What the Supreme Court Should Do with Donald Trump
By Joel D. Joseph, author of
Black Mondays: Worst Decisions of the Supreme Court
Once again, the United States Supreme Court is in the middle of a presidential campaign. The nation's highest court has to make a decision on two issues concerning Donald Trump's candidacy. First, the Court has to decide how to apply the Fourteenth Amendment's ban on candidates who have participated or supported a rebellion against the United States. Second, the Supreme Court must decide if the former president is immune from criminal prosecution.
The Supreme Court has agreed to hear arguments in the Colorado case where the Colorado Supreme Court held that Mr. Trump participated in an insurrection against the United States. Maine's highest court has also ruled that Donald Trump cannot be on the ballot there. Other state courts have ruled that Mr. Trump can be on the presidential ballot. Because of the split of the state courts, the Supreme Court must make a decision.
Section 3 of the Fourteenth Amendment provides:
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).
The problem with this provision is that it does not say who makes the determination that a person was engaged in an insurrection or rebellion or has given aid or comfort to those in rebellion. There must be a national standard for this determination. We cannot have Trump on the ballot in 35 states and not on the ballot in 15 states.
The Supreme Court could rule that before a candidate is disqualified, he must have been found guilty by a jury or judge in a criminal case of charges crimes that come under the Fourteenth Amendment.
Jack Smith's Indictment of Donald Trump
Count Two of the Special Prosecutor's indictment of former President Trump provides: "DONALD J. TRUMP, did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote, in violation of Title 18, United States Code, Section 1512(c)(2). (In violation of Title 18, United States Code, Section 1512(k))." The indictment also alleges: "The Defendant said (to Georgia's Secretary of State Brad Raffensperger) that he needed to find 11,780 votes, and insinuated that the Georgia Secretary of State and his Counsel could be subject to criminal prosecution if they failed to find election fraud as he demanded . . . ."
The indictment also includes the President's speech on January 6, 2021:
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