Is Trump legally qualified to be a presidential candidate?

[JimFoxvog]

Donald Trump rose to political notice by arguing that Obama was not qualified to be President with the birther hoax. Does anyone remember how he said that should be handled?

[Josh]

Donald Trump rose to political notice by arguing that Obama was not qualified to be President with the birther hoax. Does anyone remember how he said that should be handled?

Of course, someone not born in the U.S. actually isn’t qualified to be President, which is different than novel legal theories that someone who some people might have led an insurrection (which has yet to be indicted or charged, let alone convicted) can’t run for President.

The only requirement to run for President is to be a natural born citizen (if after the 1700s, which everyone alive today is) and to be over 35.

[Pelerin]

I can’t say I was too surprised when I scrolled back up to read the byline and saw Lawrence Tribe. He’s one of the many hacks who keep showing up in my Twitter feed whose game is to tell anti-Trump liberals exactly what they want to hear. What other sort of person would look at Trump’s unique I-win-no-matter-what constitutional theories and think to themselves, “Yes, more of this please!”

Fair enough.

Just like what Jonathan Turley and Alan Dershowitz do for the Fox News audience.

But when he teams up with someone like Michael Luttig, that grabbed my attention. These two men have been on the opposite side of so many issues as long as I can remember.

That’s probably the main difference there. You’re looking at it from the starting point and I’m looking at it from the end:

These seem like pretty good drivers to get us where we need to go.

vs.

If you ended up here you obviously took a wrong turn somewhere no matter how eminent your driver is.

[barnhart]

No, actually it wasn't. All the confederates were pardoned prior to the passage of the 14th Amendment. So the 14th Amendment was written for future insurrectionists, not past ones.

On May 26, 1865 President Johnson issued amnesty and pardon to all former confederates.
https://ldhi.library.cofc.edu/exhibits/ ... cument_two provided that they declared loyalty to the United States. And many returned to public life and public office at that time. The 14th Amendment was not ratified until July 1868 over three years later. So it was never actually applied to confederates, thousands of whom held public office after the war.

Interesting. Are you sure it wasn't to sideline all the Confederates who refused to swear allegiance the the union or otherwise go through the process.

From what I have read the 14th Amendment was never used to disqualify any confederate from public office. So it was more of a forward looking prospective thing not backward looking.

Would I be correct that you are assuming a textualist position (what the framers said) on the 14th amendment vs. an originalist position (what the framers meant).

[Ken]

Interesting. Are you sure it wasn't to sideline all the Confederates who refused to swear allegiance the the union or otherwise go through the process.

From what I have read the 14th Amendment was never used to disqualify any confederate from public office. So it was more of a forward looking prospective thing not backward looking.

Would I be correct that you are assuming a textualist position (what the framers said) on the 14th amendment vs. an originalist position (what the framers meant).

It doesn't matter either way.

When Congress and the states ratified the 14th Amendment, all Confederates had already been pardoned and many were already serving in public office so they knew it wasn't going to apply to veterans of the Confederacy. Furthermore, the plain language of the Amendment doesn't specify that it was limited to the Civil War.

So whether you take a textualist position or originalist position you can reach the same conclusion as the authors of this paper reached. That it was meant for any future insurrections, not just the Civil War.

[Bootstrap]

That’s probably the main difference there. You’re looking at it from the starting point and I’m looking at it from the end:

These seem like pretty good drivers to get us where we need to go.

vs.

If you ended up here you obviously took a wrong turn somewhere no matter how eminent your driver is.

I think you have to look at both. I wouldn't bother getting into car with a reckless drunk. If I am in a car with someone I consider a good driver, and it's getting dangerous, I stop trusting the current driver.

[Bootstrap]

Would I be correct that you are assuming a textualist position (what the framers said) on the 14th amendment vs. an originalist position (what the framers meant).

FWIW, there are originalists who believe that Trump is not legally qualified to be president.

In fact, originalism is basic to the argument for these two:

The reason does not really matter. It is the rule as drafted and enacted in the
written text that counts, whether it goes further than the purposes supposed to have
inspired its adoption, or even whether it falls short of fully achieving those purposes.
While evidence of intention, usage, purpose, and political context can assist in ascer-
taining the meaning of the enactment, it is that objective meaning that constitutes
the law, not the ostensible purposes or motivations that supposedly lay behind it.
This is “originalism,” our system’s basic method for interpreting the Constitution and
its amendments.

Thus, if the framers and ratifiers of the Fourteenth Amendment enacted a gen-
eral rule in Section Three—a disqualification from future officeholding keyed to hav-
ing taken an oath to the Constitution and subsequently engaging in insurrection or
rebellion against the United States—rather than a provision that by its terms applied
only to the case of former Civil War secessionists and Confederate officials and offic-
ers,12 it is the general rule that matters. That the rule had a particular political pur-
pose behind it as a matter of history might be an aid to correct interpretation of the
language supplying that rule. (We will make such an argument below, concerning the
meaning, in context, of the phrase “insurrection or rebellion.”) But in the end the
question is what rule was enacted. If Section Three’s rule fell short somehow, missing
some folks its drafters might have meant to ensnare, those persons are not ensnared.
The text might (or might not) be thought deficient in this regard—as having failed to
fulfill its full purpose. But the text means what it says. Similarly, if the rule supplied
by the objective meaning of the text runs right on past the specific historical purpose
for which it was enacted and embraces as well other insurrectionists, rebels, and aid-
ers and comforters of enemies, that rule must be given full legal effect as part of the
Constitution. The rule’s overbreadth in terms of its perceived purpose, and even its
inconvenience as a consequence of such overbreadth, are beside the point.

[Bootstrap]

The article defines insurrection and rebellion thus:

1. Working definitions

We begin by offering working definitions of the terms insurrection and rebel-
lion as used in Section Three and of what might constitute “engaging in” such conduct
or giving “aid or comfort” to others who do.

Insurrection is best understood as concerted, forcible resistance to the authority
of government to execute the laws in at least some significant respect. The term “insur-
rection” connotes something more than mere ordinary lawbreaking. It suggests an
affirmative contest with, and active resistance to, the authority of the government. It
is in that sense more than just organized resistance to the laws—more than just a
protest, even one involving civil disobedience. Rather, it is organized resistance to the
government. Insurrection is also more than mere “protest” in that it implies some
element of forcible resistance. It is something more than a mere spontaneous, disor-
ganized “riot.” Insurrection suggests at least some degree of coordinated, concerted
action. The term also implies something more than acts of solitary individuals: to
qualify as an insurrection the acts in question must involve some form of collective
action, even if not an advance plan.

At the same time, insurrection may fall short of outright rebellion—even as the
terms overlap and might bleed into each other—in that an insurrection might not
seek to overturn, overthrow, or displace the government itself, in whole or in part (as
a rebellion does). As the Supreme Court put it in The Prize Cases, in 1863: “Insurrec-
tion against a government may or may not culminate in an organized rebellion.”
Rebellion is thus closely related to insurrection, but perhaps not quite identical
in meaning. A rebellion is arguably broader in its reach than an insurrection: rebel-
lion implies an effort to overturn or displace lawful government authority by unlawful
means. (In the case of secession, or a declaration of independence, the rebellion is an
effort to free those engaged in rebellion from the authority of the existing lawful gov-
ernment.) Rebellion is something beyond mere resistance to government authority in
a particular instance or set of instances. A rebellion seeks to replace the existing re-
gime, not just resist its law-executing authority. Rebellion involves repudiation, to
some degree or another, of the regime’s authority, legitimacy, or validity. It is a chal-
lenge, direct or indirect, to the regime itself. The South’s attempted secession was a
species of rebellion—an attempt to overturn the authority of the Constitution and
government of the United States by the states asserting the right to secede. Likewise,
an attempted coup d’etat is arguably also a species of rebellion—an effort to displace,
replace, upend, or overthrow the existing lawful regime and substitute different au-
thority in its stead.

The term rebellion can also imply a competing claim to legitimacy. “Rebellion”
thus seems to carry a stronger political-claim-of-right valence than does “insurrec-
tion.”Crucially, however, the fact that an insurrection or rebellion claims political
or moral legitimacy—as the American Revolution did; indeed, as the South’s seces-
sion did—does not make it any the less an insurrection or rebellion. The fact that an
attempted coup d’etat, or declaration of independence, or secession, is claimed to be
a “vindication” or “restoration” of rightful governmental authority—or asserted to be
a pre-emptive effort to thwart some other person’s or group’s alleged wrongful asser-
tion of authority—does not immunize such action from the legal characterization of
rebellion against the regime. If somebody in fact participates in an attempt to over-
throw the government, it makes no difference that he might think himself in the right
for doing so, see himself as an agent for preserving lawful government, or view his
acts and intention not as “rebellion” but restoration. Mistake of law is no defense to
a coup d’etat. The South offered a variety of constitutional legal theories in defense
of the supposed lawfulness of secession as an act for the vindication of its believed
rights. That did not make its acts of rebellion any less acts of rebellion.

[Bootstrap]

Here's how this originalist argument was applied to January 6th in the article:

Overall, it seems to us to be quite clear that the specific series of events leading
up to and culminating in the January 6, 2021 attack qualifies as an insurrection
within the meaning of Section Three: “concerted, forcible resistance to the authority
of government to execute the laws in at least some significant respect.” The large
group of people who descended upon, entered, and occupied the U.S. Capitol building
used force to prevent a key step in the constitutional transfer of power. The group
was in part coordinated, not merely a riot.Some members of the group were
armed, and many used force to breach the Capitol, to overpower law enforcement
there, and to effectuate their unlawful aim.

Furthermore, it seems that, as a whole, the group’s goal—to the extent the
group had a specific objective in mind—was to disrupt the constitutional transfer of
power, by disrupting a necessary formal step in the constitutional process. The in-
vasion of the Capitol on January 6 was not simply a violation of the law (though it
was that of course). It was not merely a protest of a particular legal measure, but a
forcible prevention and disruption of it. And it was not the disruption of just any legal
measure, but of one that was itself central to the allocation of authority under our
Constitution. If this is a fair description of what happened on January 6, then that
day was something quite different from more common acts of protest, even disruptive
protest. January 6 was an insurrection.

Our assessment of the events of January 6, specifically, as an “insurrection”
confirms the judgment made by public authorities: An act of Congress, to “award four
congressional gold medals to the United States Capitol Police and those who pro-
tected the U.S. Capitol on January 6, 2021,”408 found that the events of January 6
constituted an insurrection. The text of the act contains an official finding: “On Jan-
uary 6, 2021, a mob of insurrectionists forced its way into the U.S. Capitol building
and congressional office buildings and engaged in acts of vandalism, looting, and vi-
olently attacked Capitol Police officers.”409 Another finding noted the historic magni-
tude and symbolic importance of that insurrection against democracy: “The desecra-
tion of the U.S. Capitol, which is the temple of American Democracy, and the violence
targeting Congress are horrors that will forever stain our Nation’s history.” The
impeachment charges brought against President Trump as a result of January 6 were
equally explicit in concluding that the events of January 6 constituted an insurrec-
tion. A majority of the House of Representatives approved (232 to 197) an article of
impeachment charging then-President Trump with “incitement of insurrection” for
the events of January 6th. The Senate’s vote to convict Trump of this charge, while
falling short of the two-thirds majority required by the Constitution’s impeachment
process, constituted a substantial majority (57 to 43) of the Senate endorsing the
House’s charge and characterization. Majorities of both houses of Congress thus de-
termined—at least twice—that January 6th was an insurrection; and in the impeach-
ment proceedings majorities of both houses determined that Trump was responsible
for having incited that insurrection.

Finally, there is an additional possibility that we should see the events of Jan-
uary 6, 2021, as just one part of a broader “rebellion” against constitutional govern-
ment, much like secession—actions seeking unlawfully to displace or replace the au-
thority of lawful constitutional government and substitute a constitutionally unau-
thorized governmental authority in its stead.

[Heirbyadoption]

But finally and above all, this article is actually probably the best defense of the January 6 rioters that could have been written. The rioters believed, “They don’t care what the voters actually voted for, they’ll never let Trump be re-elected.” And now this article says, “Yeah, that’s true.”