(C) Daily Kos This story was originally published by Daily Kos and is unaltered. . . . . . . . . . . So Let's Get Into This, Shall We? Cuz the Colorado Trial to Disqualify Trump, Starts in One Week [1] ['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.'] Date: 2023-10-23 For those who haven’t been following, I am talking about Constitutional Amendment 14, Section 3, which states: Section 3 Disqualification from Holding Office 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. Trump has already filed a frivolously inane motion, stating that he never swore an oath to “support” the Constitution. HAHAHHA Politically (even for democrats who are strongly against a second Trump-term), use of this disqualification clause appears to be quite the hot-potato. And the article linked, was written just a few short weeks ago. Still, “a growing chorus of conservative legal scholars” say Trump should be barred from the election. Be that as it may, a case in Colorado continues to move forward, winning all challenges Trump and the CO-GOP bring up to shut it down. A judge has rejected three more attempts by former President Donald Trump and the Colorado GOP to shut down a lawsuit seeking to block him from the 2024 presidential ballot in the state based on the 14th Amendment’s “insurrectionist ban.” The flurry of rulings late Friday from Colorado District Judge Sarah Wallace are a blow to Trump, who faces candidacy challenges in multiple states stemming from his role in the January 6, 2021, insurrection. He still has a pending motion to throw out the Colorado lawsuit, but the case now appears on track for an unprecedented trial this month. A post-Civil War provision of the 14th Amendment says US officials who take an oath to uphold the Constitution are disqualified from future office if they “engaged in insurrection” or have “given aid or comfort” to insurrectionists. But the Constitution does not spell out how to enforce the ban, and it has been applied only twice since the 1800s. The first substantial entry into this legal discussion came from Judge Michael Luttig and Law Professor Lawrence Tribe (paywall), back in late August. But even this referred to pre-print of a now-published article, “The Sweep and Force of Section Three.” And this was after all of the indictments against Trump had already been issued (March 30 — August 14). In their article, an argument was made for using the Disqualification Clause against Donald Trump. Having thought long and deeply about the text, history, and purpose of the Fourteenth Amendment’s disqualification clause for much of our professional careers, both of us concluded some years ago that, in fact, a conviction would be beside the point. The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation. The clause was designed to operate directly and immediately upon those who betray their oaths to the Constitution, whether by taking up arms to overturn our government or by waging war on our government by attempting to overturn a presidential election through a bloodless coup. [...] Baude and Paulsen also conclude that Section 3 requires no legislation, criminal conviction, or other judicial action in order to effectuate its command. That is, Section 3 is “self-executing.” (Other scholars have relied on Chief Justice Salmon P. Chase’s poorly reasoned opinion in an 1869 case called In Re Griffin to support the contrary view. Baude and Paulsen decisively dismantle Griffin as a precedent.) They conclude further that disqualification pursuant to Section 3 is not a punishment or a deprivation of any “liberty” or “right” inasmuch as one who fails to satisfy the Constitution’s qualifications does not have a constitutional “right” or “entitlement” to serve in a public office, much less the presidency. (For that reason, they argue that the section, although it does not entirely override preexisting limits on governmental power, such as the First Amendment’s ban on abridgments of the freedom of speech, powerfully affects their application.) Finally, the authors conclude that Section 3 is “expansive and encompassing” in what it regards as “insurrection or rebellion” against the constitutional order and “aid and comfort to the enemies” of the United States. ***I have yet to read the 126-page article by William Baude & Michael Stokes Paulsen. Here is their abstract: The Sweep and Force of Section Three 172 U. PA. L. REV. William Baude & Michael Stokes Paulsen Abstract: 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. 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 theFirst 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. I am only prepared at this point, to cite…….. ……..My Initial Misgivings The obvious (to me, anyway) problem with this, is who ultimately makes the decision that Donald Trump did indeed “engage in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Yes, we all watched him do it. After the capitol building was breeched, then-President Trump tweeted encouragement to the insurrectionists, while doing nothing to stop them. And after he finally was convinced to make a statement asking them to go home, stated “We love you…….” If that isn’t “aid and comfort,” I don’t know what is. One could even make the argument that Trump CONTINUES to “give aid and comfort,” by way of his promise to pardon all of the insurrectionists, should he be returned to the white house in 2025. But if any state’s Secretary of State has the power to disqualify a candidate, just because they have solely decided that candidate was involved in an insurrection, then we know full-well which Sec’s of State will rush to abuse this in the future. I would argue that none of the (dis)qualifications stated in the Constitution is practically self-actuating. If a Secretary of State claimed that Joe Biden wasn’t a citizen, then Joe would be obliged to prove that he is, no? And this would be handled by a court of law. Same thing goes with the age requirement, and the 14-year citizenship qualification. Nobody has made any such challenges, as they are easily disproven. But is “engagement in an insurrection…...or giving aid or comfort” as easily proven? At present, I say “no.” But William Baude & Michael Stokes Paulsen disagree, apparently……….. Also, though most everyone refers to the events of January 6th as an insurrection, Donald Trump has not (yet) been charged WITH insurrection, under statute 18 USC 2383: Rebellion or insurrection. Neither has he been charged with seditious conspiracy, though others have been, and have even been convicted and sentenced for this. What is now happening in Colorado, seems to me to have been inevitable: A lawsuit filed to disqualify Trump A motion to dismiss by Trump More motions to dismiss by Trump What seems to be a requirement is SOME procedure by which it is officially and irrevocably determined that Trump violated Section 3. Which will inevitably be decided by SCOTUS. I don’t currently see another way. The first disqualification lawsuit, filed by a little known presidential candidate (and tax consultant) named John Anthony Castro, was peppered with poor grammar and spelling mistakes, as well as some dubious leaps of logic. And SCOTUS refused to even consider it, as written. The case was denied without any comment or recorded vote. Which is ironically good for the cause. Because, as written, it was……….lacking. The Colorado lawsuit, brought by CREW against Trump and the democratic Sec of State for CO, Jena Griswold appears to be moving forward rather swiftly…………….in fact: Now, on to begin reading those 126 pages of legal wisdom………...let’s see how good their argument really is. ADDENDA The earliest introduction of Section 3, came during Trump’s second impeachment. Now, this provision is cited in the article of impeachment against former U.S. President Donald Trump, introduced after the insurrectionist violence at the Capitol on Jan. 6, 2021. An impeachment trial is began in the Senate on Feb. 9. If Trump is acquitted, some senators have reportedly considered a resolution invoking Section 3 of the 14th amendment in an effort to bar him from holding future office. This article, published on January 29th, 2021, gives some history on the Disqualification Clause. Official Statement by Secretary of State (CO) Jena Griswold: “I look forward to the Colorado Court’s substantive resolution of the issues, and am hopeful that this case will provide guidance to election officials on Trump’s eligibility as a candidate for office.” States in the South had purported (unconstitutionally)3 to secede from the Union; they had purported to form the (so-called) “Confederate States of America” in rebel-lion against the authority of the U.S. Constitution; and they had waged a bloody four-year war of rebellion against the United States. Yet even after the rebellion had been defeated, Southern States had audaciously sent to Congress, to serve as U.S. Senators and Representatives, men who had notoriously violated previously sworn oaths to support the U.S. Constitution by subsequently engaging in or supporting secession, rebellion, and civil war against the authority of the United States (to say nothing of those now serving again in their state governments). The former Confederates who arrived in Washington included “four Confederate generals, four colonels, several Confederate congressmen and members of Confederate state legislatures, and even the vice president of the Confederacy, Alexander Stephens.” The Congress that proposed the Fourteenth Amendment rightly regarded the situation as outrageous—not only morally, but practically. If former Confederates held the levers of federal and state government power, effective “reconstruction” of the political order and any hope of extending the full and equal protection of the laws to the newly freed former slaves would be at an end. Section Three of the Fourteenth Amendment responded to that outrage, enacting a sweeping disqualification from state and federal office of those who had, as legislators or officers in the federal or state government prior to the War, sworn required oaths of loyalty to the United States Constitution and subsequently engaged in “insurrection or rebellion” against the U.S. constitutional authority or given “aid or comfort” to its enemies. Only a two-thirds majority vote of both houses of Congress could remove that sweeping disqualification. …….in September 2022, a state court judge in New Mexico ruled that Couy Griffin, a county commissioner and founder of the group "Cowboys for Trump," had to be removed from his government position and is prohibited from seeking or holding any federal or state office under Section 3. Judge Francis Mathew of the 1st Judicial District Court in Santa Fe cited Griffin's participation in the Jan. 6 assault on the U.S. Capitol. He was convicted in March 2022 of illegally entering the Capitol grounds and sentenced to 14 days in prison. Griffin received credit for time served. Magliocca said the decision "counts for something," in that a court found that the Jan. 6 attack was an insurrection that Griffin engaged in, but noted it's a single decision from a state trial court. "It'd be one thing if you had a New Mexico Supreme Court opinion saying 'yes, we think this person is disqualified because of Section 3,'" he told CBS News. "So, it counts, but it isn't as strong an authority it would have been if it had been affirmed on appeal." The first question under Section 3 is who decides whether someone is ineligible. The answer is that a court must determine if someone outside of Congress is subject to the disability. This point was established in cases between 1868 and 1872, in which men who were accused of being ineligible contested that claim in court with full due process of law. In this respect, Section 3 is different from a disqualification from federal office imposed as a sentence for an impeachment conviction. A disqualification sentence from the Senate is final and not, for all intents and purposes, subject to judicial review. From the article This principle extends to a more unsettling point. To the extent Section Three’s disqualification for having “engaged in insurrection or rebellion” or giving “aid or comfort” to “the enemies” might turn out to be in tension with the First Amendment’s protection of freedom of speech, Section Three supersedes the First Amendment to the extent of any true conflict. To be sure, the proper construction of Section Three’s terms (“insurrection,” “rebellion,” “aid or comfort,” “enemies”) will leave much speech and advocacy completely free. But in the cases where it does not, the terms of Section Three, not the constructions of the First Amendment, decide where the line is. 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