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Legal scholars increasingly raise constitutional argument that Trump should be barred from presidency (www.cnn.com)
submitted 2 years ago by to c/politics@lemmy.world
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Prominent conservative legal scholars are increasingly raising a constitutional argument that 2024 Republican candidate Donald Trump should be barred from the presidency because of his actions to overturn the previous presidential election result.

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[–] 104 points 2 years ago (1 child)

It's absolutely insane that it's even up for fucking debate.

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  • [+] -35 points 2 years ago (7 children)

    Is it though? Im not from the US so dont really have a dog in the fight, but hear me out.

    On what basis should he not be allowed? Because he's been indicted? Or because he was impeached? Both? Whatever the reason he would be barred would set a precedent.

    Are there proper checks in place to ensure that the precedent set in place cant be met by simply stacking certain departments by a sitting president? The last thing you want is a pathway for a sitting president to effectively disqualify their opponent.

    Clearly Trump is a monumental dickhead, but the problem is the people who vote for him more than anything

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  • [–] 58 points 2 years ago* (2 children)

    On what basis should he not be allowed?

    Well, this is what the US constitution says:

    Amendment XIV, Section 3.

    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.

    The question is whether those words apply to his actions, and who exactly has the responsibility to interpret them.

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  • [–] 18 points 2 years ago (2 children)

    If he's guilty of insurrection he should be accused, put to trial, and if convicted it should follow that he can't run for president anymore.

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  • [–] 11 points 2 years ago* (last edited 2 years ago) (2 children)

    So your interpretation of the 14th amendment is that "shall have engaged in insurrection or rebellion" is the exclusive responsibility of the judicial system to determine? Maybe that's a valid interpretation, but it's not actually written in the text.

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  • [–] 15 points 2 years ago (2 children)

    Ehm, yes it is. It's the text.

    Laws don't say "a person who committed a crime, if the fact that this crime has been, in fact, committed by that person, has been decided by a judge, who has previously passed the exam necessary....". Laws imply a few basic assumptions. One assumption is, that every decision by "the government" is in principle dependent on the judicial system.

    If the IRS decides, you're a millionaire now and taxes you accordingly, you can go to court and they will decide whether you're actually taxable as a millionaire.

    Trump may be deemed a traitor/insurrectionist by Congress/Senate/DOJ or any other body and thus barred from running, but he too can simply go to court and let it be decided - and given that the supreme court is, let's say, rather in his favor, the result is rather obvious.

    Trump will use any loophole, any slight formal error to get around this. So you have to have a really water tight case.

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  • [–] 3 points 2 years ago (1 child)

    or given aid or comfort to the enemies thereof.

    Hundreds of rioters and those directly involved with the proud boys have pleaded guilty for their role in the instruction. Many of them giving sworn testimony stating that Trump himself gave them a call to action with his words, tweets and actions.

    So even if Trump himself isn't convicted on the charges that he is facing, him giving aid and comfort to those who have already been convicted should itself bar him from public office. (in my opinion - I am not a lawyer)

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  • [–] 2 points 2 years ago (1 child)

    So what?

    I'm not defending Trump, but convicting him, solely because of how others interpreted his messages is extremely dodgy.

    Here, again, it's up to judges to decide whether these tweets show intent to send these messages. Could Trump reasonably expect that these tweets would be received as an "order" to storm the Capitol?

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  • [–] 1 point 2 years ago (1 child)

    Well, if it wasn't his intent, he sure did sit watching it on TV until it was clear that the US government would not be overthrown, instead of swiftly taking action like any other president would when congress is under attack

    We had to rely on Pence, hiding in the capitol basement, to actually attempt to manage this thing

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  • [–] 1 point 2 years ago (1 child)

    Again, so what?

    Negligent, sure. But that's not the point.

    You keep arguing on a moral level, which is entirely besides the point. The question is: is he guilty of insurrection? Not bad presidenting, not shitty behavior.

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  • [–] 1 point 2 years ago (1 child)

    It's strong circumstantial evidence that the attack on the capitol (which itself is just a component of his overall objective to illegally overturn the election results) was his intention all along

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  • [–] 1 point 2 years ago (1 child)

    You don't have to convince me, that's once again beyond the point.

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  • [–] 1 point 2 years ago

    I suppose it would ultimately be up to the supreme court to define what exactly that eligibility requirement (that you basically have to have never tried to overthrow the government) as written in the constitution means, but that doesn't actually immediately involve a conviction of Trump for anything (as "being under the age of 35" doesn't require some sort of criminal conviction)

    In the hypothetical scenario, someone would try to remove him from the ballot, and the supreme court would either uphold or reject that based on their interpretation of the language of the amendment

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  • [–] 1 point 2 years ago (1 child)

    If the IRS decides, you’re a millionaire now and taxes you accordingly, you can go to court and they will decide whether you’re actually taxable as a millionaire.

    Funny enough, no you can't. The courts don't have any say in that.

    There's all kinds of government determinations that have no court remedy. Impeachment, for example, is done solely through congress.

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  • [–] 2 points 2 years ago (1 child)

    Of course they have. If, say, they decide wrongly that the house you sold is worth 50million and not 50k, you can go to court for that.

    Impeachment is a bit of a different beast, since it's done by the governing body - essentially they're making it legal on the fly. But even then, I'm pretty sure, if Congress would have decided in 2013 that Obama can't be president because he's black, there would be an option for the supreme court.

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  • [–] 2 points 2 years ago

    I looked into it and you're right! I was under the impression that you only had the option (after exhausting administrative remedies within the IRS) of paying them and then suing them to recover what you consider the excess amount, but the US Tax Court will take cases where the IRS has not been paid yet.

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  • [–] 6 points 2 years ago

    I think a conviction is the only way to get something even some Republicans will have to agree to. The only other methods I can think of would require the Senate and House to vote against him, and I don't think that's going to happen.

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  • [–] 4 points 2 years ago (1 child)

    It says Congress could override it with a 2/3rds majority in both houses, so if Team Red wins a landslide next year, they actually could vote to allow him to run regardless, even if he is actually convicted of something.

    That's a terrible thought.

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  • [+] 3 points 2 years ago* (last edited 2 years ago) (1 child)
    [deleted]
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  • [–] 43 points 2 years ago (1 child)

    The US constitution bans anyone who leads an insurrection against the government from holding public office.

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  • [–] 9 points 2 years ago (2 children)

    Problem is its not been proven yet

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  • [–] 12 points 2 years ago

    Well both, of course.

    What I think is insane is that the question of whether an impeached president can run again hadn't been settled years ago. It's just obvious. It shouldn't be precedent setting. it's something that should have been settled a long time ago.

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  • [–] 9 points 2 years ago (4 children)

    On what basis? Because he committed a coup isn't good enough?

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  • [–] 9 points 2 years ago

    Innocent until proven guilty still matters though, even when it seems like the justice system moves at a snail's pace. His actions are coming down on him, and I think he'll be behind bars before the election, but until then there's no legal basis to block him from anything

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  • [–] 7 points 2 years ago

    It's (legally) not decided whether he actually did.

    He's unfortunately smart enough to not simply say "let's storm congress by force". His messaging was vague enough that a trump-leaning judge could make an argument that he never intended this to happen. And letting things spiral out of control is not enough for an insurrection.

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  • [+] 7 points 2 years ago (2 children)
    [removed by mod]
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  • [–] 3 points 2 years ago*

    Ah, but you're missing an important distinction. He committed treasonous acts with plausible deniability! And he'll always be able to come up with new lies and new ways to abuse you faster than you'll be able to disprove his lies or protect yourself, so you may as well restore the monarchy already and put him on top.

    EDIT: On a serious note, the comment you replied to is absolutely correct in the point they were making. If Trump is barred from the Oval Office, and the evidence and the way the evidence are presented are anything less than rock solid, then future presidents will absolutely weaponize it as precedent to lock out their political opponents (as happens in every other broken democracy).

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