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Trap or Not, the Move to Disqualify Trump Has Already Begun [1]

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Date: 2023-08-26

GSPotter has a well-recommended story up: The Conservative Call to Disqualify Trump is a Trap, where the author argues that the Federalist Society, which is funded by people who don’t want Trump back in office for their own reasons, is trying to create a mechanism by which they can not only get Trump off the ballot, but any Democrat they don’t like as well (which is basically all of them).

Now it seems we already have to contend with an actual attempt to apply the disqualification in real life.

The Hill: Florida lawyer files challenge to disqualify Trump from 2024 race, citing 14th Amendment

A Florida lawyer is challenging former President Trump’s ability to run for president in 2024 under the U.S. Constitution’s 14th Amendment, citing the Jan. 6, 2021, Capitol attack. Lawrence Caplan, a tax attorney in Palm Beach County, filed the challenge in federal court Thursday, pointing to a clause in the amendment that says those who “have engaged in insurrection or rebellion” against the government cannot hold office.

The complaint opens:

Petitioner now comes before this honorable Court seeking declaratory relief on the specific issue of whether candidate Donald J. Trump is indeed constitutionally prohibited from seeking a second term as President of the United States. Encompassed within this request for declaratory relief is a further determination as to whether candidate Trump is indeed even eligible to participate in the upcoming Florida Republican Party Primary scheduled for next spring in 2024.

Further down in the filing (which is in the Southern District of Florida):

Any number of top legal scholars, including but not limited to Judge Luttig and Laurence Tribe conclude that Section 3 requires absolutely no legislation, criminal conviction or other judicial action to enforce its command. In legal terms, Section 3 is completely “self-executing”. They conclude that disqualification subject to Section 3 does not constitute a punishment or a deprivation of any “liberty” or “ right” as much as one who fails to satisfy the Constitution’s qualifications does not have an absolute right to serve in a public office much less the presidency. Lastly, the scholars conclude that Section 3 is expansive and all-encompassing is what it regards as “insurrection or rebellion” against the constitutional order of the United States.

followed by

Furthermore, had President Trump merely been thought by many individuals to have engaged in an insurrection against the federal government, that would not have sufficed to trigger Section 3 of the 14th Amendment. However, the mere fact that he has been formally indicted for various felonies including insurrection against the federal government mandates that Section 3 of the 14th Amendment be triggered. [emphasis added]

In other words, the lawyer that an indictment (not a conviction) is sufficient to make Trump ineligible under Section 3. A Florida legal scholar pointed this out (Palm Beach Post Palm Beach County lawyer files legal challenge to disqualify Trump from 2024 presidential race):

FAU's Wagner agrees that the 14th Amendment may not require Trump's conviction on any charges for it to be invoked. "What makes it tricky is it doesn't say you don't have to be convicted. It just says you have to engage in it," he said.

The Palm Beach Post also notes that:

Intriguingly, both Baude and Paulsen are active members of the conservative Federalist Society that has been a principal player in ushering forward conservative jurists across the United States, including on both the U.S. and Florida high courts.

Baude and Paulsen being the authors of the original article arguing for Trump’s ineligibility, of course. Caplan’s affiliation is not stated (and he claims to have voted for both Democrats and Republicans), only that he is a tax attorney in Boynton Beach (Palm Beach county). Caplan’s concluding paragraph does contain a couple of obvious typos which do make me wonder how good a lawyer he really is:

WHEREFORE, Petitioner respectfully asks this honorable Court to enter a declaratory judgment such that Donald J, Trump is barred from seeking the office of President of the United States and further, is barred rom[sic] particpating[sic] in the Republican Presidential primary in Florida in the spring of 2024.

No comment yet from the Trump campaign that I’ve seen.

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[1] Url: https://www.dailykos.com/stories/2023/8/26/2189777/-Trap-or-Not-the-Move-to-Disqualify-Trump-Has-Already-Begun

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