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this post was submitted on 08 Feb 2024
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I think Trump's entire argument is going to be a due process one - sure, 14A Section 3 applies to the President, sure it doesn't require being convicted of a crime as such and of course a state may exclude from the ballot a candidate who is ineligible to serve. But who makes that determination, and under what standard? Just realize however you answer that question, the GOP will use that answer to it's fullest extent against any Dem they can.
In the cases where it has been applied historically we were talking about public officials of an organization engaged in open rebellion against the US. There was no question of fact as to whether or not such a person was engaging in insurrection, as their public titles were leadership roles in a rebellion.
With Trump that's...murkier. It's not like he personally led an attack on the Capitol, he was too much of a pussy to do that. His speech at the initial rally is almost certainly constitutionally protected political speech, incitement is a very high bar to meet in the US. It's intentionally murkier so as to create levels of indirection and questions of fact to make it harder to pin him down legally in case it failed.
Or else they'll argue that a primary election is a private organization borrowing public infrastructure to decide who they want to back and thus the party is the only figure that should have any say who appears on their ballot. They could also choose to caucus instead, if they wanted. This would only apply for the primary ballot and not the general ballot, though.
Personally, I'm hoping for Trump to be barred from the general ballot, the GOP to throw 2nd place on it instead, and some Dems out there to be smart enough to pretend at being a fascist and try to convince GOP voters to write in Trump because "Those DeMoNRaT Leebruls Cant Stop the Trump Train!" which would do a fantastic job at splitting the GOP vote and guaranteeing a Dem win.
I will reluctantly agree with this. While I think it's clear the attack on the Capital was an insurrection and Trump led it (he had several opportunities to talk them down or otherwise stop things, and he refused, which speaks to intent), it is indeed quite a bit murkier than a civil war.
Gorsuch would have to reverse a ruling he has already made to make this call. I think this is unlikely reasoning.
Yes, but I'm also looking down the road. Trump is a present danger, but a bad ruling would be a perpetual problem. If they rule against Trump but also don't screw up the future, that would be clearly ideal.
Not doing enough (really anything) to stop it once in motion isn't the same thing as leading it. That's kind of part of what I mean - you can readily show that he gave a (definitely 1A protected) speech that got them riled up, you can readily show that he didn't do enough to try to stop it and that there was a lot more he could have done, but that's not the same as leading it himself - protected speech and sitting on your hands is almost certainly not what is meant in 14A. Again, he was too much of a pussy to openly do that. It's possible (frankly very likely) he was leading it from the back - giving marching orders to people directly in charge of it through one or more layers of indirection, but the argument is that you'd have to peel away those layers of indirection to be sure.
Ideally SCOTUS provides a firm answer to the due process argument Trump is likely to make (probably one that leaves him eligible in the primary), and then we push things along fast enough that he's ineligible under whatever standard SCOTUS sets before election day.
I don't think you have to be a leader, I think you just have to support the insurrection. I don't know if you can call doing absolutely nothing to stop it aid, but I think you can argue that many of his comments have been in support of them. But that appears to be a semantic point, anyway.
If the process they are looking for is a formal declaration by Congress that Jan 6 was an act of insurrection, I don't think there is a path to that.
sigh, you're right. It's unfortunate and also maddening that Trump is so obviously guilty, but a favorable ruling in that regard without proper foresight would just mean that the Republicans would immediately and swiftly retaliate by removing Biden from their ballots because the definition of what constitutes an insurrection is unclear and due process is not really involved with the language of the amendment, so they could make up whatever lame excuse they wanted and kill the democratic process before Trump ever gets a chance to.