“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.
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.
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?
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.
He’s not yet been convicted. If he gets on some ballots, wins those states’ Republican primaries, and then gets convicted (and thus disqualified) the party will have to decide who of the other candidates gets their nomination. If different candidates came in second in different states, that could get interesting.
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.
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.
This is a really weird rule. So we are going to have 50 separate decisions each one, at least on paper, independent of each other?
“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.
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?
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.
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.
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.
I’m a complete layman when it comes to law so forgive me if this is an ignorant question, but would the official in question have to be actually convicted of insurrection/rebellion before this comes into effect? I assumed that’s what they meant by “It’s not self executing” because otherwise would it not just be up to each state officials individual discretion to exercise this? Thanks so much for the detailed breakdown, Preets podcasts have turned me into a bit of an uneducated legal nerd so this is all fascinating to me.
This is an easy one for anyone capable of critical thinking and knows “innocent until proven guilty”.
He hasn’t been convicted of anything, only accused.
Bullshit. Otherwise you could just accuse your political rivals of crimes to prevent them from running.
You need to go back to internet lawyer school.
Trump is, along with many co-defendants, disqualified from holding any civil or military office.
Want to prove that? Last I checked he’s not been found guilty of any crime?
Would you support this if it was Biden or Hillary in the same legal situation? How about we respect the judicial proceeding and stop trying to jump the gun, before it’s made into a political maneuver?
The amendment does not require formal conviction of a crime, and after the Civil War it was used extensively without formal convictions.
And obviously we’d support that if Hillary Clinton or Joe Biden tried to stage a coup. Would sort of insane bozo would still support a candidate after that?
The sort of insane bozo that is every member of the GOP. If the Dems ever try to regain power in my state, I am going to loudly demand ranked-choice voting and non-partisan redistricting as state constitutional amendments. I care more about the possibility of a representative government than I do about permanently cementing my party’s dominance forever.
Would you support this if it was Biden or Hillary in the same legal situation?
It’s funny how you guys think we’re as devoted to Democrat politicians as you are to your chunky messiah.
We’re devoted to democracy, to the Constitution. Not to any individual politicians.
The right always acts like it’s some big gotcha “what about Biden/Hillary/whatever”. They don’t realize that most of the left has little emotional attachment to “their” politicians and if anything, a lot of Democrat politicians are simply adequate. Sometimes they’re straight up the lesser of two evils.
But even when politicians are beloved, I don’t think the left is nearly as fanatical of unwilling to change their minds. Eg, Obama in 2008 was huge. He had a massive cult following and I remember being really hopeful for him myself. But he ended up being kinda lackluster. The ACA was an improvement over the then-status quo, but as a Canadian, I always viewed the ACA as a laughably half hearted attempt at reform. And oof, the warmongering? Nobody on the left shys away from hiding that unfortunate fact about Obama.
If you were devoted to democracy and the constitution, then you’re remember that in this country there’s a presumption of innocence, as well as right to a trial. But I mean you must know that since you’re so devoted right?
And thinking I’m a Trump supporter because I simply want him to legally be found guilty before we bar him from public office… I guess if you aren’t completely on your side, then you must be an enemy, kind of a shitty way to live your life, but you do you.
They’re telling you that it isn’t written to require criminal guilt determined by a court.
The entire south seceded. Those people were not tried, and in fact were given blanket pardons. But they still couldn’t hold office again.
This is a political process. It will be political, same as an impeachment.
Trump was literally dancing during the insurrection and there is a video of it. Dude was gleefully happy about one of the darkest days in American history.
It’s not jumping the gun, you just have your head in the sand.
It is. I’m sorry your opinion of this shit doesn’t matter. Legally he’s allowed to run for president, the minute he’s not he should be stripped of it. It’s not your decision it’s the courts.
If it is true that either of them “engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof,” then yes.
Again that’s for the courts to decide, not random posters on the internet.
Once He’s convicted, you’re correct. But no what “Nougat thinks” doesn’t matter.
I’m in NH. We still have people out on the corner with Trump flags.
NH is the Florida of the north.
I see them in Merrimack. So cringe. How are these full grown adults out here slinging trump flags still
Less than a year ago people tried to set up tents and booths alongside a major highway next to a liquor store to support Trump.
I doubt they had permits, but they sure had a lot of AR15s around.
Sadly, my state is a Republican stronghold.
At this point I’m not looking to move states, I’m considering other countries.
America was a grand experiment.
Know what happens when an experiment fails in a science lab? Flushed down the metaphorical shitter. Use what good data you got from it, even if it doesn’t support your hypothesis.
Trump would gleefully fiddle ala Nero if it meant he was in power.
If you deny these peoples ability to vote for trump, things could get real bad real fast
So, don’t do the right thing because assholes might become violent?
That is letting the terrorists win.
I fully believe that one day a Trump supporter will attempt to break into my house to kill me because I don’t support him.
Trump supporters are idiots. If they get upset. Fuckem. Give zero fucks for there feelings.
The good news is that the Trumpists are all a bunch of out-of-shape morons. The bad news is that the regular people don’t want to fight and aren’t prepared.
Where I am some are actually authentic career criminals. They have power. It’s fucked.
Things have been getting bad for a while now. While I’m the first to suggest compromise to achieve mutual goals… theres no point when only one side is willing to bend. Extremists are going to go to extremes no matter what we do, might as well rip the band-aid off and actually start making a difference.
Do you think there are 80 million extremists in the US?
Does that really make any sense to you?
Did you ever think American would be a country that wants to elect someone who is in prison?
Isn’t that for corrupt countries? Why do you think this would be happening in America? Doesn’t that raise some eyebrows?
Or is everyone so focussed on making sure Trump isn’t on the ballot that they’ve pushed aside those kinds of thoughts?
Should be the person who wins the election, right? You can’t just take someone’s name off. Especially the leader of the opposing party.
If you honestly think Trump tried to overthrow the government, that’s a lot more serious than just an indictment and being removed from the ballot.
That’s treason and probably an execution if we are being serious about this. And if that’s not the answer here, how much do we really think this was an attempted coup?
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”
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.
Betteridge’s law of headlines: Any headline that ends in a question mark can be answered by the word no.
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.
