Could this be why T is not charged w insurrection?

This is a WSJ article this morning. The 14th does not apply to Trump!

"Apart from the four criminal indictments brought against Donald Trump, those who would end his campaign for the presidency by means other than an election seem to be putting increasing faith in Section 3 of the 14th Amendment, known as the Insurrection Clause. That faith seems to be seriously misplaced.

To the extent its text is relevant here, the section in question denies to a discrete category of people—including those who have taken an oath “as an officer of the United States . . . to support the Constitution of the United States”—the right to serve as a “Senator or Representative in Congress, or elector of President and Vice President, or hold any office . . . under the United States” if they “have engaged in insurrection or rebellion against same.”

OPINION: POTOMAC WATCH
WSJ Opinion Potomac Watch
Does the 14th Amendment Disqualify Donald Trump?



A good deal of attention has focused thus far on whether the attack on the Capitol on Jan. 6, 2021, was an “insurrection or rebellion” and, if so, whether Mr. Trump “engaged” in it. Those questions, however, need not be answered until two preliminary questions of law are addressed: Is the presidency an “office . . . under the United States,” and was the presidential oath Mr. Trump swore on Jan. 20, 2016, to support the Constitution taken “as an officer of the United States”?

The latter question is easier. The use of the term “officer of the United States” in other constitutional provisions shows that it refers only to appointed officials, not to elected ones. In U.S. v. Mouat (1888), the Supreme Court ruled that “unless a person in the service of the government . . . holds his place by virtue of an appointment . . ., he is not, strictly speaking, an officer of the United States.” Chief Justice John Roberts reiterated the point in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010): “The people do not vote for the ‘Officers of the United States.’ ”

Article VI of the Constitution provides that senators and representatives “and all executive and judicial Officers . . . of the United States” take an oath to support the Constitution. But the presidential oath is separately provided for at the end of Article II, Section 1, which would be superfluous if the president’s oath were required by the general language in Article VI. Mr. Trump took an oath as president pursuant to Article II, not as an officer pursuant to Article VI. Because the Insurrection Clause applies only to those who have taken an oath “as an officer of the United States,” he can’t be barred by that clause from serving in any capacity.

As for the former question, the language disqualifying a rebel from holding “any office . . . under the United States” follows the language disqualifying the rebel from office as “Senator or Representative in Congress, or elector of President and Vice President.” If “any office . . . under the United States” is broad enough to cover the president, it is certainly broad enough to cover senators, representatives and perhaps electors. Such a reading would make reference to those specific offices superfluous.

Is it plausible that the authors of the 14th Amendment specified senators, representatives and electors but meant to include the presidency and vice presidency under the general term “any office . . . under the United States”? Note that the term is “any office,” not “any other office,” which implies that the positions listed before it aren’t “offices under the United States,” because they are elected not appointed.

But that conclusion is uncertain. The phrase “office under the United States” appears four other times in the body of the Constitution, at least two of which—one barring officeholders from accepting a foreign title or emolument, and one barring anyone impeached and convicted from holding such an office—may well apply to an elected official, including the president. Also, if a holder of an “office under the United States” meant the same thing as “Officer of the United States,” why weren’t the same words used to specify it?

That may be puzzling, but as applied to Mr. Trump it is irrelevant, because—again—he didn’t take and thus didn’t violate an oath as an “Officer of the United States,” and so cannot be barred by the 14th Amendment from seeking re-election.

Even a criminal conviction wouldn’t bar him from seeking and winning the presidency. The Constitution specifies only that a person seeking that office be at least 35, a natural-born citizen and a 14-year U.S. resident. If Mr. Trump is to be kept from office, it will have to be done the old-fashioned way, the way it was done in 2020—by defeating him in an election.

Mr. Mukasey served as U.S. attorney general, 2007-09, and as a U.S. district judge, 1988-2006.

@averagejoe1 said
This is a WSJ article this morning. The 14th does not apply to Trump!

"Apart from the four criminal indictments brought against Donald Trump, those who would end his campaign for the presidency by means other than an election seem to be putting increasing faith in Section 3 of the 14th Amendment, known as the Insurrection Clause. That faith seems to be seriously mispl ...[text shortened]... n.

Mr. Mukasey served as U.S. attorney general, 2007-09, and as a U.S. district judge, 1988-2006.

@no1marauder said
The idea that the Framers of the 14th Amendment meant to bar insurrectionists and rebels from every office down to local dog warden ("hold any office, civil or military, under the United States, or under any State, " ) but did not mean such a prohibition to apply to the Presidency is patently absurd.

@phranny said
I agree with you. However, we have a conservative SCOTUS and so they might well see the 14th amendment differently. If Trump runs and wins, I believe it will be due to extreme gerrymandering. He will not win the popular vote. The more the GOP rigs elections via extreme gerrymandering and voter restrictions, the closer they bring us to a violent civil war. Everyone along the entire political spectrum are buying arms.

@phranny said
I agree with you. However, we have a conservative SCOTUS and so they might well see the 14th amendment differently. If Trump runs and wins, I believe it will be due to extreme gerrymandering. He will not win the popular vote. The more the GOP rigs elections via extreme gerrymandering and voter restrictions, the closer they bring us to a violent civil war. Everyone along the entire political spectrum are buying arms.

@no1marauder said
Assuming it reaches the SCOTUS, I would suspect that they dismiss the claim on other grounds, most probably that Trump's goading of the crowd on January 6th did not reach the level of "insurrection or rebellion against the same, or given aid or comfort to the enemies thereof" that the authors of the 14th Amendment had in mind.

I personally think the effort is a bad ide ...[text shortened]... https://people.com/nikki-haley-slams-donald-trump-first-gop-debate-most-disliked-politician-7852227

@kevcvs57 said
I agree, the idea that the dems would want their o face a less damaged candidate than trump doesn’t make any tactical sense at all.
But something has to be done otherwise it’s a tacit acceptance that an outgoing POTUS has the right to carry out any scheme that they can concoct in order to stay in power regardless of the election results as long as they claim the election w ...[text shortened]... at does not yield to the known will
of the people should automatically be barred from future office

@averagejoe1 said
This is a WSJ article this morning. The 14th does not apply to Trump!

"Apart from the four criminal indictments brought against Donald Trump, those who would end his campaign for the presidency by means other than an election seem to be putting increasing faith in Section 3 of the 14th Amendment, known as the Insurrection Clause. That faith seems to be seriously mispl ...[text shortened]... n.

Mr. Mukasey served as U.S. attorney general, 2007-09, and as a U.S. district judge, 1988-2006.

@no1marauder said
Trump's being prosecuted for his illegal actions aimed at overturning the election; that should be a sufficient future deterrent.

@averagejoe1 said
Why does Trump's support continue to increase as more charges pile up on him? I think that they see the wrong in this persecution of this man, and moreover, that he is so tough, able to keep his ship going straight into the storm.
Query, if we were all on a boat heading into a storm, would you rather have captain Biden, or captain Trump, as commander? Of course,, ...[text shortened]... Which would make a better president, or a better ship's captain, given such imperfections?
.

@wildgrass said
It does not increase. He will lose again if nominated.

@averagejoe1 said
Put Wgrass in "Trump will Lose" column. So noted.

@wildgrass said
It does not increase. He will lose again if nominated.

@shavixmir said
The writing is on the wall. trump is going down one way or another.

Okay, Inwas surprised he wasn’t taken out before he became president. Seriously. It was rather obvious the first time round that the man isn’t fit for office.

Now there’s so much faecal matter stuck to him, he surely is going to prison, gonna get barred from running or will die in his sleep.

@shavixmir said
The writing is on the wall. trump is going down one way or another.

Okay, Inwas surprised he wasn’t taken out before he became president. Seriously. It was rather obvious the first time round that the man isn’t fit for office.

Now there’s so much faecal matter stuck to him, he surely is going to prison, gonna get barred from running or will die in his sleep.