No. of Recommendations: 7
Does the 14th apply to Trump? He has not been convicted. Under ordinary matters of law, I would say that it doesn't apply without a conviction. Which is why I asked a few days ago what the scholarship around the 14th is.
Two points on that question, which I believe are both true and point in different directions:
1) There's no requirement that Trump have been convicted of the crime of insurrection in order for him to be disqualified under the 14th Amendment. Any more than a President or officer has to be convicted of a crime prior to being impeached. It's entirely consistent with the Constitution for the determination of facts to be done in a civil trial (and yes, there was a trial in the Colorado case) rather than a criminal case. And Congress is not required to have a statute making it a crime to commit insurrection, nor are they required to have any such crime correspond exactly with the text of the 14th Amendment....
but
2) There is a federal statute that makes it a crime to engage in insurrection, and it is absolutely valid to point out that prosecutors' unwillingness to bring a charge against Trump for such crime is a strong indicator that his action do not constitute engaging in insurrection. Moreover, there isn't much factual dispute over what Trump did or said - which means the failure to prosecute is much more likely to reflect a DOJ decision that legally what he did was not the crime of insurrection.
* * *
As far as his supporters go, they're not being disenfranchised. If your preferred candidate for an office isn't eligible for that office, no one has taken away your ability to vote. Millions of people voted for Barack Obama - and if he tried to run for a third term in office, someone would file suit to stop him, and the fact that millions of people might prefer him to any other candidate doesn't change the fact that he is no longer eligible to run for that office.
If Trump engaged in insurrection within the meaning of the 14A, he can't be President. If his supporters are mad about that, then their anger is appropriately direct at Trump for doing the prohibited thing, not at the courts for enforcing the Constitution. But it's obviously an understatement to note that "if" is a very contested point....
