Trumped by the Insurrection Clause

Scott Hardie | January 17, 2024
Should Donald Trump have been disqualified from the primary ballots in Colorado and Maine, and should be disqualified in further states?

Samir Mehta | January 18, 2024
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Scott Hardie | January 18, 2024
Of course, I am not a lawyer, so there is probably a lot of legal nuance here that's over my head.

I agree that the people who argue that this is undemocratic seem to be missing the point of the law. (And don't they often insist that we stick more closely to the plain text of the Constitution?) Similarly, there are people who say that this disqualification is damaging the framework of our society, but based on his own statements, I think Trump winning would be at least as damaging.

What gives me pause is that Trump has not been convicted of insurrection in court. Tens of millions of people have seen the evidence and don't consider him to have committed any crime, so it's fair to say that reasonable people can have different opinions about this. So, wouldn't a conviction turn opinion into actionable legal fact? I can imagine this setting a precedent in which half of the states now refuse to allow Joe Biden on their general-election ballot, since he is similarly deemed to be an insurrectionist based on his 2020 "refusal" to acknowledge Trump's "win" and his attempt to "steal" the election.

Other than the self-defeating fact that waiting for a conviction would mean waiting until after November 2024, is there any reason for Colorado (or Maine if/when they change their mind again) to proceed without a conviction?

Steve West | January 18, 2024
In short, yes. Insurrection occurred and lives were lost at the behest of the sitting President. I'm so sick of the cover-up, heads being turned in the other direction, misleading the public, re-writing history, and downplaying the significance of this traitorous act. At a minimum, Trump and many of his sycophants/enablers deserve long prison sentences.

Scott Hardie | January 19, 2024
I'm pretty damn sick of it all, too. :-(

Samir Mehta | January 19, 2024
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Scott Hardie | January 20, 2024
I agree a thousand times over about the need for checks on executive power. Everything else about Trump aside, I am aghast at the simple fact that so many people want to hand power to a man who refuses ever to be told "no" about anything. Once entrenched, nothing but a civil war, a coup, or his own death will dislodge such a person from power.

As for the language of the Constitution, it doesn't specify a criminal conviction, but the Constitution is notoriously broad in its language and has had to be interpreted by courts for generations. You call it a "true" "fact" that Trump "obviously" committed insurrection, and I agree, but a whole lot of people do not: The latest relevant poll numbers that I could find say that only about half of respondents believe that Trump's actions on January 6 were a threat to democracy and that he should be disqualified from the presidency over it.

So I ask again: If Section 3 is self-executing, what's to stop red-state election officials from leaving Joe Biden off of the ballot due to the "true" "fact" that he "obviously" committed insurrection? We live in an age in which people are no longer willing or able to agree on facts any more, what David French called "bespoke realities," so there ought to be some kind of legal threshold for insurrection beyond just the eye of the beholder, right? If it's not a criminal conviction, what else should it be?

And this is probably where my lack of legal knowledge is getting in the way, because the answer probably requires a dive into the intricacies of "self-executing" law, which I certainly don't expect you to type out, Samir. I just did a quick search online and found that the Supreme Court already ruled that Section 3 was not self-executing, which might have been overturned or rendered irrelevant since then because it was a long time ago. I'm in over my head here. :-\

Samir Mehta | January 21, 2024
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