Law School Exam Question: Discuss the relevance, if any, of Amendment 14, Section 3 today

Blind Justice

    On November 19, 2023, this old former United States District Court Law clerk and retired practicing attorney read in Politico: 

 

Colorado judge rules Trump ‘engaged in an insurrection’ — but can still run for president 
 
The ruling came in a case brought by progressive activists who sued the state, arguing that Trump was barred from returning to the office.
A Colorado judge has turned away a challenge looking to disqualify former President Donald Trump from running for president under an interpretation of the 14th Amendment that argued he engaged in an insurrection against the United States on Jan. 6, 2021.
The ruling came in a case brought by progressive activists who sued the state, arguing that Trump was barred from returning to the office. A handful of courts in other states turned away similar challenges.
The case in Colorado was brought by the liberal government watchdog group Citizens for Responsibility and Ethics in Washington. CREW argued that Trump is ineligible to run because of a clause in the 14th Amendment, which reads that those who took an oath to defend the Constitution and then have “engaged in an insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” are ineligible to serve.
CREW said the insurrection at the U.S. Capitol on Jan. 6 disqualified Trump under a reading of the Civil War-era amendment.
The judge found that Trump did engage in an insurrection on January 6, 2021 “through incitement, and that the First Amendment does not protect Trump’s speech.” But she also found that Section 3 of the 14th Amendment doesn’t apply to Trump.
“The Court holds there is scant direct evidence regarding whether the Presidency is one of the positions subject to disqualification,” she wrote.

    I wondered how the Colorado judge ignored the plain English in Amendment 14, Section 3? I added the bold emphasis:

U.S. Constitution Amendment 14, Section 3
No person shall be a Senator or Representative in Congress, or 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, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

    The Presidency is a civil office of the United States, and the President is the Commander-in-Chief of the U.S. Armed Forces.

    I fiddled with an Amendment 14, Section 3 Complaint, which addressed the Colorado decision and earlier court decisions in which Amendment 14, Section 3 plaintiffs were ruled not to have standing to bring the cases.

    Then, I decided to made it a law school exam question:

Discuss the relevance, if any, of Amendment 14, Section 3 today

    Consider all of the above and what follows as my answer.

28 U.S. Code § 1361 - 
Action to compel an officer of the United States 
to perform his duty
The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

    Donald Trump and Joe Biden made the oath below when they were sworn into office as President of the United States:

United States Constitution Article II, Section 1, Clause 8
Before he enters on the Execution of his Office, he shall take the following Oath or Affirmation:–I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

    Their oath was made to the Constitution of the United States for the benefit of the United States and every citizen thereof.

    On January 6, 2021, a huge mob incited by outgoing President Trump, gathered in Washington, D.C. to "stop the steal", by preventing Congress from counting the electoral votes and outgoing Vice-President Mike Pence from certifying the electoral votes, pursuant to Article 2, Section 1 of the U.S. Constitution, Amendment 12 of the U.S. Constitution, and 3 U.S. Code § 15 ~ Counting electoral votes in Congress 3. 

        Trump then revved up the insurrectionists and sent them to the Capitol, but he did not go with them. On television, he watched them storm through Capitol Police and break into the Capitol. Although Trump was urged by family and close associates and federal officials to ask the insurrectionists to stand down and leave, he did not do that. When Trump heard the insurrectionists chanting, "Hang Pence," he chanted it, too. Only later did Trump ask the insurrectionists to stand down and leave. Trump's lawyers told him the election was not stolen, as did his Attorney General Bill Barr. Trump continues to this day to claim the election was stolen, even though he never produced a shred of evidence that it was stolen.

    Trump never showed any remorse for the January 6, 2021 assault on the Capitol and the physical injuries and post traumatic shock suffered by Capitol police. Trump said, if elected in 2024, he will pardon the insurrectionists and anyone prosecuted for aiding and abetting the insurrection. Trump said, if they came for him, he would come for them. Trump said, if he is elected president, he will get even. 

 

   Amendment 14, section 3  was passed after the Civil War to block people, such as Jefferson Davis, President of the Confederacy, and Robert E. Lee, Commander of the Confederate Army, from holding public office. Donald Trump did not try to secede from the United States of America and its Constitution - he incited insurrection to try to take them over.

    WhenTrump and his father owned apartment buildings in New York City, they were prosecuted for racial discrimination against people of color. Before Donald Trump ran for President in 2015, it was reported in "Vanity Fair" magazine that Ivana Trump said, when she and Donald were married, he kept a book of Adolph Hitler's speeches in a cabinet on his side of their bed, and sometimes he read it at night. When later asked about that, Trump said, if he ever had such a book, he didn't read it. When former Ku Klux Klan Grand Dragon and Imperial Wizard David Duke endorsed Trump for president in 2015, Trump did not denounce Duke and say he did not want the Klan's votes. After Vladimir Putin was elected President for Life of Russia, newly-elected President Trump said on national television that he liked the idea of president for life.

  Media photos and videos of MAGA rallies in 2015, and since, revealed oceans of white people. Media photos and videos of the 2017 Charlottesville, Virginia protest against removing Confederate monuments revealed oceans of white people, and there were Confederate and Swastika flags. Media photos and videos of the January 6, 2021 insurrection in The Capitol revealed oceans of white people, and a Confederate flag. When Trump kept saying before and after the 2020 election that it was stolen, his Aryan armies knew he meant it was stolen by people of color.

    Res Ipsa loquitur (the thing speaks for itself) is evidentiary, and a picture is worth a thousand words.

MAGA rally 

Charlottesville

January 6, 2021  

    In plain view, Trump violated his oath to preserve, protect and defend the Constitution by inciting the January 6, 2021 Aryan insurrection outside and inside the national Capitol. Trump loved, and still loves, the January 6, 2021 Aryan insurrection. Trump still wants to be president for life and is a clear and present Aryan threat to the United States Constitution and to the Nation. 

    After Trump announced in 2021 that he would run for president again, President Biden, pursuant to his oath of office, to preserve, protect and defend the Constitution, could have brought an Amendment 14, Section 3 action in the United States District Court, in Washington, D.C., to disqualify Trump from running for president again.

    Private citizens filed an Amendment 14, Section 3 Declaratory Judgment action in the United States District Court for the Southern District of Florida to disqualify Donald Trump from running for president. 

CASE NO. 23-CV-61628-ROSENBERG

LAWRENCE A. CAPLAN, BARRY BUTIN, and MICHAEL STRIANESE,

Plaintiffs, v.

DONALD J. TRUMP, Defendant.

    After that action was dismissed for lack of standing by the plaintiff to bring the action, thus lack of jurisdiction of the court, President Biden did not honor his oath to preserve, protect and defend the Constitution by filing an Amendment 14, Section 3 action to disqualify Trump from running for president again.

   After Amendment 14, Section 3 actions filed by other private citizens in state courts to disqualify Trump from holding public office, were dismissed by state court judges, President Biden did not honor his oath of office and file a federal Amendment 14, Section 3 action against Trump.

    In all of that context, why would not an American citizen and registered voter have standing to bring a mandamus action asking a United States District Court to Order President Biden to uphold his oath of office, by asking the Court to enforce Amendment 14, Section 3 and bar Donald Trump from holding public office, including President of the United States?  

    Alternatively, why would not an American citizen and registered voter have standing to ask a United States District Court to rule President Biden breached his Presidential oath to preserve, protect and defend the Constitution of the United States, and thus a U.S. citizen and registered voter can bring an Amendment 14, Section 3 citizen's derivative action in President Biden's stead against Donald Trump? Cf shareholder derivative action in corporate law.

Sloan Bashinsky, J.D., LLM in Taxation