Donald Trump inspired, incited, and participated in an insurrection. That it was an insurrection was clear at the time, on live television.
Section 3 of the 14th Amendment bars people who have taken an oath to support the U.S. Constitution from holding office if they “engaged in insurrection or rebellion” against the Constitution or have “given aid to the enemies” of the United States. A waiver by a supermajority of Congress can lift the ban.
Two conservative law professors spent a couple of years researching whether or not the Disqualification Clause bars Donald Trump from being President of the United States. They concluded that it did. While that would not suffice for a criminal conviction of Mr. Trump on insurrection charges, barring him from appearing on the ballot in New Mexico for the nation’s highest office appears legally and ethically appropriate.
They cited Trump’s efforts to undo the 2020 presidential election, including his efforts to intimidate state officials to alter vote counts and to persuade state legislatures and Vice-President Mike Pence to overturn the election, assemble false electors, as well as his instigation of January 6 to pressure Congress.
In what they call Trump’s “incendiary address,” he repeated lies about election fraud and told the crowd to “fight like hell.” As they fought like hell, Trump stayed silent, despite urging from staff and family to attempt to stop the violence. The two professors call that “deliberate indifference bordering on tacit encouragement.” It sure looked that way.
This was an insurrection. Courts have convicted and sentenced participants on that basis. A NM judge disqualified a county commissioner on that basis. So the question is whether or not Trump participated. A Georgia grand jury and a federal special prosecutor say Trump participated.
The two professors think he did, as does Professor Steven Calabresi. All three are active members of the Federalist Society, the source of all Donald Trump’s judicial nominations, and Calabrese co-founded it, while a law student at Yale. In examining Section 3, they used “originalism,” the favored method of the Court’s most conservative members.
Further, Section 3 is self-executing. It does not require a court decision, but should be carried out by state election officials. (Had General Robert E Lee run for Senator in 1868, would you require a criminal conviction to determine that he was barred?) Nor does the First Amendment protect Mr. Trump. For one thing, he took action, which the public has witnessed or heard.
Federal courts should determine these matters. The professors suggested that former New Jersey Governor Chris Christie file suit. If he doesn’t, or a court says he lacks legal standing, others should stand ready.
I hope NM Secretary of State Maggie Toulouse Oliver read the paper. The moment Trump signs up for the June 4New Mexico Republican Primary, she should announce that he doesn’t qualify, and/or file a legal action for declaratory relief.
Why so quickly? Because the nation would be served by an authoritative decision, one way or the other, prior to the national Republican Convention. Disqualification after a Republican nomination would be unfair to the Party and voters.
Any disqualification would be challenged in court. Facts and arguments should be fully aired in this context. Then the case would, and should, be appealed to the Supreme Court. All this takes time. The nation deserves to have both sides present their best cases in court, facilitating a speedy and just determination.
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[The above column appeared Sunday, 20 August, in the Las Cruces Sun-News and on the newspaper's website, as well as on the KRWG website. A related radio commentary has aired during the week on KTAL-LP (101.5 FM / http://www.lccommunityradio.org/) and will air on KRWG Radio this week. Apologies to folks who read these columns on this site! Getting this and the next one up belatedly, and will try to get back on the beam this coming Sunday, 27 January – but that’ll be a challenge. The bridge folks have a Sunday unit game, then KTAL – Las Cruces Community Radio – will have an open house 6-9 pm Sunday, at the studios, 121 Wyatt Drive, Space #9. Should be food and live music and plenty of fun, so if you have an interest in the station, join us!]
[Lot more to say about all this, and more will be said. If Chris Christie doesn’t file suit, an election official, here or in another state, likely will make the obvious statement, that Mr. Trump isn’t qualified under the Disqualification Clause, and the issue should be litigated appropriately. It’ll be interesting to see how this Supreme Court, 1/3 of its members appointed by Mr. Trump, will handle the matter. However the litigation gets started, and by whomever, I hope it’s early enough so that the process and the possible result will be fair to all concerned.]
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