Source: The Hill
BY JONATHAN TURLEY, OPINION CONTRIBUTOR – 08/19/23 10:30 AM ET
The popularity of urban legends is a testament to the will to believe. The desire of people to keep Elvis alive or prove that a Sasquatch could exist furtively in our backyards shows the resilience of fables.
Constitutional urban legends often have an even more immediate appeal and tend to arise out of the desperation of divided times. One of the most popular today is that former President Donald Trump can be barred from office, even if he is not convicted in any of the four indictments he faces, under a long-dormant clause of the 14th Amendment.
This 14th Amendment theory is something that good liberals will read to their children at night. It goes something like this: Donald Trump can never be president again, because the 14th Amendment bars those who previously took federal oaths from assuming office if they engaged in insurrection or rebellion. With that, and a kiss on the forehead, a progressive’s child can sleep peacefully through the night.
But don’t look under the bed. For as scary as it might sound to some, Trump can indeed take office if he is elected…even if he is convicted. Indeed, he can serve as president even in the unlikely scenario that he is sentenced to jail.
Democrats have long pushed this theory about the 14th Amendment as a way of disqualifying not only Trump but also dozens of Republican members of Congress. From some, it is the ultimate Hail Mary pass if four indictments, roughly 100 criminal charges and more than a dozen opposing candidates fail to get the job done.
I have strongly rejected this interpretation for years, so it is too late to pretend that I view this as a plausible argument. However, some serious and smart people take an equally strong position in support of the theory. Indeed, conservative scholars William Baude and Michael Stokes Paulsen have argued for the interpretation and insist in a recent law review article that “the case is not even close. All who are committed to the Constitution should take note and say so.”
But some of us like to believe that we are committed to the Constitution and, for that same reason, we say no.
Despite my respect for these academics, I simply fail to see how the text, history or purpose of the 14th Amendment even remotely favors this view. Despite the extensive research of Baude and Paulsen, their analysis ends where it began: Was January 6 an insurrection or rebellion?
I have previously addressed the constitutional basis for this claim. It is, in my view, wildly out of sync with the purpose of the amendment, which followed an actual rebellion, the Civil War.
Democrats have previously sought to block certification of Republican presidents and Democratic lawyers have challenged elections, including on totally unsupported claims of machines flipping the results. If we are to suddenly convert the 14th Amendment into a running barrier to those who seek to challenge election results, then we have to establish a bright line to distinguish such cases.
The 14th Amendment bars those who took the oath and then “engaged in insurrection or rebellion against the same.” It then adds that that disqualification can extend to those who have “given aid or comfort to the enemies thereof.” According to these experts, Jan. 6 was an “insurrection” and Trump gave “aid and comfort” to those who engaged in it by spreading election fraud claims and not immediately denouncing the violence.
But even the view that it was an “insurrection” is by no means a consensus. Polls have shown that most of the public view Jan. 6 for what it was: a protest that became a riot. One year after the riot, CBS News mostly downplayed and ignored the result of its own poll showing that 76 percent viewed it for what it was, as a “protest gone too far.” The view that it was an actual “insurrection” was far less settled, with almost half rejecting the claim, a division breaking along partisan lines.
The theory that this was a rebellion or insurrection has always been highly contested. On Jan. 6, I was contributing to the coverage and denounced Trump’s speech while he was still giving it. But as the protest increased in size, some of us noted that we had never seen such a comparatively light level of security precautions, given the weeks of coverage anticipating the protest. We then watched as thinly deployed police barriers were overrun and a riot ensued. It was appalling, and most of us denounced it as it was unfolding.
Trump waited to speak, despite criticism from many of us. We now know that many aides called for him to call upon his supporters to pull back, but he waited for a couple hours.
Sulking in the Oval Office does not make Trump a seditionist. Indeed, despite formal articles of the second impeachment and years of experts insisting that Trump was guilty of incitement and insurrection, Special Counsel Jack Smith notably did not charge him with any such crime.
The reason is obvious. The evidence and constitutional standards would not have supported a charge of incitement or insurrection.
Yet these experts still believe that Trump can be barred from office without any such charge even being brought, let alone a conviction.
Putting aside the lack of evidence, there is a lack of logic to these claims. A relatively small number of individuals have been charged with seditious conspiracy, a widely misrepresented charge that can amount to as little as preventing the execution of any law.
If Trump supported a rebellion or insurrection, what was the plan? Not only did Smith not charge him with any such crime, but there was little evidence that even the most radical defendants charged were planning to overthrow the nation’s government or were part of a broader conspiracy. There were no troops standing by, no plan for a post-democratic takeover by Trump or his alleged minions. At worst, according to witnesses against Trump, there was a despondent and defiant president who may have gotten satisfaction from the chaos in Congress.
That leaves us with the argument that any effort to stop a constitutional process is akin to an insurrection or rebellion under the 14th Amendment. If that were the standard, any protests — including the anti-Trump protests and the certification challenges to electoral votes in 2016 — could also be cited as disqualifying. If that were the case, figures such as Rep. Jamie Raskin (D., Md) could be summarily purged from office for having sought to overturn an election.Biden should rethink the Saudi Arabia-Israel normalization dealWhy is our government taking a back seat on digital identity issues?
We would be left on a slippery slope, as partisan judges and members would seek to block opposing candidates from ballots, all supposedly in the name of protecting democracy.
There is a simpler and more obvious explanation for what occurred on Jan. 6, 2021: A political protest became a political riot, and a constitutional theory became constitutional legend.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.
Normally I wouldn’t do tit for tat opinion pages, but there has been much discussed about Trump not being able to run because of insurrection and I thought it appropriate to include an opinion piece from Professor Turley who rejects the notion that Trump can be barred from office. Professor Turley is probably IMO one of the most rational legal pundits in the capital who doesn’t give in to emotional rhetoric. This entire subject is well beyond my level of understanding but I would give Professor Turley due respect and at the very least give his opinion a lot of credence. By the way I still hate that fuckin orange baboon and wish he would just go away.
He is the only one who helped us in Ukraine, in the last decade.
Are you a Ukraine supporter or just a liberal supporter of Ukraine.???
You can support the orange baboon all you want, this is your prerogative. But, quit picking on everyone that criticizes your hero. Just because he handed over a few weapons during his term does not mean that he is a great friend of Ukraine. Maybe you should get informed about what this dork wants to do when he’s reelected.
This is a forum, not a Kumbaya session.
It is to voice opinion, on UKRAINE.
Too many of American, Brit and Canadian liberals, support us now, but did not in 2014, when Obama/Biden ignored us then
If not for Trump in 2016, Putin would have invaded Ukraine earlier.
The problem with westerners, is they support nuts like Biden in America, crackpots in the UK and a Communist in Germany
Get a grip on yourself; Bohuslav. You always come here, attacking someone, usually a trump critic. You must at least see the reasons why. Our viewpoints do not have to match each other’s 100%.
Having said that, you don’t realize what it is that you admire so much.
Maybe it is those who attack Trump, like children, who need to get a grip.
To be attacked being Ukrainian for supporting facts of what occurred in Ukraine, is for those needing to get a grip on facts, not the main stream fantasy about us in Ukraine.
Maybe if we had more Ukrainian’s on here, like myself, not those supporting Ukraine in 2022/23, but those who understand what occurred in 2004/2013/2014 etc, there would not be silly dialogue about Trump. etc.
All are entitled to their opinion, yes, but if you’ve never grown up in Ukraine, maybe it’s time to listen, than push your western media talking points.
So you agree with Trump’s assessment that Crimea belongs to russia, because they speak russian?
Of course not. That is silly and the Western media who wrote is knows what the purpose was
Both Oblasts are part of Ukraine.
Trying to bring comments made now into to the equation for what occurred from 2016 to 2020, is reaching.
I ask you then, it appears Obama/Biden in 2014 thought Crimea was part of Ruzzia, as they, and the rest of the West, did nothing to stop the invasion or war in the two Oblasts. Correct?
No actions speak louder than words.
Obama never claimed Crimea was russian, Trump did. Trump also claimed his hero was a genius for invading Ukraine. Facts!
But he, and Biden, allowed Ruzzia to take Crimea, without resistance. Then he went on vacation to American’s Florida.
Again, his actions spoke louder than words
FYI I’m a born American with Ukrainian descent. My parents came to the US following WW2 and I have been brought up loving my heritage, all the good people of Ukraine and have a deep understanding of the horrors my forefathers suffered under Stalin and all the Russian scum bags from Tzar Peter. Trump did shit for us. He gave us Javelins with the proviso we weren’t allowed to use them. Trump, Biden, Obama Clinton and the two Bushes were the worst presidents this country has ever seen. If you feel Trump has provided some benefit to Ukraine I suggest you increase your drugs or undergo electro shock treatment. Finally, you nor anyone else on this site has no right to question my love for my heritage and Ukraine…in other words go fuck yourself.
Being Ukrainian myself, and only moving to America in 2016, I learned and saw the BS the west was pushing in 2014. Supporting Putin and not Ukraine.
As I said above, if not for Trump in 2016 being in office, Putin would have invaded Ukraine much earlier.
Western wannabe’s don’t understand much outside their box
I suggest instead of being a descendent, move your @#$ over to Ukraine and feel the love
Curious you decided to move here instead of defending Ukraine in Ukraine. Kinda like a coward. In fact I wonder if you’re not one of those Russian scum bags I run into in the street who are afraid of Ukrainians. You’re a coward nothing more. You sit behind a computer espousing bullshit. And for the record I, my family and the wonderful editors on this site have done more for Ukraine then your cowardly ass. And yes my family is supporting our, and yes I say OUR, heroes on the front lines. Why don’t you just crawl back into your hole or go somewhere you can kiss the orange baboon’s ass ass as you seem to want to do.
I served in 2014, my sons are serving now. Both are in their 30’s.
I can tell you’ve not accomplished much in life and still need something to vindicate your existence.
Nothing stops you from going to Ukraine. You will be accepted if you are honest and want to help. There is much to do and your family, who are Ukrainian decent, should have told you that, along with relatives in Ukraine
If you have no combat experience, there is much for you to help for Ukrainians.
Gave us???
You are American, not Ukrainian.
And he gave US, security in Ukraine.
I’m apparently more Ukrainian than your sorry ass. I wouldn’t be running from a fight you coward. And yes I did apply to AFU Abut was rejected due to age, so screw yourself.
I bet you’ve not even served. My sons are serving now
As others know on this forum, I served my time in 2014.
Where were you in Ukraine, playing gameboy back in America
Get your a@#$ over to Ukraine and serve.
The age requirement has been lifted….
Get over there and put your big boy pants on
Seems more than a coincidence, but Putin also wants Trump in office. He is really mad right now, that there was no one to strike a deal in 24 hours, let alone 3 days. Did Biden strike a deal? or give Weapons and Intel. Ukrainian sovereignty is not a concept Trump will ever acknowledge. Just ask him. You sound a lot a like a Ruzbot or a Tucker fool.
On the contrary, every time Putin invaded Ukraine, Biden was in office.
Okay. You are just dumb. Have at it, being the type of voter Putin wants.
Being Ukrainian, and you never experienced the Russians, you have no idea what you’re talking about.
Silly westerners who were no where to be seen in 2014.
Now you think you know everything.
Are you denying Biden was not in office in 2022 and 2014?
I also didn’t take it very seriously.
As much as I hate Trump I think Democrats shouldn’t fight Republican bullshit with even more bullshit.
Stick to the facts, remain level headed and don’t get distracted by legal wishful thinking. I think that is the best strategy for the Democrats.
Postings from the Hillary, aka Hillary News Network, just shows a Biden supporter, who is not a supporter of Ukraine.
Maybe the trumpet is able to serve as president even if convicted and in jail. I am no expert on constitutional law, so, if this is indeed a fact, then my opinion is that this part of the constitution is severely flawed, and it should be rectified with an amendment. It just cannot be that any average Jane and Joe is barred from getting certain jobs when she or he has a criminal record, yet someone bigger with a criminal record can be the POTUS. This is completely ridiculous and unacceptable!
UT puts out a high volume of articles on many topics.
This “Bohuslav” is a low IQ troll who comments exclusively on matters pertaining to Trumpkov.
He belongs on RaT, Gateway Pundit or Breitbart.
This is a Ukrainian forum, for Ukrainian’s, not wanna be’s
You can’t even spell, you dumbass putinoid halfwit. So FOAD.
You’re a dumb westerner…dumb as a rock. You don’t even know where Ukraine is on a map..until 2022.
You were silent when Putler invaded us in Crimea. You and the west.
Now you speak up….lol
I bet my English is better than your Ukrainian or Russian…………………..?
You as Ukrainian as my bacon is Canadian.
Born in Lviv, in Soviet Ukraine…
You’ve never even been to Ukraine.
Try peameal…it’s delicious
Look at all these silly Western posters on this topic.
Nowhere to be seen in 2004, 2014 etc.
Now they care….. BS. Western posters only care if it’s a left/right issue.
When Biden/Obama were giving aid/arms to Russia in 2014, when Russia invaded us in Crimea, where were you all??
Dld any of you criticize Obama/Biden, the UK, Germany’s Communist, Merkel then???? OF course not. You’re too busy making it a left/right issue in the West.
You are as much Ukrainian as I am from the moon.
A typical western response for those who have not done much and travelled less
Every person here has been criticising Obama, Biden and Merkel. Everyone, including me.
So I don’t know what point you are trying to make.
Hating Trump doesn’t mean you think Biden Obama and Merkel have been doing such a great job.
At best I consider Biden one of the lesser evils.
We can agree on some of what you said.
But my point is It was Biden and Obama, the West, who did nothing for Ukraine in 2014.
Putler walked into Crimea and the West did nothing, except tell us not to fight, AND supply Putin with weapons.
You need to read more from 2013 and 2014
Biden is well know as corrupt in Ukraine.
You POS. There isn’t any Ukrainian born in Western Ukrainian that would consider themselves to be born in Soviet Ukraine. You’re nothing but a cowardly Russian scum bag.
Then you’re dumber than a box of rocks…
It shows how stupid you are on here. Many of us who were born, before Ukraine was a country, refer to the time of birth, as many westerners have no idea about 1991. And the FACT, we lived in Communist times, not wanting to return to that, every again.
You too stupid and uneducated to understand. At least I served in Ukraine in 2014, while you were still playing on your computer.
Serving as a DPR soldier doesn’t make you any more pro-Ukrainian.
On the contrary.
Bert, the 79th was AFU….or clearly an idiot
Reminder, to Bert, DPR were still Ukrainian’s on Ukrainian land, but were Communist, no matter what they thought themselves as.
You’re claiming that President Obama was giving arms to Russia in 2014? What exactly are you referring to?
When did you start to care, or educate yourself on Ukraine???? 2022??
in 2014 Obama/Biden, the West, did nothing for us in Ukraine when Putler invaded Crimea, correct??
That being said, Obama went on vacation and Biden just laughed when the tanks rolled into Crimea, No??
Obama/Biden sent military equipment to Putler in 2014.
Is that not an oxymoron for someone who is supposed to care about Ukrainian’s? Obama/Biden did nothing for us in 2014 and in 2022, Biden laughed when the Ruzzian’s were invading and were 5 km’s outside Kyiv, the Ukrainian Parliament. If not for Ukrainian’s, Putler would have taken Kyiv and the rest of Ukraine.
Do some research and stop just pushing the western media talking points.
https://www.nytimes.com/2015/06/12/world/europe/defying-obama-many-in-congress-press-to-arm-ukraine.html Obama/Biden
Putler invaded Ukraine in Feb 2014, correct. Whey did Obama/Biden sent MILES gear to Putler in March of 2014, after so called sanctions were implemented by the West?
They didn’t send the gear, it was cancelled by The U.S. Department of Energy.
https://www.cleveland.com/open/2014/03/us_wont_help_russia_play_laser.html#:~:text=But%20the%20Department%20of%20Energy,’%20hands%2C%20the%20department%20said.
“”””Behind closed doors the U.S. government is giving Russia free military equipment—also used to train American troops—even after President Obama announced punitive sanctions against Moscow and, more importantly, a suspension in military engagement over the invasion and occupation of Ukraine.
The secret operation was exposed this week by members of Congress that discovered it in the process of reviewing the Fiscal Year 2014 budget and the proposed Fiscal Year 2015 budget request. It turns out that the National Nuclear Security Administration (NNSA) has been providing the Russian Federation with the Multiple Integrated Laser Engagement System (MILES), the federal legislators say. The U.S. military uses MILES for tactical force-on-force training because it has a system of lasers and dummy ammunition to simulate ground combat.””””””
Ask yourself. Why is Obama/Biden wanting to supply Ruzzia anything during sanctions?? Especially if was a month after Ruzzia invaded Ukraine?? Who’s side were/are they really on?
I could understand if they supplied it to Ukraine, but they wanted to supply the Communists.
You wrote “arms”; MILES is not arms. As foccusser wrote, it was cancelled. It had been written into the 2015 budget long before Russia’s invasion. The article that foccusser pointed to explicitly says, “MILES is not a weapon or weapons system but, rather, is a training and performance testing tool.”
The equipment was never going to be for any purpose other than helping Russia train to keep nuclear weapons out of terrorists’ hands.
Did you see my post below.
Why would you send anything to Russia after it invaded Ukraine???????
As I said earlier, who was Obama/Biden supporting and wanting to train better???
Read the Judicial Watch posting from 2014, as that is where it came from
Repeating the key point: You wrote “arms”; MILES is not arms. Obama was not sending arms to Russia.
“Why would you send anything to Russia after it invaded Ukraine???????”
Did you read what I just wrote??????? (And what foccusser wrote???????)
MILES (which is *not* arms) had been written into the 2015 budget long before Russia’s invasion. After the invasion, it was cancelled. So we didn’t “send anything to Russia after it invaded”.
“Obama/Biden” – cheap attempt to smear by association. Obama was president; Biden was his VP. Biden only did what the president asked him to do.
So you finally admit that Obama was working against Ukraine’s interests. Finally some progress here. 😎
LOL. It was an Obama budget, not an Obama/Biden budget, but it’s still the case that it was drawn up before the invasion, and after the invasion, it got cancelled. See the link posted by foccusser.
Posted earlier but did not show up
34 comments! …for a relic of the past
34 comments! …when children die bombarded by crazy people
34 comments! …To care about Agent Orange’s ass…
I don’t have enough hands to clap you all!
Your contribution is truly incredible. We are all richer in mind for your presence. I’m sure your mother is very proud of you. Carry on Ruzbot.
You’re a child of the West. Prior to 2022, you had no knowledge of Ukraine.
Even this forum does not go back to 2014 for education to be mandatory.
Anyone who disagrees with your philosophy on Trump, is a Ruzbot.
How stupid you would sound in Ukraine.
You also sound stupid defending Trump. Ukrainians are surely as conservative as the poles, but after all dumb Trump said about Ukraine he is no better than Obama and Biden, actually even worse. Better support Nikki Haley instead of defending bullshit. Have a great week! 😎 🇺🇦
“a long-dormant clause” – Couy Griffin was disqualified in New Mexico last year for his part in the Jan. 6th Capitol insurrection.
“Democratic lawyers have challenged elections[…] we have to establish a bright line to distinguish such cases.” – That line is committing insurrection or conspiring to do so, after all legal challenges have failed.
“Polls have shown” – Doesn’t matter what the polls say; what matters is what the law says.
Bipartisan majorities of the House and Senate voted for articles of impeachment describing the attack as an “insurrection.” In the impeachment trial, President Trump’s own defense lawyer conceded this and stated that “the question before us is not whether there was a violent insurrection of [sic] the Capitol. On that point, everyone agrees.”
“Sulking in the Oval Office does not make Trump a seditionist.” – No, but plotting to overturn the result of the election and remain in office despite having lost the election does.