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Maine Bars Trump. What Do You Think?
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This is doubtless going to be a long comment (or a long series of comments). But, to start with, let me steal a quote from CGP Grey, when he was talking about the Supreme Court of the US, and the story about how various rules about how it is made up have been changed over the decades: "Shenanigans beget shenanigans."
It barely even matters if this decision is Constitutional or not. What matters is that it looks bad, and to enough people that the precedent set can be deployed later against those who might be celebrating now. I'm not even sure it's going to be that effective in the short-term.
Here's a fun video - serious post to follow - but it is relevant in the sense that it shows how acting within the letter of the rules can be problematic, and just escalates until the rules break down.
See a separate comment for the footnotes and links. I would encourage people to read the judgements of all three documents cited therein, or at least glance at them.
As for the decision itself, there are a few points I'd like to make. The first is that criminal standards of "guilt" etc are all-too-often misapplied when they are not relevant. At a minimum, being barred from running for President is obviously not a criminal penalty, in the manner of a fine, prison sentence, or deportation. Indeed, this is especially so in the US, which -- bizarrely, but by now famously -- does not exclude prisoners or convicted criminals from the Presidency. If the Constitution had had nothing explicit to say about Insurrection, then, it would follow that the question "Has Trump been found [criminally] guilty of insurrection?" could have the answer "yes" with no effect whatsoever on his ability to run for President.¹ Or anything else, for that matter, as Trump is facing multiple criminal charges in multiple States. It's not legally relevant if he is convicted or not, but I should imagine that the reason he's working so hard to delay the trials is that they would be politically damaging (and then no doubt he'd use the Office of President to claim immunity from any prosecution at all).
The relevant question here², then, is not whether Trump (or anybody else) is guilty of Insurrection. Instead, it's whether or not he did it -- "engaged in", in the specific wording of the 14th Amendment. This amounts to a question of fact, not of guilt.³ States are then entitled to make a finding of fact that Trump engaged in the January 6th Insurrection, and events preceding it, without also deciding on whether this was a criminal act of Insurrection.
I should also point out that the Maine decision in particular states that "The usual standard in [these sorts of proceeding] is a preponderance of the evidence [what UK Judges would refer to as "balance of probabilities, ie a Civil standard], and the parties have not argued that any other standard should apply." (emphasis added). The "parties" here includes Trump himself, who by implication has accepted the point that criminal standards are not relevant.⁴
Some of these arguments will be tested further in the Supreme Court, but, for now, it is accepted in Maine and Colorado at least that Trump need not be criminally guilty of engaging in insurrection in order to be found, by a lower civil standard, to have done so.
The second point is that Trump engaged in Insurrection. All courts, and even the courts who otherwise ruled in Trump's favour, have found this. The lower-court judgement in Colorado (see links below) explicitly states, eg at para 298, that "the Court finds that Petitioners have established that Trump engaged in an insurrection on January 6, 2021 through incitement...", and only ruled in Trump's favour by finding that the 14th Amendment did not apply to the office of President. Even the three dissenting Justices in the Supreme Court of Colorado either agree with the findings of fact, or have nothing to say on them, relying instead on disagreeing with procedural aspects of the case, or on arguing that a criminal conviction for insurrection would, after all, be relevant.⁵ I would invite anybody who disagrees on this point to read carefully the District Court judgement, paragraphs 87-193, which lays out the findings of fact - since, as I said, that found in Trump's favour otherwise, it ought to be particularly damning on the facts.
To be continued.
As a third point, I want to address the claim that "...Democracy has to mean that, if it is to be valid, the electorate must have a choice of all who wish to stand. Otherwise it is a farce..." (emphasis added, but I believe this is a fair representation of jourdain's post). I agree in part with this: the rules on who can and cannot stand ought to be as loose as possible, the ultimate arbiter of who wins should be the people, and phony political reasons for blocking a given candidate are an affront. But the "all" is surely too strong a claim, ie there must be some limits. At a minimum, for example, the electorate shouldn't be able to elect somebody who is a non-citizen⁶ of the US -- a charge thrown at Obama in and around the 2008 and 2012 elections; see the "Birther movement", of which Trump was not incidentally a primary driver(!).⁷
Another minimum I think we'd agree on is one of age. Whether the electorate voted for one or not, no baby should be President. As it happens, the Constitution takes this further, setting an age limit of 35; no young person can be President. Whether or not this is too high isn't the issue here, but I think jourdain would agree that this rule, or any reasonable variation of it, does not in itself turn the idea that the US is a democracy into a "farce".⁸
On the other hand, the two rules above - nationality and age - are also arguably not far enough. Why not criminality? It's accepted that convicted criminals, or at least most of them, are also not allowed to vote, and in at least some cases this is not even controversial (again, a debate for another time). But it is surely inconsistent that a person should be barred from choosing the President, or vice-President or other elected representative, and yet is able to be chosen for said office. The UK does have this rule, by contrast, although this appears to be surprisingly recent.⁹
As noted earlier, the question of whether Trump is criminally guilty of anything is not engaged here, but the point I am making currently is only that it is clear, and widely accepted, that there are and must be limits on whom the electorate can choose as its representatives, and the existence of such limits is in fact essential to a democracy. Indeed, it is a protection: non-citizens can't be expected to have the best interests of a nation at heart; the overly young cannot be expected to have the experience or wisdom required to execute the office faithfully; and criminals have, for the period of their sentence at least, forfeited a right to make or to execute the very laws under which they were convicted in the first place. As noted, this last doesn't apply in the US, but it should; or, at least, it would be sensible.
Engaging in an insurrection also fits into this scheme of protection: somebody who is found, as a matter of fact, to have tried to overthrow a democracy can hardly be trusted with protecting it in future. So, again, we return to my second point: it is a finding of fact that Trump engaged in an Insurrection, when he attempted to overturn the result of the 2020 election.
(to be continued, again).
All of the above boils down to three main points, really:
1. Democracies can have rules about who can stand in elections, and indeed they should have such rules;
2. People who tried to overturn that democracy shouldn't be allowed to stand, and a criminal conviction or criminal standard of proof isn't necessary to establish this (as it's a civil penalty not a criminal one);
3. Trump is one such person, as all courts have found.
All that said, back to the shenanigans...
Politics, as much as we might wish it to be, is rarely about solely the facts, or solely a dispassionate argument. Many people won't read the Court judgements cited above (links below) when it comes to the fact-finding exercise -- and, even if they did, will reject them, or otherwise hold that they aren't relevant. Besides this, the specific question is virtually certain to be either unresolved by November 2024, or resolved in Trump's favour (albeit on procedural grounds, most likely, or other narrow legal points). In either case, Trump will, I am sure, be a candidate in 2024, at least in most States. If he is, and if he goes on to win, then what has been achieved? An angry Trump, who can argue that the machinery of law was directed against him in a fierce battle, is a powerful force in politics. A Trump who has won that battle is more so still, because in that scenario he would have the power to "return fire"; and, if not him directly, then many others in his camp of loyalists.
I do fear for the future in the US. I don't think that it is a mistake necessarily to pursue this route: for all the reasons I present above, it is clear to me that Trump should be barred from being President, and is unfit for such high office. But, when it almost inevitably fails, the consequences will be fearsome. Shenanigans beget shenanigans. Politics in the US is broken; this will further serve to drive that death spiral.
Ultimately, the answer is to defeat Trump at the ballot box. Even that might not be enough - in 2020, Trump refused to accept his legitimate defeat, but enough other people in authority stopped him from turning that anger into action; in 2024, while Trump might be out of Office, many who agree with his reading of the 2020 result do have the ability to act in his favour and potentially ignore the result.
I hope I am wrong in this point. In the UK at least, we'll have to wait and see, I guess; in the US, I hope that the nation comes to its senses and recognises that its Democracy is far, far bigger than one man's ego.
I think the whole idea of disqualifying candidates just smells of fear. Are they so terified that the person might win? Are they afraid that the only way to stop them is via red tape? If so what of democracy? if the people want to vote for someone, however unpalatable to some quarters then surely that is democracy in action.
Footnotes and links:
¹As an aside, the "innocent until proven guilty" line is trotted out all-too-often to defend people from social or civil consequences, but it is explicitly about criminal standards. I don't need to prove that somebody did something in order to not like them; the State doesn't need to prove (in the sense above) that somebody did something in order, say, to not grant them a given Benefit.
²Here I follow the reasoning of the Maine Decision as linked by Corbyloon earlier ( https:/
³This is an extremely important distinction, because, in other contexts such as jury trials, the two are separate. Although the Jury is expected to make findings of fact, and then apply those facts to the law as it stands (ie, decide on guilt), they are not obliged to do so, and the modern verdicts of "guilty" and "not guilty" arose precisely because ancient juries drew this distinction in a few famous cases (eg Bushell’s Case, (1670) 124 E.R. 1006 ; https:/
⁴See also the Colorado rulings, https:/
⁵Whatever you make of the substance of the dissenting arguments in Colorado, their style is frankly appalling for a legal document. Justice Samour, dissenting, unironically cites The Princess Bride as part of his argument (footnote 2, p.148, para 275).
⁶This rule is not absolute either - in the UK, you don't need to be a British citizen in order to stand as a candidate for Parliament, as long as you are instead a citizen of Ireland or of some Commonwealth country with permission to live in the UK. Perhaps this rule is too loose for some, but in any event some such restrictions make sense ( https:/
⁷Note that the "Birther" movement was not confined to people moaning about it socially, and led to multiple legal attempts to eject Obama from Office. All of them failed; perhaps, these shenanigans have also been conveniently forgotten. Shenanigans beget shenanigans...
⁸What I do find annoying about the age restriction is how arbitrary it is (why 35 and not 18?), and also how biased towards the youth it is. Should there be a maximum age ceiling? Why aren't politicians subject to retirement rules? A discussion for another time; but, again, the presence of such rules would not destroy the notion of democracy.
⁹Representation of the People Act 1981 c. 34, Section 1; https:/
Denying the constituents the right to vote for whoever they wish doesnt sound very democratic to me.
no they can vote ( if they are over 21 and resident etc )- so clearly there are already filters over who can vote for - and we dont have write-ins
and you can vote for a member of the Lords, nor a lunatic altho that may have changed.
what astounds me is that a fella can do it and not a court. There is a court - based appeal
BUT
this is what Trump wanted Pence to do by refusing to certifiy the results of the election - and no one has pointed THAT out.
Crazy place - the land of the free
As an aside, the "innocent until proven guilty" line is trotted out all-too-often to defend people from social or civil consequences,
o god my eyes glaze over when I read - "innocent until proven guilty so best not to discuss it...."
Altho.... in the sixties when juries decided on various civil cases, you did read the word 'guilty'.
.I think the whole idea of disqualifying candidates just smells of fear.
Noit just smells of " I havent read the rule book ( again)"
The House of Commons Disqualification Act 1975 outlaws the holders of various positions from being MPs. These include civil servants, regular police officers (but not special constables), regular members of the armed forces (but not reservists), and some judges.
Looks like the last link is broken, apologies:
https:/
Also, for sources on the birther movement litigation, see the various links in https:/
// As Barack Hussein Obama II is of the "mulatto" race, his status of citizenship is founded upon the Fourteenth Amendment to the United States Constitution. Before the [purported] ratification of the Fourteenth Amendment, the race of "***" or "mulatto" had no standing to be citizens of the United States under the United States Constitution."
//
https:/
If Trump ends up standing in the election and a lot of states have barred him - should that happen - then I agree that that is problematic. Because really, if the party has chosen him then people should be able to vote for him. I'm unclear - probably because it is unclear - whether he could even stand in a primary in a state that has barred him. However, I agree with the principle that his behaviour an actions warrant scrutiny under the constitution, as anyone surely should. He should IMO be deemed unfit to stand on those grounds and barred. That would seem to me to be protecting democracy not threatening it. If he somehow gets to be the final candidate then I think he needs to be on all the ballot papers. I suspect the supreme court will overturn these rulings. Of course what should happen is a federal pronouncement one way or the other.
I think I heard that if he is convicted by a state and jailed he couldn't run for office from jail, but a federal offence that landed him in jail would not debar him from doing so. That sounds daft, so maybe I misheard.
Atheist 22.06 yesterday. It seems that most of what I wanted to be considered has been delved into.
I'm very, very worried about America. I can't affect the vote of course.
If Trump won - it would be better for the British Economy with trade deals. If Biden won, it would be much worse for us economically, he really hates us, viscerally . HOWEVER, Trump would halt support to Ukraine and this would lead to massive destabilisation; a probably Russian victory and, following that, a domino campaign to bring Russia's borders back to where they were way back. This would bring in NATO - hey presto - World War 111! We would inevitably be involved and it would be nasty. But then, Biden is lukewarm, so is that a real consideration?
Yes, I can see Trump as a Putinesque figure, although I doubt that that is in his current thinking.
The OP states the nub. One person disqualifies Trump. It appears from recent reading that she is under investigation.
No, I hadn't realised that the US Constitution was so undemocratic. If the US wants to continue to be considered as a Democracy then it has just come up against a brick wall. How they solve it matters to all of us.
As Naomi has said several times, it is a very slippery slope - and a dangerous one.
jourdain.
Why would Trump benefit UK trade deals? He's a sociopath who cares for nothing but himself.
Why do you think that Biden hates us viscerally?
From what I've read, Trump seems to be a dictator-in-waiting. He wants to destroy democracy and to appoint judges who are on his side and to give himself all the power - forever.
Why do you think that the US constitution is undemocratic?
fROM WHAT i'VE READ,tRIMP SEEM STO BE A DICTATOR IN WAITIN
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