD shooting
I will admit to all of those and more, but just how many were carrying Obama, or Biden signs when they did it Tacos?
No these assaults and deaths are at the hand of Trump and his supporters. The rioters that breached the Capitol on 6JAN21 could have cared less about the rule of law. What would you have been saying if they had gotten ahold of the VP and hung him? What if they had gotten ahold of some members of congress and put bullets in their heads?
No.... the GQP has proven that they are willing to kill to keep Trump in office.
They have a lot of blood/deaths on their hands.
How many are needed to meet your criteria?
'Attacks' is vague, killing is NOT. Your first 2 links are about killing, NOT attacks.
If you want to talk about 'attacks' at least 140 LEOs were injured during the 5 hours of the Capitol insurgency.
Also your links cite other killings of LEOs by RWers and NONE by BLM.
Over the last 30 years, of the 65 LEOs killed by extremists, the RW killed 52.
It does seem that this is a way to rid ourselves of Trump but the above line sets the parameters and the way both houses are close in number of members there is no way that they can come up with 2/3 in favor in each house.
Removing the disability means allowing someone to hold office who has been disqualified by the amendment.
Sadly, that is true.
I am pretty sure that the 2/3 vote is to allow the person defined by the amendment as disqualified to be re-qualified to hold office. So, the bar of 2/3 vote is to reinstate qualification, not to remove it.
That's how I read it as well.
OK, re reading it I'll have to agree with all of you that it does disqualify the person.
Thanks for bringing that to my attention.
And that is a good thing!
No clear and convincing evidence that any these baseless allegations are true. And then the Senate would still have to vote to convict and remove from office....which is now a moot point.
It appears the Dems are terrified of his returning.
All Americans should be, I would prefer for him to disappear, and I'm sure the rest of the world would as well.
Correction - the "rest of the world" EXCEPT Israel. Biden is pandering to the Palestinians now (which should make Tlaib and Omar happy), so the conflict is bound to continue and will most likely worsen..
And except for Russia.
Maybe. Was it not Biden who has now renewed a nuclear arms control treaty with Russia?
How Orwellian of you. Is that the official talking point issued by the propaganda ministry over there in Trumplandia?
More gaslighting bullshit. What everyone has seen with their own eyes isn't really what everyone has seen with their own eyes, right?
People that support the US Constitution and the rule of law ARE afraid of Trump and his party of cop killers.....
If this method works, since there is no way enough Republican Senators will vote to convict, then the Republican Sentators whe sell their soul to the devil by opposing the conviction in the hopes of a resurrection of their golden calf in 2024 may find themselves on the wrong side of history down the line. I think they have quite a dilemma right now. I think that the only way the Republican Party can be saved is to dump Trump.
The Republican Party doesn't really exist anymore, only the party of Trump. It's his now, just like Marjorie Taylor Greene pointed out the other day.
It's sickening, but it seems to be true. It's like a cult, and IMO a serious threat to the country at the moment.
And then there's this...
National Terrorism Advisory System Bulletin - January 27, 2021
No.
This is the key. Who officially determines that Trump has done this?
If this question is to be addressed through impeachment (ruling on the actions of a PotUS while in office) then that process calls for a 2/3 majority.
Seems to me, since this is a question about an individual (who is no longer PotUS) this is something that could be adjudicated in a court of law. If found guilty, Trump would be unable to run for PotUS, etc. under the 14th.
It really has to be adjudicated there.
It's much harder to get a conviction in a court of law. This goes back to the SCOTUS case Brandenburg v Ohio. To convict Trump in a court of law the prosecution would need to prove that Trump intended to provoke violence. But his words were vague enough and he did use the phrase about peacefully protesting so it's highly unlikely any such conviction could occur. It's unlikely there would be any prosecution as most prosecutors would be hesitant to take such a case.
How hard would it be to prove intent, actual intent. Add in that he did also state
usnews
So I am doubtful there will be any legal action against Trump for this. Political speech is highly protected speech, it has to be. If they were to try to hold all politicians accountable for inflammatory speech Congress would be mostly empty.
I am not convinced that is the only option. The Senate has constitutional authority to convict on impeachment and remove from office so I suspect there are constitutional grounds the enable a conviction by that body on "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof" to satisfy the conditions of the 14th.
But there is no clear and convincing evidence of any of that. Actual words and intent matter, whether in this case with the Senate, or in a court of law.
That is what the Senate (or court of law) would decide. That is, after all, the whole point of having a trial.
It is, I think, unclear at best as to what portion of the senate would be required to do so. The House has already found, by the act of majority vote, that the he did indeed cause the insurrection. If, with the upcoming vote playing out as it looks like it will, more than 50% of the members of the Senate vote for conviction but not the 66% needed to convict, where would that leave the country? It would seem that since the amount to convict is not there, then the finding that he did indeed precipitate insurrection would not be, and further, the finding will follow that he did not ... engage in insurrection or rebellion against the (USA), or given aid or comfort to the enemies thereof.
As long as the Senate Republicans avoid their responsibility to the American people by hiding their cowardly asses behind manipulations of the CotUS, it does not seem that any good will come out of this.
It is time to throw every last member of congress out and start over from scratch.
Be real for a minute. The man spent his last three months claiming that the election was stolen from him when it most clearly was not. He was the cause of the insurrection on January 6th and there is no way that any rationally thinking and minimally observant person could say anything different. If he was not the cause, then why were all those people there in the first place? Vacationing?
Put it another way. Several of the insurectionists stated very clearly that they went to and attacked the capitol because trump wanted them to. Also, if there was no trump do you REALLY think they would have attacked the capitol? No. Never in a million years.
The thing is, impeachment has a specific purpose. An impeachment trial is not intended to rule on the specifics of an allegation (per se) but rather to determine if the PotUS engaged in high crimes and misdemeanors. This is a vague notion that is resolved by the collective judgment of the senators. Thing is, voting that a PotUS engaged in high crimes and misdemeanors does not necessarily mean he was found guilty of "insurrection or rebellion against the same, or given aid or comfort to the enemies thereof" to activate the 14th. The articles of impeachment need to be very clear to ensure that the senators vote for conviction satisfy both high crimes and insurrection / rebellion.
If that is done, then I think there is a strong argument that the senate has decided that Trump did violate the 14th and that their decision was indeed exactly in line with their constitutional authority.
To me this is tricky. It is courts of law that deal with individuals. Congress deals with law, not individuals. It is during impeachment that they vary from this position and focus on a single individual. So to legally affirm violation of the 14th, Congress must be acting constitutionally per impeachment and must convict on allegations that would activate the 14th.
Lots of constitutional debate questions here.
Well, sure, we already know that the Senate will not convict Trump. So this really is a waste of time if the objective is to bar him from running again. If one is strictly trying to ensure Trump does not run again, then one should be pursuing this question in a court of law. Ultimately, the question might be decided by the SCotUS.
Definitely. It's inconvenient, but it would be justice that respects our laws and would, in turn, be respected by more people.
Yeah, it can be, especially given his actual words. Prosecutors would have to convince a jury, I think, that the totality of his words and behavior reflected a clear intention that belied the facial meaning of his "peaceful and patriotically" words from that speech. It's a tough sell, but then again, it's supposed to be tough.
For sure.
Of course, but that's a different path than what this seed is referencing. Looking to the 14th Amendment isn't necessary if he is convicted on impeachment.
I am showing my full statement for clarity because doing so shows how it relates to the 14th:
My point was that the Senate does seem to have constitutional authority to ascertain guilt of "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof" if done as part of the impeachment process. Outside of the impeachment process, it is not clear that Congress has the authority to ascertain guilt. They can enforce the 14th through legislation but does that mean they can determine guilt of an individual? Not so clear.
In impeachment, however, the Senate is constitutionally authorized to ascertain guilt of "high crimes or misdemeanors". If the specifics of the trial are such that this guilt is a result of finding Trump did engage in "insurrection or rebellion against the same, or given aid or comfort to the enemies thereof" then this might be a constitutionally sound method for Congress to ascertain Trump's guilt and thus activate the 14th.
see: TiG@7.1.8
Also, remember that I am just opining; not declaring fact. I think this is a complicated question of constitutional law.
Yet Section 5 of the 14th gives the Senate the power to enforce it though legislation.