Can Getting Constitutionally Disqualified From Running Lead To Trump Avoiding A Prison Sentence?

"I Didn't Do It" by Nancy Ohanian

You’ve already read about the theoretical case against Trump being allowed to run for office again based on a Section 3 of the U.S. Constitution's 14th Amendment disqualification argument, namely that a public official is not eligible to assume public office if they "engaged in insurrection or rebellion against" the United States, or had "given aid or comfort to the enemies thereof," unless they are granted amnesty by a two-thirds vote of Congress. Even if every Republican in the House votes for amnesty, that would be barely half, let alone two-thirds… and not every Republican would vote for amnesty anyway.

In any case, it may not be theoretical any longer. On Friday, the South Florida Sun Sentinel reported that on Thursday Lawrence Caplan, a Boynton Beach attorney, has filed a lawsuit against Donald Trump seeking to have him declared ineligible to run for another term as president. Caplan is asking the federal courts to enforce the 14th Amendment: “President Trump’s efforts both in Washington, as well as in Georgia and perhaps other states, as well as the consequential assault on the U.S. Capitol … make him ineligible to ever serve in federal office again. Now given that the facts seem to be crystal clear that Trump was involved to some extent in the insurrection that took place on January 6th, the sole remaining question is whether American jurists who swear an oath to uphold the U.S. Constitution upon their entry to the bench, will choose to follow the letter of the Constitution in this case.”

Anthony Man wrote that “Caplan concluded that the ‘bottom line here is that President Trump both engaged in an insurrection and also gave aid and comfort to other individuals who were engaging in such actions, within the clear meaning of those terms’ as spelled out in the 14th Amendment ‘Trump is no longer eligible to seek the office of the President of the United States, or of any other state of the Union.’… Despite the legal underpinnings for the case, people who dislike and fear Trump shouldn’t get too excited and people who love him shouldn’t get too alarmed.”

“Realistically, it’s not a Hail Mary, but it’s just tossing the ball up and hoping it lands in the right place,” said Charles Zelden, a professor of history and legal studies who specializes in politics and voting at Nova Southeastern University. “It’s hopefulness that we can make the problem that is Trump simply go away. And I’m sorry, Trump is too big a problem to simply go away. He’s too much of a challenge to the system.”

“It’s kind of one of those ideas that only a law professor could love,” Zelden said.

Caplan said he concluded that it’s not beyond the realm of possibility that “this character could get reelected” and he decided that “someone had to take the lead.”

Caplan said he’s not a political activist.

“I’m not active at all in party politics,” he said. “I’m not a political animal.”

He has voted for presidential candidates of both parties over the years: Republicans Ronald Reagan and George H.W. Bush and Democrats Barack Obama, Hillary Clinton (“I held my nose”) and Joe Biden (“because there was no other choice.”)

To anyone who attempts to claim he isn’t a patriot, Caplan said, he’d tell them that after he finished law school he worked for the National Security Agency.

…Zelden said he sees validity to the scholars’ argument. But it’s complicated. “On a practical level, how do you make this happen in real life?”

“The question with this is how do you determine that what Trump did was an insurrection? In some people’s minds it is and in some people’s minds it isn’t. And even if you come down on the side that says ‘yes, this is an insurrection,’ is the provision in the 14th Amendment self actualizing? Does it need laws that make it work in practice or is it simply automatic?” Zelden said. “These are tough questions to answer because there are no obvious answers.”

Caplan’s complaint describes recent history, including elements of what happened on and around Jan. 6, 2021.

…The outcome depends on what trial judges decide— with more cases likely in different states— followed by appeals courts and ultimately the Supreme Court, if it makes it that far in time for 2024 voting.

Caplan’s case was assigned to U.S. District Judge Robin Rosenberg, who sits in West Palm Beach. Rosenberg was nominated as a judge by Obama. Any appeals would go to the 11th Circuit Court of Appeals, a court dominated by conservatives, some of whom could put stock in the Luttig analysis.

Caplan said he expects his lawsuit will be opposed on multiple grounds, including whether he has legal standing to bring the case. In the complaint, he asserts he does.

Zelden said procedurally it may make more sense for someone challenging Trump’s ability to run would more appropriately file suit against the secretary of state, in charge of elections in many states, seeking an order to bar Trump from the ballot. “Suing Trump directly is not likely to have the impact that (Caplan) wants.”

Zelden said the 14th Amendment eligibility issue is like many things that surround Trump. “It’s just more of the mess that’s associated with Trump, whether you like him or dislike him, he makes the system of governance messy, complicated, difficult.”

I wonder if there's the making of a deal here, Trump's charges being dropped in return for him not running and withdrawing from politics. I mean, Trump primarily decided to run again as a way of avoiding prison time. So a deal would make sense for him. And I guess it would save the country a lot of anguish and, potentially, bloodshed. On the other hand, I get the feeling that unless Trump is really punished for his crimes, some other future fascist will try it again.