More on Criminal Conviction and Section 3 Disqualification [Updated]

My response to conservative political commentator Conn Carroll's argument on this issue.

Donald Trump. (Rod Lamkey/CNP/Mega/RSSIL/Newscom)

 

Earlier this week, I put up a post explaining why a criminal conviction for insurrection isn't required for Donald Trump to be disqualified from running for president under Section 3 of the 14th Amendment. Conservative political commentator Conn Carroll has responded to me in a column published by the Washington Examiner.

I remain unpersuaded. Carroll is confused about jurisdictional issues. And even if he were right about them, it still would not prove that a criminal conviction is necessary.

Carroll's main point is that Colorado courts lacked jurisdiction to consider the Section 3 issue:

George Mason University law professor Ilya Somin argues that a criminal conviction for insurrection is not necessary for invocation of Section 3 of the Fourteenth Amendment because our legal system has long recognized that the same events can give rise to both civil and criminal liability.

He cites the example of O. J. Simpson, who was famously acquitted in criminal court for the murder of Nicole Brown Simpson and Ron Goldman but was later held liable in civil court for their deaths, resulting in $33.5 million in damages….

Somin forgets entirely about jurisdiction. Both criminal charges and civil claims must be brought in a court that has jurisdiction over the act in question. This is why Simpson was tried for murder by a California court and not a court in Arizona. Similarly, civil claims must also have a nexus to the court where they are brought. This is why the civil case against Simpson was brought in California court, not Texas. A Texas court would have no jurisdiction to hear a civil claim stemming from a murder in California….

Here in the Trump case, none of the events of Jan. 6 have any nexus with Colorado. The events happened entirely in Washington, DC. Why should a Colorado court be the one to decide if what Trump did was insurrection?

Carroll forgets that Colorado courts unquestionably do have jurisdiction over the issue of whether a candidate is eligible to appear on the ballot in Colorado elections (in this case, the Colorado Republican primary, in which Trump is a candidate, and which is administered by the state government).  As the Colorado Supreme Court explained in its ruling, state law requires candidates on the ballot to be legally eligible to hold the office they are running for. And state courts can consider any potential legal grounds for ineligibility - including Section 3 of the Fourteenth Amendment.

In hearing cases, state courts routinely consider relevant events that occurred outside the state. If I am charged with committing murder in Colorado, the state can introduce a recording of me plotting the murder while located in another state. This applies to issues of candidate eligibility, as well. For example, in 2016, state courts considered claims by Trump supporters that Ted Cruz, one of Trump's rivals for that year's GOP nomination, was ineligible for the presidency because he was not a "natural born" citizen (Cruz was born to US-citizen parents while they were living in Canada). It made no difference the relevant event (Cruz's birth in Canada), occurred outside of the states whose courts heard the cases.

Ultimately, courts in New Jersey and Pennsylvania concluded Cruz was eligible, and ruled against the Trump supporters. But no one doubted the courts had jurisdiction to hear their claims.

Even if Colorado courts did lack jurisdiction, it doesn't prove that a criminal conviction was necessary. It would just mean the issue would have to be settled by some other set of courts or officials (perhaps federal courts).

Carroll also has a second objection:

Somin's criminal-civil distinction also fails because, under the Colorado Supreme Court's own reasoning, a civil verdict isn't necessary at all. Any secretary of state in any jurisdiction could simply declare someone they didn't like was an "insurrectionist" and kick them off the ballot.

None of the Confederates denied office after the Civil War had a civil trial to determine if they were insurrectionists. One was denied office under Section 3 by a governor. Another by a county commissioner. Another by the Postmaster General.

Accepting the Colorado Supreme Court's ruling would unleash chaos. Any Republican secretary of state throughout the country could disqualify anyone from office for supporting the Black Lives Matter riots. Is this really what the authors of the 14th Amendment intended?

As I pointed out in my earlier post, none of the ex-Confederates disqualified in the aftermath of the Civil War were convicted of any criminal offenses related to their participation in the Civil War. This reinforces the point that a criminal conviction isn't required under the original meaning. Some of them did, however, have their disqualifications reviewed by state courts (which upheld them).

Whether state officials can disqualify candidates without going to court first depends on state law. Different states have different rules. It is not unusual for nonjudicial officials to make initial determinations on civil law issues.  Police officers do that all the time when it comes to traffic violations, for example; ditto for state and federal tax collection agencies assessing penalties for tax law violations.

But even those states where executive officials can initially act on their own still allow candidates to challenge disqualification decisions in court. As I have pointed out before, this is an important constraint on skullduggery by partisan officials. And even if such misbehavior is more of a risk than I think, it doesn't follow that a criminal conviction is a constitutional prerequisite to disqualification. It would just mean that state governments should pass legislation limiting officials' discretion. Congress could potentially do so, as well, using its power to enact "appropriate" enforcement legislation under Section 5 of the Fourteenth Amendment. Unless it does so, however, states can use their legal systems to enforce Section 3, just as they enforce other constitutional eligibility requirements for office.

UPDATE [Jan. 2, 2024]: Conn Carroll has posted a rejoinder here. He now claims he never said Colorado courts lacked jurisdiction over Section 3 challenges to Trump's eligibility, but merely meant to "invoke the reasoning behind jurisdiction to highlight the ridiculousness of state courts and officials around the country all rendering their own verdicts on what is and is not an insurrection and determining who and who has not engaged in insurrection."

I think it is pretty obvious Carroll did make a jurisdictional argument in his original piece. But readers can judge that for themselves. In any event, if Carroll agrees, as he now puts it, that "Yes, of course state courts have jurisdiction to hear claims about who should be on the ballot," then these courts also have jurisdiction to make determinations about relevant legal and factual issues that must be addressed in order to resolve cases about candidate qualifications.

It is true, as Carroll argues, that some of the legal and factual issues about Trump's eligibility are more disputed than other candidate eligibility questions are. But courts resolve disputed factual and legal issues all the time. That's what courts are for! In some cases, state executive officials (like the Maine Secretary of State with respect to Trump) also have authority to make such determinations (subject to later judicial review). If this leads to problematic inconsistency between states, the US Supreme Court could agree to review one of these cases, and make a definitive precedent binding across the nation. But there is nothing inappropriate about state courts and officials addressing legal issues over which - as Carroll now concedes - they have jurisdiction.

It is in fact common for courts in different states (and in some cases federal courts in different parts of the country) to come to divergent conclusions on federal constitutional issues. If the Supreme Court concludes the inconsistency is intolerable, they can and often do step in by reviewing one of the cases raising the issue in question.

Comments

[BillyG]

I'll summarize somin.

Blah blah blah TDS blah blah orange man bad blah blah blah.

[Darth Buckeye]

That's only part of what he believes: "Orange man bad; borders should not exist."

[Roger S]

Plus: voters are ignorant if they do not agree with me.

[Johnnyhenry]

Wow that's a compelling argument. Besides saying absolutely nothing all you can do is roll out the same old silly "orange man bad" rhetoric that Trump lovers love to put out there when describing how his critics portray him. The problem is you didn't summarize Somin AT ALL. Somin laid out a clear, detailed, and convincing argument as to why Trump is off the ballot in Maine and all you can do is come up with some silliness. You know why that is? Because it's impossible to defend the sore losing insurrectionist Trump who when it comes down to it is barred from the ballot civilly because he committed an insurrection and tried to subvert the will of the American people and it isn't required according to the Constitution for him to be convicted in a criminal court of law. So yeah "orange man bad blah blah blah".

[MonitorsMost]

Carroll's argument is bad. As you noted in your original post, whether the process for disqualification requires a criminal conviction is a subset of whether adequate due process was provided.

The disqualified candidate or putative disqualified candidate would have to be afforded procedural due process under the 5th Amendment or 14th Amendment as running for office would seem to be an important liberty interest and I have not seen anyone argued that Section 3 of the 14th Amendment supersedes these requirements.

[not guilty]

"The disqualified candidate or putative disqualified candidate would have to be afforded procedural due process under the 5th Amendment or 14th Amendment as running for office would seem to be an important liberty interest and I have not seen anyone argued that Section 3 of the 14th Amendment supersedes these requirements."

Let’s see now. Donald Trump had notice of the charges against him, the relief sought by the petitioners, and detailed specification of the underlying factual and legal basis for the petition. His lawyers litigated multiple pretrial motions in the trial court and in the Supreme Court of Colorado. AFAIK, Trump did not seek to conduct any pretrial discovery, and he made no offer of proof to the trial court as to how discovery would have assisted his defense on the merits. (The petitioners sought to take a pretrial evidentiary deposition of Trump, but the trial court denied their application to do so.) The trial court scheduled five full days for taking proof, with the time for presentation equally divided between the petitioners and the respondent/intervenors (and Trump did not take all of the time he was allotted). The Rules of Civil Procedure applied at trial. Trump had the subpoena power of the trial court to compel the attendance of witnesses on his behalf. Trump’s lawyers cross-examined witnesses called on behalf of the petitioners. Trump had the opportunity to testify at trial; he elected not to do so. While the applicable statutes specified that the petitioners had the burden of proof by a preponderance of evidence, the trial court determined that the proof met the higher standard of clear and convincing evidence, had that standard been applicable. All parties had the opportunity to submit proposed findings of fact and conclusions of law. The trial court issued a comprehensive and detailed final order.

The Supreme Court of Colorado exercised discretionary review, and the per curiam opinion addresses all issues that were raised. Trump has the option of seeking discretionary review by SCOTUS pursuant to 28 U.S.C. § 1257(a). He can request Congress to remove his disability by a vote of two-thirds of each House.

What additional or substitute procedures do you claim that Trump is due? Please be specific.

[MonitorsMost]

You should calm down and not assume that every comment is an affront to your position.

As I explained in the other thread, I would want to know if Trump had sufficient time to engage in the process of subpoenaing witnesses outside of the jurisdiction of Colorado. As the court opinion notes, Trump did not really address what further process was due or make an offer of proof as to what further evidentiary investigation would have been done had he been offered a more robust process. It is hard to review what wasn't asked for.

[feff422]

The idea that a candidate might potentially have to engage in 50 trials in order to simply secure a place on the ballot in each state is absurd. Such a result will inevitably lead to "gaming" the system where there is any questionable rhetoric. Of course, that's all it was:
speech. This should remain a purely Federal question, not for each states domain. At the end of the day we are American citizens, not just subjects of the individual states' political fiefdoms.

[David Nieporent]

Um, you know that all ballot access is a 50-separate-states process, not a national one, right?

[Lady Dada]

Even if a conviction is not technically required, I agree with your points 100% regarding due process. When leveling an accusation as serious as insurrection and removing a candidate for the same, it seems wise to be sure we have at least some concrete finding that the crime was committed.

I also struggle to believe the intent behind our form of government was to allow courts to remove choices from voters (something we often call disenfranchisement) based on loose applications of criminal violations. It is likely they didn't note a conviction was required because nobody needed additional proof that officers of a foreign country took up arms against the US.

Finally, it's just a bad move. CO has seven liberal justices and they split 4-3, so obviously reasonable minds differ here. If reasonable minds may differ as to the meaning of a provision and the requirements for application, it seems hasty to take action. We haven't used Sec 3 in over a century.

[mydisplayname]

For the moment, the issue is moot: Donald Trump will remain on the Colorado primary ballot.
https://www.dailymail.co.uk/news/article-12907741/Trump-Colorado-ballot-unless-Supreme-Court-disqualifies.html

[ReaderY]

Would Mr. Carroll also take the view that if a candidate was born outside Colorado, Colorado courts would lack jurisdiction to decide whether the candidate met the age qualification for the ballot, since the act relevant to the qualification determination, the act of birth, took place entirely outside Colorado?

Of course Colorsdo courts have jurisdiction to determine who is eligible to appear on a Colorado ballot.

[Brett Bellmore]

Baude has argued in these very pages that Section 3 is the One Section that rules them all:

"Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, super- sedes, 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 the First Amendment."

[ReaderY]

I don’t think you can argue that one section of the 14th Amendment implicitly repeals another section of the very same Amendment.

I think both federal Section 3 disqualification and state legislatures’ plenary power to determine how to appoint, and hence determine who can be, Presidential electors, are subject to Due Process and (for the state power) and Equal Protection constraints.

But I think the procedure the Colorado courts used clearly met Due Process requirements.

I would note that a state legislature could potentially set up a legal regime in which the state’s Secretary of state gets to make decisions without any process being due at all. It could simply delegate appointment of the presidential electors to the Secretary of State. It’d be as permissible a method of appointment as any other. If it did that, the Secretary of State wouldn’t have to hold any hearings before deciding, just as ordinary voters don’t have to in the usual case when the decision is delegated to them.

But if the legislature specifies rules, then hearings become relevant to disputes about the rules.

[David Nieporent]

.

“Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, super- sedes, 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 the First Amendment.”

1) He said prior. That would not apply to the A14S1, which is contemporaneous, not prior.
2) You continue to ignore the fact that he said to the extent of any conflict.

[MonitorsMost]

And presumably, "conflict" would mean directly or irreconcilably conflict. The Court's analysis is that Constitutional provisions should be harmonized except when they cannot be. Disqualification for insurrection/rebellion would not be in direct conflict with due process, and probably not in direct conflict with the First Amendment. It would be in conflict with a broad interpretation of a Bill of Attainder and at the time of the civil war, potentially the ex post facto clause.

[Josh R]

I'm not following how 14.3 disqualification conflicts with the prohibition on a bill of attainder.

[Brett Bellmore]

It wouldn't conflict with the prohibition on a bill of attainder if the disqualification were the product of judicial trial. But it surely would if the disqualification were the product of a legislative vote; A bill of attainder is just exactly a legislature voting that somebody is guilty of an offense, after all.

That might even be a weakness in the Colorado and Maine cases against Trump, as heavily dependent as the are on the January 6th committee concluding that he was guilty of insurrection. If the court in question was just seen as adopting that determination, rather than simply using the evidence the committee compiled, I mean.

[Sarcastr0]

Big if.

A court acting as finder of fact doesn't need another authority in making its determination.

[msimmons]

The certainty of those suffering chronic TDS is jaw dropping. Somehow Trump survived Crossfire Hurricane, a Special Counsel investigation, and two illegitimate impeachments, where all the resources of the Justice Department and the Intelligence Community were brought to bear, the equivalent of the most well-funded and well-staffed legal colonoscopy of the last 100 years, and people still bitterly cling to the notion that Russia collusion really explains the 2016 election outcome and never mind, the Steele dossier and the shenanigans it enabled (unlawful FiSA warrants) are so inconsequential as to have never happened. And the latest “walls are closing in” declaration is that Trump is guilty of insurrection though no one — NO ONE — has been charged with insurrection, not even a single person among those on the grounds of the US Capital on J6. It’s the equivalent of saying someone committed murder and was found guilty despite no one being charged with murder. Chronic TDS is sad.

Removed from Twitter by Twitter at the behest of federal authorities on January 6, 2021 about one hour after it was posted:

https://x.com/laralogan/status/1737940375430475939?s=12

I thought Reason readers were pro-1A and anti-censorship, yet some are willing to set that aside as a consequence of chronic TDS.

The entire J6 Commission was scripted out as a stage setter for precluding Trump’s candidacy — forgone conclusions backfilled with “show me the man, I’ll find you the crime” evidence. Perception is reality and when your perceptions are sourced from conglomerate “news” lies it makes for some highly delusional perceptions.

[ReaderY]

President Trump survived the first Special Counsel investigation only because the Justice Department had a policy of not indicting sitting Presidents, not because anyone thought he was innocent. And he has survived the second so far only because he posted bail and his trial hasn’t started yet.

Hardly a record that would instil any confidence of his innocence in anybody not under Trump’s spell.

[Magister]

Trump survived two impeachments because enough Republican Senators were scared of losing the votes of Trump supporters. Some, like McConnell, found Trump's actions terrible but did not believe a former president could be impeached, although McConnell could have convened the Senate to try the impeachment before Trump left office.

[Brett Bellmore]

He survived two impeachment because the only people who could take the charges seriously were folks who already hated his guts. Then, and now.

If you didn't start out hating the guy, the case against him looks pathetically weak.

[Roger S]

That's right. The case against Trump was laughably weak. Only Trump-haters voted against him.

[Rev. Arthur L. Kirkland]

The Volokh Conspiracy: Official "Legal" Blog of Antisocial, Delusional, Disaffected Right-Wing Rubes

[Roger S]

Somin leads the way with delusional opinions. Has he ever been right about anything?

[Magister]

That ignores people like McConnell who denounced his insurrection but still voted not to convict because he was no longer president; some Republicans voted that way solely on that flimsy argument. For McConnell, it was particularly hypocrisy because he could have scheduled the trial while he was Majority Leader and Trump was still president.

[Michael P]

The "insurrection" was as much, or more, Nancy Pelosi's as it was Donald Trump's.

[SRG2]

Are you stupid enough to believe this, or are you merely lying?

[bernard11]

Here is Brett the Omniscient, telling us how an unbiased observer would have viewed the impeachment charges.

[ReaderY]

When people commit crimes, sending them to prison is not censorship.

Mr. Trump no more simply made speeeches than Mr. Eichman simply ran a railroad. That was Mr. Eichman’s defense, he said he never masterminded the Holocaust, he simply ran a railroad. Mr. Trump’s defense is similar. Sending Mr. Trump to prison will be no more due to “censorship” than hanging Mr. Eichmann was due to overzealous railroad regulation.

[Darth Buckeye]

Comparing Trump to Eichman. Subtle. Excellent way to diminish the outrage of murdering one-third of the world’s Jewish population, as well as millions of gays, Roma, and other disfavored peoples.

No doubt you loved Robert Kagan’s 6,000-word diatribe in the WP that Trump is a dictator and one does not need to use much effort to read between the lines that Kagan wants someone to take extra-legal action to remove Trump.

[ReaderY]

Who are you to criticize someone Donald Trump called a great man? Are you poisoning the blood of our country again?

[Lady Dada]

Wow - Trump is Eichman now??

[David Nieporent]

This entire screed sounds like copypasta, none of it accurate or intelligent and all refuted many times already. But I did want to highlight this one bit of insanity:

Removed from Twitter by Twitter at the behest of federal authorities on January 6, 2021 about one hour after it was posted:

I don't know how you think you can possibly know why it was removed from Twitter, but if indeed it was removed "at the best of federal authorities," who the fuck do you think "federal authorities" were on January 6, 2021? Hint: Donald Trump was still president at the time. And for another 2 weeks.

[Brett Bellmore]

"I don’t know how you think you can possibly know why it was removed from Twitter"

You mean, aside from the "Twitter files", internal communications and documents Musk gave a journalist access to?

"Who the fuck do you think “federal authorities” were on January 6, 2021?"

Trump never had more than a very shallow degree of control over the Executive branch; The "Resistance" was a real thing, after all.

[David Nieporent]

.

The “Resistance” was a real thing, after all.

It was not, no matter how many times you say it and make vague references to a self-aggrandizing Op/Ed that still doesn't say what you claim.

There was no resistance, and Trump had the full control over the executive branch that it was possible for him to have (which does not include it acting as his personal goons, of course).

[MonitorsMost]

Exactly. Despite being purportedly in response to Ilya's post, the argument is non-responsive.

[Josh R]

How does this video help Trump? It was made a couple hours after he did nothing as the riot raged. And in it, he again claims the election was stolen from him (a landslide!), which was the bullshit predicate used to justify his attempted stealing of the election.

[Mr. Bumble]

looking into the future, one year from today and wondering what Ilya will be saying as Donald Trump is preparing to assume the Presidency for a second time.

[Rev. Arthur L. Kirkland]

Donald Trump is more likely to be incarcerated than to be preparing to become president a year from now.

[Nige]

Third time surely, didn't he really win in 2020?

[SMP0328]

Now Maine's Secretary of State has removed Trump from its ballot based on Section 3 of the 14th Amendment. SCOTUS needs to resolve this fast.

[Mr. Bumble]

...and preclude this all starting again with regard to the general election.

[Dr. Ed 2]

WOW -- I didn't even think of that.

The other thing about Maine is that because of random choice balloting, they now count all the ballots in Augusta. And I believe that Trump won the 2nd (rural northern) Congressional district -- the leftists got a rule change back when the state was Republican so that if they won the 1st District, they could get the one electoral vote corresponding to the Congresscritter.

SCOTUS needs to end this NOW....

[Lady Dada]

Oh yeah - they are only able to remove him from primary ballots at this point, so yes, if he wins the nomination, this will all start again to remove him from the ballot for the general election.

This is all going to get really ugly. And stay that way. I'm so excited about 2024.

[Dr. Ed 2]

THAT'S going to get very nasty, very quickly because Maine has a unique process of selecting the AG -- the state legislature picks the person in a SECRET meeting.

Maine is a 40% 40% 20% state, with rural Maine being VERY Republican -- as in it's the "God Damn Democrat" party.

[Rev. Arthur L. Kirkland]

Is rural Maine the white, uneducated, bigoted, and economically shambling part of the state?

[Brett Bellmore]

Yeah, first state to do this where Trump was probably going to get an EC vote.

[Rev. Arthur L. Kirkland]

.

SCOTUS needs to resolve this fast.

Why? Why not follow the schedule applied to the recent Trump issue at the Supreme Court?

[not guilty]

The Maine Secretary of State's ruling is here. https://www.washingtonpost.com/documents/43d0ba1e-a980-406b-b36d-baaac72de633.pdf?itid=lk_inline_manual_10&itid=lk_inline_manual_5

I haven't looked up what review of APA proceedings is available in Maine courts, but Trump will have to exhaust available state remedies before seeking review in SCOTUS. The only jurisdiction for the U. S. Supreme Court to review a state court judgment is that specified in 28 U.S.C. § 1257(a), which requires a final judgment or decree rendered by the highest court of a State in which a decision could be had.

[Brett Bellmore]

But he has that already in Colorado, so the Supreme court hardly needs to wait on that process in Maine; They can take the Colorado appeal, and that ruling would likely straightforwardly apply to Maine, given that the Maine ruling could be summarized in three words: "What they said."

There are lots of rulings the Supreme court could issue that would basically shut this whole thing down:

1) Section 3 isn't self executing, it needs enabling legislation, of which there is none.
2) Section 3 can only be enforced by federal courts/the EC/Congress.
3) There wasn't any insurrection.
4) Federal law on insurrection IS the enabling legislation, so the due process required is a conviction for insurrection.

[Al S]

Doubt they accept #3, even though it is the most obviously correct reason.

[Brett Bellmore]

#3 is pure fact finding, and the Supreme court hates doing that, so probably not.

[Rev. Arthur L. Kirkland]

.

Carroll forgets that Colorado courts unquestionably do have jurisdiction over the issue of whether a candidate is eligible to appear on the ballot in Colorado elections (in this case, the Colorado Republican primary, in which Trump is a candidate, and which is administered by the state government).

What inclines a belief that Conn Carroll -- whose career has ranged from obscure partisan mouthpiece to junior varsity "journalist" at a right-wing rag -- knew any such thing. You can't forget what you never knew.

[Roger S]

Always be skeptical when a political extremist law professor uses the word "unquestionably". Let's try that game. Unquestionably, Trump was our greatest President. Unquestionably, Somin should be deported back to Russia.

[Al S]

I continue to believe that the SCOTUS should stay out of all these cases. Let the Democrat states disqualify Trump. The GOP states will surely then disqualify Biden by finding that Biden has given “aid or comfort” to the enemies of the US (you know, the OTHER part of Section 3). And the two should basically offset each other. Why should the SCOTUS spend any of its legitimacy on that?

[Ted Noel]

Somin does a couple of things that should be condemned. First he conflates evidence from out of state with jurisdiction over out of state acts. Second, he completely ignores the history and purpose of the 14th Amendment. The legislators who created it made it absolutely clear that they regarded "insurrection" as "attempt to overthrow by arms." Third, they were completely united in the view that the Amendment was NOT self-executing. Rather, section 5 prescribes the enforcement mechanism: Congress would write implementing laws. Under normal canons of legal interpretation, a specific grant such as this denies grants to other. In short, Somin is simply wrong. SCOTUS should overrule Colorado and Maine 9-0, because it's a Federal issue and they lack jurisdiction. (Yes, the primary is IN a state, but it's a federal process.) Beyond that, the framers of the Amendment were also of one voice that the President, Senate, and House ARE the United States. No member of any of those bodies is UNDER the US, and therefore the 14th does not apply to Donald Trump.

[David Nieporent]

There's a whole lot of assertion there and no evidence for any of it.

[Henry Wray]

It's one thing to say that a prior conviction is not required, but what about the fact that Trump was actually ACQUITTED of "incitement of insurrection" in his second Senate impeachment trial? While proponents of disqualification largely ignore this fact, isn't it highly relevant if not dispositive? Had Trump been acquitted of the federal crime of insurrection, surely that would be given great weight in relation to section 3 disqualification. How is the Senate acquittal any different? One might say that a majority of Senate jurors thought Trump was guilty, but of course that could be true of any criminal acquittal as well.

[Lady Dada]

And most criminal verdicts require unanimity, so I'm not swayed by the simple majority in congress voting to convict. In any case, you're right. Not only has he never been so much as charged with insurrection in the criminal justice system, he's technically been acquitted by Congress.

What a mess.

[ah....Clem]

The senate verdict is irrelevant to the matter at hand.

Recall that Clinton was acquitted in his impeachment trial, but that did not prevent him from losing his law license or having to cop a plea instead of going to trial.

As a practical matter, there are some illegal behaviors that are insufficient to remove a president from office via impeachment. It's up to each senator to make that determination, just as it is up to each voter to decide whether to vote for a candidate that may have engaged in criminal activity.

That said, there are criteria for qualification for the office of the president:
A criminal conviction is not in itself disqualifying. Being under 35 is.
Not being a natural born citizen is.
Having been elected twice is.
Engaging in insurrection after having taken the oath of office is.

None of these require conviction in a criminal trial.
None even require a verdict in a civil trial.

[WillisEschenbach]

Here’s the start of the dissent from Colorado that Ilya is studiously ignoring:

=== JUSTICE SAMOUR dissenting.

“Now it is undoubted that those provisions of the constitution which deny to the legislature power to deprive any person of life, liberty, or property, without due process of law, or to pass a bill of attainder or an ex post facto, are inconsistent in their spirit and general purpose with a provision which, at once without trial, deprives a whole class of persons of offices . . . for cause, however grave.”

These astute words, uttered by U.S. Supreme Court Chief Justice Salmon P. Chase a century and a half ago, eloquently describe one of the bedrock principles of American democracy: Our government cannot deprive someone of the right to hold public office without due process of law. Even if we are convinced that a candidate committed horrible acts in the past, dare I say, engaged in insurrection there must be procedural due process before we can declare that individual disqualified from holding public office. Procedural due process is one of the aspects of America’s democracy that sets this country apart.

The decision to bar former President Donald J. Trump (“President Trump”)—by all accounts the current leading Republican presidential candidate (and reportedly the current leading overall presidential candidate) from Colorado’s presidential primary ballot flies in the face of the due process doctrine.

By concluding that Section Three of the Fourteenth Amendment is self-executing, the majority approves the enforcement of that federal constitutional provision by our state courts through the truncated procedural mechanism that resides in our state Election Code.

Thus, based on its interpretation of Section Three, our court sanctions these makeshift proceedings employed by the district court below which lacked basic discovery, the ability to subpoena documents and compel witnesses, workable timeframes to adequately investigate and develop defenses, and the opportunity for a fair trial to adjudicate a federal constitutional claim (a complicated one at that) masquerading as a run-of-the-mill state Election Code claim. And because most other states don’t have the Election Code provisions we do, they won’t be able to enforce Section Three. That, in turn, will inevitably lead to the disqualification of President Trump from the presidential primary ballot in less than all fifty states, thereby risking chaos in our country. This can’t possibly be the outcome the framers intended.

I agree that Section Three bars from public office anyone who, having previously taken an oath as an officer of the United States to support the federal Constitution, engages in insurrection. But Section Three doesn’t spell out the procedures that must be followed to determine whether someone has engaged in insurrection after taking the prerequisite oath. That is, it sheds no light on whether a jury must be empaneled or a bench trial will suffice, the proper burdens of proof and standards of review, the application of discovery and evidentiary rules, or even whether civil or criminal proceedings are contemplated. This dearth of procedural guidance is not surprising: Section Five of the Fourteenth Amendment specifically gives Congress absolute power to enact legislation to enforce Section Three. My colleagues in the majority concede that there is currently no legislation enacted by Congress to enforce Section Three. This is of no moment to them, however, because they conclude that Section Three is self-executing, and that the states are free to apply their own procedures (including compressed ones in an election code) to enforce it.

That is hard for me to swallow.

The majority repeatedly uses “self-executing” to describe Section Three, but then reasons that this part of the Fourteenth Amendment is enforceable in Colorado only because of the procedures our legislature has enacted as part of the state’s Election Code. This strikes me as an oxymoron. If a constitutional provision is truly self-executing, it needs no legislation to be enforced.

See Self-executing ,Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/self-executing

(defining “self-executing” as“taking effect immediately without implementing legislation”);

see also Self-enforcing, Black’s Law Dictionary (11th ed. 2019)

(“self-enforcing” means “effective and applicable without the need for any other action; self-executing”).

Much like Inigo Montoya advised Vizzini, “I do not think [self-executing] means what [my colleagues in the majority] think it means.” The Princess Bride

(20th Century Fox1987) (“You keep using that word [inconceivable]. I do not think it means what you think it means.”).

Significantly, there is a federal statute that specifically criminalizes insurrection and requires that anyone convicted of engaging in such conduct be fined or imprisoned and be disqualified from holding public office.

See 18 U.S.C. § 2383.

If any federal legislation arguably enables the enforcement of Section Three, it’s section 2383. True, President Trump has not been charged under that statute, so it is not before us. But the point is that this is the only federal legislation inexistence at this time to potentially enforce Section Three. Had President Trump been charged under section 2383, he would have received the full panoply of constitutional rights that all defendants are afforded in criminal cases. More to the point for our purposes, had he been so charged, I wouldn’t be writing separately to call attention to the substandard due process of law he received in thes eabbreviated Election Code proceedings.

I recognize the need to defend and protect our democracy against those who seek to undermine the peaceful transfer of power. And I embrace the judiciary’s solemn role in upholding and applying the law. But that solemn role necessarily includes ensuring our courts afford everyone who comes before them (in criminal and civil proceedings alike) due process of law. Otherwise, as relevant here, how can we ever be confident that someone who is declared ineligible to hold public office pursuant to Section Three actually engaged in insurrection or rebellion after taking the prerequisite oath?

[Voize]

 

deprives a whole class of persons of offices . . . for cause, however grave

Griffin's Case held that persons who already held offices when the 14th amendment came into force could not be dispossessed without due process, but did not extend that holding to candidates for office. That is why the full quote (emphasis added) is

deprives a whole class of persons of offices held by them, for cause, however grave

[WillisEschenbach]

Thanks, Voise. Not sure why that's relevant.

You seem to be arguing that it's definitley not OK to deprive a man of due process … but only if he works for the Government. If he's a private citizen, it's OK to screw him.

Does that truly make sense to you? I thought we ALL get due process.

Regards,

w.