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So, for those arguing that section 3 of the 14th amendment doesn't disqualify Trump from being on the ballot in 2024 based on what he is known to have said and done on Jan 6, 2021 to instigate, encourage and fail to defuse an insurrection, is there any further action Trump could have taken that would have disqualified him?

So, for those arguing that section 3 of the 14th amendment doesn't disqualify Trump from being on the ballot in 2024 based on what he is known to have said and done on Jan 6, 2021 to instigate, encourage and fail to defuse an insurrection, is there any further action Trump could have taken that would have disqualified him?

Does the 14th Amendment override the 5th?

Lots of things override the 5th Amendment.

For example, you cannot threaten to kill me. Protected speech? No it isn't. It's a felony to threaten to kill someone.

Inciting a riot? Pretty sure that isn't protected speech, either.

Albaby did several discourses on what constitutes protected vs unprotected speech. Even in terms of political speech, which is even more highly protected per the SCOTUS, incitement to riot or insurrection is not protected speech.

Lots of things override the 5th Amendment.

For example, you cannot threaten to kill me. Protected speech? No it isn't. It's a felony to threaten to kill someone.

Did you mean 1st amendment? Isn't the 5th protection against self-incrimination?

Doh!!

You're right. I didn't catch that. I assume Dope meant the 1st Amendment. Fifth Amendment doesn't apply here. I'm sure that was a typo on his part, and a "no-catch" on mine.

Lots of things override the 5th Amendment.

So you can be jailed without trial now?

No you can’t.

So, for those arguing that section 3 of the 14th amendment doesn't disqualify Trump from being on the ballot in 2024 based on what he is known to have said and done on Jan 6, 2021 to instigate, encourage and fail to defuse an insurrection, is there any further action Trump could have taken that would have disqualified him? - g01

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The SCOTUS position appears to be that a State is not the party to enforce the 14th amendment and any action under that amendment would have to be taken up by congress.

If congress were to take up an action to block a candidate, I could at least express my opinion through my congressman, something I can't do when it's a third party state government doing the disqualifying.

So to answer your question, I can't think of anything that should give you the power to prevent me from voting for anyone, let alone a highly popular candidate. Elections are exactly the way to settle such disagreements.

So, for those arguing that section 3 of the 14th amendment doesn't disqualify Trump from being on the ballot in 2024 based on what he is known to have said and done on Jan 6, 2021 to instigate, encourage and fail to defuse an insurrection, is there any further action Trump could have taken that would have disqualified him?

Does the 14th Amendment override the 5th?

Answering a question with a question.

5th protection against self-incrimination?

Yes, but it's also due process, which T had at the state level (trial at State level). They want Fed level IIRC.

Yes I did.

What does the 5th say?

Yes I did.

It's a fallacy.

The 5th Amendment is a fallacy? No wonder something the way they do.

bhm: So to answer your question, I can't think of anything that should give you the power to prevent me from voting for anyone, let alone a highly popular candidate. Elections are exactly the way to settle such disagreements.

If a candidate is running (popularity is irrelevant) and some state discovers that his birth certificate is fake and he's really only 35 years old, not 38. Is that enough to disqualify him?

If Trump were to have actively participated in "storming the Capitol" and had been spraying tear gas and bashing police with a flag pole, would that be enough to disqualify him? How about if he had been convicted and jailed in 2023 for doing just that?

"" If Trump were to have actively participated in "storming the Capitol" and had been spraying tear gas and bashing police with a flag pole, would that be enough to disqualify him? How about if he had been convicted and jailed in 2023 for doing just that?"" For those who speak English. IF, trump had already been found guilty of 100 armed robberies, 100 rapes, and 100 attempts to break into the white house, what would that have to do with who the Dem nominee should be? It's becoming obvious that trump will be the republican nominee, WHO will be the Dem nominee? WHO will Bobby run with ? THIS, is complicated ? What a country.

So, for those arguing that section 3 of the 14th amendment doesn't disqualify Trump from being on the ballot in 2024 based on what he is known to have said and done on Jan 6, 2021 to instigate, encourage and fail to defuse an insurrection, is there any further action Trump could have taken that would have disqualified him?

Oh, of course. If he had taken actions that were more inescapably engaging in an insurrection - personally organizing and directing military units to attack government forces and seize control of the government through military encounters like in the Civil War - he certainly would have been tried and convicted of the crime of insurrection by now. One reason this is such a contentious issue, and why SCOTUS had reservations, is because they clearly believe that reasonable minds can disagree over whether Trump's actions constituted engaging in insurrection. Legal and political maneuvering combined with a speech to the crowd that contained martial rhetoric but no explicit commands to engage in unlawful behavior could constitute engaging in an insurrection, but it's by no means as clear-cut as whether someone is or is not 35 years old or has been elected President twice already.

albaby: Oh, of course. If he had taken actions that were more inescapably engaging in an insurrection - personally organizing and directing military units to attack government forces and seize control of the government through military encounters like in the Civil War - he certainly would have been tried and convicted of the crime of insurrection by now.

And why would being convicted of that crime disqualify him from running for president again? There are various cases here: he could have been quickly impeached in the House and convicted in the Senate before Jan 20 (that would disqualify him); convicted by the DOJ after Jan 20, but before the primaries; during the primaries; after becoming the GOP nominee; convicted in a state court and disqualified under the 14th. In that last case, assuming Trump appealed it, why would SCOTUS be more likely to rule that Trump is disqualified everywhere? Shouldn't the "voters decide" regardless? They didn't discuss the definition of insurrection much at all during the recent appeal hearing.

And why would being convicted of that crime disqualify him from running for president again? There are various cases here: he could have been quickly impeached in the House and convicted in the Senate before Jan 20 (that would disqualify him); convicted by the DOJ after Jan 20, but before the primaries; during the primaries; after becoming the GOP nominee; convicted in a state court and disqualified under the 14th. In that last case, assuming Trump appealed it, why would SCOTUS be more likely to rule that Trump is disqualified everywhere? Shouldn't the "voters decide" regardless? They didn't discuss the definition of insurrection much at all during the recent appeal hearing.

Someone who has engaged in insurrection while an officer of the United States is disqualified from holding office. If we assume (arguendo) that this applies to the Presidency, it seems clear that someone who has been tried and convicted for the federal crime of insurrection would have been sufficiently proven to have met the standard for that disqualification. So if Trump had engaged in activities that led to his trial and conviction of that crime, that would be a set of circumstances where he would be disqualified. Hence, my answer to your original question.

Part of the reason that nearly every Justice was skeptical of a state-by-state determination is because that's not what happened with Trump. Trump wasn't "convicted" in a state court. There was a collateral finding in a civil proceeding in a lawsuit between voters and the CO secretary of state. That type of proceeding, unlike a federal criminal trial, allows a lot of variation and "wiggle room" for different states to reach different conclusions. States can differ on the standard of review, their own interpretations of what constitutes "engaging" in an "insurrection," their evidentiary rules, the actual evidentiary record, etc.

The reason they didn't get into the definition of insurrection much at the appeal hearing is because it is exceptionally unlikely that the SCOTUS' decision will turn on whether Trump did or did not engage in insurrection. Rather, it's more likely to turn on questions of who makes that determination: states, Congress, federal courts, or the voters.

>>bhm: So to answer your question, I can't think of anything that should give you the power to prevent me from voting for anyone, let alone a highly popular candidate. Elections are exactly the way to settle such disagreements.<<

If a candidate is running (popularity is irrelevant) and some state discovers that his birth certificate is fake and he's really only 35 years old, not 38. Is that enough to
disqualify him? - g01

If the candidate is 35 years old, then his age does not disqualify hie.

I think you likely meant 34 in your example in which case the state of Colorado should sue the candidate in Federal court to obtain relief and not attempt to make a unilateral decision no matter how obvious the disqualification appears to be. I think this is the essence of the still to be formally issued decision by SCOTUS.


If Trump were to have actively participated in "storming the Capitol" and had been spraying tear gas and bashing police with a flag pole, would that be enough to disqualify him? How about if he had been convicted and jailed in 2023 for doing just that?

Same as above, if a decision regarding qualifications is needed, this is an issue within the jurisdiction of federal courts and not state courts.

Being a highly regarded constitutional law expert, my opinion is,

Being a convicted felon is not among the criteria listed in the constitution, so I suppose he could be on the ballot as long as all the other ballot access criteria are met, which is doubtful if the potential candidate is a known odious felon. Even less likely, the odious candidate could actually win, but if he did, then the voters decision is final, unless the conviction was for the felony of insurrection, then in order to be sworn in, congress would have to vote by 2/3 majority in each house to waive the disqualifying event.

This being an unexplored area of constitutional law, it is hard to predict how such a scenario would spiral out of control from there. Constitutional crisis would be an understatement.

If the candidate is 35 years old, then his age does not disqualify hie.

I think you likely meant 34 in your example in which case the state of Colorado should sue the candidate in Federal court to obtain relief and not attempt to make a unilateral decision no matter how obvious the disqualification appears to be. I think this is the essence of the still to be formally issued decision by SCOTUS.

Yes, I meant 34, thanks. And ok.

Being a convicted felon is not among the criteria listed in the constitution

Yes, but even if the crime is insurrection?

Actually, based on what you describe, Jefferson Davis could have run for POTUS. He (to my knowledge) did not hold an office prior to his taking up arms against the US, and therefore was not an officer of the US. Same would apply to many/most Confederates. Robert E Lee was an officer in the US Army, before switching sides. Would that count? I think that's a different kind of "officer".

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