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Constitutional law experts: Trump is ineligible
Trump is constitutionally barred from holding office for inciting an insurrection against the U.S. Constitution
Law professors William Baude and Michael Stokes Paulsen, both members of the Federalist Society, have published a 126-page paper making the case that Donald Trump is constitutionally ineligible to hold any office.
Although Trump is attempting another bid for the White House, Baude and Paulsen say that Section 3 of the Fourteenth Amendment is self-enforcing and that it bars Trump from being president again, due to his participation in “insurrection or rebellion” against the United States, in his failed attempt to overturn the 2020 election results.
The Fourteenth Amendment, Section 3, 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.
On January 6, 2021, Donald Trump headed a rally at the Ellipse, and told the massive crowd of supporters that he was the real winner of the 2020 election. While Congress was about to complete its formal constitutional duty to certify the electoral college vote, Trump promised his supporters he would to walk to the Capitol with them and change the outcome: “We will stop the steal. . . . We’re going to walk down, and I’ll be there with you, we’re going to walk down to the Capitol.” He added, “Because you’ll never take back our country with weakness. You have to show strength and you have to be strong.”
Moments later, he added, “And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore. Our exciting adventures and boldest endeavors have not yet begun. . . . So we’re going to walk down Pennsylvania Avenue. I love Pennsylvania Avenue. And we’re going to the Capitol.”
Trump did not attend the march, which sent lawmakers fleeing for their lives, as the Capitol was invaded and overrun by hostile forces for the first time since the War of 1812. The electoral certification was delayed seven hours, as Congress sought shelter from violence that cost the lives of four Trump supporters and injured as many as 150 law enforcement officers. One injured officer, Brian Sicknick, passed away hours after defending the Capitol. A number of officers died by suicide some time later, as did one Trump supporter shortly after his arrest.
Baude and Paulsen found that Trump headed “a violent uprising at the Capitol on January 6, 2021—an insurrection aimed at preventing Congress and the incumbent Vice President from performing their constitutional responsibilities to count the votes for President and Vice President in the 2020 election.”
The two scholars wrote:
Consider the overall package of events: the dishonest attempts to set aside valid state election results with false claims of voter fraud; the attempted subversion of the constitutional processes for states’ selection of electors for President and Vice President; the efforts to have the Vice President unconstitutionally claim a power to refuse to count electoral votes certified and submitted by several states; the efforts of Members of Congress to reject votes lawfully cast by electors; and, finally, the fomenting and incitement of a mob that attempted to forcibly prevent Congress’s and the Vice President’s counting of such lawfully cast votes, culminating in a violent and deadly assault on the Capitol (and Congress and the Vice President) on January 6, 2021.
Taken as a whole, these actions represented an effort to prevent the lawful, regular, termination of President Trump’s term of office in accordance with the Constitution. They were an attempt to unlawfully overturn or thwart the lawful outcome of a presidential election and to install, instead, the election loser as president. They constituted a serious attempt to overturn the American constitutional order. . . .
In our view, on the basis of the public record, former President Donald J. Trump is constitutionally disqualified from again being President (or holding any other covered office) because of his role in the attempted overthrow of the 2020 election and the events leading to the January 6 attack.
The case for disqualification is strong.
There is abundant evidence that Trump deliberately set out to overturn the result of the 2020 presidential election result, calling it “stolen” and “rigged”; that Trump (with the assistance of others) pursued numerous schemes to effectuate this objective; that among these were efforts to alter the vote counts of several states by force, by fraud, or by intended intimidation of state election officials, to pressure or persuade state legislatures and/or courts unlawfully to overturn state election results, to assemble and induce others to submit bogus slates of competing state electors, to persuade or pressure Congress to refuse to count electors’ votes submitted by several states, and finally, to pressure the Vice President unconstitutionally to overturn state election results in his role of presiding over the counting of electors’ votes. . . .
Finally, as events unfolded and the violence began, Trump maintained silence—and indeed deliberate indifference bordering on tacit encouragement—for what had by that time clearly become a forcible insurrection. For three hours after learning that his supporters had forcibly invaded the Capitol and were disrupting the constitutional process, Trump took no action to urge them to leave, despite being begged to do so by his advisors and despite having a constitutional duty to take care that the laws be faithfully executed. During this same period, while the insurrection was in progress and after the Capitol had been breached, he again condemned Vice President Pence for not “hav[ing] the courage to do what should have been done to protect our Country and our Constitution,” a statement that the January 6th Commission concluded was “a statement that could only further enrage the mob” and that in fact apparently did so. Once Trump finally did – after several hours and with great reluctance—direct his supporters to leave the Capitol, they quickly dispersed.
This culpable inaction—failing to intervene to stop an insurrection in progress, declining to act to arrest a violent uprising, despite having both the capacity and responsibility to intervene—is another crucial part of Trump’s responsibility for the January 6 insurrection.
Read the entire paper here:
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