The U.S. Supreme Court is going to decide is Donald Trump has immunity and if he should be kept off the ballot by the Fourteenth Amendment.

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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:

"We fight like hell. And if you don't fight like hell, you're not going to have a country anymore." The indictment stated that Trump directed the people in front of him at the White House to head to the Capitol, suggested he was going with them.

Smith's indictment includes allegations sufficient to demonstrate that Trump engaged in insurrection and gave aid and comfort to those committing insurrection.

Presidential Immunity

Former President Trump claims that he is absolutely immune from prosecution for all crimes charged by the Special Prosecutor.

The impeachment clause of the constitution provides: "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." The constitution clearly provides that the president is not immune because it states that the Party convicted of impeachment "shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment according to Law." The president's other argument, that impeachment subjected him to double jeopardy, is directly contradicted by this constitutional provision.

There is no provision of the Constitution that gives the president immunity. The Supreme Court unanimously held in United States v. Nixon, 418 U.S. 683 (1974) that President Richard Nixon was required to deliver tape recordings that were subpoenaed concerning the Watergate burglary. In Clinton v. Jones, 520 U.S. 681 (1997), the Supreme Court unanimously held that a sitting president could be sued in a civil case.

These two landmark decisions confirm that a president is not above the law. If the Supreme Court rules that former President Trump was immune from criminal prosecution it would be allowing the president to shoot someone on Fifth Avenue and avoid prosecution. This Republic was founded on the principal that no man, no King, is above the law.

The Supreme Court should clarify that the Fourteenth Amendment can ban Mr. Trump from the ballot if he is convicted of any crime that would constitute insurrection or support of those committing rebellion against the United States. The court should emphatically rule that no one is above the law and that the former President is not immune from criminal prosecution. The court should make these rulings promptly so that Mr. Trump can be tried this Spring, well before election day.

Authors Website: http://www.calrecycles.com

Authors Bio:

CEO of California Association for Recycling All Trash, www.Calrecycles.com and CEO of Genuine-American Merchandise & Equipment, www.genuine-american.com, manufacturers of tennis equipment in the USA (Tennis Wellbow, Good Vibe vibration dampener and Mother Deuce: a children's book about tennis.www.genuine-american.com) Former Chairman, Made in the USA Foundation, economist and lawyer, author of 18 books and hundreds of articles.