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You are here: Home / Open Threads / First (14th Amendment) Shot Fired Over the Bow

First (14th Amendment) Shot Fired Over the Bow

by WaterGirl|  August 27, 20231:50 pm| 56 Comments

This post is in: Jan 6: Insurrection, Open Threads, Trump Indictments, Violent Insurrection at the Capitol

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First shot fired over the bow, regarding the 14th amendment.  And it’s not just fired at Donald Trump, but also at the hypocrites on the Supreme Court.

Lawrence A. Caplan v Donald J. Trump  (PDF)

My summary of the part of the filing that addresses conservative members of the Supreme Court itself:

“You pretend to call yourselves strict constructionists.  You overturned Roe v. Wade because a strict interpretation of the constitution doesn’t include a right to privacy.  Do you guys have the balls to rule based on the constitution?”

I’m glad to see some formal actions being taken.  I hope there are many, many more.

Florida lawyer files challenge to disqualify Trump from 2024 race, citing 14th Amendment

Open thread.

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56Comments

  1. 1.

    patrick II

    August 27, 2023 at 1:55 pm

    Do you guys have the balls to rule based on the constitution?”

    Insulting judges means this isn’t a filing that is meant to win.
    And, just generally, a law without an enforcement mechanism is an aspiration.

  2. 2.

    The Kropenhagen Interpretation

    August 27, 2023 at 1:56 pm

    Needs moar trial. We need an independent finding of fact before trying to disqualify Trump.

  3. 3.

    Omnes Omnibus

    August 27, 2023 at 1:59 pm

    @patrick II: That’s WaterGirl’s summary of the filing, not the actual document, ffs.

  4. 4.

    ancien regime

    August 27, 2023 at 2:03 pm

    The complain is linked in the article: https://www.courtlistener.com/docket/67724934/1/caplan-v-trump/

    It’s a declaratory relief action against Trump. Obvious standing problem. There’s also a remedy question. It’s styled as declaratory relief, but the actual pleading seems to ask for an injunction:

    “Petitioner respectfully asks this honorable Court to enter a declaratory
    judgment such that Donald J, Trump is barred from seeking the office of President of the United
    States and further, is barred from particpating in the Republican Presidential primary in Florida in the spring of 2024.”

    Seems likely this gets tossed fast and hard.

  5. 5.

    patrick II

    August 27, 2023 at 2:03 pm

    @Omnes Omnibus:
    Well, Watergirl often sounds very lawyer-like.
    I am obviously, very literal.  Also not a careful enough reader.  “my summary” is very clear.

    My second sentence still stands.

  6. 6.

    Omnes Omnibus

    August 27, 2023 at 2:06 pm

    @The Kropenhagen Interpretation: I agree.  The court in which this is filed could choose to hear evidence on the issue of insurrection or other similar disqualifying actions, but I suspect that they will punt based on the current lack of a criminal conviction.

  7. 7.

    Omnes Omnibus

    August 27, 2023 at 2:09 pm

    @patrick II: One mechanism for enforcing a Constitutional provision is a lawsuit.  Like this one.

  8. 8.

    Anonymous At Work

    August 27, 2023 at 2:10 pm

    They’ll state that this requires a final adjudication on merits.  District court selection will matter, but I can see several circumstances where courts slow-walk things.  I can see a few dozen appeals pre-trial about how such a trial would occur (who is defendant?  Florida Secretary of State or TFG?), the substance of a trial since this provision is untested, and a search for the method of finding of fact, since TFG and/or GQP of DeSantis would want a jury.

    I see this going nowhere without a conviction in DC, and being mooted by the election (14 months of legal wrangling for nothing) without reaching a precedent to speed things up next time or for Congress-critters that aided/abetted the January 6th insurrection.

  9. 9.

    Anonymous At Work

    August 27, 2023 at 2:12 pm

    @Omnes Omnibus: 14 months of pre-trial briefing and appeals of pre-trial orders.  Proper forum, defendant, intervenors, standard for finding of fact, judge vs. jury, etc.  Section 3 is not self-executing except to people who formally declared war on the US, aka traitors of the Confederacy.

  10. 10.

    Urza

    August 27, 2023 at 2:14 pm

    @Anonymous At Work: You are probably right that it all gets dropped after the election, but it would most definitely be good for the nation if it continued regardless of the outcome of the election.  Being able to eliminate all those who assisted from all government office would make a massive difference in the body politic.

  11. 11.

    Scout211

    August 27, 2023 at 2:16 pm

    @Omnes Omnibus: The actual filing: Lawrence A. Caplan v Donald J. Trump

    Warning: .pdf document (also text version)

  12. 12.

    The Kropenhagen Interpretation

    August 27, 2023 at 2:17 pm

    @Anonymous At Work: Section 3 is not self-executing except to people who formally declared war on the US, aka traitors of the Confederacy.

    @Omnes Omnibus: I suspect that they will punt based on the current lack of a criminal conviction.

    As it should be. Imagine if any random Secretary of State or other empowered individual could simply declare someone ineligible for office based on any perceived abrogation of duty without having it properly adjudicated.

  13. 13.

    Glory b

    August 27, 2023 at 2:17 pm

    Off the top of my head, I recall that there is a judge that ruled a successful candidate for sheriff could not take office because of participation in January 6, saying that it meets the definition of an insurrection. So, maybe a precedent?

  14. 14.

    piratedan

    August 27, 2023 at 2:22 pm

    isn’t this applying what took place in New Mexico with the Otero County Commissioner being kicked off the ballot based on his J6 Conviction?

  15. 15.

    Scout211

    August 27, 2023 at 2:22 pm

    @Glory b: There is a difference.  He was convicted:

    Link

    A New Mexico District Court judge on Tuesday ordered the removal of Republican Otero County Commissioner Couy Griffin from his elected position and barred him for life from serving in elected federal and state positions. This ruling marks the first time an elected official is set to be unseated by court order as a result of participating in or supporting the Jan. 6 attack on the Capitol.

    . . .

    Griffin was among the mob that stormed the Capitol in Washington, D.C., on Jan. 6, 2021, in an attempt to overturn the election. He was arrested on Jan. 18, 2021, and convicted this past summer of illegally entering or remaining on restricted grounds. Griffin was sentenced to 14 days in jail, but was given credit for time served.

  16. 16.

    Omnes Omnibus

    August 27, 2023 at 2:23 pm

    @Scout211: This may be cathartic for people, but I really don’t see it going anywhere.

  17. 17.

    Omnes Omnibus

    August 27, 2023 at 2:25 pm

    @piratedan: Based on his Jan. 6 conviction.  That’s what we are missing here with Trump.  So far.

  18. 18.

    Scout211

    August 27, 2023 at 2:27 pm

    @Omnes Omnibus: IANAL, but it feels a little too “aspirational.”  I’ll get on board once inmate P01135809 gets convicted or accepts a deal with a guilty plea.

  19. 19.

    The Kropenhagen Interpretation

    August 27, 2023 at 2:27 pm

    @Omnes Omnibus: The Georgia case would qualify to disqualify Trump too; but not the NY case, if I read correctly.

  20. 20.

    sdhays

    August 27, 2023 at 2:30 pm

    @The Kropenhagen Interpretation: The anti-LGBTQ wedding website lawsuit was decided based on a completely aspirational situation with made up facts, and that didn’t stop this Supreme Court.

    Not that I think they’ll follow that standard here.

  21. 21.

    Calouste

    August 27, 2023 at 2:30 pm

    @The Kropenhagen Interpretation: DeSantis would just declare the Democratic Party an insurrectionist movement and turn Florida into a formal one-party state.

  22. 22.

    Omnes Omnibus

    August 27, 2023 at 2:30 pm

    @The Kropenhagen Interpretation: Probably correct.  I just mentioned Jan 6 because the guy who was disqualified had a Jan 6 conviction.

  23. 23.

    RepubAnon

    August 27, 2023 at 2:31 pm

    @The Kropenhagen Interpretation: That’s my concern.  Imagine a Republican Secretary of State in, say, Texas, ruling that Joe Biden was barred from political office because he wasn’t building the border wall, and thus removing Joe from the primary ballot.

    We’d need at least a civil trial holding Trump responsible for damages.  The convictions of various J6 defendants for insurrection should help.

  24. 24.

    Geminid

    August 27, 2023 at 2:33 pm

    @Glory b: That was the Otero County, New Mexico Sheriff Couy Griffin(?). * New Mexico citizens used his conviction for offenses during the January 6 Insurrection to disqualify him from office by means of a civil suit in state court.

    A friend was just discussing 14th Amendment disqualification and suggested that there would be lawsuits in state courts to exclude presidential Electors for Trump from the states’ ballots. He thought Trump would have to be convicted on the charges Jack Smith brought in DC first though.

    * or maybe he was a County Commissioner.

  25. 25.

    PaulWartenberg

    August 27, 2023 at 2:34 pm

    @The Kropenhagen Interpretation:

    Didn’t a court in New Mexico rule an elected official who participated in J6 was banned under this 14th amendment provision?

    https://sourcenm.com/2022/09/06/couy-griffin-first-elected-official-barred-from-office-for-participating-in-jan-6-attack/

  26. 26.

    The Kropenhagen Interpretation

    August 27, 2023 at 2:38 pm

    @sdhays: Oh, don’t even get me started on this new segregation regime they’re attempting to start. I’m considering stopping all my tax withholding over this.

    But there’s a distinct difference here. One is a problem that only exists in theory, the other is a reality that hasn’t been adjudicated.

  27. 27.

    Mike in NC

    August 27, 2023 at 2:41 pm

    Two years late is better than never, huh?

  28. 28.

    JaySinWA

    August 27, 2023 at 2:41 pm

    This particular case is likely going nowhere. I could see joint challenges from several state officials getting off the ground but this looks like a Quixotic maneuver from an individual.

  29. 29.

    gwangung

    August 27, 2023 at 2:41 pm

    Wasn’t the New Mexico case based on New Mexico law? Would make a difference.

  30. 30.

    Scout211

    August 27, 2023 at 2:46 pm

    @PaulWartenberg: see my #14. Cuoy Griffey was convicted of participating in the J6 insurrection.  Inmate P01135809 has only be charged.

  31. 31.

    Scout211

    August 27, 2023 at 2:48 pm

    @gwangung: Wasn’t the New Mexico case based on New Mexico law?

    No

    Link

    Mathew ruled that Griffin was disqualified from serving in public office under Section 3 of the 14th Amendment because Griffin had violated his oath to support the U.S. Constitution. The judge cited Griffin’s participation in the Jan. 6 attack on the Capitol, along with “surrounding planning, mobilization and incitement.” Mathew also called those actions an “insurrection against the Constitution.”

    The judge further ruled that because Griffin is constitutionally disqualified from holding federal and state offices, he must be removed as an Otero County commissioner “effective immediately.”

  32. 32.

    Omnes Omnibus

    August 27, 2023 at 2:52 pm

    I really hope that this doesn’t become a shiny object that “Do Something” Twitterers and such like chase as proof of the perfidy of Dems.

  33. 33.

    sab

    August 27, 2023 at 2:55 pm

    @patrick II: Emoluments Clause.

  34. 34.

    sab

    August 27, 2023 at 3:00 pm

    @patrick II: Emoluments Clause ( aspirational.)

  35. 35.

    The Kropenhagen Interpretation

    August 27, 2023 at 3:04 pm

    @Omnes Omnibus: “Do Something” Twitterers

    Do what whoses? Fuckem.

  36. 36.

    Jim, Foolish Literalist

    August 27, 2023 at 3:07 pm

    @sab: a small part of me will never understand why Dems didn’t include emoluments in the first impeachment. The much larger parts of me gets that it wouldn’t have made a damn bit of difference outside of the on-line Left and MSNBC viewers, and it would have convinced those Do Something! folk Omnes mentions that Dems just didn’t do it right, and somehow blame either Obama or Merrick Garland

  37. 37.

    moonbat

    August 27, 2023 at 3:11 pm

    Regardless of the eventual outcome, which we cannot know until any of these cases against TFG are tried, I like seeing this type of suit being brought because it puts Trump’s actions in the proper context in relation to his duties and oaths taken as chief executive. He tried to overthrow the government by not yielding to the will of the voters. The U.S. Constitution has something to say about that.

    All the parsing and mealy-mouthing by the right wing nutjob noise machine is basically trying to obfuscate that basic fact by calling his failed attempts to do just that  — aspirational. If we go by that reasoning, no one could be tried for insurrection unless they were actually successful, in which case there wouldn’t BE a trial.

    The U.S. legal system can’t wait around until they get insurrection right if we want to keep our democracy.

  38. 38.

    bjacques

    August 27, 2023 at 3:12 pm

    @Scout211: Now I have a jingle to remember Trump’s booking number, and now so do you.

    “Donny, I got your number…
    I’m gonna hear you whine…
    Donny, I got your number:
    11135809,
    1135809…”

    You’re welcome

  39. 39.

    sab

    August 27, 2023 at 3:19 pm

    @Jim, Foolish Literalist: I think Pelosi believes that grounds for  impeachment should have a very, very high bar. I agree with her. Another norm that differentiates us from them.

  40. 40.

    MattF

    August 27, 2023 at 3:34 pm

    What would be done if a 25 year old ran for President? How about ‘Well, just don’t vote for them’. IMO, this lawsuit is really a way to rally (actual) conservatives to vote for anyone-but-Trump and I’m OK with it on that basis. IRL, there are many uninteresting technical legal reasons why it would get tossed. It’s possible that some marginal conservative voter would agree that this is one more reason to not vote for Trump.

  41. 41.

    Omnes Omnibus

    August 27, 2023 at 3:40 pm

    @MattF: A 25 y/o would be facially disqualified.  This is a little more complicated.

  42. 42.

    wjca

    August 27, 2023 at 3:43 pm

    @Omnes Omnibus:

    Based on his Jan. 6 conviction.  That’s what we are missing here with Trump.  So far.

    The interesting question (IANAL, obviously) is, suppose Trump gets the nomination.  Then gets convicted of one of the 2020 election charges somewhere between just before Election Day (i.e. too late to change the ballots) and mid-December when the Electors vote.  Could that get him disqualified under the 14th Amendment, and the Vice Presidential candidate (Vice President elect?) declared President?  Or would a formal impeachment process be required?

  43. 43.

    brantl

    August 27, 2023 at 3:44 pm

    @The Kropenhagen Interpretation: We have a winner! His idea that the indictment is the same as conviction is a farce. If this guy really is a lawyer, he’s not a very good one. The indictment has no more legal certainty than a newspaper calling Trump a skunk.

  44. 44.

    brantl

    August 27, 2023 at 3:48 pm

    @Anonymous At Work:  Section 3 is not self-executing except to people who formally declared war on the US, aka traitors of the Confederacy.

    Assumes things not in evidence. But one conviction on any of either Fani Willis’ charges, or Jack Smith’s Jan 6 charges, should do it.

  45. 45.

    brantl

    August 27, 2023 at 3:56 pm

    The Confederates that ran for office would have to be convicted, to be stopped. The fact that the amendment existed, stopped them from even running. I looked it up, it seems most of them were “paroled”, I wonder if that means that they were found guilty, or not? Any legal scholars want to chime in?

  46. 46.

    Nora

    August 27, 2023 at 4:02 pm

    @ancien regime: Standing?  How very quaint.  This Supreme Court has decided that everyone has standing to challenge anything they don’t like.  Look at the Colorado website case.  If that plaintiff had standing, there is no such thing as standing.  Certainly nothing that could bar this citizen from bringing this declaratory action.

  47. 47.

    billcinsd

    August 27, 2023 at 4:29 pm

    @Anonymous At Work: Section 3 is not self-executing except to people who formally declared war on the US, aka traitors of the Confederacy.

    and yet Section 3 says nothing about this or the US Civil War at all, nor the Confederacy.

  48. 48.

    UncleEbeneezer

    August 27, 2023 at 4:30 pm

    @Omnes Omnibus: Oh you absolutely KNOW it will!:  “Why isn’t Feckless Garland doing this?!!”

  49. 49.

    billcinsd

    August 27, 2023 at 4:32 pm

    @RepubAnon: If they thought it might work, why would Republicans need  Democratic example to do this? They never have before.

  50. 50.

    🐾BillinGlendaleCA

    August 27, 2023 at 4:36 pm

    @wjca: That is an interesting grey area, technically the party controls who is on the ticket until the electors vote.  It doesn’t seem that the VP candidate would automatically move up.

  51. 51.

    UncleEbeneezer

    August 27, 2023 at 4:37 pm

    Surprised there hasn’t been a thread about this already (unless I just missed it):
    3 people dead after gunman targeted Black people in Jacksonville, Florida, officials say
    Rev. Barber connects the very obvious dots:

    We have hateful rhetoric coming out of the mouths of politicians in Florida from the highest levels every day. From the governor to the former president, it is hate against Black history, hate against wokeness, hate against trans people, hate against immigrants. 1/7

    Words of hate create an ethos of hate, an atmosphere of hate, a political, social petri dish of hate and eventually spoken words become deeds. 2/7

    The shooter first went to a historically Black university. 3/7

    As Eddie Glaude has said, racist violence against children out of Birmingham framed the March on Washington. It was bookended by more racist violence against children in Birmingham and around the country. 4/7

    We must tell the truth: this is not new. When DeSantis + other politicians say our problem is wokeness and diversity, while they are somewhat different, they are moving in the same historical tributary of violence that George Wallace moved in that watered the seed of hate. 5/7

    We will have to bury and mourn the dead, but afterward we must join the political forces of love and justice and take power from and send home the proponents of hate and those who perpetuate more and more laws making it easier to get guns than an education. 6/7

    The killing of three people In Jacksonville must signal a coming to life of a movement of people all over the country who will create a political voting bloc of love that will shut down political power of the haters and promoters of guns. 7/7

  52. 52.

    billcinsd

    August 27, 2023 at 4:38 pm

    @brantl: The 14th Amendment says nothing about indictment of conviction.

    shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

  53. 53.

    cmorenc

    August 27, 2023 at 4:56 pm

    Prediction:

    SCOTUS will duck it as a “political question”.  Or else, one not ripe for decision until the ongoing trial-level criminal cases against Trump proceed to the appellate level.

  54. 54.

    wjca

    August 27, 2023 at 5:02 pm

    @UncleEbeneezer:

    3 people dead after gunman targeted Black people in Jacksonville, Florida, officials say.

    Rev. Barber connects the very obvious dots

    Not that hard to connect them, seeing as the guy apparently left multiple (3?) manifestos.  No interpolation or implications required.

  55. 55.

    gene108

    August 27, 2023 at 6:03 pm

    @sab:

    Emoluments Clause ( aspirational.)

    There several lawsuits regarding hotels and other groups claiming they suffered harm because Trump violated the Emoluments clause, but none of them got very far.

  56. 56.

    Kirk

    August 27, 2023 at 7:05 pm

    @billcinsd: So the standard will be “some people say?”

    No. Prove it in court. That particular wall needs to stand to protect the innocent along with the guilty.

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