Innocent until proven guilty. That's a fundamental right in America, at least until now.
Anti-Trump groups determined to disqualify the leading Republican candidate for president are urging state election officials across the U.S. to remove Donald Trump from the ballot, claiming he's an "insurrectionist." They're citing an arcane clause in the 14th Amendment, written after the Civil War, that disqualifies anyone who "engaged in insurrection" against the United States from holding public office.
Here's the hitch. Trump has never been convicted of insurrection, and none of his prosecutors -- not Jack Smith nor Fani Willis -- is charging him with insurrection. The House of Representatives impeached him, accusing him of insurrection, but he was acquitted. So, zero convictions, one acquittal.
Even so, 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, labeling Trump, an insurrectionist and telling these officials they have a duty to remove Trump from the ballot, just as they would be obligated to remove any presidential aspirant who had not reached the age of 35 or was not a natural born citizen. Under this scheme, if Trump wants to be on the ballot, he'll have to go to court and prove his innocence. In short, guilty until proven innocent. That's as un-American as it gets. Whether you like Trump or loathe him, you should be concerned. George Washington University law professor Jonathan Turley calls it "the single most dangerous constitutional theory I've seen in decades."
The ploy could also produce chaos in November and December as states preparing for the upcoming presidential primaries deal with lawsuits over Trump's presence on the ballot. New Hampshire's secretary of state and attorney general issued a joint statement last week saying they are "carefully reviewing the legal issues involved."
Ultimately, any attempt to remove Trump from the ballot would rocket up to the U.S. Supreme Court. Free Speech For People President John Bonifaz has worked closely with Rep. Jamie Raskin (D-Md.), the lead impeachment manager in Trump's second impeachment trial in 2021. Raskin and the Democrats failed to convict Trump then. Resorting to the "insurrection clause" is a ploy to get what they failed to achieve constitutionally.
Anti-Trumpers on the Right are also willing to label Trump an "insurrectionist" without legal proof and deem him disqualified. Former Arkansas Gov. Asa Hutchinson said as much on the Republican debate stage in Milwaukee on Aug. 23.
The "insurrection clause" was added to the Constitution during Reconstruction, right after the Civil War, to disqualify Confederate officeholders and military leaders. But the clause became a dead letter when Chief Justice Salmon P. Chase, who rode circuit and decided appeals court cases, also ruled in 1869 in Re Griffin that Section 3 by itself 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 arguing Chase's ruling was wrong. Harvard Law professor emeritus Laurence Tribe also calls Chase's opinion "poorly reasoned."
That's the ivory tower crowd's take. It doesn't change precedent.
In 1918, Socialist Eugene V. Debs went to prison, convicted of inciting U.S. Army personnel to resist authority. But he was acquitted of insurrection. The Socialist Party nominated him for president in 1920, and his name appeared on the ballot in 40 states. Justice for Debs, but not for the 45th president?
Last spring, Free Speech For People tried to remove Rep. Marjorie Taylor Greene (R-Ga.) from the ballot in Georgia using the insurrection clause. But Judge Charles Beaudrot ruled there was insufficient evidence she had engaged in insurrection. "Heated political rhetoric? Yes," the judge said. " A call to arms for the consummation of a pre-planned violent revolution? No."
Thank you for the sane perspective, Judge Beaudrot. Jan. 6 was unfortunate. But the Civil War cost 750,000 American lives. Fortunately, nothing like that has severed this nation since.
The ploy to take Trump off the ballot is profoundly anti-democratic. Tell anti-Trumpers in both parties to woo voters with winning policies instead. Due process and the presumption of innocence -- even for Trump -- are principles that make our nation exceptional. Respect America.
Betsy McCaughey is a former lieutenant governor of New York and chairman of the Committee to Reduce Infection Deaths. Follow her on Twitter @Betsy_McCaughey.
