The core of the issue, however, will become clear as the secretaries of the fifty states prepare to produce the electoral lists.
“Donald Trump cannot be a candidate for president…unless two-thirds of Congress decides to pardon him for his conduct on January 6th.” Thus the jurist Michael Stokes Paulsen while summarizing the ineligibility of the former president, in an article written with his colleague William Baude. The two jurists have ties to the Federalist Society, a conservative think tank, whose philosophy is based on the faithfully textual interpretation of the American Constitution.
The article by Paulsen and Baude, which will be published by the prestigious University of Pennsylvania Law Review, is the result of a year of research. The article states that there is “abundant evidence” that Trump was involved in an insurrection to overturn the 2020 election outcome. The authors argue that the former president is responsible for attempts to change the election results through fraud and intimidation. Additionally, Trump pressured his Vice President Mike Pence for violating the Constitution and failing to fulfill his presidential duties during the assault on the Capitol on January 6, 2021.
The authors base their conclusions on Trump’s ineligibility to regain the White House by citing clause 3 of the 14th Amendment, adopted in 1868 after the Civil War. Section 3 bars those sworn to uphold the U.S. Constitution from holding or regaining political office if they "shall have engaged in insurrection or rebellion” against the government or have “given aid or comfort” to them. In their analyses, the two jurists make use of the linguistically original interpretation at the time of the approval of the amendment to define what an insurrection or witnessing of the country’s enemies is.
Federalist Society founder Steven Calabresi applauded Paulsen and Baude’s study, labeling it a tour de force. Lawrence Tribe, a liberal-leaning professor emeritus of law at Harvard University, and Michael Luttig, a conservative-leaning retired federal appeals court judge, both agree that Trump is guilty of insurrection. Other analysts, however, say that Trump must be defeated at the polls and that using such an old law would be counterproductive.
The core of the issue, however, will become clear as the secretaries of the fifty states prepare to produce the electoral lists. The dilemma will be whether to include or exclude Trump.
The constitution has specific rules for presidential candidates. The minimum age is 35 and applicants must be native-born, non-naturalized American citizens. In recent times, some candidates have been challenged with frivolous lawsuits that would have excluded them from the electoral lists. Barack Obama was sued for falsely claiming that he was not born in America. Ted Cruz, now a Republican senator from Texas, could not apply as a presidential candidate in 2016 because he was born in Canada, although he actually qualified for the candidacy because his mother was born in the USA. Complaints to exclude candidates from the electoral lists are therefore not uncommon.
In Trump’s case, these complaints loom large. Several Secretaries of State have initiated dialogues to determine whether to exclude or include Trump. The secretaries of state of Nevada, Michigan, Arizona, and New Hampshire are reviewing the situation in preparation for the 2024 election but also for the Republican primaries. New Hampshire Secretary of State Bryant “Corky” Messner, who benefited from Trump’s endorsement in 2020, has been inundated with calls from supporters of the former president. A statement from Messner’s office said that so far no decision has been made on whether Trump will be excluded from the Republican primaries in the state.
Lawsuits over the issue are inevitable and will come not only from individuals but also from groups seeking to test the Constitution. Two of these groups, Citizens for Responsibility and Ethics in Washington (CREW) and Free Speech for People (FSEP) are planning to file lawsuits in several states to challenge Trump’s eligibility in the Republican Party primaries. These groups are concerned with defending the constitution that Trump, as president and after, has shaken with words and actions outside the lines.
Arizona’s Secretary of State, Democrat Adrian Fontes, summed up the situation very well. It will be impossible for a secretary of state not to be sued for the inclusion or exclusion of Trump from the electoral lists. Where will these complaints go? All roads lead to the Supreme Court, which leans to the right, and therefore should be pro-Trump. In reality, the Supreme Court, despite three of the judges being appointed by Trump, did not support the former president in the appeals of the 2020 election.
Trump has not reacted on his eligibility but will obviously interpret the attempts to exclude him as part of the persecution suffered by pointing to the corruption of the system. In reality, the "balances" have held in his challenge to overturn the result of the 2020 election. The 4 criminal indictments that Trump is facing, 3 federal and one state in Georgia, confirm that the justice system, despite some imperfections, is following its path. The judgment on eligibility will also be decided by the judicial system. But even if Trump were to be considered eligible, his victory in 2024 is by no means assured. The polls currently show him as a strong favorite for the Republican Party nomination and the national polls reflect a neck-to-neck comparison with Biden. However, there is a lack of polls on the dozen or so "swing states", the swing states where independent voters will determine the outcome. These are the voters Trump is unable to reach, frozen in his efforts to keep his party’s base united. These swing states defeated him in 2020 and would most likely deny him the presidency again.
Original article published on Money.it Italy 2023-09-07 07:30:00. Original title: Un emendamento mette a rischio l’eleggibilità di Trump
