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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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In other words, “ what result if the information that triggered the review/nondisclosure requirement was not properly classified”, when it comes to the vaccine?

H/T https://prawfsblawg.blogs.com/prawfsblawg/2020/06/no-troinjunction-against-bolton-book.html


Posted by: Nancy | Oct 19, 2021 12:03:37 PM

The State, in regards to The Covid 19 Vaccine Mandate, has “the burden of proof “, to demonstrate how the efficacy of using a “vaccine” to target the furin receptor on the spike protein, (the addition of which changed Cov1 into Cov2), for an unknown period of time, is greater and safer than the efficacy of treatment with medicine for a known, shorter period of time, while building natural immunity. The fact is “ furin has essential roles in our cells”, and “Furin inhibitors are quite toxic”, although furin “Inhibitors could perhaps be delivered for a short period of time to knock down viral load at a critical juncture. “It might be possible that furin inhibitors are only applied for a very short amount of time, to limited unwanted side effects”.

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7114094/

https://pubmed.ncbi.nlm.nih.gov/28296010/
https://ashpublications.org/blood/article/111/2/924/103758/Furin-mediated-release-of-soluble-hemojuvelin-a

Posted by: Nancy | Oct 19, 2021 11:51:59 AM

"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."

I realize we are academically discussing things here but this is the road to madness. It shreds basic sensible legislative discretion to allow even frivolous (and few doubt it is not) litigation to block information from being released for over a year.

This should not happen. There are ways to fast track that prevents this. In today's world, the Nixon tapes case probably (oh well) would have dragged on and on, and Nixon could have ran out the clock.

The assumption of party control change is not unreasonable, but maybe some will care about it in more than an academic way, including when what is at stake is basic legal rights and obligations being carried out in a half-way sensible way under our constitutional system.

Either way, we can have more academic comments like "I oppose impeachment, but let's use 14A, sec. 3." And, then control changes before the 2024 elections makes that seem glaringly important, and legislation to help enforce it never passes. And, courts drop lawsuits since the question is too opaque. Or, the buck is passed to now Republican controlled legislatures that do nothing.

I'll look for the interesting academic conversations on this space in a few years.

Posted by: Joe | Oct 19, 2021 9:59:27 AM

Important issue.

As I have written in the past here, some argue, that this clause, at first place, doesn't touch the presidency itself, but other federal offices.

Even so, we need to observe it, as relationship between rule and exception. This dictates rather burden of proof. The general constitutional criteria for being elected as president (like age) are rules rather, so burden of proof on the candidate since it is also personal or personally inherent information. But, disqualification, due to external event (like insurrection) is exception to the rule, and needs to shift the burden of proof to the other side, not the candidate himself. For we deal then, with very specific and unusual legal and factual configuration, let alone, criminal one.

By the way, Trump is requesting blocking of disclosure of information, but, as alternative, I quote from the lawsuit(see link hereby):

" A preliminary and permanent injunction enjoining the Archivist and NARA from producing the requested information"

While, "in the alternative to the above":

" A preliminary injunction enjoining the Archivist and NARA from producing the requested information, and enjoining the Committee and Chairman Thompson from taking any actions to enforce the requests, until President Trump has had sufficient opportunity to conduct a comprehensive review of all records the Archivist intends to produce before any presidential record is produced to the Committee"

Here to the lawsuit:

https://storage.courtlistener.com/recap/gov.uscourts.dcd.236632/gov.uscourts.dcd.236632.1.0.pdf

Thanks

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