Thread by @whignewtons

What are the arguments for why the 14th Amendment doesn't bar Trump from the ballot? Here are the best arguments for those who want to understand the other side🧵

thedispatch.com/newsletter/the…

For starters, the text of the amendment never says anything about the president. In fact, it lists a lot of other offices specifically—including electors of the president or vice president—but not the president or vice president themselves.

An earlier draft of this section of the amendment did specifically list the president, but that reference was taken out, which might lead one to conclude that the amendment’s authors did not intend to include presidents for whatever reason.

The phrase “officer of the United States” appears several other times in the Constitution. In Article II, the president “shall Commission all the Officers of the United States”. Since the president doesn’t commission himself, he must not be an officer of the United States.

You also have to find both that Jan 6 was an insurrection and that Trump's speech incited it/wasnt protected. To qualify as incitement, a person’s words must a) encourage the use of violence, b) be intended to result in the use of violence, and c) likely result in violence.

One question stands above the rest: Who gets to decide? Section 3 doesn’t offer definitions of terms (what is an insurrection versus a riot?) or explain what level of evidence is required. (Proof beyond a reasonable doubt? More likely than not? Clear and convincing evidence?)

Section 5, 14A: “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” Indeed Congress passed the 1870 Enforcement Act and a crime of insurrection that disqualifies someone from holding public office.

But Trump hasn't been charged with--let alone convicted of--that. So why should state courts get to take a shortcut and set their own standards of proof lower than what Congress set?

Now, to be sure, there are responses to all of these arguments. (And many of them are very good!) But that's why anyone who tells you this is "obvious" in either direction aren't giving you the full picture.