Innocent until proven guilty. That’s a basic right in America, at least until now.
Anti-Trump groups, determined to disqualify the leading Republican nominee for president, are urging state officials across America to remove Donald Trump from the election on the grounds that he is an “insurgency.”
They invoke an obscure clause in the 14th Amendment, written after the Civil War, that barred anyone from holding public office who “embarked on an insurrection against the United States.”
Here’s the catch. Trump has never been convicted of rioting, and none of his prosecutors — neither Special Counsel Jack Smith nor Georgia’s Fani Willis — have charged him with rioting.
The House of Representatives impeached him and accused him of insurgency, but he was acquitted.
So: 0 convictions, 1 acquittal.
Despite this, the left-wing group Free Speech For People has sent letters to state election officials, including the co-chairs of the New York State Board of Elections, calling Trump an insurgent and telling those officials they had a duty to to remove him from the ballot. They would also be required to remove from office any presidential candidate who is under the age of 35 or is not a native citizen.
According to this plan, if Trump wants to participate in the election, he must go to court and prove his innocence.
In short, guilty until proven innocent. This is as un-American as it gets.
Whether you like Trump or loathe him, you should be concerned.
Jonathan Turley, a law professor at George Washington University, calls it “the most dangerous constitutional theory I’ve seen in decades.”
The ploy could also wreak havoc in November and December, when states preparing for the upcoming presidential primary grapple with complaints about Trump’s presence on the ballot.
The Secretary of State and Attorney General of New Hampshire issued a joint statement last week saying they are “carefully reviewing the legal issues involved.”
Ultimately, any attempt to remove Trump from the vote would lead as far as the US Supreme Court.
Free Speech for the People President John Bonifaz has worked closely with Rep. Jamie Raskin (D-Md.), the lead manager in Trump’s second impeachment trial in 2021.
Raskin and the Democrats could not condemn Trump at the time. Recourse to the “insurrection clause” is a ploy to achieve what they could not achieve in the constitution.
Anti-Trumpers on the right are also willing to label Trump an “insurgency” without legal evidence and disqualify him.
That’s what Asa Hutchinson said on the Republican debate stage in Milwaukee last month.
The “insurrection clause” was written into the constitution during Reconstruction, just after the Civil War, to disqualify Confederate officials and military leaders.
But the clause became a dead letter when Chief Justice Salmon P. Chase, who also conducted and ruled appellate court cases, ruled in the 1869 In re Griffin that Section 3 alone could not disqualify anyone from office.
Chase’s ruling remains a federal precedent.
Free Speech For People and other anti-Trumpers point to a forthcoming University of Pennsylvania Law Review article in which they argue the chief justice’s decision was wrong.
Laurence Tribe, Harvard law professor emeritus, also called Chase’s opinion “ill-founded.”
That’s the opinion of the people in the ivory tower. It doesn’t change the precedent.
In 1918, socialist Eugene V. Debs was imprisoned for inciting US Army personnel to resist authority.
But he was not convicted of insurrection. The Socialist Party nominated him for president in 1920, and his name appeared on ballots in 40 states.
Justice for Debs but not for the 45th President?
Free Speech For People attempted to disqualify Rep. Marjorie Taylor Greene from voting in Georgia using the riot clause.
But Judge Charles Beaudrot ruled that there was insufficient evidence that she had taken part in a riot.
“Hot political rhetoric. Yes,” said the judge. “A call to arms to complete a violent revolution planned in advance? NO.”
Thank you for the sensible perspective, Judge Beaudrot.
January 6th was unfortunate. But the Civil War cost the lives of 750,000 Americans. Luckily, nothing like it has separated this nation since.
The ploy to remove Trump from the ballot is deeply anti-democratic. Tell anti-Trump opponents in both parties to woo voters with winning policies instead.
Due process and the presumption of innocence — including for Trump — are principles that make our nation exceptional.
Betsy McCaughey is a former Lieutenant Governor of New York.