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Letter to the Editor - The Millerton News - 11-9-23

The courts will decide

Litigation proceeds (currently in Colorado and Minnesota) about whether Donald J. Trump is prohibited by the Constitution from serving as President. The Supreme Court will in all probability decide the issue on appeal. As this litigation proceeds and is reported in the press, we should remember some basic facts.

1. Section 3 of Amendment XIV to the Constitution is clear:

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. (Emphasis added)

2. The prohibition under Section 3 against holding any office is automatic (“ No person shall ...”) without requiring conviction of any crime. The results of current criminal prosecutions of Donald J. Trump are not relevant to the question of disqualification or qualification under the Constitution. Other automatic criteria under the Constitution are place of birth, age, and residence.

3. A triggering event of disqualification is to “have engaged in insurrection or rebellion” against the Constitution. The language is not “engaged in an insurrection or a rebellion.”

In short, whether January 6 by itself was or was not an insurrection or rebellion does not determine disqualification under Section 3. A course of conduct over a period of time that constitutes insurrection or rebellion against the Constitution triggers disqualification, even a course of conduct that occurred before January 6, or that continues to the present, or both.

4. In the second impeachment of Donald J. Trump, the House of Representatives voted 232 to 197 to indict Trump for “Incitement of Insurrection,” and the Senate voted “Guilty” by a vote of 57 to 43. While the Senate vote fell short of the two-thirds necessary to convict in a Senate impeachment trial, Congress has determined by a majority vote of both the House of Representatives and the Senate that Donald J. Trump engaged in insurrection.

5. Congress has not acted to remove the disability of Donald J. Trump.

6. Thus, while Congress has determined that Donald J. Trump engaged in insurrection, it has not removed the automatic disqualification of Section 3.

It will be interesting to see if the courts recognize the basic facts and enforce the Constitution.

G. A. Mudge


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