The poor argument for declaring Donald Trump ineligible to run for office again is not strengthened by the new study.

Since January 6, 2021, political and legal systems have been looking for a way to get rid of Donald Trump from our politics without letting the public decide whether or not to do so. A “Doos Ex Machine” device has been developed as a result of this search. It’s an intriguing option for both conservatives (like me) and liberals who worry about another round of violence following the elections and don’t want another presidential election to be decided by a man who is largely loathed by the majority of voters. Republican politicians find it to be subtly seductive as well, at least until they are caught in public with the knife.This won’t be that easy, though. One of the first justifications offered to rule Donald Trump ineligible to run for office again was based on Article 14 of the 25th Amendment. This argument has come up once more. It is still unfinished in legal terms.

The Requirements for Eligibility


After taking an oath to support the United States Constitution, Section 3 declares anyone who has engaged in “rebellion or insurrection against the United States, or given aid or comfort to its enemies,” whether they are “Citizens or subjects of any State,” “ineligible to hold any office” in the United States of America or under any state, whether they are “Civilians or subjects of any State.”
The election of the major members of the Southern State Congress and State Offices was the circumstance that the draft of Article 3 was written to solve. The authors of this article, like the writers of the 14th Amendment and other amendments, adopted common language to avoid restricting its application to already settled issues, but it is nonetheless helpful to comprehend the original intent to appreciate how the language they used was understood at the time. Article 3 primarily focuses on people who participated in the Confederate Army or supported the war effort as Confederate government officials. More and more parallels fall apart as we learn more about the Hurdland case.

“There are primarily two questions in the case of Donald Trump. Did he first “take part in an insurrection or rebellion”? Did he provide the enemy of the United States of America “aid and comfort”?

In January 2021, I undertook extensive research into these two issues and came to the conclusion that, while Trump’s actions might have led to his impeachment, they did not meet the requirements of Article . I had a lot of faith in Miles Lynch’s 2020 legal study, which painstakingly compiled a thorough evaluation of Article 3. The background: how specific terms were chosen by Congress and how they were put into effect four years after Article 3 was rejected.

You may read the entire argument, which I will only briefly present here. Although the discussions in Congress in 1866 about Article 3 are not very instructive, the language that Congress adopted has a history.

The Militia Act of 1795 and the Insurrection Act of 1807 served as the foundation for the concepts of rebellion and insurgency. Both insurgency and rebellion were defined in these acts as “opposition to or obstruction of the enforcement of the laws of the United States.” Legal processes or the use of marshals to exercise authority were frequently employed for judicial action or forcible repression.

A Second Look at Section 3

The most recent argument originates from a recent legal review paper written by William Bode and Michael Paulsen, two Southern path ideology educators. The New York Times has featured their work with the headline “Conservative Case Emerges to Declare Donald Trump Unfit for Role on January 6th”. Furthermore, it was included with a cause in an Atlantic piece written by Laurence Tribe and former traditionalist Fourth Circuit Judge J. Michael Luttig. Steven Calabresi, a co-founder of the Federalist Society, wrote this blog entry. Legal academics Bode and Paulsen are highly respected. I have carefully thought about what they have to say, taking advantage of this occasion.
I started out feeling let down. Beyond the already-covered breadth of expertise (which they credit), Baud and Paulsen have not made much effort in incorporating fresh basic information. The majority of their articles pose intriguing questions like how and by whom Article 3 should be applied, whether it requires legislation, and whether the President is an officer covered by it. These are potentially important questions, but they only apply to Donald Trump case if a true violation of Article 3’s conditions has occurred. Page 111 of the single-spaced draft’s page 126 has everything that could be used to prove Trump’s incompetence. However, there are more components of inventive and aggressive arguments here than there are evidence-based interpretations of the law’s core.

New Defenses

I first learned of the issues with this principle two and a half years ago, and Bod and Paulsen proposed four solutions to deal with them. They primarily contend that when it came to the issue of “assistance and ease,”Donald Trump was either “ignorant” or “engaged” in disobedience. In response to this, Professor and former federal judge Michael McConnell (who co-authored a constitutional law casebook with Bod and Paulsen) has remarked that he didn’t take into account the fact that long-standing precedents render the duty of “assistance and ease” essentially nonexistent. The United States of America reserves the right to give “assistance and ease” to those who have been designated as adversaries, with the historical connotation of an enemy being a combatant. Bas versus Tingy(1800)

So, what are those four arguments?

Bowd and Polsen contend that there isn’t a First Amendment issue because the 14th Amendment has rendered the First Amendment invalid, so there isn’t one with regard to the incidents brought on by his speech on that particular day, in the context of holding Trump legally responsible for the riots, and in the context of extending the challenge of false election claims resulting from his prior behavior. The change, at the very least, in connection to specific instances of advocacy involving inciting or aiding and abetting enemies of the state during rebellion or insurrection. In this way, the legal question isn’t whether Donald trump actions adhere to the established First Amendment standard set down in Brandenburg v. Ohio, but rather, whether they violate Section 3.

Another claim made by Bode and Paulsen is that Trump’s ‘culpable silence’ on January 6 can be seen as participation in or encouragement of rebellion given his role as the nation’s top law enforcement official. They don’t offer any specific examples or actual data to back up this interpretation of Section 3, therefore at this point it is just an argument. I agree that Trump’s inaction contributed to the argument for impeachable behavior, but Congress chose to “incite” active behavior. I am fully aware of instances in which federal officials quietly allowed events to occur during periods of domestic unrest. I don’t comprehend how the law can conclude that a few hours of carelessness in action will satisfy this active level. Bode and Paulsen actually view Donald Trump inaction as a reflection of his mental state.Trump’s purposeful silence makes his speech on January 6 even more contentious and less commendable (if it ever was). Before facts are provoked, the crowd’s reaction was a significant error or misunderstanding, which lessens its significance. Additionally, if active engagement is more important than someone’s emotional condition and if provocation is less relevant than real facts, none of these matters much.

Thirdly, Bod and Paulsen took on the task of presenting the case for the responsible use of force, claiming that Trump’s electoral challenge was a “bloodless coup” because he used the power of the law to unfairly remove duly elected voters through extralegal arguments. That kind is considered to be an insurrection or rebellion. Once more, Bod and Paulsen effectively conceded that their argument has very little support in documents from the 1866 era. They most closely resemble Lincoln’s claim that secession was a revolt even before shots were fired, which can be acknowledged as an essential point in legal conflicts throughout the Civil War period.This situation doesn’t exactly inspire me. The southern states were openly contesting American dominance over their territory. Even if it is technically insignificant, this belongs in a completely different category from attempts to take advantage of Electoral College system ambiguities. There is a pressing need for the law to lay a solid platform for the removal of a significant presidential contender (in 2024) based on popular sentiment.

Fourthly, Bod and Paulson advise decision-makers to recognise that Donald Trump has already been found guilty of inciting by the majority of both the House and the Senate. After all, this was one of the articles of impeachment, and it received 57 votes in the Senate in addition to passing in the House.This is a good argument when presented as political rhetoric, but I’m not sure it can be taken as authoritative or motivating. Even the process of impeachment has its own set of rules, much as criminal or civil legal processes. The requirement for a two-thirds vote in the Senate is the most important rule. The articles of impeachment in 2021 were hurriedly and very inadequately produced, and it is unquestionably that some senators who were to vote chose to ignore it because they believed that Donald Trump had committed impeachable acts, even if they felt that they had been detailed for them insufficiently. However, because the impeachment attempt was unsuccessful, in some way or another, those votes had no legal or precedent-based weight.

It won’t occur

Bod and Polsen’s debate centers on whether or not election officials and state secretaries have the right to pronounce Trump incapable. For instance, it would be understandable to worry about possible unrest if the State Secretary of Pennsylvania struck the opposition candidate from the ballot. This does not, however, mean that a judicial review of the decision to find Donald Trump unfit will not take place. Bod and Polsen certainly do not imply that a judicial review of the decisions made by the state administrative branch to omit Trump from the ballot would not be justified. Regardless of how reluctant it may be to get involved, the Supreme Court will surely take up the matter if separate courts reach conflicting conclusions – possibly even before Election Day.

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