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Deuce
Jun 18, 2004
Mile High Club

Paracaidas posted:

This isn't meant to pick on you, Fart Amplifier, but it's a good example of the tendency to get out over our skis on these topics. Given how many people are interest in the subject, a bit of moderation is helpful to make sure we're not unintentionally misinforming folks ITT.



Nowhere in the text of section three is a requirement that someone be convicted of breaking a law, nor is there a requirement that any particular law has been broken.

There's a perfectly plausible argument that "has not engaged in insurrection or rebellion against the United States after having taken an oath for a qualifying office" is as black and white an eligibility issue as "is at least 35 years old" or "is a natural born citizen", and that "engaging in insurrection or rebellion" can happen without a conviction or even a finding that any particular law -- or any law at all -- has been broken. You may not find it compelling, or may feel that the current SCOTUS is unlikely to accept the argument, but that's different than there being "no realistic way this survives challenge" because it's not a criminal proceeding. In fact, the idea that there must be some specific criminal conviction in order to implement section three seems to be the minority. Federal courts have had multiple (Cawthorn and MTG as two) chances to make that decision and have declined at each opportunity.

Absent that requirement, there is plenty of ground to find insurrection and/or rebellion - as the lawsuit at the core of this discussion notes, majorities in both the house and senate found just that. A (PDF) soon-to-be-published preprint lays one such argument. It's worth noting that each author belongs to the Federalist Society - the theory you reject as absurd and unworkable has support across the political spectrum. The Bush appointed conservative federal judge Luttig relies on the preprint as the core of his own argument that Trump is already ineligible, absent any charge or conviction.

Impeachment would have meant the same disqualification by other means, means that are not inherently more just, democratic, proper, or legitimate. Disqualifying Trump certainly will be damaging for democracy, just as investigating, indicting, and almost certainly convicting him will be... but that's not a reason to discard the rule of law. You call out a couple damaging effects of a future Trump run while entirely ignoring the most damaging - the one your argument supports: Implementing a "popular will" exception to the constitution, allowing its provisions to be overruled by an indeterminate but substantial number of people so long as they really want to. Those who want to vote for Trump in spite of his disqualification already have remedies available: They can pass an amendment revising Section Three or they can lobby their congresscritters and senators and gather two-thirds of each house. I'm skeptical that democracy is safeguarded by allowing Republicans to disregard the constitution whenever the mood strikes them. We reserve that privilege for cops, prosecutors, and intelligence agencies in this country :911:

Which enumerated office has Jill Stein taken an oath of office for? :allears:

Without requiring any criminal conviction, how on earth is this decided? I, some rando on the internet, have declared everyone except me has engaged in insurrection and therefore only I am eligible for president.

So when Trump and Biden file paperwork to be placed on ballots in various states, who is supposed to decide whether the two are qualified? Is it me, with my declaration? The intern at the election office who created the .pdf for the ballot to be sent to the printers? Is there a law that spells out this process? A court that has said Trump is ineligible that the elections office can point to? Or are we literally at the point where the answer is "well ultimately the state executive power comes from the governor, so the governor has unilateral authority to disqualify someone?"

I buy that the 14th amendment requires no specific action from Congress saying "Trump insurrected so he can't run" but surely some kind of legal process has to occur somewhere because the 14th amendment is also pretty specific on Due Process of Law.

The Federalist Society dudes call the 14th amendment self-executing on this issue, but at the end of the day the constitution is actually a piece of paper in a museum and some kind of human person has to actually do it. So who is that person? They say it's "anybody" in the process whose job it is to determine such things, but decisions made by these people are subject to legal challenge. A challenge that absolutely is going to make its way up to the Supreme Court if the disqualification hasn't already been tossed by a lower court. And on what grounds would SCOTUS decide whether or not Donald Trump engaged in insurrection?

I suspect it might have to do with the outcome of certain criminal cases.

Deuce fucked around with this message at 04:25 on Sep 7, 2023

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Tenkaris
Feb 10, 2006

I would really prefer if you would be quiet.
The tenth amendment gives a lot of power to the states, this is a way for states to maybe put up a stronger resistance than just watching the electoral college do its thing again? :shrug:

Fart Amplifier
Apr 12, 2003

Paracaidas posted:

Nowhere in the text of section three is a requirement that someone be convicted of breaking a law, nor is there a requirement that any particular law has been broken.

There's a perfectly plausible argument that "has not engaged in insurrection or rebellion against the United States after having taken an oath for a qualifying office" is as black and white an eligibility issue as "is at least 35 years old" or "is a natural born citizen", and that "engaging in insurrection or rebellion" can happen without a conviction or even a finding that any particular law -- or any law at all -- has been broken. You may not find it compelling, or may feel that the current SCOTUS is unlikely to accept the argument, but that's different than there being "no realistic way this survives challenge" because it's not a criminal proceeding. In fact, the idea that there must be some specific criminal conviction in order to implement section three seems to be the minority. Federal courts have had multiple (Cawthorn and MTG as two) chances to make that decision and have declined at each opportunity.

Absent that requirement, there is plenty of ground to find insurrection and/or rebellion - as the lawsuit at the core of this discussion notes, majorities in both the house and senate found just that. A (PDF) soon-to-be-published preprint lays one such argument. It's worth noting that each author belongs to the Federalist Society - the theory you reject as absurd and unworkable has support across the political spectrum. The Bush appointed conservative federal judge Luttig relies on the preprint as the core of his own argument that Trump is already ineligible, absent any charge or conviction.

There is no explicit requirement for any specifics with regards to enforcing section three. What there is is a constitutional requirement for due process.

Obviously the courts will have to look at the standards of due process required.

I find the originalist argument that section three is "self executing" unconvincing. There must be some way of establishing a standard of fact finding and considering that appropriate criminal law already exists, the court is probably going to be willing to just use that. I find it obvious that the court would want to exclude someone from running for president if there is reasonable doubt that they did the thing which would disqualify them.

There are tons of people in the US who think that BLM and Antifa are insurrectionist, and with the hardcore Trump toadies in the federal court it's easy to imagine a scenario where a suit ends up in front of Cannon or something and you get Biden or AOC disqualified from running for the Presidency because they met with one of those groups and probably aided in an insurrection or something. It would be an absolute nightmare.

Paracaidas
Sep 24, 2016
Consistently Tedious!

Deuce posted:

Without requiring any criminal conviction, how on earth is this decided? I, some rando on the internet, have declared everyone except me has engaged in insurrection and therefore only I am eligible for president.

So when Trump and Biden file paperwork to be placed on ballots in various states, who is supposed to decide whether the two are qualified? Is it me, with my declaration? The intern at the election office who created the .pdf for the ballot to be sent to the printers? Is there a law that spells out this process? A court that has said Trump is ineligible that the elections office can point to? Or are we literally at the point where the answer is "well ultimately the state executive power comes from the governor, so the governor has unilateral authority to disqualify someone?"

I buy that the 14th amendment requires no specific action from Congress saying "Trump insurrected so he can't run" but surely some kind of legal process has to occur somewhere because the 14th amendment is also pretty specific on Due Process of Law.
It's a good question! It's one that is, at best, unsettled. Beginning on page 17 of the linked PDF, the Federalist hacks lay out their case... I'll excerpt some relevant bits because fuuuuck PDF formatting. At core, the argument is that Section Three is self-executing in the way much of the constitution is, and that the distinction from non-self-executing portions is both intentional and meaningful. To your specific question: The same person who determines if a candidate is 35.

quote:

Section Three is self-executing. That is, its disqualifications from office are constitutionally automatic whenever its conditions for disqualification are met. Nothing more needs to be done in order for Section Three’s prohibitions to be legally effective. Section Three requires no implementing legislation by Congress. Its commands are enacted into law by the enactment of the Fourteenth Amendment. Where Section Three’s legal rule of constitutional disqualification is satisfied, an affected prospective officeholder is disqualified. Automatically. Legally

quote:

Section Three’s language is language of automatic legal effect: “No person shall be” directly enacts the officeholding bar it describes where its rule is satisfied. It lays down a rule by saying what shall be. It does not grant a power to Congress (or any other body) to enact or effectuate a rule of disqualification. It enacts the rule itself. Section Three directly adopts a constitutional rule of disqualification from office.

This should be no surprise, as the same thing is true of the Constitution’s other rules of disqualification from office. A person who has not attained to the age of thirty-five is not qualified to be President of the United States. This disqualification is automatic. The Constitution’s rule is self-executing. “No person . . . shall be eligible” to be President who does not satisfy the age requirement. The disqualification requires no further legislation or other action, by anybody, to be operative. The disqualification simply is. So too for Article II’s citizenship and length-of-residency eligibility prerequisites for the office of President. And so too for the constitutional qualifications --age, citizenship, state inhabitancy—for members of the House and Senate: “No Person shall be” a Representative who does not meet Article I, section 2’s requirements. “No Person shall be” a U.S. Senator who does not meet Article I, section 3’s requirements. These restrictions on eligibility are legally binding simply by virtue of their presence in the Constitution

quote:

The Thirteenth Amendment’s ban on slavery, enacted a few years earlier, works the same way. Immediately upon adoption of the amendment, slavery was legally extinguished as a matter of constitutional law. “Neither slavery nor involuntary servitude . . . shall exist …,” the Thirteenth Amendment provides. The institution of slavery was immediately, legally, constitutionally gone. The Thirteenth Amendment contains a separate section granting Congress the power to enforce the prohibition of slavery. But that enforcement power scarcely means that the ban on slavery contained in Section One was inoperative unless and until Congress passed legislation making it operative. Such a position would be ridiculous. The power to enforce adds to the substantive prohibition—it is not a subtraction from or suspension of it.

quote:

Section Three is also noticeably different from other constitutional provisions that deal with misbehavior—provisions that are not self-executing in the same way. Article III, for instance, describes the offense of treason:

quote:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
Note the contrast. The Treason Clause defines an offense (“Treason . . . shall consist”) but it does not itself convict anybody of treason. Section Three, by contrast, enacts its own disqualification (“No person shall be”). It acts on persons, not offenses. This is driven home by the Treason Clause’s specific procedures and powers: “[C]onvict[ions] of treason” require two witnesses or a public confession; and “Congress shall have power to declare the punishment of treason.” Section Three of the Fourteenth Amendment, by contrast, is offense, conviction, and punishment all rolled in to one.

Similarly, the Constitution’s impeachment provisions say that those who are impeached “shall be removed from Office.” But the Constitution does not itself impeach anybody. Instead, it specifies that somebody else—the House and Senate—must do the impeaching. Again, Section Three’s contrast is glaring. The framers of Section Three had the treason clause and impeachment clauses at hand and chose a noticeably different path. Section Three does not call for treason trials or the impeachment of secessionists. It directly imposes an across-the-board disqualification and involves Congress only if Congress wishes to end it.

quote:

Who has the power and duty to do this? We think the answer is: anybody who possesses legal authority (under relevant state or federal law) to decide whether somebody is eligible for office. This might mean different political or judicial actors, depending on the office involved, and depending on the relevant state or federal law. But in principle: Section Three’s disqualification rule may and must be followed—applied, honored, obeyed, enforced, carried out—by anyone whose job it is to figure out whether someone is legally qualified to office, just as with any of the Constitution’s other qualifications.

They propose later (page 56) a way of viewing both Due Process and Section Three in harmony and conflict and (pages 62-69) working defintions of the relevant terms, spending the following 34 pages (:eyepop:) justifying them.

None of this is to say I agree with the Federalist Society pricks about the argument, but demonstrating that a plausible argument exists (and has been made!) that Section Three requires no conviction, no criminal court, and no further legislative action to be invoked as a black and white matter of eligibility. Frankly, I think their interpretation means that a power the constitution and courts have held as extremely narrow (determining eligibility - the reason no state can have a "must release your tax returns" eligibility requirement for federal office, nor "is not under federal investigation", nor "is not rumored to have been born abroad") is vastly broadened, and leaves a slick slope for abusive future application. Conversely, it does seem like useless puffery (my actual speciality) unless read to be self-executing and it stands to reason it be enforced and adjudicated in the same manner as the other constitutional eligibility requirements.

Fake edit: sincerely appreciate you looking through the PDF!

Deuce posted:

And on what grounds would SCOTUS decide whether or not Donald Trump engaged in insurrection?

I suspect it might have to do with the outcome of certain criminal cases.
That's absolutely a path - I align with CREW, Luttig, and the Federalist jagoffs that the absence of a conviction isn't sufficient for eligibility under Section Three. It strains credulity that it is intended to be narrowly and exclusively enforced against those convicted of crimes, yet fails to mention that at any point. The Supreme Court may find that a conviction is necessary, but I'd be shocked by a ruling that they are forced to by the text rather than their interpretation.

Arsenic Lupin
Apr 12, 2012

This particularly rapid💨 unintelligible 😖patter💁 isn't generally heard🧏‍♂️, and if it is🤔, it doesn't matter💁.


Murgos posted:

Probably the most realistic way to invoke the 14th amendment is if a state legislature passes a law that says explicitly “this is how you invoke the 14th amendment for presidential elections” and then the state does that.

[Snip]
Thank you for this post. I learned stuff.

Main Paineframe
Oct 27, 2010

Gyges posted:

If he is legally disqualified because he's found constitutionally ineligible, that's hardly damaging to Democracy. It's not like anyone is making up laws or inventing crimes to keep someone off the ballot. Crime guy crimes is his own fault.

According to a CNN poll, 61% of Republican-leaning voters feel that someone is inventing crimes to hurt Trump's political prospects. Moreover, 64% of Republican-leaning voters say that even if all the charges are true and he's , they don't make him unfit to be president, and 83% say a conviction shouldn't disqualify him from being president.

Given that he got 74 million votes in 2020, that's a substantial amount of people who genuinely feel that the Dems cooked up fake charges to disqualify Trump. They're wrong, of course, but it's a good example of why disqualifying one of the top two contenders for the presidency tends to be fraught.

Deuce posted:

Without requiring any criminal conviction, how on earth is this decided? I, some rando on the internet, have declared everyone except me has engaged in insurrection and therefore only I am eligible for president.

So when Trump and Biden file paperwork to be placed on ballots in various states, who is supposed to decide whether the two are qualified? Is it me, with my declaration? The intern at the election office who created the .pdf for the ballot to be sent to the printers? Is there a law that spells out this process? A court that has said Trump is ineligible that the elections office can point to? Or are we literally at the point where the answer is "well ultimately the state executive power comes from the governor, so the governor has unilateral authority to disqualify someone?"

I buy that the 14th amendment requires no specific action from Congress saying "Trump insurrected so he can't run" but surely some kind of legal process has to occur somewhere because the 14th amendment is also pretty specific on Due Process of Law.

The Federalist Society dudes call the 14th amendment self-executing on this issue, but at the end of the day the constitution is actually a piece of paper in a museum and some kind of human person has to actually do it. So who is that person? They say it's "anybody" in the process whose job it is to determine such things, but decisions made by these people are subject to legal challenge. A challenge that absolutely is going to make its way up to the Supreme Court if the disqualification hasn't already been tossed by a lower court. And on what grounds would SCOTUS decide whether or not Donald Trump engaged in insurrection?

I suspect it might have to do with the outcome of certain criminal cases.

The short answer is "nobody really knows". The 14th Amendment was passed in the aftermath of the Civil War, and even at the time the Insurrection Clause was considered to be legally difficult, leading to it being vaguely and inconsistently applied.

Pretty much all the details (including a very wide array of potential objections) were left to judges to work out, and most of them didn't make it through the courts before Congress ran out of political will to enforce it against actual rebels who'd spent four years in open war against the US.

Is it self-executing? Maybe, maybe not! The judicial record is inconsistent on the question. Few judges have had any chance to address it, and the most prominent one ruled that it was self-executing in one case and that it wasn't self-executing in another case, with absolutely no guidance for resolving the obvious contradiction between those two rulings.

How is it enforced? No one's really worked that out! Back during Reconstruction, Congress passed a law specifying how it was to be enforced and what sort of criminal penalties would be placed on violators, but that law wasn't really successfully enforced even at the time, and it was repealed a long time ago.

Does it still even possess legal force at all? You'd think the answer is an unambiguous "yes". However, some legal thinkers have suggested that the Amnesty Acts didn't just cover people who had already rebelled, but also all potential rebels in the future, essentially restricting the reach of the Insurrection Clause to the few categories that weren't granted amnesty in the 19th century. It's a minority view, to be sure, and one that I think is more than a little ridiculous. But one currently-sitting federal judge (a Trump appointee, of course) has already cited that very argument as a basis for ruling that involvement in Jan 6th isn't sufficient to invoke the Insurrection Clause, so apparently we can't say that argument's completely off the table.

What happens if the states ignore the Insurrection Clause and just let people run for and hold offices in direct violation of the Constitution? Historically, the answer has been "absolutely nothing". A number of the ex-Confederate states defied the Insurrection Clause to some degree, and the federal government ultimately responded by passing amnesties that lifted the restrictions on basically everyone except the top Confederate leadership.

The Insurrection Clause has always been deeply, deeply sensitive to political considerations. When it was first written, most of the southern states were under military rule and had no real political representation, and ultimately had to be forced into ratifying it. But once the former Confederate states had their national political power restored, there was a significant political incentive for people with national political ambitions to cozy up to the ex-Confederates. Meanwhile, enforcing policies like these turned out to be extremely difficult, as the states had zero interest in cooperating, the federal court system was lukewarm about the whole thing, and several Supreme Court justices at the time were known to be skeptical of the government's Reconstruction policies for one reason or another. In the end, the Insurrection Clause was essentially abandoned for political reasons, rendered toothless by large-scale amnesties within four years of the 14th Amendment's ratification - before most of the numerous cases filed for or against it could make their way through the courts.

That's ultimately why I'm so skeptical. With Trump being such a major political player, I find it extremely unlikely that civil courts are going to want to take the leading role on something as significant as disqualifying the leading challenger to the current incumbent. I'm quite confident that many lower court judges will happily come up with excuses to bump the responsibility off to someone else. Even if one does rule against Trump, it'll quickly go up to the Supreme Court. Even putting aside the question of whether the conservative-dominated Court would be biased in favor of Trump, I can't imagine them being eager to take the full blame for tilting the election in favor of Biden.

Paracaidas
Sep 24, 2016
Consistently Tedious!

Fart Amplifier posted:

There is no explicit requirement for any specifics with regards to enforcing section three. What there is is a constitutional requirement for due process.

Obviously the courts will have to look at the standards of due process required.

I find the originalist argument that section three is "self executing" unconvincing. There must be some way of establishing a standard of fact finding
What is the constitutionally established standard of fact finding on judging the validity of a candidate's birth certificate? Where is its textual support? Why does determining whether a candidate has engaged in insurrection or rebellion require due process protections that determining whether a candidate is at least 35 does not? And if it doesn't, then why are the extant processes for determining constitutional eligibility insufficient?

Fart Amplifier posted:

and considering that appropriate criminal law already exists, the court is probably going to be willing to just use that. I find it obvious that the court would want to exclude someone from running for president if there is reasonable doubt that they did the thing which would disqualify them.
Federal courts have had the opportunity to insist on convictions, criminal law, or a non-civil process as the standard for enforcing section three on multiple occasions in the past couple years and have chosen not to.

This gets back to my point: You may think the federal courts who've tackled this issue in the context of Jan 6 are wrong, that the Federalist hacks are unconvincing, that the Trump-heavy Supreme Court will do everything they can to protect him, and that's fine! I'm not even sure I'd meaningfully disagree. But that's miles from it being absurd and unworkable in a noncriminal process and unrealistic to expect it to survive review.

Fart Amplifier posted:

There are tons of people in the US who think that BLM and Antifa are insurrectionist, and with the hardcore Trump toadies in the federal court it's easy to imagine a scenario where a suit ends up in front of Cannon or something and you get Biden or AOC disqualified from running for the Presidency because they met with one of those groups and probably aided in an insurrection or something. It would be an absolute nightmare.
There are many steps between "any judge or election supervisor can disqualify a candidate for essentially any reason under section three" and "a criminal conviction of a specific crime is necessary to enforce section three". We don't even need to stray from election qualification for an example - here, Munro v. Socialist Workers

quote:

Restrictions upon the access of political parties to the ballot impinge upon the rights of individuals to associate for political purposes, as well as the rights of qualified voters to cast their votes effectively, Williams v. Rhodes, 393 U. S. 23, 393 U. S. 30 (1968), and may not survive scrutiny under the First and Fourteenth Amendments. In Williams v. Rhodes, for example, we held unconstitutional the election laws of Ohio insofar as in combination they made it virtually impossible for a new political party to be placed on the ballot, even if the party had hundreds of thousands of adherents. These associational rights, however, are not absolute, and are necessarily subject to qualification if elections are to be run fairly and effectively.
SCOTUS acknowledges that ballot and eligibility restrictions derived exclusively from the "time, place, and manner" language of the constitution conflict with the first and fourteenth amendments and that it has (and will continue to) strike them down because of it --- but also that they can serve legitimate purpose and survive a challenge. That "no one may be kept off the ballot" and "all ballot restrictions are valid" represent a false binary. There's little to suggest the binary would be more valid for section three


Main Paineframe posted:

The short answer is "nobody really knows".
This post is awesome, thank you! I appreciate highlighting that it's essentially uncharted territory and there are a variety of arguments across the political spectrum... and that your speculation builds from what you've posted.

Be wary of posts and punditry on this topic, on the Meadows removal, and a variety of other Trump legal issues that have unearned confidence about the outcome of unprecedented scenarios. This includes the Federalist bros I've been linking and quoting, who are entirely too in love with their own arguments.

Arsenic Lupin
Apr 12, 2012

This particularly rapid💨 unintelligible 😖patter💁 isn't generally heard🧏‍♂️, and if it is🤔, it doesn't matter💁.


(plaintive) What does self-executing mean?

Rust Martialis
May 8, 2007

by Fluffdaddy

(and can't post for 7 days!)

self-executing:

(law) Needing no legislation to enforce it.


2003, Ruben E. Agpalo, Statutory Construction, page 467 posted:

The general rule is that constitutional provisions are self-executing, except when the provisions themselves expressly require legislations to implement them […]

Ulta
Oct 3, 2006

Snail on my head ready to go.
Wouldn’t it also not ultimately matter? Hypothetically let’s say Texas takes him off the ballot. Republicans put Donald Trump Jr on the ballot there, and when it comes time to pick Electoral College voters, the Republican leadership picks people who will vote Trump senior.

feedmyleg
Dec 25, 2004
Not that I think it's actually going to happen, but if Trump somehow ends up not being on the Ballot, would there still be an option to fill in a little circle for the Republican candidate, or would the only option to vote for him be to write him in?

V-Men
Aug 15, 2001

Don't it make your dick bust concrete to be in the same room with two noble, selfless public servants.
Write in.

A name has to be on a ballot, it's not just a party spot.

skeleton warrior
Nov 12, 2016


feedmyleg posted:

Not that I think it's actually going to happen, but if Trump somehow ends up not being on the Ballot, would there still be an option to fill in a little circle for the Republican candidate, or would the only option to vote for him be to write him in?

So much of this answer falls into "it depends" because it will vary by how the state removes Trump, how the state board of elections interprets the removal of Trump (is he withdrawn as a candidate or ineligible to be a candidate?), how close to the election it happens (if it's too close, they won't re-print ballots, so he'll still be on it, it's just that the electors will be 'beholden' to vote for someone else), whether the national or state parties decide to even put forward an alternate, etc.

Even if he is written in, if the state board of elections has already declared that he is not legally eligible, they won't count the votes for him. I can't speak for every state, but Virginia doesn't even bother to look for wrrite-in votes unless you've filled out a form declaring yourself a write-in candidate.

Edit:

V-Men posted:

Write in.

A name has to be on a ballot, it's not just a party spot.

No, it very much is a party spot. Or it's specifically a spot for a slate of electors, because you're not voting for a candidate, you're voting for the electors getting sent to be part of the Electoral College.

Here's the VA 2020 general election ballot:



Note that it specifically says, "Electors for" in the presidential candidates. The laws around withdrawing and disqualifying a candidate in VA don't say anything about what happens when the party doesn't or can't make a decision prior to the election; there's no reason the agreement couldn't be made by the State Board of Elections that the electors remain for some "Future Chosen Republican Nominee".

skeleton warrior fucked around with this message at 14:51 on Sep 7, 2023

GlyphGryph
Jun 23, 2013

Down came the glitches and burned us in ditches and we slept after eating our dead.

Tenkaris posted:

Yeah criminal is "beyond a reasonable doubt" while civil is "based on a preponderance of the evidence" or something like that, it is not nearly the same standard

"preponderance of evidence" seems like the better standard for a process that doesn't remove anyone's personal liberties and protects the public from the risk of their president waging insurrection against the country.

Especially since civil court is where all the other qualification questions are answered, I don't see what makes this one so special it needs the super high standard of evidence we require to throw someone in jail.

Whether its wise to actually do that in this situation is another question completely.

GlyphGryph fucked around with this message at 14:52 on Sep 7, 2023

Main Paineframe
Oct 27, 2010

Arsenic Lupin posted:

(plaintive) What does self-executing mean?

A self-executing clause has legal force all on it's own, acting as a fully-functioning law all on its own.

A non-self-executing clause lays out a general principle and grants Congress the power to pass laws that adhere to that principle, but has no inherent legal force of its own and cannot be enforced if Congress doesn't pass such a law.

Why does the distinction exist? Well, for the most part, the Constitution exists to tell the government what it can or can't do. So a clause saying "the government is not allowed to do X" is pretty straightforward, and can be applied by the courts all on its own. On the other hand, some parts of the Constitution are more generally understood to grant the government the right to do something, rather than actually requiring it to do that something. and in those cases the clauses are interpreted as "the government has the power to pass laws about Y".

As a layman, I think a good example based on how I understand it would be the 18th Amendment, the basis for Prohibition. Although it declared a general ban on making and selling alcoholic beverages, it didn't contain any actual punishments for doing so. Instead, it granted Congress and the states "power to enforce this article by appropriate legislation". It wasn't ever really meant to be standalone; instead, it was meant to clearly and unambiguously establish that Congress had the ability to pass laws regulating or banning alcohol, even if that alcohol wasn't involved in interstate commerce (remember that at the time, courts tended to see Congressional power as much more limited than it is today). The actual enforcement was handled by the Volstead Act, the legal framework for Prohibition which laid out what it would cover, how it would be enforced, and what the punishments for violation would be. This also meant that Congress was able to create exemptions to the ban, leaving some gaps for wine and eventually exempting some beer as well. Rather than "a constitutional amendment banning alcohol", think of it as "a constitutional amendment granting Congress the right to ban alcohol".

Now, there was an aspect of it that was definitely self-executing. Since it clearly expressed an intention that alcohol should be banned, it essentially banned the government from passing laws permitting alcohol on a large scale (though it appears that no one ever challenged the various exemptions Congress made to Prohibition). On the other hand, the courts would likely have considered it impossible to enforce against private citizens in the absence of actual legislation banning alcohol, and thus in that regard it wouldn't be self-executing.

Kaal
May 22, 2002

through thousands of posts in D&D over a decade, I now believe I know what I'm talking about. if I post forcefully and confidently, I can convince others that is true. no one sees through my facade.
The Constitution is filled with absurd and unworkable clauses that nonetheless get interpreted by the courts as if they were carefully and holistically crafted. There’s nothing unique about the 14th Amendment in that regard.

3fisted
Oct 20, 2008

Rust Martialis posted:

self-executing:

(law) Needing no legislation to enforce it.

Section 5 of the 14th reads as follows:
"Section 5 Enforcement
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

yronic heroism
Oct 31, 2008

As long as someone sues to keep him off the ballot it will be adjudicated by a court. That’s due process. It’s kind of baked in.

Deuce
Jun 18, 2004
Mile High Club

Paracaidas posted:

(snip)
That's absolutely a path - I align with CREW, Luttig, and the Federalist jagoffs that the absence of a conviction isn't sufficient for eligibility under Section Three. It strains credulity that it is intended to be narrowly and exclusively enforced against those convicted of crimes, yet fails to mention that at any point. The Supreme Court may find that a conviction is necessary, but I'd be shocked by a ruling that they are forced to by the text rather than their interpretation.

But Due Process of Law is how we decide pretty much anything like this. Maybe they didn't specify a conviction was necessary because it seemed too obvious. "Well how the hell else would you determine insurrection??"

Because, really, the alternative is what you've described: letting some rando state elections person unilaterally determine this. Since you mentioned "rumors of being foreign-born," well, that's absolutely a part of eligibility. B-rock "The Islamic Shock" HUSSEIN Superallah Obama was totally born outside the US because Betty the elections clerk says so, and therefore is not eligible to be president. Clearly something to be appealed and fought out in a court.

SCOTUS cannot determine any of this without some kind of examination of the facts, and they're weighing it against a person's right to run for office and also the American peoples' right to choose their president. It's going to be an uphill battle for someone challenging Trump's eligibility because "guilty until proven innocent" is the opposite of how our courts work. Absent a conviction, you basically end up with, what, a pseudocriminal trial before SCOTUS? Would SCOTUS attempt to determine the facts of what is essentially a criminal accusation and make a ruling instead of a jury of Trump's peers?

Deuce fucked around with this message at 17:47 on Sep 7, 2023

Jarmak
Jan 24, 2005

Trump's eligibility for the ballot is not a criminal matter, full-stop. It's not pseudo-criminal, it's not civil but we're going to use criminal procedure because it's important, it's a civil matter.

If the court rules that a crime must be committed to trigger the 14th then he will be eligible, they're not going to move on to deciding whether he committed a crime.

If that happens the follow on to that might be that if convicted on the J6 charges a civil court might have to make a determination whether or not those crimes count.

Leon Trotsky 2012
Aug 27, 2009

YOU CAN TRUST ME!*


*Israeli Government-affiliated poster
Trump is trying to get his GA case moved to federal court and invoke immunity.

https://twitter.com/CNNPolitics/status/1699843042990272547

quote:

Former President Donald Trump on Thursday formally notified the judge overseeing the Georgia election subversion case that he “may” try to move his state case into federal court.

Trump’s lawyers have previously said they would try to move the case, which could help him get the charges dropped by invoking immunity protections for federal officials.

“President Trump hereby notifies the Court that he may seek removal of his prosecution to federal court,” his lawyer Steven Sadow said in a brief court filing. “To be timely, his notice of removal must be filed within 30-days of his arraignment.”

The 30-day clock began on August 31, when Trump waived his right to an arraignment hearing and entered a not guilty plea.

There are several potential benefits for Trump if he can move the state case into federal court.

It would give him additional avenues to get the charges dropped if he can convince a judge that his alleged actions in the indictment were tied to his formal duties as a government official.

If the case stays in federal court, the jurors will all come from Fulton County, which President Joe Biden won by a 47-point margin. If the case moves to federal court, the jury pool will be culled from from a 10-county region near Atlanta that Biden won by 32 points, a narrower but still comfortable margin.

Several of Trump’s 19 co-defendants are already attempting to move their case to federal court.

His former chief of staff Mark Meadows testified at a hearing last week as part of his bid to move the case. Further hearings are scheduled for later this month on whether a federal judge will weigh similar requests from former Trump-era Justice Department official Jeffrey Clark and other co-defendants.

logger
Jun 28, 2008

...and in what manner the Ancyent Marinere came back to his own Country.
Soiled Meat

Leon Trotsky 2012 posted:

Trump is trying to get his GA case moved to federal court and invoke immunity.

https://twitter.com/CNNPolitics/status/1699843042990272547

When you are president you are allowed to plan a coup.

GlyphGryph
Jun 23, 2013

Down came the glitches and burned us in ditches and we slept after eating our dead.

Deuce posted:

But Due Process of Law is how we decide pretty much anything like this. Maybe they didn't specify a conviction was necessary because it seemed too obvious. "Well how the hell else would you determine insurrection??"

"Due process of law" for qualifications is generally a civil proceeding decided in civil court.

Why do you insist on applying criminal qualifiers to a non criminal decision?

The amendment would apply even if doing an insurrection was legal, just like how its legal not to be born in the United States. Are you going to ask that someone need a criminal conviction in order to be declared not born in the US as well? That's kind of crazy.

Raenir Salazar
Nov 5, 2010

College Slice

logger posted:

When you are president you are allowed to plan a coup.

IIRC he most likely can't do this as committing crimes isn't a part of his official duties.

Tayter Swift
Nov 18, 2002

Pillbug

Raenir Salazar posted:

IIRC he most likely can't do this as committing crimes isn't a part of his official duties.

what about war crimes tho

Magic Underwear
May 14, 2003


Young Orc

logger posted:

When you are president you are allowed to plan a coup.

Not just allowed, apparently required to as a duty of the office of president! Who knew?

Arsenic Lupin
Apr 12, 2012

This particularly rapid💨 unintelligible 😖patter💁 isn't generally heard🧏‍♂️, and if it is🤔, it doesn't matter💁.


People in this thread have said before, and I may be misquoting, that this is a case under Georgia law. It is possible for the case to be transferred to a Federal judge because cases against Federal employees often are, but the Federal judge will still be trying this under Georgia law, not federal law.

BDawg
May 19, 2004

In Full Stereo Symphony

Leon Trotsky 2012 posted:

Trump is trying to get his GA case moved to federal court and invoke immunity.

https://twitter.com/CNNPolitics/status/1699843042990272547

If it's remanded to federal, we lose the cameras too. :(

Deteriorata
Feb 6, 2005

One last gasp from the J6 committee proceedings:

Peter Navarro Convicted of Contempt of Congress Over Jan. 6 Subpoena

quote:

Peter Navarro, a trade adviser to President Donald J. Trump, was convicted on Thursday of two counts of criminal contempt of Congress over his defiance of a subpoena from the House select committee investigating the Jan. 6 attack on the Capitol.

The verdict, coming after nearly four hours of deliberation in Federal District Court in Washington, made Mr. Navarro the second top adviser of Mr. Trump’s to be found guilty of contempt for defying the committee’s inquiry. Stephen K. Bannon, a former strategist for Mr. Trump who was convicted of the same offense last summer, faces four months in prison and is appealing his conviction, as Mr. Navarro has also vowed to do.

yronic heroism
Oct 31, 2008

Gyges posted:

If Trump doesn't win next year, they're never getting pardoned. Even then it's iffy on Trump actually doing anything for them. However if Donny loses this time, his hold over the party will be gone by 2028. And it's not like he has an actual protege who will continue his legacy. It's just all grifters trying to steal his grift.

Hard disagree, it’s about pandering to the base who absolutely want these guys let off. For both Trump and his imitators.

https://www.nytimes.com/2023/09/07/us/politics/desantis-ramaswamy-proud-boys-pardons.html

Judge Schnoopy
Nov 2, 2005

dont even TRY it, pal

yronic heroism posted:

Hard disagree, it’s about pandering to the base who absolutely want these guys let off. For both Trump and his imitators.

https://www.nytimes.com/2023/09/07/us/politics/desantis-ramaswamy-proud-boys-pardons.html

Talking about pardons for Jan 6 throws your hat into the Trump arena. When Trump loses in 2024 and the Republicans are decimated politically across the country, they will all be screaming and crying to purge the party of anything Trump.

Jan 6 leaders will become pure political poison.

FLIPADELPHIA
Apr 27, 2007

Heavy Shit
Grimey Drawer

Judge Schnoopy posted:

Talking about pardons for Jan 6 throws your hat into the Trump arena. When Trump loses in 2024 and the Republicans are decimated politically across the country, they will all be screaming and crying to purge the party of anything Trump.

Jan 6 leaders will become pure political poison.

Considering Trump hasn't lost much / any ground among Republican voters in the wake of actually trying to commit a coup, I think your assertion that they will mostly wake up from their fever dream if he loses again is questionable. They will just scream that the election was stolen again. Why would they suddenly admit they were wrong all this time?

Blue Footed Booby
Oct 4, 2006

got those happy feet

FLIPADELPHIA posted:

Considering Trump hasn't lost much / any ground among Republican voters in the wake of actually trying to commit a coup, I think your assertion that they will mostly wake up from their fever dream if he loses again is questionable. They will just scream that the election was stolen again. Why would they suddenly admit they were wrong all this time?

He didn't say suddenly, and a purge doesn't require admitting anything.

FLIPADELPHIA
Apr 27, 2007

Heavy Shit
Grimey Drawer
Ok fine, why would they ever? At what point in the last 30 years has the Republican party moderated itself?

Their response to losses has been to always double down. Never admit error, poo poo, never even admit you actually lost at this point.

GhostofJohnMuir
Aug 14, 2014

anime is not good
goldwater was famously obliterated by lbj with big effects down ticket as well, supposedly discrediting and shutting down the birchers and the rest of the republican crank fringe for a generation. instead the loss ended up laying the foundation for modern mainstream conservatism and the end of the liberal political hegemony that began under fdr

i honestly have no idea where trumpism will go or its potential long term impacts on the political landscape, but i'm ready for the possibility that it sticks around regardless of what happens to trump himself

C. Everett Koop
Aug 18, 2008

GhostofJohnMuir posted:

goldwater was famously obliterated by lbj with big effects down ticket as well, supposedly discrediting and shutting down the birchers and the rest of the republican crank fringe for a generation. instead the loss ended up laying the foundation for modern mainstream conservatism and the end of the liberal political hegemony that began under fdr

i honestly have no idea where trumpism will go or its potential long term impacts on the political landscape, but i'm ready for the possibility that it sticks around regardless of what happens to trump himself

So essentially a party committed to fascism, and once they inevitably end up with control over both houses and the presidency, we're off to a greatest hits of your favorite dictatorships, this time backed with nuclear weapons.

I at least figured I'd get to the second quarter of Chiefs/Lions tonight before I'd started hating life so thanks for that.

Blue Footed Booby
Oct 4, 2006

got those happy feet

FLIPADELPHIA posted:

Ok fine, why would they ever? At what point in the last 30 years has the Republican party moderated itself?

Their response to losses has been to always double down. Never admit error, poo poo, never even admit you actually lost at this point.

Indeed, that's why the party is still deeply committed to George W Bush.

Bar Ran Dun
Jan 22, 2006




GhostofJohnMuir posted:

goldwater was famously obliterated by lbj with big effects down ticket as well, supposedly discrediting and shutting down the birchers and the rest of the republican crank fringe for a generation. instead the loss ended up laying the foundation for modern mainstream conservatism and the end of the liberal political hegemony that began under fdr

i honestly have no idea where trumpism will go or its potential long term impacts on the political landscape, but i'm ready for the possibility that it sticks around regardless of what happens to trump himself

Trumpism is part of that very same story. So are the Koch brothers FYI. So is Fox News. it’s all the same crank fringe.

skeleton warrior
Nov 12, 2016


Blue Footed Booby posted:

Indeed, that's why the party is still deeply committed to George W Bush.

The GOP is more than happy to say "yes, the last guy was a mistake, but now we're doing something completely new and different with this new guy who has all of the same policies and desires"

I agree with FLIPADELPHIA that there's no sign that once Trump himself goes away by defeat, legality, or death, the GOP won't still chase after those exact same voters in the exact same way with the exact same policies. The GOP is stuck in a position where their success in gerrymandering means they're overly beholden to primary voters, and primary voters are screaming at the GOP that they want Trumpism and open white male supremacy even if it means losing in the general election.


Bar Ran Dun posted:

Trumpism is part of that very same story. So are the Koch brothers FYI. So is Fox News. it’s all the same crank fringe.

Fox News didn't start as part of that crank fringe, but they sure joined in when they saw which way their audience was going. And, yeah, what Trump represents right now isn't some new movement, it's the worst of the Birchers and segregationists from the '50's and '60's and the Buchananites of the '80s and '90s finally getting to run things.

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smackfu
Jun 7, 2004

quote:

If the case stays in federal court, the jurors will all come from Fulton County, which President Joe Biden won by a 47-point margin. If the case moves to federal court, the jury pool will be culled from from a 10-county region near Atlanta that Biden won by 32 points, a narrower but still comfortable margin.
Lol when they said that it would be a more favorable jury pool I didn’t realize it was still terrible.

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