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Official ballot to recall California Governor Gavin Newsom during California Gubernatorial Recall Election. Postage paid return envelope - San Jose, CA, Aug. 18, 2021. (Photo: Michael Vi/Shutterstock)

14th Amendment Does Not Bar Trump from Ballot

But if AG Bonta sees political advantage, he’ll sue anyway

By Thomas Buckley, September 26, 2023 6:34 am

So it’s California and it’s – once again – stupid.

This time, a gaggle of state legislators have asked the egregious state Attorney General Rob Bonta to keep Donald Trump off of the March primary ballot.

The leges seem a bit unclear as to how that would be done, but are adamant since Trump violated the 14th amendment he should not be allowed to run for president.

And – given his track record of filing absurdly political lawsuits against school boards and oil companies, and if Bonta can find a way to both try to do it and not hurt his chances in his expected 2026 governor’s campaign, he will.

Disclosure – I am not an attorney so here is the first actual attempt to keep Trump off of a ballot, and the more general “reasoning” explained for balance.

But what the “reasons” ignore is actual history. The law does not operate in a vacuum, hence the arguments sounding somewhat like those for climate change: “here is our data and it doesn’t matter that we said the medieval warming period didn’t exist even though we knew it did because we have first-person and government records in writing about it.”

In case you were wondering, during that time period what was then France put a tariff on red wine imports from Wales – not known currently as an oenological hot spot. Additionally, towns that were once coastal no longer are – all climaholics have to do is look at a map – because the sea level used to be higher, which climate change says is not really possible.

In other words, facts beyond the narrow silo of an “expert” exist that cannot be discounted.

At issue is the post-Civil War constitutional amendment that, in part, reads as follows:

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.

Anti-Trumpers maintain that since the events of January 6th were in fact an insurrection and that Trump caused it so as to block the legitimate peaceful transfer of power he is personally barred from holding federal office.

While the argument is wrong – literally – that will most likely not stop Bonta or any one of a handful of other attorneys general from trying.

Why is it wrong?

First, the events of January 6th were not an insurrection attempt. They were wrong and stupid and the greatest gift ever given to the Deep State and the Democrats, but they did not constitute an insurrection.  When you try to overthrow the government, you tend not make sure to wrap it up in time to get back to the hotel for dinner.

Second, to say Trump solely caused the riot is also not true. One could make the argument that former House Speaker Nancy Pelosi “caused” it because she point-blank refused to beef up Capitol security that day, thereby allowing bad actors to run wild, or that the FBI “caused” it via its encouraging (?) embedded intelligence operatives.

Third, Trump has not been found guilty of a crime…yet.  Therefore the idea is legally premature and the position taken by those in favor that “we all know it was an insurrection and he did it so he doesn’t need to get a trial” is not quite – at least for the time being – how the American justice system works.

Fourth, read the clause again – it says “elector of President,” not “president.” May seem like splitting hairs, but they’re really different. As to “officer,” even that is muddy as many legal scholars equate that with appointed personnel. Finally, Congress is specifically called out for the ban, but the presidency is not.  So even if ever gets to court it will most likely not fly (unless, of course, that court is in the District of Columbia.)

Fifth, even you twist yourself into believing Trump cannot serve as president, it does not in any way, shape, or form bar him from running for the office.  That would be a gross and obvious violation of his first amendment rights…oh, wait…

Sixth, to argue that insurrectionists are not allowed to serve in the federal government is patently false.  Not too long after the Civil War, Confederate soldiers were signing up for the U.S. Army and Confederate veterans began serving in – wait for it – Congress.  In fact, dozens of former Confederates – and not just privates but high officers – served in the House and Senate, no problem (after the end of Reconstruction, Congress did for a time refuse to seat certain Confederate veterans and officials but that did not last too long and it certainly did not bar them from running for – winning – elections.)

The last Confederate veteran to serve in Congress was Charles Manly Stedman of North Carolina, a major on Gen. Robert E. Lee’s staff – seriously – and he held his seat until 1930. And he was a typical southern Democrat racist, by the way, pushing to erect a “Mammy Memorial” statue on Washington. And yes, it really means what you think it means:  a statue honoring mammies because, as Stedman put it:  “The traveler, as he passes by, will recall that epoch of southern civilization [when] fidelity and loyalty” prevailed. No class of any race of people held in bondage could be found anywhere who lived more [freely] from care or distress.”

Here’s the mock up:

Mammy statue mock-up. (Photo: public domain)

If Black Lives Matter started a hundred years earlier, they would have had a point. Even in 1923, though, enough people said “Holy Shit, that’s Racist!” to stop the project.

So, if people who signed up to specifically go shoot people as part of an intentional rather widely advertised meticulously planned actual insurrection called the Civil War were allowed to serve in Congress, I’m pretty sure that sets a precedent that obviates any attempt to use the 14th amendment to keep Trump from running for president – and serving if he wins.

All that being said, it is unknown if Bonta will file suit but it is absolutely known that any suit filed anywhere will end up in front of the Supreme Court.

And when the court tosses it, there will be much wailing and gnashing of teeth and rending of garments and demands to obliterate the Supreme Court as it has stood from its inception…or at least since Marbury Vs. Madison in 1803.

I think that’s precedent enough.

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4 thoughts on “14th Amendment Does Not Bar Trump from Ballot

  1. Nice work, Thomas. Kind of amazing that the Republic was able to survive with all of the Democrat insurrectionists in Congress and government, no? 🙂

  2. Thomas, Thomas, Thomas! Neither of us is a lawyer. But at least I know how to look stuff up. At least I don’t need to misrepresent facts to arrive at the obvious conclusion that the 14th Amendment will fall like a hammer on poor Donald J. Bonespurs Trump. At least in California it will. In Texas or Wyoming, probably not. So, it won’t matter because Trump can’t win the electors of California. And he can’t lose the electors of Texas or Wyoming.

    Oxford dictionary defines “insurrection” as “a violent uprising against an authority or government.” Was there “violence” on January 6? Relatives of the dead would say “yes.” Was it an uprising? Video and broken glass says “yes.” Was it against an “authority or government”? Well duh. The People of the United States had voted to elect a new President, and the crowd was not happy with the outcome. So they rose up in violence against the voters and their duly elected and installed representatives, acting per the Constitution of the United States. And who, pray tell, sent them? Was it the Tooth Fairy? No. It was Donald Who Used to be President, saying “We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore…” So they fought. And people died. It was a insurrection. And upside-down-bible-holder Trump instigated it.

    Not that it matters, but sure, “it could be argued” that Nancy Pelosi “caused” the insurrection because she point-blank refused to beef up Capitol security that day. Kind of like “it could be argued” that Homer Simpson ate that pie because it got in the way of his big mouth. Except that neither argument makes any sense. We even have video of Nancy and Chuckie Schumer trying to call for help with their cellphones during the insurrection. It was Donald Goldilocks Trump who refused to send the National Guard. It was Mike Pence who facilitated their activation.

    And not that it matters, but Thomas, you seem to have some issue with parsing 18th-century English. I’ll clip out the less-relevant parts so you can deal with the syntax more easily: “No person shall … hold any office, civil or military, under the United States, … who, having previously taken an oath, as … an officer of the United States, … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same…”

    An ineligible party has no constitutional right to be on a ballot. Look it up. Under the 1st Amendment’s freedom of speech clause, a felon can campaign all he wants, he can make speeches (that don’t incite insurrection, obviously), but there’s no requirement on the government to put felons, insurrectionists or under-age wannabes on any ballot. States run their own elections, and I’m sure Texas and Wyoming will be sure to have The Former Guy on the November 2024 ballot, whether he’s eligible or not. Maybe they should put The Marlboro Man on the ballot, too. They seem to like him. And that’s their right as States.

    As for the Supreme Court of the United States getting involved, it will be interesting to see how The Former Guy gets standing before the Court. As stated earlier, he has zero chance to win the electors of California anyway, so it would be tough to demonstrate being harmed. He’ll get no standing on the 1st Amendment’s Freedom of Speech clause. Nor on the 5th Amendment’s Due Process clause. But lawyers are creative people, and I never went to law school. I’m sure Rudy Giuliani could come up with something; he has a long track record of being a very entertaining loser of court motions and lawsuits. Maybe you, Thomas, should claim standing before the Court because you will be deprived of your God-given right to cast yet another vote for your favorite president without having to spell out his name as a write-in. Who knows, it might work, might be entertaining. And I’ll make popcorn.

  3. You’re Trump sympathies are showing.

    First, I can’t agree that Jan 6 wasn’t an insurrection. Here’s the American Heritage definition:
    1. The act or an instance of open revolt against civil authority or a constituted government.
    2. A rising up; uprising.
    3. The act of rising against civil authority or governmental restraint; specifically, the armed resistance of a number of persons to the power of the state; incipient or limited rebellion.

    The crowd at the Capitol sought to stop the Constitutionally-mandated electoral college count; it sought out VP Pence and House Speaker Pelosi with intent to do harm; it attacked Congress’s police; etc. And as we’re finding out at the trials of the leaders, the event was certainly intended to overthrow the Constitution and put Trump in the White House instead of our duly elected President. Granted, it was a stupid, amateurish farce of an insurrection, but insurrection it was certainly intended to be.

    Second, no one is saying Trump is the sole cause, only that he was party to it.

    Third, Trump hasn’t been found guilty, but the call for banning him is only the first step in persuading whoever’s in charge of this sort of thing to do it.

    Fourth, your quibble over “officer” is silly, I think, although lawyers might be able to make something of it. As for Congress, it is “called out” only because it has the power to allow a banned official to hold office, not for instituting the ban or, I think, blocking it in the first place. But again, lawyers …

    Fifth, I suppose running for President is different from being one. However, a reasonable person might say why allow a person to run for an office it he won’t be able to hold? And aren’t all potential candidates for offices required to meet some basic criteria, such as being legally qualified to hold the office?

    Sixth, I don’t think the Confederates’ postwar situation will be a precedent. They were amnestied by Johnson, the Confederate states were required to adopt new constitutions and ratify the 14th Amendment, the former Confederates took new oaths, etc.

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