Understanding Standing
Okay, somebody help me out here. We’ve been teased by lawyers, people like Michael Luttig (conservative) and Lawrence Tribe (liberal) that the former President of the United States is prevented from being elected to any federal or state office because he fomented a coup with several overlapping strategies meant to thwart a peaceful transition to the Biden Administration. This, they point out, is spelled out by the 3rd Clause to the 14th Amendment, to wit:
“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.”
Luttig and Tribe first made this claim in The Atlantic (sorry, subscription needed to read it all), but it keeps cropping up in discussions by the cable newsies.
There are lots of discussions of this recently, notably here, but one snag is that the matter has not come up since the years following the Civil War (or The War of Northern Aggression, depending on your point of view).
Everyone pretty much knew who participated in the treasonous secession of the southern states, or if they didn’t, the insurrectionists were soon outted. So the “vague” language in the 14th as to how to prove a person qualifies to be disqualified from elected office wasn’t a problem.
It is now.
But in a decision today by an Obama-appointed federal judge, Judge Robin Rosenberg, TFG’s name can appear on the Florida presidential primary ballot next year despite his (some say illegal) effort to stay in office after January 20, 2021.
Why? Why did Judge Rosenberg ignore the learned opinions of two well-known constitutional legal experts in her ruling? Is it because TFG has not been convicted (yet) of any crime in this matter? Is it too soon?
Well, it turns out that, according to Judge Rosenberg, an ordinary citizen in Florida has no standing to bring that suit.
Judge Rosenberg quickly threw out the case on standing alone, and left it there. The issue of whether TFG engaged in insurrection or given aid and comfort to insurrectionists did not enter into her decision. Okay. That’s fair. That’s something yet to be determined. I get it. Maybe.
But if an ordinary citizen, a tax lawyer in this case, and I assume a voter in the 2020 election, has no standing to raise this issue in court, then who does? Is it that the attempted coup was merely attempted? Does TFG qualify to be disqualified only if he succeeded?
An interesting dilemma.
But given that the 14th specifically states that only Congress can override such an impediment to those US offices, the obverse of the coin is probably that only the same Congress can impose that restriction.
“But Congress may by a vote of two-thirds of each House, remove such disability”
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In any case, why TF hasn’t some entity with the requisite authority yet brought a charge of Treason against Mr. Trump?
Article III, Section 3 of the US Constitution delineates the high crime of treason, Trump’s actions meet every requirement of it and it’s subsequent interpretations.
https://constitution.congress.gov/constitution/article-3/
I wrote about this a month ago here:
https://juanitajean.com/what-is-a-speaking-indictment/#comments
To summarize, Trump fomented and assembled a force of men/women, and KNEW that a significant number of participants were ARMED. He then incited them to march on, breach, attack, the US Congress for the purpose of subverting the certification of the 2020 Presidential Election.
These actions by Trump meet every parameter of the crime of treason under the US Constitution, Article III, Section 3:
““Definition: In Article III, Section 3 of the United States Constitution, treason is specifically limited to levying war against the U.S., or adhering to their enemies, giving them aid and comfort.[2]
And from Article III of the Constitution:
“In Ex Parte Bollman, 8 U.S. 75 (1807), the Supreme Court ruled that “there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war.”[18]”.
**[ed– particularly note this:] —Levying war means the assembly of armed people to overthrow the government or to resist its laws.—**
It couldn’t be plainer, what Trump did was Treason, and inciting treason. “.
.
I wrote about this a month ago here:
https://juanitajean.com/what-is-a-speaking-indictment/#comments
Quoting myself from the above :
“Apart from this, I cannot fathom why Trump hasn’t been charged with Treason. His crimes fully meet the definition of this most serious of crimes as enumerated in Article III of the US Constitution, and subsequent findings.
The NewsHour segment is here, transcript, video, etc.:
https://www.pbs.org/newshour/show/trumps-attorney-blasts-latest-indictment-as-attack-on-free-speech
.
Also something that I mentioned on the previous thread [JJ’s]. Something so far unmentioned in the media afaik. And it buttresses the charge of Treason as specifically outlined in Article III.
And something that is going to become an important item in the trial[s] of Trump. :
Trump KNEW that members of —his— “Save America” rally on the Ellipse were ARMED, immediately preceding his commands to storm the Capitol where the Congress was certifying the election!
**A requirement of Article III’s very definition of Treason.**
When the Secret Service became aware that some people seeking admission within the gates of the Ellipse were ARMED, they consulted with Trump’s advisors, and then Trump himself.
**Trump insisted that these armed people be admitted into the Ellipse area itself.**
Which the SS couldn’t allow.
““Definition: In Article III, Section 3 of the United States Constitution, treason is specifically limited to levying war against the U.S., or adhering to their enemies, giving them aid and comfort.[2]
And from Article III of the Constitution:
“In Ex Parte Bollman, 8 U.S. 75 (1807), the Supreme Court ruled that “there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war.”[18]”.
**[ed– particularly note this:] —Levying war means the assembly of armed people to overthrow the government or to resist its laws.—**
It couldn’t be plainer, what Trump did was Treason, and inciting treason. “
1I’m no lawyer, but it seems to me that a lot of courts have relied on the issue of standing to keep from having to make a ruling about Combover Crime Lord’s crimes that could be traced back to them. What remains to be seen — and I think we’ll see it before too long — is what they’ll do when some state’s secretary of state rules that CCL can’t be on that state’s ballot. Because if the secretary of state doesn’t have standing, then who does?
2I couldn’t agree more, Sandridge. But I cannot think of a single person (other than the voter who filed the case in Florida, so perhaps I should say – a single person in power) who would bring such a charge, because whoever does so would be assassinated within the week. Some RWNJ would hear the call the arms and act on it.
Sounds like so many countries in the so-called Third World.
3My opinion is that even if he’s found guilty of one or more of his charges, even those specific to Jan 6 indictments, he still won’t be declared treasonous. Certainly Congress will never get enough consensus to do anything official. Or the courts. I believe that the RNC and R party are complicit in letting TFFG off by all their actions. Or should I say inaction. I think they encouraged everything about Jan 6 and the election fraud lies in Georgia and elsewhere by their silence and in many instances, their participation (and still are). Saying the word “treason” is controversial and certainly on the right, no one will deal with. Even the DOJ wouldn’t say it.
4Was just reading this from Politico that popped up in my email. I guess if the Federalist Society is talking about the 14th Amendment, article 3, maybe the calls will grow.
Steven Calabresi is the co-founder of the Federalist Society:
“STEVEN CALABRESI writes at the Volokh Conspiracy: “Section Three of the Fourteenth Amendment bans anyone from holding any federal office who has taken an oath to uphold the Constitution and who then breaks that oath by engaging in ‘insurrection or rebellion against the same.’ Donald J. Trump is precisely such a person.”
“— Law professors WILLIAM BAUDE and MICHAEL STOKES PAULSEN counter McConnell in a new law review paper: “Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications.”
5I hate to play devil’s advocate but I must in this case. Has any court or legal body determined that he has committed insurrection? None of the 91 charges are for insurrection. So we’ve already reached murky ground. How does a state Secretary of State justify keeping him off the ballot? At that point, any jackass could just arbitrarily decide to keep his or her party’s opponent off the ballot and just say they committed insurrection. Unfortunately, I just don’t see this going anywhere. You could claim that a majority of the House and Senate has already decided that, but it didn’t meet the constitutional threshold.
You could clean this up with Democratic majorities and simply pass a law or sets of laws barring people convicted of felonies being on the ballot. I could see parties doing this, but it would have to be a post-Trump thing.
6Christians don’t seem to care that Trump is probably the least Christian man we’ve ever had as President, so I can’t imagine Republicans will care whether or not he tried to subvert the election, block the vote, or overthrow the legitimately elected government. If it requires Congress to vote on whether Trump can run again.
7Agree, Nick, treason charges will not happen. However, the more entities that are ultra conservative and R leaning, like the Federalist Society, that think it was treason, the more likely other non-magats and maybe magats will come to believe it was treason and move far, far away away from any trumpf support. Maybe that could trickle down to other state and federal races and make trumpf supporting candidates toxic.
8That has been my mantra all along. The dream of a majority of people abandoning him or his followers is a pipe dream. What you hope for is five percent. Realistically that’s either five percent changing their vote or simply choosing not to vote. 175 House seats are solidly red due to gerrymandering/demographics. Maybe there are 25-30 seats that get swayed by that five percent. That takes us from maybe slight blue advantage to tsunami territory. In a presidential race it goes from 3-4 percent to 7-9 percent. Good luck with fraud claims then.
I don’t know how this ends. Realistically you might spend two years using a new blue majority to pass laws only safeguarding our democracy. You might be able to successfully turn around gerrymandering and onerous ID laws. You could federalize all national elections under the same rules. If you do all these things that’s all you’re accomplishing but it would set up our democracy for the future. I’d be very happy with that.
9I’ll be happy when he’s in jail along with his coconspirators. Even if that infuriates his cult.
10Maybe “doctor” Ronny wasn’t wrong about TFG? It sure does seem as if he is living way long past his expiration date. If only he’d simply go away…
As for lawyers and the legalese? Seriously. How can one document contain so many disjunctives and have any clarity?
11The clause was written for Jefferson Davis and his ilk. My sister went through this her entire coaching career. A one page rule sheet turned into ten or more. Every time someone comes up with a new way to do something stupid she added a rule. Everyone thought norms would be enough. They aren’t. Some people are immune to them. So, you have to add clear rules that cover as much as you can think of.
Jail is a must. I’m not a good predictor of the future. I never thought he’d actually be indicted, so while I don’t think he will see the inside of a jail cell I hope and pray I’m wrong. We are close. I’m hoping all the co-conspirators go with him. I don’t think this 14th amendment clause will do it but I’ve been wrong up to this point.
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