by Chris Rosenthal
There’s been a lot of recent buzz on cable news and podcasts and discussed in articles and columns, primarily on the liberal side of things, about the idea of Trump being disqualified automatically under section 3 of the 14th amendment. The concept was advanced by Professor Lawrence Tribe and received the backing of the conservative former Judge J Michael Luttig.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
It’s exactly the sort of maneuver you’d expect would get legal scholars excited. It’s an extremely rare instance where they get to test the limits of the law. To push the boundaries and theorize about new and novel applications of our legal codes.
And so they argue that this clause creates an opportunity to disqualify the former President from running for office again. Automatically. Without need for any sort of conviction. Simply as a result of his own involvement.
While the law may allow for this, it is a horrible idea.
The results of this theory do not seem to have been thought through thoroughly — if they had it’s hard to think that the authors of it wouldn’t have recognized it as a bad and dangerous idea that can and will be subverted to be used against the Democrats in the future. Applied with a felony conviction of some sort it makes sense and becomes plausible, but without the weight of a felony conviction it feels un-American, a cheat or hack to work around Trump, and will enrage the right wing while creating a precedent that we will all surely come to regret.
How hard is it to see a scenario where a bunch of far right Secretaries of States get together and say, “We’re going to keep Biden off of the ballot because we have credible reason to believe he supported his son’s criminal enterprises with a foreign country (China) and thus has given aid and comfort to our enemies?”
The same legal precedent applies and there is no burden of proof for a conviction so end of story. Quasi legal, sure. But do you really think that matters to people who would storm the capitol? Do you really doubt that they would hesitate to use this to get or maintain power?
In the end it is a move we will all come to regret. But liberal media outlets are pushing it without thought of the consequences to fill air time while once again creating false expectations of its actual chances of success at the same time.
I’d love a magic pill that could make Trump go away. I think almost the entire country would.
But the reality is that until he is convicted of a felony the way to beat him is with the ballot. Not legal trickery. Not technicalities. The ballot.