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Trump himself faces 91 charges in four lawsuits, two of which are related to his efforts to overturn the 2020 election. But his insurrection was not among the charges, and after the House impeached him on charges including inciting a riot, he was acquitted by the Senate. Trump and his allies argue that the lack of sedition charges shows the term doesn’t apply.
The Supreme Court has the power to resolve this issue, but it is unclear whether it will do so. The justices are scheduled to hear arguments Thursday and are widely expected to decide whether he qualifies, but the justices could choose to decide the case by a narrow margin. A basis for avoiding the problem of rebellion.
The lawsuit focuses on provisions of the Civil War-era Constitution and raises the following questions: A problem that has been dormant for over a century. Interviews with legal scholars and historians revealed widely divergent opinions that did not necessarily follow ideological lines. This reflects why some believe it is so difficult to predict where the court’s six conservatives and three liberals will land.
“It’s hard to say what the court will decide on this case,” said Derek Mueller, a law professor at the University of Notre Dame. “There are many ways.”
The Colorado Supreme Court ruled in December that the attack was an insurrection, that Trump was an insurrectionist and that the Constitution barred him from ever serving as president again.Colorado state judge The ruling ruled that Trump cannot participate in the state’s primary ballot while he appeals, but the decision cannot be put on hold.
The Supreme Court has agreed to consider Colorado’s challenge and will likely rule on whether Trump can appear on ballots in all states. Maine’s secretary of state also ruled Trump ineligible, but the state court said it needed the Supreme Court’s opinion before the secretary of state could rule. Any decision.
The justices (three of whom were appointed by President Trump, solidifying the conservative majority) gave no answer as to whether the attack was an insurrection or whether President Trump was an insurrectionist, ruling in favor of President Trump. judgment may be rendered.courts could avoid them The questions are based on the determination that President Trump has never taken an oath to abide by the constitutional provisions that prohibit insurrectionists from being removed from office. He found that the presidency was not subject to that provision. Alternatively, there are rulings that say it is Congress, not the judiciary, that decides who to remove from office.
Still, this incident The issue raises an issue that scholars have been grappling with in recent months: how post-Civil War Americans believed the country should deal with former government officials. people participating in riots And when I tried to go back to the office, and whether Trump’s actions qualify.
In 1868, three years after the end of the war, the United States adopted the Fourteenth Amendment and its Third Amendment. This article states that those who have sworn an oath to the Constitution “shall be removed from public office if they commit rebellion or rebellion against the Constitution.” or gave aid or comfort to his enemies. ” This clause was adopted to prevent Confederates from returning to power, but was written broadly enough to allow for future rebellion.
Voters and lawyers filed a lawsuit two years ago to remove a New Mexico county commissioner for his role in the Jan. 6 attack, laying the groundwork for a legal challenge against Trump. The theory gained widespread recognition in August with the publication of a draft law review paper by two conservative law professors, William Bode of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas.
Gerald Magliocca, an Indiana University law professor who served as an expert witness for those challenging Trump’s candidacy, said in his testimony in the Colorado case that insurrection, as understood in the 1860s, was “a public use of force. or the threat of force by a person in power.” A group of people who obstruct law enforcement. ”
Officials at the time interpreted Article III broadly, even before it was adopted, and often considered remote ties to the rebellion a disqualifier, he said. In one case, Congress denied a Kentucky congressman a seat because he had written a letter to the editor early in the Civil War advocating violence if Union soldiers invaded the state. Mr. Magliocca also testified that a Maryland congressman was barred from entering the country because he had given his son $100 before he enlisted in the Confederate Army.
“During Reconstruction, ‘participating in rebellion’ was widely understood to include any voluntary act promoting unconstitutional rebellion, including inflammatory language,” he said.
Trump’s aggressive speech to supporters at the Ellipse on Jan. 6 and the tweets surrounding it were prominent at the Colorado hearing. President Trump urges supporters to come to Washington for ‘wild’ rally, lies about how 2020 election was conducted, marches to Capitol Hill as Congress debates confirmation of Biden victory and told the crowd to “fight” for him.
“We are fighting like hell. If you don’t fight like hell, we won’t have a country anymore,” he told the audience in his speech, also noting the need to maintain peace.
Trump supporters attacked police officers and laid siege to the Capitol, delaying the certification of the election results for several hours. Amid the assault, President Trump lashed out at Vice President Mike Pence, who was overseeing the joint session of Congress. President Trump waited hours for members of the mob to go home before telling them to disperse and telling them he loved them.
President Trump remained at the White House during the attack and watched on television. The House committee that investigated the Jan. 6 assault recommended that he be charged with four crimes for his role in that day’s events, including inciting and aiding a riot.
But Robert Delahunty of the Claremont Institute, who testified as an expert for Trump in the Colorado case, said someone must take up arms to be considered an insurrectionist, and Trump did not do that. Stated.
And Delahunty pointed out that Section 3 focuses on people who violate the Constitution and riot. “This is no ordinary riot,” he testified, adding that there is no clear definition of an unconstitutional insurrection. Congress, not the courts, should set that definition, he said.
Those who were at the Capitol on Jan. 6 are charged with assaulting a police officer, destroying government property, obstructing an official proceeding, engaging in a seditious conspiracy and committing other crimes. Neither Trump nor anyone else has been charged with sedition. Mark Graber, a law professor at the University of Maryland, said prosecutors have a variety of charges they can raise in serious cases, and typically choose the one that’s easiest to prove beyond a reasonable doubt. That’s what it means.
He noted that after the Civil War, many former Confederate members were stripped of public office even though they were not charged with sedition or treason. It was never considered as a factor in Article 3.”
But the Supreme Court case raises difficult questions about who decides what constitutes insurrection and when and who is covered by Article III. The Supreme Court’s expanded interpretation of Article III could lead to a series of challenges to presidential candidates and other candidates. office. Four Illinois voters recently asked the state election board to remove Biden from their ballots because of his border policies, saying he violated Article III by giving aid to the nation’s enemies. requested.
Samuel Issacharoff, a law professor at New York University, said in an interview that he believes there is no clear definition of insurrection and is troubled by the idea that courts or election officials could prevent a candidate from running. .
“When you start noticing law professors using 19th-century dictionaries to keep someone who got 75 million votes three years ago out of the political process, I think we need to be careful,” he said. Told.
Issacharoff said he opposes Trump and believes he is a danger to democracy. But, he added, “I think there is another danger to democracy, and that is eliminating the candidates that people want to vote for.”
Jill Lepore, a history professor at Harvard University, said senators should have prevented Trump from running again when they considered impeaching him. The rest is up to the court.
“Republicans in Congress have essentially abdicated their constitutional obligations,” she said in an email. “Do you wish you hadn’t done that? Yes. But that doesn’t change the plain language of the 14th Amendment disqualifying Trump from being president. You might not like it. You might not like it. Hmm. A majority of the population may not like it. But the fact that a majority of the country doesn’t like it, or even hasn’t heard of it, is no argument against it. .”
Michael W. McConnell, a professor at Stanford Law School, said in an interview that it would be difficult to argue that President Trump incited an insurrection. Because he wasn’t telling the crowd to attack anyone.
“To say he was involved in an insurrection, even though it was an insurrection, seems like a huge stretch,” said John, who teaches a course on post-Civil War constitutional reform, including the implementation of Article III. Mr. McConnell said. Will he do that? We have all seen his terrifying appearance on the Ellipse. He didn’t tell them to attack Congress. He was telling them to march to the Capitol and express his anger at what he wants to believe was a stolen election. ”
Whether the attack on the Capitol was an insurrection It’s a more complicated question, McConnell said. “The rebellion was very serious, it was not just a riot or rebellion,” he said. “We have to be very careful about defining it to include rioting.”
Scholars have also debated whether the framers of the 14th Amendment intended for Article 3 to apply to the presidency and for Congress to take further action before enactment.
Curt Lasch, a law professor at the University of Richmond, said that before an election, let alone before the Supreme Court has to rule on the matter, “this matter has been thoroughly researched, scrutinized, debated, and some kind of academic… It is not possible to reach a consensus.” He and his colleagues have spent recent months examining speeches, debates and other records from the years after the Civil War to understand what people at the time thought of as Section 3 sweeps.
Rush said Trump should be allowed to vote without a clear answer on whether his presidency is covered by Article III. The United States, he said, is governed by the idea that it is “governed by the people, and the fundamental rules of our country come from the deliberation and decisions of the people themselves.” “So you look for evidence that they have done thoughtful deliberation, and I don’t think we have that.”
Graeber, a law professor at the University of Maryland, He took issue with Rush’s belief that democracy would be better preserved by allowing Trump’s name to appear on ballots. In most European countries, “only people who behave according to democratic rules are eligible for democratic elections,” Graeber said. “Therefore, there is a democratic case for disqualification. There are democratic values on both sides.”
Ann E. Marimow and Tom Jackman contributed to this report.
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