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Monday, October 18, 2021

The Burden of Proof in a Section 3 Case

Today ex-President Trump sued the January 6th committee to block the disclosure of information which he says is privileged. Whatever you think of the merits of this suit, the former President is likely to prevail in the sense that the information will not be disclosed to the committee. Why is that? Because the January 6th committee will probably not be in business past the end of next year, if you assume (as I do) that Republicans will win back the House in 2022. As long as the litigation filed today lasts beyond 2022, the Committee will probably get zero.

This practical thought tees up my next point. If you view Section Three of the Fourteenth Amendment as an eligibility requirement to be elected President, then the burden of proof is on Trump to show that he is eligible, not on a state to show that he is not. Thus, claiming executive privilege will only hurt him there, not help him. It could be unlike any prior litigation involving Trump personally, where people accuse him of wrongdoing and, of course, bear the burden of proof.

Suppose I want to run for President. I must supply information proving that I am older than 35, a natural-born citizen, and a national resident of sufficient length to qualify under Article II. If I claim that the only documents containing this information are privileged, then I cannot meet my burden of proof.

Is Section Three the same? It depends whether you view that provision as an eligibility requirement or as a punishment. (As I explained in my law review article on Section Three, there is decent authority on both sides of that issue.) If exclusion from office is a punishment, then surely the state bears the burden of proof. If eligibility is the correct framework, then the candidate bears the burden. 

You can take this analysis one step further. If Section Three is an eligibility requirement, then a state election official can enforce this requirement if there is state law authorization or if you think Section Three is self-executing. (These are other problems to be resolved.) If Section Three is a punishment, though, then a state prosecutor must be the one taking action under some state statute. 

Posted by Gerard Magliocca on October 18, 2021 at 09:04 PM | Permalink

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“Whatever you think of the merits of this suit, the former President is likely to prevail in the sense that the information will not be disclosed to the committee.”

If factual evidence exists that can either serve to convict or acquit a person of a crime, and a party intentionally withholds this information, how can that misrepresentation of information not be fraudulent and a Miscarriage of Justice?

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"Because the January 6th committee will probably not be in business past the end of next year, if you assume (as I do) that Republicans will win back the House in 2022."

I do not assume this travesty will occur.

But, regarding the 14A, sec. 3 issue, the professor opposed (wrongly) the second impeachment (for reasons shown to be unfounded) in part since he argued this provision would be a better approach.

I am still waiting for the 14A, sec. 3 enforcement bill that the professor supports. Until it happens, other mechanisms are in place to challenge Trump's legitimacy to be on the ballot. It will be more complicated, but hopefully, the matter is academic. Hopefully, he does not run.

If he is the candidate, and the Republicans win the House, there is still the 2024 elections. All the same, if the Congress is divided, and ultimately it is determined that the 14A, sec. 3 provision is a political question left to Congress when counting electors, a good bet is that any Republican controlled body will reject any claim he is not eligible.

Again, hopefully this is academic. The correct path here is Trump being charged, with enough evidence on the table that he agrees to a Spiro Agnew like plea bargain that includes him accepting he is eligible to run on 14A, sec. 3 grounds. He can blather all he wants at CPAC events about the "truth" here as long as for legal reasons he grants he is ineligible.

As to the opening post's remarks, I agree there is room for disagreement. This underlines the importance of congressional legislation. I think some sort of legislation will be proposed as part of the final report of the 1/6 Commission. One member at least already supports a 14A, sec. 3 enforcement bill.

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