this post was submitted on 28 Aug 2023
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“I will be asking the attorney general’s office for their input,” Secretary of State David Scanlan told the Globe. “And ultimately whatever is decided is probably going to require some judicial input.”

A debate among constitutional scholars over former president Donald Trump’s eligibility for the 2024 presidential race has reverberated through the public consciousness in recent weeks and reached the ears of New Hampshire’s top election official.

Secretary of State David Scanlan, who will oversee the first-in-the-nation presidential primary in just five months, said he’s received several letters lately that urge him to take action based on a legal theory that claims the Constitution empowers him to block Trump from the ballot.

Scanlan, a Republican, said he’s listening and will seek legal advice to ensure that his team thoroughly understands the arguments at play.

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[–] [email protected] 134 points 1 year ago (50 children)

14th Amendment to the US Constitution, Section 3:

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.

This does not require judicial input. The language is clear. Trump is, along with many co-defendants, disqualified from holding any civil or military office.

[–] [email protected] 29 points 1 year ago (1 children)

The judicial input is on whether Trump qualifies to be included in that described group which is disqualified. The problem with the self-executing clause here is that of course the described group of people are barred but who decides who qualifies?

[–] [email protected] 9 points 1 year ago (2 children)

That is for state officials whose duty it is to ensure that only qualified persons are on the ballot to enforce. Indeed, if those state officials refuse or neglect to enforce the US Constitution, they could be held personally responsible.

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[–] [email protected] 23 points 1 year ago (3 children)

Not until proven guilty, legally speaking, surely?

[–] [email protected] 43 points 1 year ago (6 children)

The language specifically does not require any conviction. A conviction would make 14A S3 undeniably apply, but a lack of conviction doesn't make it not apply.

[–] [email protected] 9 points 1 year ago (2 children)

You kinda just said that it can be denied that it applies without a conviction. I think it's tenuous at best, but I'm not a lawyer. I just know that, typically, you can't say someone did a thing if it hasn't been legally proven.

[–] [email protected] 7 points 1 year ago

If the amendment had required a conviction of some kind, that requirement would have been stated. It is not.

[–] [email protected] 7 points 1 year ago

Sure you can. Trump is a rapist. He raped e jean Carrol with his fingers. Wasn't convicted but facts are facts.

The Jan 6th commission is enough to show he participated in an insurrection.

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[–] [email protected] 21 points 1 year ago

It doesn't say "convicted of...".

[–] [email protected] 8 points 1 year ago* (last edited 1 year ago)

I doubt they put every Confederate on trial. Still I imagine there must be some court ruling for this to be the case. IANAL but a state court may make this decision and bar him from running in their state.

[–] [email protected] 19 points 1 year ago (1 children)

"But that was only an amendment and it was written so long ago!" - Somebody with the second amendment printed out and framed above their gun masturbatorium.

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[–] [email protected] 15 points 1 year ago (1 children)

And his remedy is a two thirds vote qualifying him.

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[–] [email protected] 10 points 1 year ago

You're absolutely right, but we live in a time where just recently poor people could have their lives DESTROYED over a joint, while on the other hand, a president can 100% knowingly tell an enormous crowd who he knows wants violence to "go to the capitol and fight fight fight" and that's somehow completely a grey area and our hands are just tied.

Somehow all the testimony that he was watching the coverage of it gleefully doesn't matter. The fact that even ignoring everything else it ought to be a crime that he didn't ask them to stop. Oh it's all just our opinion that he committed treason don't you see?

[–] gbuttersnaps 7 points 1 year ago (2 children)

Most of the legal minds I've heard discuss this think it's pretty interesting philosophically, but not at all actionable. Former US attorneys Preet Bharara and Chuck Rosenberg mentioned it in a recent podcast that I found super insightful.

[–] [email protected] 8 points 1 year ago (7 children)

Here's the tiny mention in there:

Chuck Rosenberg:

No, you’re referring to Section 3 of the 14th Amendment. It’s not self-executing. I’m not sure what the triggering mechanism would be, and I agree with you. It ain’t going to happen. Interesting intellectual exercise. It sounds a lot like my three years in law school. If you look at my transcript, you would see it didn’t go that well.

Except that it very clearly is self-executing. I'll paste it in here again for easy reference:

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.

Breaking it down:

What is the disqualification from office stated in the section title? "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 does this apply to? Anyone "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."

What is the remediation for this disqualification? "Congress may by a vote of two-thirds of each House, remove such disability."

As a comparison, Article II, Section 1, Clause 5 reads:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

If a 23 year old Frenchman decided to run for US President, what would happen? Would there need to be some kind of trial or judicial review? No - state officials would disqualify Mr. Young French from appearing on the ballot. And then, if Mr. Young French wanted to protest that decision, he would initiate a court filing, after having been disqualified.

14A S3 is self-executing. The reason Rosenberg in the podcast says he's "not sure what the triggering mechanism would be" is because there isn't one.

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[–] [email protected] 8 points 1 year ago

The only reason it isn't actionable is because the SCOTUS's current concept of standing leaves entire provisions of the Constitution unenforceable. If no one has standing to sue for an unconstitutional act or omission, then it renders the provision meaningless. Which is absolute and utter bullshit. Every single election official that lets Trump on the ballot should be sued in federal court seeking a writ of mandamus forcing them to follow the requirements set upon them under the Constitution.

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[–] [email protected] 41 points 1 year ago (38 children)

I'm in NH. We still have people out on the corner with Trump flags.

NH is the Florida of the north.

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[–] [email protected] 39 points 1 year ago* (last edited 1 year ago) (1 children)

I'm glad this is getting the attention it deserves right now, but this issue should have been front page news THE DAY Trump announced he was running.

"Donald Trump announces new bid for presidency, but may not qualify"

[–] [email protected] 6 points 1 year ago (1 children)

The sheer number of charges against Trump now gives conservative jurists cover to make these statements. Democrats are probably happy to let the debate over qualification drag out as it hangs a cloud over the whole Republican primary process.

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[–] [email protected] 27 points 1 year ago (3 children)

Betteridge's law of headlines: Any headline that ends in a question mark can be answered by the word no.

[–] [email protected] 21 points 1 year ago (1 children)

The question mark is in the middle.

[–] [email protected] 8 points 1 year ago

Yeah, this isn't a click bate headline that ends in a question mark. This is a story about the steps being done to answer that question before the first primary.

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[–] [email protected] 9 points 1 year ago

Parties are parties. The republican party could have a squid reach for ballons with candidates names on them to choose their nominee. The only thing that the consitution disqualifies him is running in the general.

Of course, if the Republicans had a rule saying only valid candidates for general can run in the primary, then there is trouble, as he won't get disqualified until after the trial, which is after the primary.

[–] [email protected] 7 points 1 year ago (1 children)

The NH AG, John Formella, seems like a party man. I would be surprised if he would agree with this argument, especially in the administration of Chris "I'm a Trump guy through and through" Sununu.

[–] [email protected] 20 points 1 year ago (2 children)

Be especially wary of Republicans who are pushing this "ineligible even without judicial input" argument. Many of them would love to rid themselves of the Trump albatross, but even more, would LOOOOVE the idea of simply declaring people ineligible with no oversight.

To most people, Trump's involvement in Jan 6 is obvious, but without a conviction, the door is wide open for people like DeSantis and his lackies to just start erasing names off the contender list with the thinnest of justifications. "Oh, Biden supports the Paris Climate Accords. He doesn't believe in American sovereignty, which is tantamount to treason, therefore he won't be on the Florida ballot in 2024."

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