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How the 14th Amendment has come into play with the Trump indictments

Posted by Sara Cooper | Sep 26, 2023 | 0 Comments

Focusing on the U.S. Constitution when it comes to the eligibility of Trump's position to even run for re-election of the country's presidency next year, it's a divisional outlook in whether he has violated any amendments.

The 14th Amendment was ratified in 1868, following the Civil War, and its Section 3 essentially disqualifies from office anyone who engaged in "insurrection or rebellion" against the U.S.

It's not an amendment even thought about, from public opinion to governmental affairs.

Its initial purpose was to prevent Confederate party officials being initiated into Congress, being most utilized a decade after the Civil War, said James Gardner, a professor at the University at Buffalo School of Law who specializes in constitutional and election law.

"Until recently, nobody would have said that there was even a real chance of a sort of a rebellion or insurrection against the United States of the kinds the amendment would deal with," Gardner tells NPR. "Now is certainly the most important context to which the provision is relevant since the 1870s."

This is due to the overturning attempts of the presidential loss back in 2020 from Trump and his team, and the January 6th attack on the U.S. Capitol.

According to NPR, “Liberal groups have since tried unsuccessfully to apply the amendment to block several well-known Republican members of Congress from running for reelection over their involvement in Jan. 6.”

Despite the efforts in trying to have Trump be accountable, keeping him off of the ballot isn't a possible success from their perspective.

Investigations on the January 6th attack and the four indictments against him for overturning the 2020 election seem to not uphold the wall on him trying to run again as the country's executive leader.

The special counsel's probe is under scope as part of the ongoing track of Trump trying to exit away from his consequences.

Legal scholars and voters' rights groups have argued that the clause is the support in preventing him from being on the ballot.

"I think there is consensus in the legal field that it is worth looking into," Gardner says. "The questions that are difficult are exactly how that would happen."

According to NPR, “Because the presidential election happens nationwide yet is so decentralized, individual state officialscould theoretically make their own determinations about whether Trump should be on the ballot, based on their state statutes.”

States such as Georgia, New Hampshire, and Michigan have reported under election administrators that his name will be on the ballot until said otherwise from the court.

Gardner — who personally would like to see Trump disqualified from ballots nationwide — says the issue would ideally settled by the U.S. Supreme Court in time for the upcoming election cycle according to NPR.

"I think that the situation that would be most fraught is if the state courts in New York and California throw him off, but the state courts in Alabama and Georgia keep him on," he explains. "So then you'd have a disagreement among perfectly well-authorized judicial systems. ... It needs to be decided by the Supreme Court for everybody."

People disagree about whether it would be worse to ignore or confront the question, Gardner says. He believes any decision will be fateful for the U.S. as a civic society, especially in the broader context of the democratic backsliding happening here and elsewhere around the world. The clause has been used before, and it is put under the scope right now for what importance it can hold for this election turnout.

Section 3 of the 14th Amendment reads:

"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."

The wording of the clause opens it up to a slew of definitional questions, including the meaning of insurrection, what constitutes engagement and "aid or comfort," and whether the presidency is really an “office.”

For his part, Gardner argues Jan. 6 was clearly a violent insurrection against the U.S., citing the loss of life and destruction of property.

The degree of Trump's involvement is a question that people view as more murky, he says, pointing to examples like Trump's rousing speech beforehand and the Jan. 6 committee's revelation that he wanted to go to the Capitol himself.

There have not been any charges against Trump for the insurrection, which legal experts have said that using this argument only, weakens the case for taking him off of the ballot. Gardner said that a conviction is not a prerequisite.

Gardner says Trump's March 2024 election interference trial tackles different legal issues namely, whether he violated particular criminal statutes, not whether he violated a provision of the Constitution, according to NPR.

"It may be that in those trials, evidence would be produced which would be relevant to the constitutional question," he explains. "But they're really not connected."

Pressuring questions towards the Secretaries of State about whether Trump will remain on the ballot, which is a most likely yes.

For one instance, GOP lawmakers in New Hampshire had written to Secretary of State Republican David Scanlan, that included the counterargument against the 14th Amendment and demanding he stays on the ballot.

"Now it is time for the great leaders of the Granite State to ensure that their constituents have access to a free and fair primary election by standing against the misinterpretation and politicization of our Constitution," they wrote in the Sept. 12 letter.

More updates to come. Credits to NPR.

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