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Title: Senate Is Playing A Dangerous Game With The 14th Amendment
Source: [None]
URL Source: ... -dangerous-game-14th-amendment
Published: Feb 1, 2021
Author: Tyler Durden
Post Date: 2021-02-01 17:10:29 by Horse
Keywords: None
Views: 34
Comments: 4

Below is my column in the Hill on the new push to bar former President Donald Trump under the 14th Amendment in a censure resolution. Various commentators and groups have called for dozens of Republican politicians to be barred from office in the same way, including a “how to guide” for “disqualifying insurrectionists and rebels” under the 14th Amendment. Some have even added a call to put the entire Republican Party on a Domestic Terror list. Rage again has overwhelmed reason. The suggested use of the 14th Amendment raises serious constitutional concerns and could present a compelling basis for a court challenge if actually passed. Indeed, Trump could prevail in court shortly before the 2024 presidential race.

Here is the column:

After a vote suggesting that about half of the Senate has constitutional or prudential concerns over the trial of former President Trump, members are discussing censure as an alternative. I previously supported a censure resolution, but this is censure with a twist. Senator Tim Kaine would add yet another controversy to an array of constitutional issues by electorally barring Trump under the 14th Amendment. With the snap impeachment and a retroactive Senate trial, the country needs another constitutional controversy like Wall Street needs another Reddit stock tip.

Censure is not mentioned in the Constitution because it is a resolution with the view of Congress. Such a statement could allow for bipartisan condemnation. It is also now seen as a type of shadow impeachment. A Senate trial could work to the advantage of Trump if it ends in acquittal. For the first time ever, the House used a snap impeachment and sent the Senate no record to support its article. As before, the Senate can refuse to call witnesses and vote on the record or lack thereof, meaning a brief trial and about half of the Senate rejecting the case. It has led some members back to censure as the effective substitute for conviction.

Part of the controversy of this snap impeachment is using a trial solely for electoral disbarment. The Constitution refers to the trial as to decide on whether to remove “the president” and so that leads some of us to doubt any retroactive trial, while disbarment is an optional punishment for after removal. The Constitution limits the power of the Senate in impeachment trials to “removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.”

Retroactive trials remain a close issue even for most scholars who have reached conclusions on either side. Now Kaine and others suggest the Senate can avoid the need for the trial but achieve the same result by a majority vote on censure. At issue is the 14th Amendment section that bars people from holding office if they “have engaged in insurrection or rebellion” or “given aid or comfort to the enemies thereof.”

According to Kaine, his censure resolution would make two findings “that it was an insurrection and that President Trump gave aid and comfort to the insurrectionists.” While this would be a workaround of an unattainable impeachment conviction, it would be defended as part of the authority of Congress over any citizen under the 14th Amendment.

This has never been used to disqualify a former president, and it is not clear Congress has carte blanche authority to bar a citizen from office by majority vote. The Constitution refers to individuals determined to have engaged in treasonous acts. Under this theory, it would be relatively easy to disqualify someone from office and declare him a traitor, but difficult to lift their electoral disbarment. Further, it would also flip the burden of the supermajority vote from a protection for the accused in impeachment trials into a barrier for those disenfranchised by Congress.

Kaine is open about his motivation for “an alternative that would impose, in my view, a similar consequence” without a trial and supermajority vote. But that is why this tactic is so dangerous. The party in control could bar dozens of its opponents from running for federal office. Some Democrats are now demanding such action against Republicans who challenged the election of Joe Biden. This is common in authoritarian countries such as Iran, where leaders often bar their opponents from office.

Kaine could be making a case for Trump in claiming the 14th Amendment as an alternative to conviction at trial. Academics have echoed this view, and some insist Congress clearly has authority to bar Trump from office. Columbia University professor Eric Foner says the 14th Amendment “is very applicable” and “would only require a majority vote in Congress.” Such statements leave little doubt that the motivation is to achieve the penalty of impeachment without the burden of a conviction.

It would be a first impression for a court, but Trump would have a credible case. If he were to prevail, he could cite the decision as vindication and perhaps enhance his claims of being an establishment target. When the 14th Amendment was ratified, it was easy to see its applicability to those who swore allegiance to the confederacy or fought for it. A court today would face the issue of whether Congress has total discretion to make such a finding or if, as I believe, it is subject to judicial review.

The Framers, with their ban on bills of attainder, had opposed individual punishment meted out by Congress. Such bills were used in Great Britain to punish individuals through Parliament rather than the courts. Years ago I had litigated one of the few successful bills of attainder cases in striking down the Elizabeth Morgan Act, which punished my client with stripping him of parental rights. This proposed censure resolution would achieve the same purpose to mete out punishment by popular vote.

Using the 14th Amendment is too clever by half. Our raging politics blinds many to what could be a dangerous precedent of barring opponents from office. When many people call for blacklists and retaliation against anyone “complicit” with Trump in the last four years, such a power would be ripe for abuse. There is an alternative, which is a censure resolution that can garner overwhelming support as a bipartisan condemnation rather than a circumvention of impeachment. We can then leave the Constitution alone, and leave the future of Trump to voters and to history.

Poster Comment:

Fourteenth Amendment, amendment (1868) to the Constitution of the United States that granted citizenship and equal civil and legal rights to African Americans and slaves who had been emancipated after the American Civil War, including them under the umbrella phrase “all persons born or naturalized in the United States. ...

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#1. To: Horse (#0)

What's lacking in a 14th amendment move is any supporting legislation or regulation that would be needed by state admins to prohibit any application by Trump to register for president in each state.

E.g. Say 3 years from now Trump decides to run again and starts registering as a candidate in all 50 states. In each state some admin clerk gets an application/registration form with Trump's name on it saying he's running for president. Is that clerk going to pull out his "Rejected" rubber stamp and use it on the forms and hand it back? No, he can't unless there is some official form he's already got that says people named Donald Trump can't run for president, and a simple vote by congress that he saw in the news years ago won't suffice.

So he'll do his job and register Trump as an R candidate. That means that in order for Trump-haters to do anything, THEY will need to file suit against the states and Trump saying he can't do that, and they will then have the burden to prove in court that Trump can't run. So what will a judge do in that case?

By default, Trump can run again, and unless the haters can reasonably and clearly prove their case, the judge will rule against them. They will need to convert this uncertain wording of the Constitution into something substantial. And then there are appeals.

Courts seem to have made it clear with Trump's court losses they will punt on election matters, and I think they'll do so again, unless they are strongly restricted otherwise.

Pinguinite  posted on  2021-02-01   18:05:26 ET  Reply   Trace   Private Reply  

#2. To: Pinguinite (#1)

Is that clerk going to pull out his "Rejected" rubber stamp

No, the clerk has no such powers.

In Illinois you must file petitions with the Office of the County Clerk.

There are specidic requirements for the number of signatures by eligible registered voters.

When I circulated petitions in Chicago for the Committeeman, we would go to where people lived who were registered with the party and known to us. We didn't just stand on a street corner and solicit signatures. Though some morons might do something that stupid. ;)

"When bad men combine, the good must associate; else they will fall, one by one." Edmund Burke

BTP Holdings  posted on  2021-02-01   18:44:11 ET  Reply   Trace   Private Reply  

#3. To: BTP Holdings (#2)

You seem to be referring to 3rd party candidates. I don't think major party (R/D) candidates need to that, do they?

Pinguinite  posted on  2021-02-01   18:49:10 ET  Reply   Trace   Private Reply  

#4. To: Horse (#0)

Big surprise, the elected people want to follow the US Constitution, for the first time in 100 years.

Darkwing  posted on  2021-02-02   8:42:13 ET  Reply   Trace   Private Reply  

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