MSNBC Debate with Michael McConnell on Trump and Disqualification Under Section 3 of the 14th Amendment

The debate aired on the Mehdi Hasan show.

MSNBC recently aired a debate between Prof. Michael McConnell (Stanford) and myself on the question of whether Donald Trump can be disqualified from holding public office in the future, under Section 3 of the 14th Amendment. We appeared on the Mehdi Hasan show. Here is the video:

Our debate begins about 4-5 minutes in.

Thanks to Mehdi Hasan for inviting us, and to Prof. McConnell for his thoughtful contribution.

I covered many of the issues we discussed in greater detail in a Lawfare article, and in this VC post. The Lawfare article was, in part, a response to this post by McConnell.

Comments

[Mr. Bumble]

It refuses to die.
Hope all of theses TDS posts are making The Rev. happy.

[Rev. Arthur L. Kirkland]

This disqualification debate strikes me as mostly a sideshow.

The meat and potatoes -- practical, important, interesting -- are the insurrection, election subversion, and documents prosecutions (including the Eastman and Clark angles), regarding which Prof. Volokh and his right-wing colleagues (which excepts Prof. Somin) are curiously and damningly tongue-tied.

[Roger S]

Trump is charged with 90 felonies, but not insurrection. Somin does not meet the constitutional qualifications for president, and is jealous that Trump does meet them. There is a better argument that Biden has led an insurrection, but opening the border to illegal migrants.

[ObviouslyNotSpam]

Well, if you insist, there's still time to charge him with the federal crime of insurrection...

FWIW, I'd much rather see Trump in prison for any of the 90 felonies he's been charged with than see him merely disqualified from being President again. Justice, etc.

[Frank Drackman]

Well shit in one hand and put "45"'s Prison time in the other...
Guess which one gets shit on first?
"Obviously Not Spam"?? well "Obviously"
Most "Spam" is at a much higher intelligence level than you demonstrate.
OK, should stop Bee-otch slapping you now, but on "January 6th" when "45" still had 2 more weeks in Orifice...
Who was he "insurrecting" against? Himself???

Seriously, I'd call you a fucking Mongoloid but it'd be insulting to the Mongoloids

Frank (MAGA(again))

[ObviouslyNotSpam]

Thanks, Frank, always a pleasure.

[Don Nico]

Mr. Ed keeps talking about a Civil War. The man needs psychiatric help.

[ObviouslyNotSpam]

Civil war? I know he was talking about casually launching a nuclear war, but a Civil War could be really dangerous.

[Rev. Arthur L. Kirkland]

Trump is charged with 90 felonies, but not insurrection.

Here, from a newspaper of record, is detail concerning the prosecution of Donald Trump with respect to the Jan. 6 insurrection and related efforts (conspiracy, obstruction) to subvert an election.

There is no accusation of insurrection (so far), but that probably provides scant solace to former Pres. Trump. Any reasonable sentence associated with a conviction would likely constitute a life sentence for someone as old as Donald Trump.

Then there are the other criminal courtrooms awaiting him . . .

[Roger S]

Yes, Biden has weaponized the DoJ as never before.

[MoreCurious]

So here's a hypothetical, Mr. S.: Suppose there is probable cause to believe an outgoing president attempted to overturn election results, attempted to obstruct the vote certification process, and attempted to reverse votes in some states. What do you propose that the incoming attorney general should do about it? Nothing? Ignore it and pretend it never happened?

[Dr. Ed 2]

Is the coming Civil War worth it?

[MoreCurious]

Even though it's late, I'm not too tired to understand that you believe that the allegations made in the indictment, whether they were against Biden, Trump, Obama, Bush, Clinton, etc., etc., should simply be ignored. Interesting.

[David Nieporent]

Could you leave your sick sexual fantasies out of this discussion?

[Drewski]

Is this the same civil war you predicted if Trump was indicted? Or the one that was going to kick off if he got arrested? Or the one that was impending if "the Kraken" failed? I'm just trying to keep all my civil wars straight. I've been pretty busy at work so it's hard to keep up.

[Roger S]

Did the outgoing President refuse to leave the White House, or try to jail his opponent? No, Trump merely used lawful procedures to contest the election, as many have done before. There were indeed a great many questionable votes, and Trump was right to say so.

[Nige]

Except for the alleged conspiracy and fraud and the riot by his supporters and the fact that there were not that many questionable votes and the few that were discovered were mostly if not all for Trump.

[damikesc]

"Except for the alleged conspiracy and fraud"

Does not exist. The allegations are of non-existent events.

"riot by his supporters"

He cannot be blamed for the actions of others, especially given that the problems began before he was even finished speaking.

"fact that there were not that many questionable votes"

Biden won by a total of 42,000 votes in three states. His win was closer than Trump's. And the whole "PA changing their voting in opposition to their Constitution" is not something you can hand wave away.

[Sarcastr0]

Which of the facts in the allegation did not happen? Or do you just think the law of conspiracy is a hoax?

[Sarcastr0]

Actually calling governors to find votes and frivolous lawsuits and trying it get the DoJ pr DoD to put out false state,e tons or ginning up false electors or threatening your VP if he certified the vote are all not lawful procedures.

[damikesc]

You're aware that the alternate electors ploy has been done before, right? This was not unique and is required in case Trump won one of his legal challenges.

[Sarcastr0]

Done before, even assuming similar circumstances (which they were not) is no shield of innocence.

[MaddogEngineer]

Remaining resident in the White House does not make someone president. We do not proclaim a president from Truman balcony or the U.S. Capitol steps.

Yet for some reason Trump Resistance types continue to pretend that a mob can make someone president. Actually, I know why they do this, it's useful political rhetoric. Even as the jabber on about the legality certitude of section 3 disqualification.

[Sarcastr0]

Attempt does not require the scheme have potential for success.

[Brett Bellmore]

The fact that it had no potential for success, and obviously so, goes to demonstrate the implausibility of the scheme you claim existed.

[Sarcastr0]

They put it in a PowerPoint. Was that an FBI plant?

That Trump zealots must be rational is a bold take on human nature.

[David Nieporent]

It's pretty amazing that MAGA is so debased that "Trump is charged with 90 felonies" has become a pro-Trump talking point.

[ObviouslyNotSpam]

"I have the death sentence on 12 systems!"

[bernard11]

Don't these guys have classes to teach, or something?

[Roger S]

Based on that smirk on Somin's face, nothing makes him happier than making some silly legal argument against Trump.

[Sarcastr0]

You, uh, have a pretty weird parasocial thing going on with Prof. Somin.

[ObviouslyNotSpam]

Some people get off by grabbing women by the pussy; other people get off in somewhat more socially acceptable ways...

[Magister]

The people who want Trump off the ballot for tactical reasons are more Republican than Democratic; they just don't want their fingerprints on the effort.

[Mr. Bumble]

Those would be the same "Republicans" that got their ears boxed in 2008 and 2012. They were wrong in 2016 and Trump won.

[Magister]

Wrong people have rights too, and all experience since 2016 is that Trump is bad for the election prospects of all Republicans, and in particular those who want to be elected President in 2024.

[Frank Drackman]

Apparently didn't hurt (Speaker) McCarthy's "prospects"
Trying to remember the last Amurican Military defeat as ignominious as the US defeat in Afghanistan in August 2021. Probably the ignominious defeat in South Vietnam in 1975. And even though Senescent Gerald Ford had a year and a half to recover, with a pretty decent economy, no (more) wars, he lost to a shit eating 1 term (OK, that's all they could serve then) Governor from Georgia, who managed to fuck up every single thing he got his peanut shucking hands on,

Frank

[Magister]

The "red wave" fizzled to almost nothing; the Republican majority in the House depends in large part on George Santos and others like him. I am satisfied that Kevin McCarthy is a failure all on his own, though.

Gerald Ford lost because of something other than Watergate? He got elected in one Congressional district and rose to the presidency only because of the corruption of the administration that elevated him. The economic recovery faltered in 1976; "There is no Soviet domination of Eastern Europe and there never will be under a Ford administration."; swine flu; oil embargo; "Whip Inflation Now".

[bernard11]

Trying to remember the last Amurican Military defeat as ignominious as the US defeat in Afghanistan in August 2021.

You mean the one that Trump set up for disaster?

[Nige]

The one that George W Bush also set up for disaster?

[Don Nico]

Yup, that one.

[Brett Bellmore]

I think it would be more accurate to say that the Republican party's leadership are bad for the election prospects of non-establishment Republicans. They have a long standing, unofficial policy of abandoning seats where non-establishment challengers win the primary, because if too many non-establishment challengers win, the establishment might lose their grip on the party.

2020 saw a lot of non-establishment candidates, encouraged by Trump's success. The party establishment saw their not winning as more important than control of Congress, because it was vital to control of the GOP itself.

[ObviouslyNotSpam]

Who would you say controls the GOP now?

[Brett Bellmore]

I'd say the party establishment still does, but narrowly. By not updating the party platform in 2020, they managed to prevent Trump from having any input into its contents, so it's still an establishment platform. McCarthy had to compromise with the Freedom Coalition, but he came out on top, and they lost leverage.

The establishment is holding on by virtue of the leverage gained from already being in control, and the big donors backing them over the voting base, but their hold gets ever more tenuous.

I think the real battle starts when McConnell croaks.

[ObviouslyNotSpam]

"Trump then recommended Ronna Romney McDaniel as RNC Chairwoman and she was elected to that role by the RNC in January 2017. McDaniel was re-elected in 2019 and 2021. Mike Lindell announced that he would challenge McDaniel in 2023. Lindell accused McDaniel of not denying the legitimacy of the 2020 presidential election forcefully enough, and criticized her for presiding over the RNC during three disappointing election years. McDaniel was re-elected in to a fourth term in January 2023, easily defeating Lindell and California RNC committeewoman Harmeet Dhillon."

Trump's people control the RNC and have done so since 2017...

[David Nieporent]

Um, in 2012 they did better than Trump did in 2016 and 2020, and in 2008 they did roughly the same as Trump did in those years.

[Mr. Bumble]

...except they lost and Trump won.

[Nige]

Except for when he lost.

[Rev. Arthur L. Kirkland]

As his criminal trials proceed . . . when will former Pres. Trump get tired of losing?

[ObviouslyNotSpam]

Never, obviously.

He just deludes himself that he is actually winning, which solves the problem (in his mind). (Which process also explains his bizarre orange visage, btw.)

[Frank Drackman]

Is "Mehid Hasan" (Didya ever notice how most Moos-lum names sound like the guys who murdered Amuricans on 9-11??(Unaired Segement of "A few minutes with Andy Rooney" 9-16-2001)
related to any of the 9-11 Hijackers??
and is he the same "Mehid Hasan" who
"During a sermon delivered in 2009 quoting a verse of the Quran, Hasan used the terms "cattle" and "people of no intelligence" to describe non-believers. In another sermon, he used the term "animals" to describe non-Muslims.

In response to criticism for his remarks, Hasan wrote in his New Statesman blog: "The Quranic phrase 'people of no intelligence' simply and narrowly refers to the fact that Muslims regard their views on God as the only intellectually tenable position, just as atheists (like Richard Dawkins or Sam Harris) regard believers as fundamentally irrational and, even, mentally deficient." Hasan returned to this issue in August 2012 following criticism from the columnist Peter Hitchens, stating that "the entire 45-minute speech is primarily an attack on Muslim extremists who try and justify violence against non-Muslims on an 'ends justify the means' basis", but noted of his 2009 comments that his "phraseology was ill-judged, ill-advised and, even, inappropriate".

Frank "Whew! sounds like an Ass-hole (and admit it, he smells)

[Internet sloth]

History is just one damn thing after another.

[Vryedni]

OMG. Room Rater (@ratemyskyperoom) just committed suicide watching both these guys.

[John Rohan]

To his credit, the host FINALLY mentioned the fact that Trump hasn't been convicted of, much less even charged with the crime of insurrection. It's about time someone in the media at least acknowledged this.

[Michael P]

That's pretty much just a matter of time. The perverters of justice have to pace themselves -- too many people might recognize a kangaroo trial if the perverters actually said "sentence first - verdict afterward".

[Sarcastr0]

What people? At this point the conspiracy against Trump encompasses the entire worldwide population except for a few VC commenters.

[Brett Bellmore]

If they go for the insurrection charge, they'll do it at the last minute; No way it holds up with currently available evidence, and if they had a secret smoking gun, it's what they would have led with.

They'll want to wait close enough to the election that there's no time for the auto-conviction from a DC jury to be overturned on appeal while it's still early enough to matter.

[Reallynotbob]

Who is "they," again?

And if "they" never actually do charge Trump with insurrection, does that improve "their" credibility in your mind? Because for the rest of us, understanding someone can be guilty of X but not Y is a sign of (possible) honest dealing.

[Brett Bellmore]

"Who is "they," again?"

Prosecutors, obviously. Who else makes prosecuting decisions?

"And if “they” never actually do charge Trump with insurrection, does that improve “their” credibility in your mind?"

Sure, a bit. Or if they did charge him with insurrection, only early enough for appeals before the Republican primaries.

Will it hurt their credibility in YOUR mind if he's charged with insurrection, or some other crime that actually carries disqualification as a penalty, too late in the process to properly appeal a conviction in DC?

[ObviouslyNotSpam]

Here I thought Joe Biden was supposed to be "weaponizing the justice system", and here you are, hysterically suggesting that federal prosecutors make federal charging decisions!

Like I said, it's still not too late to charge Trump with violation of 18 USC 2383. As the various cases proceed to trial, and more and more of Trump's minions realize he's going down and won't save them anyway, maybe previously concealed evidence will come to light which makes an Insurrection Act prosecution viable?

[ObviouslyNotSpam]

Oh, apparently 18 USC 2383 isn't the "Insurrection Act". That's a different 19th-century law.

[F.D. Wolf]

Well, we've now heard and read ad nauseam on this topic from academics on both sides.

Let me give you a dispatch from the real world - the world beyond the faculty lounge - that you can take to the bank: the current Supreme Court is not going to adopt Somin's position on this issue.

[bernard11]

Yes.

[Sarcastr0]

It's like you've never met a legal academic before.

[Mr. Bumble]

...are you referring to his immigration status?

[Drewski]

This is true, and I don't think they'll even need to grant cert. I think Somin has the better argument in a vacuum but the courts just aren't going to open that door.

[ConservativeProfessor]

Don't forget that a piece entitled "Fuck" is one of the most downloaded and cited articles in the history of legal scholarship. But, of course, SCOTUS doesn't give a fuck. Which will be its response to the section 3 argument. But Baude, et al will get their citations, hits, links, downloads, and thus better merit pay.

[Kazinski]

Rather surprising that Section 5 wasn't mentioned at all.

[BLW]

I do mention Section 5 in a recent article https://brucewilder.substack.com/p/the-fourteenth-amendments-section

[Nameless But Highly Opinionated]

McConnell makes my argument near the end: Nothing says they can't be on any ballot - only that they can't hold office.

Speaking for myself: Federal authority can't keep him off a ballot. Federal authority presumably can't keep him on a ballot. I doubt federal courts can censor electors’ ballots. So it falls to congress when it meets to refuse to seat him, if he wins election. (Sounds like fun!)

[Brett Bellmore]

I'd suppose that Congress could enact a law to keep Section 3 disqualified candidates off the ballot, as an exercise of their "time, place, and manner" power. I don't think they should be able to, but they'd probably get away with it. The Court is VERY deferential towards federal claims of power.

But that would still leave the issue of the due process required to establish in the first place that somebody WAS disqualified. I don't think the Court would decide that one in favor of the "self-executing" crowd.

Now, for nominees to positions subject to Senate confirmation, Section 3 can trivially be invoked as a basis for the Senate rejecting a nominee. Since the Senate can do that totally arbitrarily, no questions of due process arise.

For Congress, Article 1 section 5 gives each chamber the authority to judge the qualifications of their members, so the chamber's vote on the question satisifies due process.

But, for the President? I think THERE, Congress isn't actually given a role, it's the electors' job to judge qualifications. Not that the Court is likely to take that view. Again, they're very deferential towards federal claims of power.

I suppose the states could bar electors pledged to disqualified candidates from the ballot, because the Constitution basically allows the legislature of a state to pick ANY way of selecting electors, their power here is plenary so long as it's exercised before election day.

But, it's the legislature's power, NOT the state executive branch's, so you'd need actual legislation to that end.

[ducksalad]

But, it’s the legislature’s power, NOT the state executive branch’s, so you’d need actual legislation to that end.

So, just for example, in Texas:

Sec. 192.031. PARTY CANDIDATE’S ENTITLEMENT TO PLACE ON BALLOT.

(a) A political party is entitled to have the names of its nominees for president and vice-president of the United States placed on the ballot in a presidential general election if:

(1) the nominees possess the qualifications for those offices prescribed by federal law;

Of course, it doesn't say "may not" be on the ballot, just that they aren't entitled to be on the ballot. And in any case, the party could put in a placeholder name of a person not-disqualified. That person could even change their legal name to "Trump's Placeholder."

[Brett Bellmore]

I notice a distinct lack in that law of any procedure for determining whether the candidate IS disqualified.

[Middyman]

I thought they did: 18 USC 2383

18 U.S. Code § 2383 - Rebellion or insurrection

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

This law defines insurrection and the penalties for being convicted under it. I was under the impression this law was the "enabler" of disqualification under the 14th Amendment.

[Brett Bellmore]

"I’d suppose that Congress could enact a law to keep Section 3 disqualified candidates off the ballot,"

Note that 18 U.S. Code § 2383 doesn't say anything about keeping somebody off the ballot. And, of course, as a criminal law it requires conviction before its penalties kick in.

As I've remarked before, the drafters of the 14th amendment could not possibly have contemplated keeping somebody "off the ballot" on the basis of their being disqualified under Section 3: The "Australian ballot" wasn't adopted anywhere in the US until 20 years later, there wasn't any government printed ballot to keep anybody off of! Telling a voter who he was allowed to vote for would have been considered an outrage, the right to vote, if you had it at all, was in its own way plenary. You could vote for anybody you damned well pleased.

Until just recently, nobody had ever been kept off a ballot on the basis of Section 3; They ran, they got voted for, if they got the most votes were declared the winner, and then Congress refused to seat them.

We have no history telling us how Section 3 would be applied to the Presidency, but it seems likely to me it was expected to be applied by the electors themselves.

[Sarcastr0]

Congress acting does not mean only Congress can act.

Self-executing remedies that were not around at drafting are also not foreclosed because of that fact. That would be an extraordinarily narrow view of originalism not shared by any originalists I am aware of, Scalia included.
Especially when you have states creating ballot access review regimes that involve eligibility criteria. Which is a procedure contemplated by the Constitution.

And other remedies existing do not foreclose a particular remedy either. Especially when said remedy will be executed by people who have taken an oath to the Constitution that would seem to encompass such action against those who have broken their oath to the Constitution.

[Listened to that podcast Baude et al were on, and the oath aspect is a big deal in original intent.]

[Brett Bellmore]

"Especially when you have states creating ballot access review regimes that involve eligibility criteria. Which is a procedure contemplated by the Constitution. "

Seriously, how can ballot access review be contemplated by a Constitution written before "ballot access" was even a concept? "Not precluded"? Maybe. "Contemplated"?

Not on your life.

[Josh R]

I think the law was passed in 1862, so it can't be enabling legislation for the 14th Amendment which did not yet exist.

[Brett Bellmore]

The Civil war began in 1861.

The law disqualifying insurrectionists was passed in 1862.

Congress first refused to seat ex-Confederate election winners in 1865.

The first Civil Rights act was passed in 1866.

The 14th amendment was ratified in 1868.

Notice a trend? As I've said before, the 14th amendment's purpose was largely to retroactively put a gloss of constitutionality on actions Congress had already undertaken without any constitutional basis.

So, yeah, a law passed in 1862 COULD be the enabling legislation for an amendment ratified in 1868, because it was adopted to make those earlier acts legally legitimate after the fact.

[Josh R]

Congress has twice amended the act without mentioning the 14th Amendment.

[ObviouslyNotSpam]

However, it certainly does seem like it may have served as the model for Section 3.

[Josh R]

OK. But, that doesn't imply 14/3 requires a conviction under this statute.

[ObviouslyNotSpam]

Agreed. It could come down to historical understandings I'm not aware of, but that's not clear from the words they used.

[John Rohan]

That might be a technical legal argument, but even if it prevails, it wouldn't be the case for long. There are so many problems with this, aside from the major one of electing someone then blocking him from taking the oath. For example the govt is spending millions on Secret Service protection for a candidate that is never going to hold office?

[Nameless But Highly Opinionated]

"aside from the major one of electing someone then blocking him"

Until that guy in New Mexico last year, blocking someone after election is what has happened. Every single time. No one - not even actual Confederates - was ever kept off the ballot.

As for secret service protection, they spend millions on the loser every cycle.

[Josh R]

If Trump is elected and then declared disqualified, we end up with President Noem or Ramaswamy. That doesn't seem quite right to me.

[Brett Bellmore]

It shouldn't seem quite right to you, what's the proposed mechanism by which this happens?

If Trump is elected and then declared disqualified, we likely end up with the runner up, presumably a Democrat, declared President. And they will NOT enjoy their time in office, to be sure, with half the nation's voters mad as hell.

[Josh R]

It happens per the 20th Amendment:

If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President-elect shall have failed to qualify, then the Vice President-elect shall act as President until a President shall have qualified.

[Brett Bellmore]

I see where you're coming from, but there's no way the Democrats are going to royally piss off half the electorate in order to have a President hand picked by Donald Trump. I don't think even the NeverTrump Republicans in Congress would be enthusiastic about that.

They'll reject Trump's EC votes, and the Democratic candidate will have the majority of the remaining EC votes, likely all of them.

[Josh R]

That's the type of chaos we should avoid by keeping Trump off the ballot if he disqualified (as confirmed by SCOTUS).

[ObviouslyNotSpam]

It's funny how your analysis of whether someone should heed a Constitutional imperative or not always seems to come down to a political consideration.

Not everyone thinks like that, in case you were wondering!

[Sarcastr0]

What the Constitution says and what can/should happen are different things.
You say that all the time; did you forget?

And even then your argument is bad - what should happen needs to depend bottom line on actual facts, not kowtowing to a deluded mob.

Quit hostage taking; makes it look like you don't much care about facts or the Republic.

[iowatwo]

They’ll reject Trump’s EC votes, and the Democratic candidate will have the majority of the remaining EC votes, likely all of them.

No, if no one gets the majority of EC votes, the election goes to Congress. Each State delegation casts their State's EC votes. That is exactly the scenario Trump was attempting to trigger. The Rejection of a couple of states EC votes, sends the election to Congress

[Josh R]

I think Brett is correct. The Electoral Count Act says:

if an objection the grounds for which are described in subsection (d)(2)(B)(ii)(I) has been sustained, the total number of electors appointed for the purpose of determining a majority of the whole number of electors appointed as required by the Twelfth Amendment to the Constitution shall be reduced by the number of electors whom the State has failed to appoint or as to whom the objection was sustained.

[Josh R]

How about state officials?

[Nameless But Highly Opinionated]

Are you asking whether state officials can keep him off the ballot? Depends on the law of the state. Particularly absent some jury-involving high-proof proceeding, I wouldn't take kindly to my state legislators for allowing someone to be kept of the ballot by a few elections officials or even the judiciary. Age limits and the like are different, as there isn't likely any debate whether someone is actually 35, and there's simply no arguing what "35 years old" means.

[Josh R]

Assuming the secretary of state is authorized by state law to keep disqualified candidates off the ballot, Trump can use the normal appeal process to challenge the secretary's determination.

[Nameless But Highly Opinionated]

The point is that it still falls to officials (election+judges) to prevent someone from being voted on. And electing him would be the best way to petition congress to invoke its clemency power.

If a voter wants to risk voting for someone ineligible, it's his problem. Same for parties and nominating. If someone is highly sympathetic, a voter is more likely to cast that vote - and congress is also more likely to remove the disability. A voter/party may well decide it worth the risk, and may well be right.

And it would also be best, I think, not to hand the act of effectively interpreting what is and is not insurrection to unelected state officers, but to save it for congress, which represents the entire nation. The question is too important to be decided by just a few people.

[Josh R]

Why can't Congress grant clemency before the voting takes place after the "few people" (which ultimately will be SCOTUS) determine he is disqualified?

[Nameless But Highly Opinionated]

They can. They aren't as likely to.

[Josh R]

And electing him would be the best way to petition congress to invoke its clemency power.

Why would Congress need to grant him clemency since no one has declared him disqualified? So of course it would be very much easier for Congress to let him take office after he is elected than for Congress to grant clemency (to get him on the ballot) if he is disqualified before the election. But to me, that's a bug, not a feature. We need to resolve this issue before the voting.

[Nameless But Highly Opinionated]

Congress also has to certify his election. It would seem that they are the final decider of the question, unless specific people, such as state officials, simply keep Trump from getting that far. A conscientious member of Congress might simultaneously think a winning candidate is disqualified and also think it is appropriate to allow him the office.

Note that we're assuming, in terms of winning voters over, that he gets that far. I do not think Trump is likely to win, even if disqualification were a non-issue. If he does get nominated, I expect a general election landslide in favor of the Democrat nominee.

[BLW]

An interesting and most informative debate. With all due respect, I think the debate about whether the President is an “officer of the United States” is a red herring.

Although Trump is a former president, he is now just a person. Did the drafters of the Fourteenth Amendment really mean that “No person shall . . . hold any office, civil or military” did not apply to the presidency? Does the plain language “ . . . previously taken an oath . . . as an officer of the United States . . . ” exclude having taken an oath as President?

I have had a few more thoughts on Section 3. https://brucewilder.substack.com/p/the-fourteenth-amendments-section

[BLW]

If I heard correctly, Prof. McConnell seemed to be saying that the offense in question is "insurrection against the Constitution". Agreed, the language of Section 3 is little vague, and perhaps inartfully drafted, i.e., " . . . an oath . . . 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". "[T]he same" and "thereof" were surely meant to refer the the United States and not just the Constitution. Although it might be read either way, the latter interpretation really doesn't make a lot of sense.

[BLW]

It makes no sense for any state put someone on a ballot who is not qualified to hold the office to which they could be elected. Would ANY state put a thirty-year-old on the ballot for president? All comes down to what it takes to prove that the person in question previously took an oath and subsequently engaged in insurrection or rebellion. Court in Georgia decided that those who sought to disqualify Marjorie Taylor Greene failed to prove that fact by a "preponderance of the evidence." But that, of course, is just Georgia. https://abcnews.go.com/Politics/judge-rules-gop-rep-marjorie-taylor-greene-stay/story?id=84314352

[Nameless But Highly Opinionated]

It could be one of the most effective ways to indicate that there is a strong desire for Congress to remove disability. And people, in the case of the president, might deliberately elect members of congress likely to use that power.

If a voter wants to risk wasting his vote, it's his problem. Ditto for parties and their nominations.

[Kenneth Almquist]

According to Prof. Michael McConnell, there is at least one state (New Hampshire) which does in fact allow people on the ballot who are running for offices that they are not qualified to hold. I doubt that was a carefully considered choice; more likely nobody involved in writing the election laws in Hew Hampshire anticipated that someone would actually run for an office they couldn't hold, so they didn't devote much thought to the issue whether it should be allowed. So Trump will be on the ballot in some states.

There are other states (Maine is an example) where you cannot get on the ballot if you aren't eligible for the office you are running for. I expect that at least one state will determine that Trump is not eligible to appear on the ballot and the Trump campaign will sue. So this debate will ultimately be resolved by the courts.

[Nameless But Highly Opinionated]

Which courts? How is the question even going to get into federal courts?

[Brett Bellmore]

"So Trump will be on the ballot in some states."

In all likelihood, he'll be on the ballot in all the states, in the end. Cooler heads will prevail, as Democratic party leaders reflect on just how easily ballot disqualification could be turned back on them.

They'll content themselves with attempting to make him a convicted felon.

[F.D. Wolf]

Lucius Quintus Cincinnatus Lamar II represented Mississipi's 1st District as a Democrat in the U.S. House of Representatives from 1857 until January 12, 1861, when he, along with the entire Mississippi delegation, resigned. He would go on to serve as a colonel in the Confederate Army.

In 1872, he would run again for the same House seat he had resigned. There was obviously no question that Section 3 applied to him. His Republican opponent made the fact that Lamar might not be allowed to claim his seat an issue in the election. Nevertheless, Lamar won the election by a 2 to 1 margin. (The Republican state legislature had reapportioned the state to assure 5 safe congressional districts for them, conceding one to the Democrats by packing most of them into the 1st District).

Lamar immediately traveled to Washington to lobby for his disability to be removed per the terms of Section 3, and was successful, garnering the requisite 2/3 vote in both the House and Senate in December. He took his seat in the new Congress on March 4. (Lamar would later go on to serve in the Senate, as well as Interior Secretary under President Grover Cleveland, who would appoint him to the Supreme Court.)

[Nameless But Highly Opinionated]

Interesting. I knew we had seen a number of officials get elected, then denied the office. I knew that no one had ever been kept from a ballot. But apparently 'elect, then beg' has precedent - and successful at that!