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Reviews | Is Donald Trump ineligible for the presidency?


At the same time, I’m torn about using this specific tool. Section 3 is an extraordinarily strong medicine. Like an indictment followed by a conviction, it deprives voters of the free choice of who seeks to represent them. This is not how democracy is designed to work.

And yet it is true, as some conservatives never tire of pointing out, that democracy in the United States is not absolute. There are multiple controls built into our system that interfere with the expression of direct majority rule: the Senate, the Supreme Court, and the Electoral College, for example. The disqualification clause of the 14th Amendment is another example – in this case, a peaceful and transparent mechanism to neutralize an existential threat to the Republic.

Nor is it undemocratic to impose conditions of eligibility for public office. For example, Article II of the Constitution prohibits the presidency to anyone under the age of 35. If we have decided that a 34-year-old man is, by definition, not mature or reliable enough to wield such immense power, then surely we can decide the same about a 76-year-old man who instigated to an insurrection to try to retain this power.

So, could Section 3 really be used to prevent Mr. Trump from running or becoming president again? From a legal point of view, this seems beyond doubt. The Capitol attack was an insurrection by any meaningful definition – a concerted and violent attempt to prevent Congress from doing its constitutionally mandated job of counting electoral votes. He committed himself to this insurrection, even if he did not physically join the crowd as he had promised. As leading Democrats and Republicans in Congress said during and after his impeachment trial, the former president was practically and morally responsible for bringing about the events of January 6. The damning evidence gathered and presented by the House Jan. 6 committee has only clarified the extent of the plot by Mr. Trump and his associates to void the election – and how his actions and failure to act have led directly to the assault and allowed it to continue for as long as it did. In the words of Rep. Liz Cheney, the committee’s vice chair, Mr. Trump “summoned the crowd, rallied the crowd and lit the flame for this attack.”

A few jurists have argued that Section 3 does not apply to the presidency because it does not explicitly list that office. It is difficult to reconcile this assertion with the fundamental purpose of the provision, which is to prevent insurgents from participating in the US government. It would be bizarre in the extreme if Mr Griffin’s behavior could disqualify him from serving as County Commissioner but not serving as President.

It’s not the legal issues that give me pause, though; these are the policies.

The first is the question of how Republicans would react to Mr. Trump’s disqualification. An alarming fraction of the party refuses to accept the legitimacy of an election that its candidate did not win. Imagine the reaction if their standard bearer was completely left out of the ballot. They would thunder about a “rigged election” – and unlike all the times Mr Trump has invoked that baseless phrase, it would carry a measure of truth. Combine that with increasingly violent rhetoric from right-wing media figures and politicians, including top Republicans, and you have a recipe for something far worse than Jan. 6. On the other hand, if partisan outrage were an obstacle to invoking the law, many laws would be a dead letter.

The most serious problem with Section 3 is that it’s easy to see how it could turn into a caricature of what it’s trying to prevent. Keeping specific candidates off the ballot is a classic move by autocrats, from Nicolas Maduro in Venezuela to Alexander Lukashenko in Belarus to Vladimir Putin. This sends the message that voters cannot be trusted to choose their leaders wisely – if at all. And haven’t we seen Americans across the country use their voting power to repudiate Mr. Trump’s Big Lie and dismiss the most dangerous Holocaust deniers? Shouldn’t we let the election run its course and give the people the chance to (re)reject Mr. Trump at the ballot box?

nytimes Gt

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