Legal expert: Dems' 'lawfare' to keep Trump off ballot 'should be dismissed'
The latest "lawfare" agenda by Democrats, their practice of suing to get their political and social ideologies imposed on Americans by courts when they can't obtain that result through the democratic process, targets President Donald Trump.
In essence, they claim, without legal foundation, that he is an "insurrectionist" against the U.S. Constitution because he urged his supporters to protest the 2020 election results "peacefully" at the U.S. Capitol.
Some of those protesters ended up in a riot, and delayed Congress' vote that day on the Electoral College election results.
Citing a Civil War-era provision in the U.S. Constitution that later was removed under the procedures outlined in the Constitution that bans "insurrectionists" from holding office in the U.S., they are suing in multiple states to prevent Trump's name from being on the 2024 ballot.
Those challenges all should be dismissed, according to Hans von Spakovsky, a senior legal fellow at The Heritage Foundation, former Federal Election Commission member, and former counsel at the U.S. Department of Justice, who wrote a column at The Daily Signal.
He pointed out the state court actions in Colorado, Michigan and Minnesota.
"The judges in those cases should understand that the text, history, and application of the 14th Amendment make it clear that they have no legal authority" to keep Trump from the ballot, he explained.
Those bringing the complaints "are trying to argue that Section 3 of the 14th Amendment, the disqualification clause, prevents him from being president even if he is elected, so he should be removed from the ballot by state election officials."
That constitutional provision states: "No person shall be a Senator or Representative in Congress, or elector for President and Vice President, or hold any office, civil or military, under the United States … who, having previously taken an oath, as a member of Congress, or 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 … . But Congress may, by a vote of two-thirds of each House, remove such disability."
The commentary points out three problems with the "lawfare" battle for Democrats.
First, the section "only applies to individuals who were previously a 'member of Congress,' an 'officer of the United States,' or a state official," he said. But Trump has never been any of those.
"He has never held state office or been a U.S. senator or representative, and the U.S. Supreme Court held in 1888 in U.S. v. Mouat that 'officers' are only those individuals who are appointed to positions within the federal government," he explained.
The president is not an "officer" for that section.
Further, he noted, no federal court has convicted Trump of "insurrection or rebellion."
Even when Democrats in the House, without evidence or testimony, accused Trump of "incitement to insurrection," he was acquitted in the Senate.
Finally, he explained, one federal court already has adopted the argument that the provision no longer exists.
He said all of the cases against Trump "are ignoring the final sentence in Section 3, which is a unique provision found in no other amendment to the Constitution. It allows Congress to remove the disqualification clause 'by a vote of two-thirds of each House.'"
Congress did just that with the Amnesty Act of 1872, stating that the "political disabilities" found in Section 3 "are hereby removed from all persons whomsoever” except for members of the 36th and 37th Congresses and certain other military and foreign officials.
Then in 1898 Congress removed even those applications, he said.
Von Spakovsky said, "In short, these anti-Trump ballot challenges are lawfare at its worst, trying to use the law and the courts as a political weapon."
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