Democratic Sen. Tim Kaine of Virginia on Sunday said that he believes a strong legal argument can be made to use the 14th Amendment to remove former President Donald Trump from the ballot in 2024, citing Trump’s actions related to the Jan. 6 attack on the U.S. Capitol.

Shortly after Jan. 6, Trump was impeached by the House of Representatives for inciting an insurrection amid his push to overturn his election loss, with 10 Republicans and all Democrats voting to impeach him.

He denied any wrongdoing, and while seven members of his own party joined Democrats to support his conviction, he was ultimately acquitted by the Senate.

  • Nougat@kbin.social
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    1 year ago

    14A S3 is not about punishment for a crime. It is about disqualification from office for a specfied condition, exactly in the same way that people who are under the age of 35 years (the condition) are disaqualified from the office of President. People who, having previously taken an oath to uphold the Constitution for the office they held, and then having engaged in insurrection or rebellion against the United States, or having given aid or comfort to the enemies thereof (the condition), are disqualified from office.

    The condition described in 14A S3 may also be a criminal matter, but that is a wholly separate concern.

    • Flying Squid@lemmy.world
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      1 year ago

      Great, again, what’s to stop a Republican in a red state from indicting someone who was, for example, at a Black Lives Matter protest for insurrection because they want to bar them from office? Because that is the precedent being set if you don’t wait for a verdict.

      • qantravon@lemmy.world
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        1 year ago

        This is 100% my take as well. Conviction is how the government proves a person did something. Absent that, all you have are allegations, and we really don’t want to open up the possibility of disqualifying people because of unproven allegations of sedition.

        • Wilibus@lemmy.world
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          1 year ago

          What about the “truths” he truthed on his shitty twitter knockoff about needing to terminate the constitution?

          • Pr0phet@lemmy.world
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            1 year ago

            This is still just an allegation until these posts have been presented in court and he has been convicted. You really don’t want to set a precedent ignoring presumption of innocent.

      • Nougat@kbin.social
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        1 year ago

        I seem to recall we’ve been over this before.

        Elections are handled in the states. The people who are responsible, in a given state, to determine whether someone is qualified to hold office are the ones who make that determination - whether the disqualification comes from Article II of the US Constitution (where the criteria for POTUS qualification are described) or from the 14th Amendment to the same US Constitution.

        If someone feels they have been wrongly disqualified - regardless of why they were disqualified - have recourse to seek relief from that condition through state courts (and possibly federal courts, since it’s in the area of constitutional law, but I have other thoughts on that). Or, in the case of 14A S3, for each house of the US Congress to remove that disability each by a two-thirds vote.

        In your example, if someone becomes disqualified from the ballot for being at a BLM protest, based on 14A S3, they would seek relief in one of those ways. And I would bet that they would be immediately successful, because BLM protests were not attempting to subvert the federal government, or interfere with the legal operation of federal government official business.

        • Flying Squid@lemmy.world
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          1 year ago

          If someone feels they have been wrongly disqualified - regardless of why they were disqualified - have recourse to seek relief from that condition through state courts (and possibly federal courts, since it’s in the area of constitutional law, but I have other thoughts on that). Or, in the case of 14A S3, for each house of the US Congress to remove that disability each by a two-thirds vote.

          Good thing conservatives don’t control those or anything…

          • lolcatnip@reddthat.com
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            1 year ago

            So what’s your answer then? Just not enforce any laws at all because Republicans might do it in bad faith? They’re gonna act in bad faith no matter what.

          • Nougat@kbin.social
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            1 year ago

            There is a difference between “following the law” and “achieving the political outcome you desire,” and that difference is kind of what got us where we are in the first place.

      • Soulg@lemmy.world
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        1 year ago

        Because insurrection has a definition and one meets that definition and the other doesn’t.

      • FuglyDuck@lemmy.world
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        1 year ago

        or not even a BLM protest. It could be the most peaceful protest in the world. hell, they’re already retaliating with calls for impeaching biden, and stuff.

        (I’m reminded of some amazon worker protests that showed up to an office building near my work. they did the rant. they did the chant. they had some fun confetti things. When they were done, the swept up and left. gotta respect that, lol.)

      • Dkarma@lemmy.world
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        1 year ago

        Because a protest is not an insurrection. It has a definition.
        That can be clearly established and ruled in by a judge to set precedent if need be.

    • FuglyDuck@lemmy.world
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      1 year ago

      and then having engaged in insurrection or rebellion against the United States, or having given aid or comfort to the enemies thereof (the condition), are disqualified from office.

      the rub is that the 14S2 provides for due process. until he’s convicted in court there will always be a question if that really was an insurrection, in the minds of his supporters.

      Flying Squid is absolutely right in that the republicans will retaliate with nonesense charges. (in fact, they already are.)

      • Nougat@kbin.social
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        1 year ago

        14S2? Do you mean Section Three?

        And I am unclear on what you mean by “provides for due process.”

        • FuglyDuck@lemmy.world
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          1 year ago

          Sorry, I was wrong, it’s section 1:

          All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (emphasis mine.)

          • Nougat@kbin.social
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            1 year ago

            Okay … that is really interesting, and something I hadn’t noticed. And it’s not the part you think.

            … nor shall any State deprive any person of life, liberty, or property, without due process of law; …

            Even if “liberty” here includes the liberty to hold office (which it may not), the law we’re talking about is constitutional. It is not a State who would be depriving the liberty, it would be the United States.

            The part that is still catching me up, however, is this, just preceding the above:

            No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States …, without due process of law."

            If, like in the other clause, the liberty to hold office is a “privilege,” does this prohibit States from enforcing this constitutional law? Because when the constitutional law has everything to do with elections, which are run only by the States, no body has jurisdiction to enforce.

            If “due process of law” necessarily means “a judicial hearing” (not necessarily a criminal trial), that means that there must be input from a court before someone is disqualified.

            So, we have two questions that need answering:

            • Is holding office a “privilege … of citizens”?
            • Does due process of law mean “judicial trial”?

            Both of those have to be “yes” in order for the disqualification under Section Three to be self-executing (the disqualification being immediate once the described conditions are met). Someone would have to make a legal and binding judgment.

            However, if A14 S3 is not self-executing because of this kind of reasoning, then neither are any parts of the Constitution regarding qualification for office. Junior high kids could gain the office of Governor. Arnie could be President.

            Even so, the person or group that would make that judgment might arguably be the State process for qualifying people from office, and the judgment could be communicated and recorded by the disqualification itself by that person or group.

            Anyway - those bulleted questions above would need to be answered in order for me to go any further. I suspect one or the other of those answers is “no,” but I can’t really say. The kind of deep legal history study that would be required to answer those two is way beyond what I know.

            This is the first time I’ve been plain stumped by this disqualification thing.

            • FuglyDuck@lemmy.world
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              1 year ago

              Yup. It’s all entirely untried- were in unknown waters.

              That said, given the current composition of the SCROTUS, I’m fairly certain that any rulings that do come out will be extremely politicized. And not in the favor of democracy

              • Nougat@kbin.social
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                1 year ago

                Well, not really unknown. Section Three was used plenty to disqualify former Confederates, but that was easy, because everyone knew what they were talking about then. There had been an awful war.

            • Dkarma@lemmy.world
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              1 year ago

              Being able to hold office is not a right. Nothing is being deprived. The state is not enforcing anything. They are denying a request to be on the ballot. It is not a right.

              State elections commissions should decide this correctly.

              No trial is needed and there is nowhere that says it is to determine insurrection.

              This is in no way a criminal matter. It is extremely black and white in this case.

              • Nougat@kbin.social
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                1 year ago

                I wholly agree with you (as a walk through my comment history will demonstrate), but that “No State shall … enforce” part definitely deserves a very close look by people much smarter than I am.

    • socialjeffwarrior@lemm.ee
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      1 year ago

      You’re clearly not reading the post, you replied to. He has been charged but not proven guilty, yet.