The 14th Amendment prohibition against insurrectionists holding office is a great option , BUT

[StarfishSaver]

it isn't immediately available since a conviction for insurrection wi first be required and that will take awhile.

I think it's a valid option, but want to caution folks not to think it can be invoked quickly or easily.

[yellowcanine]

1. Also it can be Reversed with 2/3 vote of House and Senate.

We can't t take that chance.

[gab13by13]

3. I don't see House Democrats reversing anything.

[yellowcanine]

6. Not now, no, but what about 20 years hence if reactionaries take over House and Senate.

We do not want Trump's sins to be scrubbed even after he is dead.

[gab13by13]

2. Rachel Maddow had a guest on her show last night,

I'm sorry but I don't remember his name. His opinion was that they could vote on prohibiting him from office without convicting him.

I'm not saying he is right but the issue may not be cut and dried. He was some sort of Constitutional expert.

[StarfishSaver]

4. That's not exactly what he said, but he did leave that impression

That was Professor Deepak Gupta from Harvard, btw.

He said that Congress would have to put a process into place for implementing the 14th Amendment, that included a court adjudication. That's correct. But a court can't just step in and determine unilaterally that someone has committed a crime. There would have to be a trial and conviction.

The 14th Amendment requires due process and Congress does not have the power to determine a president is disqualified from serving outside of the impeachment process without that due process.

Let's put the shoe on the other foot. Would anyone here think it's okay for a Republican-controlled Congress to bar a Democrat from serving as president, simply by declaring by simple majority that they're guilty of insurrection? Such an act would be so clearly unconstitutional, it wouldn't be upheld. There would have to be an independent adjudication of guilt, and the only way to do that is through a trial and conviction.

I was a little frustrated that he didn't make that clearer during the interview since Rachel Maddow clearly and incorrectly believed that an impeachment on the grounds of insurrection was sufficient to invoke the 14th Amendment prohibition. He should have been more precise in pushing back on that.

[unblock]

5. Is an actual conviction required?

If a candidate is barred from office, they could challenge it, so a court would surely be asked to make a determination. But I don't know that they would make it entirely on whether or not there was a conviction.

I'd imagine that after the civil war, courts would simply look at the evidence of whether someone fought for the confederacy rather than say, well, they haven't charged you yet, so you can serve in office until they get around to charging, trying, and convicting you.

[yellowcanine]

7. The amendment says nothing about a conviction. It is the judgment of the Congress.

[StarfishSaver]

9. The amendment doesn't give that judgment to Congress. It doesn't even mention them in that regard

But the 14th Amendment DOES require due process of law, which means a trial and conviction. Congress cannot, on its own, declare anyone disqualified from holding a Constitutional federal office by just voting it so. Their only power of disqualification is the impeachment power.

They also have the power to "un-disqualify" a person, but that does not translate into the power to disqualify them - If the drafters had intended them to have that power, they would have explicitly stated so.

Without such an express grant of power, Congress cannot unilaterally disqualify anyone from holding federal office under the 14th Amendment insurrection clause without due process of law.

[StarfishSaver]

10. Kick for visibiity

[StarfishSaver]

8. I think it is required

It's possible that what you propose would constitute "due process" that meets constitutional muster, but I don't think it would. I believe in order for it to actually be due process, there would have to actually be a clear process, including rules of evidence and procedure, standards of proof, etc., otherwise it would be too arbitrary.

A trip does not mean a full-blown jury proceeding. It could be tried to the bench, but it would still have to be a trial and an adjudication, i.e., conviction, before it could be acted upon.

Other scholars may differ - I'd be interested to see opposing arguments by legal experts - but that's how I see it.