(C) Common Dreams
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The Conservative Legal Roadmap to Disqualify Trump From Office [1]
['Matt Ford', 'Alex Shephard', 'Grace Segers', 'Tori Otten', 'Edith Olmsted']
Date: 2023-08-13
Baude and Paulsen conclude that the events of January 6 clearly count as an “insurrection or rebellion,” more likely the former of the two, under Section Three. They recount Trump’s actions at great length before concluding that he actively supported the attack by either tacit approval or deliberate inaction. “Taking these events as a whole, and judging them under the standard of Section Three, it is unquestionably fair to say that Trump ‘engaged in’ the January 6 insurrection through both his actions and his inaction,” they wrote. “Officials—administrators, courts, legislators—whose responsibilities call upon them to apply Section Three properly and lawfully may, indeed must, take action within their powers to preclude Trump from holding future office.”
If some of this sounds familiar, that’s because Baude and Paulsen are not the first legal thinkers to apply Section Three to January 6. Last spring, a group of voters in North Carolina sought to disqualify then-Representative Madison Cawthorn from running in that year’s presidential election. Cawthorn sued the state board of elections to stop them. The case against Cawthorn, however, was comparatively weak: It largely hinged on his vote to reject the electoral count in certain states before and after the mob arrived. While those votes were anti-democratic and unjustifiable, I argued that an otherwise lawful legislative vote on its own did not rise to the level that Section Three demands without something more.
Nevertheless, that legal foray still offered a chance for courts to sketch out the contours of Section Three in today’s life. During the Cawthorn litigation, a federal district court judge concluded that Congress had effectively nullified Section Three in 1872. Not so, Baude and Paulsen argue. They note that Congress had no prospective power to immunize anyone from Section Three’s grasp, and that the 1872 law did not seek to do it in any event. “The power to remove an extant legal disability is not a power to rescind the legal rule that creates that disability,” they argue. “Thus, not only has Congress never purported to sunset Section Three, it lacks the power to do so by Section Three’s own terms.”
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[1] Url:
https://newrepublic.com/article/174977/baude-paulsen-trump-14th-amendment
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