Television companies and more. Including wow. The world has changed. Today a fast, reliable Internet Connection is something no one can live without so wow is there for our customers with speed, reliability, value and choice. Now more than ever, it all starts with great internet. Wow. Wow supports cspan as a Public Service along wh these other Television Providers giving you a front row seat to democracy. A Panel Discussion oe 14th amendment and what could mean for donald trump in 2024. Our guest lawyer james bopp jr. And represented members of congress in 14th amendment cases and Pennsylvania Carey Law School professor Kermit Roosevelt joining us as well. Good morning. The 14th amendment to the constitution, Section Three is what we are focusing on this morning. Let me read it to le know what is says. Anyone who took quote an ol as an officer of the u. S. To support the constitution of that it states and engaged in insurrection or rebellion against the United States unless congress removes such disability by two thirds vote. Section three, professor roosevelt, give us Historical Context of when the 14th amendment was ratified and why it came into being. Guest the 14th amendment ratified in 1868. This section is responding to the concern Construction Congress had that former Confederate States would be sending disloyal people to represent them in the house of representatives and senate. This is a provision that disqualifies not anyone who joined the confederacy, but a narrower said, people who took an oath and participated in the rebellion. Host the same question of who it was meant for and do you think this section was meant to outlive confederate veterans . Guest yes, i think it was because it is a fact, both prospective, and people involved in the civil war against the United States and then secondly, it is prospective rebellions or insurrections that people would be disqualified if prior to engaging in an insurrection, they had taken an oath to the constitution of the United States. Host on the wording of this, shall have engaged in insurrection, like that wording . Why not shall have been convicted of insurrection as defined by u. S. Code or something . Is the wording why is it not precise . Guest i do not think it is imprecise, it is just wrong. It does not require a criminal conviction and is a criminal, federal statute that makes it a felony to engage in an insurrection. They chose to provide that without a conviction if you had done this, and it can be determined, pursuant to proper Legal Process because every state has mechanism by which you get on the ballot, efile your candidacy, and then challenges it to your candidacys can be militant mounted. If there is a proper state procedure to challenge your candidacy, that is available, but you have to prove it. It has to be due process and prove that you actually engaged in insurrection. Host professor roosevelt, the same question on the process and whose job is it to invoke the provisions of Section Three of the 14th amendment . Is it secretaries of state . Is it members of congress . What has history told us . Guest this was a bit unclear. I agree with what was said there. The constitution does not prescribe specific procedures. If you want to convict someone of shes in odessa you need two witnesses but trees and it does say you need two witnesses. It sets out a rule and that will be enforced by whatever legal procedures are in place. With the application of this provision to members of congress, which is what people were thinking about most of the time, it is clear how that is going to happen because the constitution also says the houses of Congress Shall be the judge of qualifications of their members. You can see how that works. Southern representatives might present their conditionals and the house will refuse to seat them because they say we have decided to be sick and because you taken oath to protect the constitution and in you did an extraction. It looks much to me like any other qualification for becoming president. Natural born citizens, 35 years of age, how do those get enforced . You do not need a conviction per year if you do need some type of proof. Probably it will be done by whoever enforces ballot qualifications which usually i think would be the secretary of state of the states. Host what do you think of the efforts to apply this to donald trump in 2024 . Guest i think theres a strong case constitutionally. There are different questions we need to separate. One is as a matter of fact, did he do things that bring him within the scope of this constitutional provision . I think the answer to that is yes. Theres a question how would this reinforce. Who can sue to have him excluded . Probably not just anyone. What is the standard approved use in proceeding that eventually comes. The last question in some ways maybe most importantly, is it good for the democracy. What is going to happen if a court says hes not eligible . Someone who has such massive support is simply excluded from the election. We are in untested waters. Host mr. Bopp, is this a good idea and should it apply to donald trump . Guest it is inherently antidemocratic. We have to look through that lens because if you support democracy, you do not want people to be thrown off the ballot. You would want to look at this and carefully scrutinize whether a person actually did engage in an insurrection. Rather than take a broad view, which is recent articles have done, a very broad view of this which would mean all the parts were accepted that to someone who went to the house chambers in the gallery and protested Climate Change and resulted in a delay of the chambers. That person would be have engaged in an insurrection against United States. That is a big asleep broad. That is ridiculously brought. That raises conclusively that there is a medically weak case against trump that should never be pursued. The other point about it being a good idea, we need to play this out in our mind. If you have 50 states each deciding to their own state procedures, sometimes secretary of state, sometimes the election board, whatever, sometimes courts, and deciding for each state whether trump was qualified to get on the ballot, do you have any idea the chaos and destruction of our electoral system that would result in . What would happen is hes taken off the ballot by a process in pennsylvania six days before the primary and that he is removed from the ballot. He is not in the general election ballot. How are we going to fix that . What happens if in wisconsin they taken half they take them off one week before the general election and loses the general election . The most extreme enforcement has been suggested that any public official that has responsibility to determine qualifications of a candidate is required to act as if trump is a disqualified candidate. Does that apply to a precinct worker counting ballots . Could decide while he is not qualified to be on the ballot. We are not going to count at least, i am not going to count those bows. Litigated bush versus gore and that involved two accountings and one state and it was extremely difficult in the compressed timeframe to get that case can you imagine 30 states where the results are all over the place, as far as people deciding this one critical question, and how our system would be able to respond . I do not think it can. It would be not just a meltdown, but a delegitimize of our election system in a way that never happened in the past. Host we are talking about the 14th amendment, Section Three. Calls to apply it in election 2024 per year looking to your cause as we have this discussion with Kermit Roosevelt and james bopp jr. This debate as it is played out has continued the past couple of weeks. It was wednesday of this week New Hampshires top election official said he would not invoke the 14th amendment to block the former president from being on the ballot in that state. [video clip] the first exercise the 14th amendment provisions by encouraging individual secretaries of state to roll separately on the 14th amendment this modification issue at the president ial primary or caucus does not make sense. In a situation where some states put a name to appear in the ballot and other states disqualify it, theres going to be chaos, confusion, anger, and frustration. That will be the result. Either the 14th amendment this qualification applies across the board or it does not. The United StatesSupreme Court is the authority that can make a determination on the disqualification challenge regarding a president ial candidate that would apply to all of the states. At a time when we need Election Officials to ensure transparency and build confidence among voters, around the country, the delegate Selection Process should not be the battleground test this competition will question. Constitutional question. New hampshire has a proud tradition of welcoming all qualified candidates participating at a president ial primary and will continue here. Host mr. Roosevelt, do you think this is going to need to go to the Supreme Court . Do you think its going to get there sooner than later . Guest absolutely. It would be terrible if you had different practices in different states and we have 30 states and reaching different conclusions and it is happening before the election. That would be a disaster. Thats what we have one Supreme Court that answers this question in a way that binds everyone. The argument if you got individual secretary of state is making this determination and they reach an consistent conclusions, that causes chaos, that is not an argument against invoking this provision. It is an argument against not having the Supreme Court rule on it. If the Supreme Court does well on it and quickly, which i think theres every reason to expect, then you get a single answer. The election can go forward. Hopefully, everyone will accept what the Supreme Court says because it is the only option we have. Strange thing about what the New Hampshire secretary of state was saying is when the secretaries of . You open the path to the Supreme Court. If they say were not going to enforce this, how does he get into court . Maybe some Public Interest organizations sues, but maybe they do not have standing to do that. The railway to be sure you get Supreme Court determination as if some secretary of state says i think champs barred from office. He is not eligible to be on the ballot and the Trump Campaign sued. The courts decide that and because of the Supreme Court quickly and get the answer we need. Host phone lines as usual. Democrats, 202 7488000. Republicans, 202 7488001. Independents, 202 7488002. Richard, augusta, georgia. Democrats. Caller good morning. Professor roosevelt, how many states would it take to enforce the 14th amendment . Could there not be a bipartisan bill presented by congress, especially when we know that donald trump said he would try to abolish the constitution of the United States . Guest that is a great question. It rings at 1. I wanted to make which is how narrow disqualification brings up how narrow this this qualification is. It is not as good people who say if i become president my mission would be to abolish the constitution. You cant run on that platform. The only thing you cannot do is take an oath to support the constitution and engage in insurrection. I think people do that is enemies of democracy. On the question of how many states it would take, the answer is we want a single Supreme Court decision that binds everyone so every state is doing the same thing. It will be very bad if different states have different views on this and the outcome was decided by what some swing state like wisconsin or pennsylvania does on its own. We need a single opinion from the Supreme Court that gives us a nationwide answer. Host mr. Bopp, i get the sense you want to jump in on this . Guest yes. What i been talking about is we really i think this narrow interpretation is in accord with the understanding on the words engage insurrection. When those words were written in 1867. There is u. S. Attorney general opinion that defined those very words because they were used in various contacts postcivil war federal legislation. That is engaged mean a direct overt act, not a speech, not talk, not threats, not even incitement. A direct act so it is conduct of insurrection and insurrection was described as domestic or, they had dp,estic war, they had to be civil war in mind when they use those words which the forcible overthrow of the United States government. There is nothing donald trump did or even remotely resembled an act overthrow the United States government. And of course with respect to january 6. There is other problems. Applies to officers of the United States. That term has been interpreted to mean appointed people to either executive or legislative positions or judicial position. Not to elect a public official. There are so many problems with this theory prei do agree that problems with this theory. I do agree a quick determination will be the path that will resolve for the whole United States would be the best result. That can happen because i practice election law. Somebody challenges a position of a candidate on the ballot like trump in through a defined estate law procedure that those challenges are made. The secretary of state refuses to disqualify someone, that is what has been asked for, that can be appealed. All the states allow a judicial review of those decisions and that can go through the state court and end up in the United StatesSupreme Court. There is a mechanism to get this to the court and an early resolution would be host mr. Bopp, we mentioned you been involved in the 14th of may. Can you explain what has happened with those and where those are . Guest they are both over and both involved being on the ballot the last four elections. One was Matthew Clark born in North Carolina. A voter challenge pursuant to state law was made before the North Carolina election board. We brought suit in federal court saying that Section Three did not apply to him because of a amnesty act of congress as well as other claims. The federal judge agreed and joined the challenge. The Fourth Circuit reverse but in after he had lost the primary, the case was moved to dismiss. In the Marjorie Taylor greene case in georgia, she was also subject to a challenge. That challenge did proceed through state court we had a trial on whether or not she engaged insurrection and the court held she did not do that. She was a victim. I consider it a despicable attack on the u. S. Capitol. That was upheld by the secretary of state and the court. There has been other challenges. In arizona but the arizona Supreme Court said the state procedure for challenging qualifications of members of congress is not available for this challenge. I think congress itself could decide this. The proper place under Section Three to enforce it against members of congress, is when they show up on january 6 to take the oath. At that point in time, some could object and say this person is not qualified and the congress could make that determine that question. Of course, as we know they were in the business of refusing to see numerous senators and representatives elected in the postcivil war era by Confederate States who had engaged in insurrection and the 13th amendment was Section Three is intended to codify that process. Host several folks waiting to chat with both of you. Vincent in oklahoma. Republican. Thank you for waiting. Caller thank you. I note a few of them are, but i know about the fifth amendment. I am pretty sure they probably do not have to take a bath at ballot. You can run if he wants to, but i am thinking that he might end up getting impeached. Lets impeached biden, too. Host you say if he taken out the ballot you think you will win . Or a right of campaign . Caller you to come off the ballot, is that with the 14th of them is going to do . Take him off of the ballot . Host professor roosevelt, maybe you can explain how this case applied. Is taken off the ballot the only way to apply the 14th amendment . We were talking about perhaps the seating of members of congress. Maybe that would be the moment this applies. Guest with the members of congress, you got a particular constitutional provision saying Congress Shall be the judge of the qualifications of its members. It is clear that whatever happens in the election, someone shows up to congress, present their credentials, congress can say it you are not qualified to serve and turn the person away. Something like that in the cons