 Aloha. Welcome to American Issues Take One. I'm Tim Apachele, your host, and today's title is Trump Disqualified to Run for Office Again. There's been a lot of talk in the last two or three years, particularly in the last two years, about the 14th Amendment of the Constitution, Section 3. This was a post-Civil War amendment to the Constitution, basically to ensure that no one runs for office. That is involved with any insurrection or rebellion against the United States, or aiding and comfort to the enemy. Why was that part of this post-Civil War addition to the Constitution? Because there were a lot of confederates, and there were concerns that they would get in office and not work for the union. So with me to discuss the 14th Amendment, Section 3, and how it applies to Donald Trump, I have with me my co-host, Jay Fidel, and our special esteemed guest, Chuck Crumpton. Gentlemen, good morning. Good morning, Tim. Tim, Jay. Chuck, to you first. There's been a lot of discussion regarding, well, first off, let me back up. When the House Select Committee for January 6th, Select Committee produced a report, it was fairly specific, and a lot of the specifics in that report seem to match up quite well with what provisions are required to prevent someone from running for office. Again, the point is that once you sworn an oath to the Constitution, you should be prohibited from office if you are found to be involved with insurrection or rebellion against the United States. What's your read on that, Chuck? And as far as what's in that House Select Committee report and how it does or doesn't line up with the provisions of the 14th Amendment, Section 3. Well, the House Select Committee report joins many other government organizations and statements in recognizing the January 6th events as an insurrection. So that's helpful because the standard is if the person engages in an insurrection or rebellion or gives aid or comfort to the enemy, then they're precluded. Just to remember, as far as the Confederates go, Congress, by more than two-thirds of both houses, as required by Amendment 14, Section 3, lifted the disability for Confederates to run for office in 1872. So pretty soon after the Civil War and after the... And also the Ku Klux Klan Act, which provided some basis for precluding people from engaging in insurrections and rebellions and running for office, has lapsed. So those two vehicles are gone. There's still a cool warrant-o action. There are still some state avenues, but no federal specific legislation to enable the enforcement of Section 3 of Amendment 14 has yet been passed. That's where we are. OK, thanks for that explanation. Very thorough. Jay, let's talk about the specifics of why people think that someone, a candidate in standing, perhaps, or a member of Congress, should try to initiate Donald Trump from preventing from him running for 2024. Let's talk about the specifics of what the reasons of why the 14th Amendment applies to Donald Trump. Well, to answer your question, you know, I don't know. Maybe they're all traveling or fighting a forest fire. Maybe they just don't have time, but there are 1.3 million lawyers in this country. And if you if you assume that about half of them are in one bubble and the other half are in the other bubble, I do not know if that's a good assumption. But let's assume for this discussion, it's about half, half. That means, you know, something over 600,000 lawyers would be, you know, sympathetic to having Trump disqualified under Section 3. But NARIA 1 have actually advanced the case. And I think, you know, it could be, as you suggested in your opening, that the Constitution doesn't provide a pass and Congress hasn't acted. So what is the past? You know, I'm troubled that there's no past in the Constitution. A lot of people must be. And I'm troubled that not only has Congress not adopted any legislation that would allow a pass, but it is very unlikely that Congress right now would adopt any legislation like that. But I suggest to you there is a path. And if you're nice to me, I'll tell you what the path is. Not today. Please continue. Oh, OK. The Constitution doesn't say that somebody has to be found guilty. It doesn't say there has to be a civil or criminal action against this individual. It has to be indicted or tried in front of a jury or convicted or punished, you know, and there is nothing in the Constitution about that. So where does that leave us? It's a vacuum. But it seems to me that a vacuum is is filled here by by one single act. And that is an act by a person with standing. And we can discuss what standing would be in a federal district court with the district court finds, as a matter of fact, that the requirements in section three have been met. That's all. It doesn't have to be any criminal action. So I want to read it to no person shall be a senator or representative in Congress or a elector of president and vice president or hold any office, civil or military under the United States or under any state who having previously taken an oath as a member of Congress or as an officer of the United States or as a member of any state legislature or as an executive or judicial officer of any state support the Constitution of the United States shall this is the operative language shall have engaged in insurrection or rebellion against the same meaning the United States or given aid or comfort to the enemies thereof meaning the United States. But Congress may and this is interesting. We should talk about it. But Congress may by a vote of two thirds of each house remove that disability. There's nothing in there about, you know, a criminal proceeding or a finding in a criminal context. And there's there's no action has been taken to provide judicial gloss on that case in New Mexico really doesn't help us very much. But if you went to a federal judge and say, I move special proceeding, right? What's the section of the federal rules, Dr. There's a section that a certain kind of proceeding in the federal court. Or until. And there's another one, too, under the federal rules asking for the judge to determine disqualification. And the judge says, you're right. He should be disqualified end of story. No jury, no nothing happens on one day. OK, and then, of course, the the appellate practice begins. But it seems to me if the person who made that motion had standing, we should talk about that, then that would be sufficient to disqualify an individual under section three. Comments, Chuck. Well, why not? Because we've seen that at least a number of times in history that the warrant or federal process and several state processes have been used to invoke article. Section three, Amendment 14 disqualification of people, county commissioners and others. And in fact, in several cases, at least two representatives, one back in the 19th century and then Bergen, I think, in 1919. So it's it's been done. But so rare and so few and far between that there's very little precedent for it. And it's it's extremely politically unpopular. It's difficult. It's challenging. We can go down the specifics of why we think Donald Trump is subject to the fourteenth section three. We can go through all those things that he performed or involved with. What we we think he has, it's all alleged at this point, because it hasn't done the trial. Wait, before before you just gloss over that, let me tell you what the article in the crew publication said. And you can tell me that this has not been proved. OK, Trump spread false claims of a stolen election. I don't think there's any question. Trump's law is number two. Trump's law that the election was stolen and he propelled stop the steel movement. I don't think there's any question about that. He tried to exert pressure on Pence and Congress to unlawfully refuse to certify the result on January 6th, the third Trump personally led an effort to pressure the worst and intimidate government officials, including Pence, to help him overturn the election result. I don't think there's any question. I mean, you know, and you forget Georgia, looking for one thousand seven and eighty votes, let's not forget his summon of the crowd. Let's not forget his words to incite the crowd and let's not forget his inaction to quell the crowd. So this more The mob was assembled on January 16 cited them to quote fight like hell to overturn the election result and Stopped the steel next one after learning the Capitol was under attack. He poured fuel on the fire Targeting pence for lacking the courage to overturn the election in a tweet that measurably calls caused the mob to surge next Trump failed to act with three hours as his mob ransacked the Capitol brutally assaulted police officers and called for the murder of elected officials. He failed to deploy it deploy a federal response. I Could go on let me let go those are great points and instead Intervening to defend the Capitol He actually tried to enlist members of Congress to deliver on the mob's goal to delay the certification So that's just it's a broad brush, but I don't okay really any question that those things took place Okay, great point. Let me let me parlay that into a question here And that is there's you know the criticism about using the 14th amendment is that you're presuming guilt prior to conviction but Isn't it true that we're not this is not a criminal Section it's no one saying that there's a criminal thing that he had to pay a price for it's just a qualification of office What's wrong with that anything? Let me say that if Jack Smith has his way and gets his indictment and has a trial and convicts Trump Or insurrections, you know, that's a That's what he's not going after an insurrection, right? What is the primary difference between trying to prevent Congress from doing their duty for the peaceful transfer of power from one president to the other versus Well, we don't we don't yet Very likely he may be doing that Let's assume for my answer that he gets an indictment and a prosecution and a conviction or Participating in an infrared insurrection all the things I just read to you There's no question then right the constitutional requirements are met in a criminal proceeding But the question here among us is whether they can be met without a criminal conviction and my view of it is they can yeah Chuck what is the difference between insurrection versus An individual involved with trying to prevent the peaceful transfer of power when we're unprecedented to the other and and basically obstructing Congress from doing its business Yeah, that's a great question Tim because that is in fact the distinction That I think Jay makes a good point is a distinction without a difference as far as Trump is concerned between the obstruction of the enforcement of the electoral results and the Insurrection to try and accomplish that obstruction by force and violence But there's there's no real separation and the list that Jay went through combines those two as if there is no distinction because in Trump's mind and in his actions There isn't any if you look at the Mar-a-Lago documents and like 37 different Charges in there the likelihood that Jack Smith is going to come out with a large number of Charges in the indictment on the January 6th events. He is equally great Is there in that combination of charges a combination that would Make the jump from obstruction to insurrection I Think Jay's right. I think that's like I think that's exactly where Jack Smith. Yeah Let's go to let me let me answer that, you know, the thing about how you know, this was a peaceful That's completely poppycock The thing about how this is this is not an insurrection. That's poppycock too because these people wanted To reject the will of the voters They wanted to reject the whole system They wanted to you know, reject the way we conduct our democracy under the Constitution They wanted a new way of doing it. They wanted to overthrow the government. The government had elected Biden They wanted to overthrow the whole enchilada. I mean put me on that jury or put me on the you know The bench I'll I'll find that in 10 seconds. Maybe five Good Okay, Chuck Let's go to Jay's point about standing what that means and why it's important for anyone to pursue the 14th amendment section 3 No 14th amendment section 3 does not It Like many other statutes establish a standing requirement. It's really the focus on The actor and whether they engaged in insurrection or rebellion or gave aid or comfort to the enemy Which could be the insurrection so Any state could do it a citizen of the state can do it a citizen of the US could do it You're not going to run into the same kind of standing problems that do when you have Civil rights actions and things like that where you have to demonstrate that you have a Specific case in controversy and an identifiable particular individual injury or harm You don't have to show that here. That's not a prerequisite okay, the focus is on whether the Person who is the subject of the proceeding did in fact engage in insurrection or rebellion or did in fact Provide a or comfort to the enemy. Yeah, that's very interesting Usually we talk about criminal statutes. We talk about the elements of the offense, right? And and there's no there's no specificity. There's no list of elements here All you have to do to be disqualified is engage You don't have to plan it You don't have to be the the leader of it You don't even have to go through all those points I read out of the crew article all you have to do is engage and be there and You know, I I suggest that that the Constitution the founders are telling us on a crime It's just a connection. That's all it okay Well, if the bar is far lower than improving criminal points Why hasn't anyone either Democrat or like a Chris Christie? Why haven't they gone to federal court and say hey, I'd like to file this complaint, you know Are they waiting? Are they waiting for an indictment from Jack Smith? What more do they need other than I think the the select committee's report? That's their brief Well, I'd like to can I answer that? Yeah, do you want to answer that if we think there might be an indictment from Jack Smith, okay? Then we are reluctant to actually go down this path Because then we have like competing proceeding Okay around the involvement in the insurrection and It cat it actually I think it it's not a good thing to have competing proceeding And if he if he beats one then that's an argument that he should beat the other Well, or if one or if one is Successful How does that affect the other so it could be I'm not saying this right? I'm only saying that those right whether Let let me ask you this I mean Jack Smith is a criminal proceeding whereas the 14th amendment 3rd section 3 is just a qualified Qualification for the office. So it's a it prevents anyone from entering the office. That's not criminal based So what's the harm in competing actions? Well, I give you a I mean, I'm just we're just speculating here But I give you a scenario Let's assume they're both working let's assume somebody go to the federal district court and The federal district courts the judge says could be a judge that is sympathetic, you know to Trump because a lot of them were appointed by him And the judge says, you know, I'm not inclined to do this for ABC and D whatever those reasons might be We could cook them up if you want So I'm not doing it. Okay. Now Trump comes in and he capitalizes on everything doesn't he and Trump's as well. They try to get me in a civil proceeding or in a nun You know a non-criminal proceeding and they couldn't and and see this is all a witch hunt and see I'm really innocent in the criminal proceeding so I can see him using that and Confusing or trying to confuse the public about it having him at the same time, you know, some people might feel not a great idea Okay, another thing another thing too. I want to finish answering your question I've been thinking about this because you know the question is a really good Question, why doesn't somebody get up there? Say Chuck? Let's let's make it Chuck for now If Chuck filed this action here in the United States District Court And he had a client who had standing we have to cover that Then he would be the number one target of Trump in the country at that moment number one and Chuck might have a little concern about that He might be a little reserved about standing up and being the number one target for Trump and all his base Who you cannot necessarily connect with Trump? But who might do bad things? So all I'm saying is that there's a fear factor And a lot of people who might do this that don't want to be out there by themselves I suppose if it was a firm, you know, and you know, you couldn't identify one person So quickly Then that might be a little safer for the lawyer who represents the person's bringing the action Well, I think what you're suggesting is why half of Congress won't stand up to Trump. There's a fear factor Yeah, and that's unfortunate because They've allowed this guy to grow from a monster to a huge monster Chuck Do you think that competing efforts to get prevent Trump from office at the same time being indicted? You buy that What about all the other indictments that are coming down the pathway and we'll Those be competing as well No, I think she makes a good point and I think The fear factor that's an extremely strong disincentive For people on an individual level to get involved in this or even groups of identifiable in individuals to get involved in this because there's literally no limit on The lengths to which Trump urges people to go Don't forget not much more than a week ago when asked about whether Something like this might be in the cards if the indictments continue to come down He said repeatedly that would be very dangerous if anybody were to consider something like that I think that would be very dangerous. That says about overt a threat. I think as you get from somebody As armed followers the other point Out of all those great points that Jay alluded to was that the Trump knew His followers were armed when they stormed the Capitol and in fact Encouraged that it was brought to his attention to take action and he declined with specifically that awareness Yeah, he says something like they're not after me So remove the magnetometer is from the White House, you know, because he knew they had arms So let's talk about standing Tim Chuck Who could go there? Good Chuck go there representing you No, I think it'd have to be a candidate For running for president United States So if there's a candidate Go ahead No, the past cases have never had opposing candidates bringing those those claims states Can bring them There's no reason you can see from the statute or from the amendment itself that Individual citizens could not bring those claims I'd be worried about that because if you had somebody who had imperfect standing You could go through the whole procedure and then find the thing turned upside down your wasted your time Correct, at least you have to have an argument that there, you know, there is good standing I Think you're right about state states that a state would have standing an election official You know would have standing a secretary of state certainly would have standing in a given state You know judge. I don't know what to do. I don't know Right who to put on the ballot? I need your advice on that and and and a judge would You know be sympathetic to that from a procedural one standing point of view But I think if it was any of the three of us, I think that's that's got a fatal flaw in it only because such such an easy appeal point and When you get it turned over what do you got nothing? So, you know, it's it may not be in the Constitution It may not be in the you know the case law today, but you got to have some claim of standing where you're going to be Well, it'll be interesting to see who tried to who had standing to house Francis Matthews of Otero County Commissioner in New Mexico who was successful it was standing to have him removed from that position Then I don't know the answer to that be honest with you No, I mean, it's New Mexico. It's a case that was turned over anyway. It doesn't mean anything It's right now it showed a further appeal. I'm not sure that's gonna happen It's not really precedent for this and where is New Mexico anyway? Sorry. Sorry. I said that Might have to take that out of this program Jay How does the country react if someone was successful of preventing Donald Trump from entering office again? Think of all the different factions The MAGA GOP just the regular GOP Democrats independence People that don't care about politics. How would the country react? Well, you're you're really asking a question of timing, you know, and I Think it's really interesting that question because here we are we're you know a year a few months away from election day If this doesn't if this case isn't brought Early enough You know, it's hard to say how it's going to affect anything And I think as you get closer to election day, it's more difficult for a judge to actually make a decision You know, Chuck, I don't want to tell you anything. You don't know but sometimes sometimes judges sit on cases until Until the cows come home They may wait years to actually render a decision So if you don't file Right now my opinion You aren't gonna get a timely decision. You stand a good chance. I'm not getting a timely decision furthermore As with so many things these days. It's really a question of what kind of what kind of media information What kind of messaging you put out on the media how well informed is the public about this case? Because in the end, it's the public It's the media that will have a lot of say about what happens here and how they should react I would say of course you're going to get witch hunt. You're going to get them something wrong with the judge There's something wrong. I don't know something wrong and there'll be a big fight in the medias So we really have to Prepare for that And you have to do it soon enough so that you get a what do you want to call it a public opinion result a polling result? media result At the last minute, it's just going to be I think too late Thank you, Jay. Hey Chuck What about let me ask you a question about the counter argument that? pursuing The 14th amendment section 3 through a court Really should be left up the voters instead. What do you think about that counter argument? that Well, the amendment in the section wouldn't be there if it were intended to be left to the voters It's not a legislative decision. It's a legal qualification for office that the Congress has Enacted as a constitutional amendment with sufficient approval by the states for it to become effective But I think Jay's right the timing is important, but also important the broadest possible Representation and support for any action to apply and enforce 14th amendment section 3 to a trunk tendency You remember there's a there's a bit of a pushback going on. It was an article in the Times about people in I want to say Iowa Republicans who raised a million and a half dollars to Bite Trump bite him off the ballot Because he had too much political baggage They don't want the MAGA Republicans running things Now that that's only one group in one state with a million and a half dollars doesn't seem like that much, but maybe there's more to come They don't feel he's a worthy candidate for whatever reason. I'm sure they articulated those reasons But they don't they don't feel he's worthy and maybe there are other groups and others other groups of Republicans and other states They're gonna get on that bandwagon and that certainly changes things And I agree with Chuck the idea is to ramp up to this and and have the public speak to it and have a lot of Commentary in the media that yeah, they're right section 3 applies That would help It would okay, let me put a arm imaginary caps on How would Donald Trump take advantage of any any attempts to prevent him from office? Okay Well, I think he'd make you know ridiculous arguments He would say it doesn't apply need to be convicted. They're they're trying to you know run it And they're trying to run it around the side here. They want to get me on section 3 They have to get me convicted that'd be first thing and as I mentioned, they'd be a standing issue possibly In any non non criminal proceeding And I suppose he could say think about it now that no that wasn't me I wasn't really there I was just talking I have First Amendment rights and I didn't I didn't do anything wrong here It was the crowd not me and the crowd were a peaceful Communion of people who were just concerned about the election It doesn't outing it doesn't It doesn't hold up very well when you have evidence of the fact that he knew the election wasn't stolen You know, yeah I think J by inference has alluded to what might be the most important point if it's going to be done And it needs to be done soon and it needs to be done by as broad a Representative group and as well supported and broadly supported a group as possible the focus needs to be on this is a Congressionally enacted Qualification for holding office like age or anything else. That's all it is. It's not a criminal statute But it is a disqualifying element. It doesn't need to be proven beyond a reasonable doubt It doesn't need to show that the person who brings the claim would be harmed if it's not enforced None of that stuff the question is does this person fall within this Qualification or not? It's a congressional disqualification enforce it as such You know that that opens a whole new Line of possibility Does it have to be a federal judge or can it simply be an election official? This is you know for my bedtime reading I've been reading section three and I'm afraid that I cannot put Donald Trump on the on the ballot because he He was involved engaged in an instruction. I'm not putting him on there and that happens in same Georgia and Maryland, New York Illinois California and then and then you have a real interesting Election don't you because Trump would not be on the ballot by virtue of the election officials in all those states and They made their own minds up by reading the language the English language in the Constitution What do you say about that? So the Constitution does not say you have to go to court at all It could be somebody reading it and making a decision based on what it says. Oh, you heard it here on think tank Well consider this show as the the opening salvo for that That Right Jay your last thoughts all good discussion here today your last thoughts I'm really tired of hearing everybody read and write about this and nobody actually takes takes You know the matter in hand I am hoping that the bar association somebody in the bar association and as I mentioned a minute ago Somebody some official in some state and maybe other states to follow if the Republicans in Iowa can you know Put them off the ballot Why doesn't the Secretary of State in Iowa put them off the ballot and a lot of states, you know It wouldn't take that many the battleground states to ruin the election for Trump think about it You you could disqualify him in battleground states end of story And of course he would appeal and of course you would say you don't need to appeal All you do is go to Congress and get a two-thirds vote and you can be excused from your disqualification That's how you appeal It would put the whole burden on him Sounds like a sound solution to me and I like the 50 state approach All right, thank you We've run out of time and I'd like to thank my co-host Jay Fidel and my special esteemed guest Chuck Crumpton for a very great discussion and some great ideas presented out there about where we go from here And so why don't you join us next week for American issues take one? I'm Tim Appichel your host and until then Aloha Thank you so much for watching think tech Hawaii if you like what we do Please click the like and subscribe button on YouTube. You can also follow us on Facebook Instagram and LinkedIn check out our website think tech Hawaii comm Mahalo