Is Trump legally qualified to be a presidential candidate?

[Ken]

My apologies for using the word certify…he opens, reads and counts the various electoral counts. The novel theory as I said, was that he could choose to not accept a certain state’s slate of electors.

Likewise, a novel reading of the 14th amendment gives secretaries of state the power to determine if someone running for office participated in an insurrection.

They are equivalent in their silliness and unseriousness.

Secretaries of state are, indeed, charged with determining who can and cannot be on the ballot. At least that is the case in most states. Secretaries of State are generally the highest election official in each state and it is their constitutional duty to interpret and apply election laws and administer statewide elections. For example, Trump does not automatically get to be on the ballot here in Washington State. He has to meet all the requirements which includes signature requirements for primary elections, and party endorsements for general elections. The secretary of state is in charge of all of that.

We actually have 50 state elections for president, not one Federal election.

More realistically though, this seems something that would be determined by the courts. But the courts would generally have to have some action by some secretary of state in order to review. So, some citizen challenges the right of Trump to be on the ballot in some state. The secretary of state makes a ruling agreeing. And then it gets challenged and appealed to the courts.

You may think it is silly and unserious, but it is already happening.

Michigan: https://michiganadvance.com/2023/08/29/ ... -michigan/
New Hampshire: https://www.forbes.com/sites/alisondurk ... 444cf2e9a8
Florida: https://www.sun-sentinel.com/2023/08/25 ... suit-says/
And generally: https://www.cnn.com/2023/08/31/politics ... index.html

A post-Civil War provision of the 14th Amendment says any American official who takes an oath to uphold the Constitution is disqualified from holding any future office if they “engaged in insurrection or rebellion.” However, the Constitution does not spell out how to enforce this ban and it has only been applied twice since the late 1800s, when it was used extensively against former Confederates.

New Hampshire Secretary of State David Scanlan, a Republican, said earlier this week that he asked the state’s attorney general to examine the matter and advise him on the “provision’s potential applicability to the upcoming presidential election cycle.” The attorney general’s office said it was “carefully reviewing the legal issues.”

In the statement, Scanlan said he wasn’t taking a position on the disqualification question and was not “seeking to take certain action” but was going to study the matter in anticipation of lawsuits.

And Michigan Secretary of State Jocelyn Benson, a Democrat, said last week in an interview with MSNBC she would consult with her fellow election officials in other key states and that they will “likely need to act in concert, if we act at all” regarding the constitutional challenges, which she predicted will ultimately be settled “in the courts.”

Finally, there are legal scholars who indeed believe this is all self-implementing and doesn't require Trump to actually be convicted:

In an Aug. 19 article in The Atlantic, J. Michael Luttig, a conservative former judge for the U.S. Court of Appeals, and Laurence Tribe, a liberal law professor, endorsed the position advanced by Baude and Paulsen, saying Trump’s attempts to overturn the election “place him squarely within the ambit of the disqualification clause.”

“The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation,” they wrote. “The clause was designed to operate directly and immediately upon those who betray their oaths to the Constitution, whether by taking up arms to overturn our government or by waging war on our government by attempting to overturn a presidential election through a bloodless coup.”

[HondurasKeiser]

There are legal scholars to promote nearly anything you could conceive of….that doesn’t much move me.

As a matter of fact, section 3 of the 14th amendment is not self-executing and needs to be given the force of law by Congress. That means then that it cannot simply fall to the various secretaries of state to determine for themselves if someone has or has not engaged in insurrection. This determination was arrived at by Chief then judge, Salmon Chase, in the Griffin decision. See then his decision on the ascertainment of whether someone engaged in insurrection:

The penalty applies to every person who is guilty; but his guilt can only be ascertained, the identity of the individual can only be made certain, the penalty applied to that particular individual, only by due process of law—i. e., trial, conviction and judgment…

[Ken]

There are legal scholars to promote nearly anything you could conceive of….that doesn’t much move me.

As a matter of fact, section 3 of the 14th amendment is not self-executing and needs to be given the force of law by Congress. That means then that it cannot simply fall to the various secretaries of state to determine for themselves if someone has or has not engaged in insurrection. This determination was arrived at by Chief then judge, Salmon Chase, in the Griffin decision. See then his decision on the ascertainment of whether someone engaged in insurrection:

The penalty applies to every person who is guilty; but his guilt can only be ascertained, the identity of the individual can only be made certain, the penalty applied to that particular individual, only by due process of law—i. e., trial, conviction and judgment…

I expect we will eventually find out the answer.

Personally I think it is to Democrats favor if he isn't disqualified because I suspect he is the worst candidate that Republicans can put up against Biden. Any of the other younger candidates would be much more challenging for Biden, I think, because they would represent a fresh start for the GOP. But that ship has probably sailed. So this is a weird issue. It is probably more to the long-term benefit of Republicans to see Trump disqualified than Democrats.

But who knows. We are definitely off the map here and have been since 2020.

[ohio jones]

There are legal scholars to promote nearly anything you could conceive of….that doesn’t much move me.

The job of legal scholars, as far as I can tell, is to concoct creative theories and see if they can get anyone to agree with them. But without taking an actual case to court, their ideas do not make the jump from theory to law.

As a matter of fact, section 3 of the 14th amendment is not self-executing and needs to be given the force of law by Congress. That means then that it cannot simply fall to the various secretaries of state to determine for themselves if someone has or has not engaged in insurrection. This determination was arrived at by Chief then judge, Salmon Chase, in the Griffin decision. See then his decision on the ascertainment of whether someone engaged in insurrection:

The penalty applies to every person who is guilty; but his guilt can only be ascertained, the identity of the individual can only be made certain, the penalty applied to that particular individual, only by due process of law—i. e., trial, conviction and judgment…

Without due process resulting in either conviction or acquittal, it simply devolves to "yes you did" -- "no I didn't" -- "did so" -- "did not". And a challenge to being listed (or not) on the ballot couldn't settle the question of "yes he did" -- "no he didn't" without a trial on the insurrection itself.

Do the Secretaries of State actually determine if a candidate is eligible to hold office, or only that they meet the qualifications under state law to be on the ballot? For federal office, that would presumably be outside their jurisdiction. Did any of them have doubts about Obama's birth records and try to keep him off the ballot for that?

[HondurasKeiser]

There are legal scholars to promote nearly anything you could conceive of….that doesn’t much move me.

As a matter of fact, section 3 of the 14th amendment is not self-executing and needs to be given the force of law by Congress. That means then that it cannot simply fall to the various secretaries of state to determine for themselves if someone has or has not engaged in insurrection. This determination was arrived at by Chief then judge, Salmon Chase, in the Griffin decision. See then his decision on the ascertainment of whether someone engaged in insurrection:

The penalty applies to every person who is guilty; but his guilt can only be ascertained, the identity of the individual can only be made certain, the penalty applied to that particular individual, only by due process of law—i. e., trial, conviction and judgment…

I expect we will eventually find out the answer.

Personally I think it is to Democrats favor if he isn't disqualified because I suspect he is the worst candidate that Republicans can put up against Biden. Any of the other younger candidates would be much more challenging for Biden, I think, because they would represent a fresh start for the GOP. But that ship has probably sailed. So this is a weird issue. It is probably more to the long-term benefit of Republicans to see Trump disqualified than Democrats.

But who knows. We are definitely off the map here and have been since 2020.

On that Ken, we are in complete agreement.

[barnhart]

If I were the party bosses, I would wait as long as possible and then nominate a sacrificial lamb instead of P. Trump, count off 2024 as a loss and make a stand on principle, hoping for momentum in 2026 midterms to carry into 2028. I like Scott as the non-super rich guy who is least tainted by Trumpness.

[HondurasKeiser]

If I were the party bosses, I would wait as long as possible and then nominate a sacrificial lamb instead of P. Trump, count off 2024 as a loss and make a stand on principle, hoping for momentum in 2026 midterms to carry into 2028. I like Scott as the non-super rich guy who is least tainted by Trumpness.

I wish that were possible...the issue is those tricky primaries and the 30% of Republicans that prefer Trump to any other candidate.

[barnhart]

If I were the party bosses, I would wait as long as possible and then nominate a sacrificial lamb instead of P. Trump, count off 2024 as a loss and make a stand on principle, hoping for momentum in 2026 midterms to carry into 2028. I like Scott as the non-super rich guy who is least tainted by Trumpness.

I wish that were possible...the issue is those tricky primaries and the 30% of Republicans that prefer Trump to any other candidate.

Sometimes loosing on principle is winning.

[Josh]

Sometimes loosing on principle is winning.

"principled losing" seems to define conservatism (at least establishment conservatism) for the last few decades.

Perhaps Democrats can also embrace "principled losing". Once both parties do that, it will be a fair analysis. The real question is why being anti-Trump seems to have become the highest moral good according to some people.

[Ken]

Do the Secretaries of State actually determine if a candidate is eligible to hold office, or only that they meet the qualifications under state law to be on the ballot? For federal office, that would presumably be outside their jurisdiction. Did any of them have doubts about Obama's birth records and try to keep him off the ballot for that?

Yes, in fact the issue of Obama's qualifications to be president were endlessly litigated in both Federal and State court. Wikipedia has a very long list of all the various lawsuits and legal challenges to his place on the ballot in various states. But since the whole "birther" controversy was actually nothing more than lies ginned up by Trump and others, none of them went anywhere.

https://en.wikipedia.org/wiki/Barack_Ob ... litigation