The first Secretary of State is working behind-the-scenes to keep former President Donald Trump off the ballot in the 2024 presidential election.

New Hampshire Secretary of State David Scanlan (R) is consulting with the state attorney general to invoke the U.S. Constitution’s Fourteenth Amendment to keep Trump off the ballot.

As secretary of state, Scanlan oversees New Hampshire’s presidential primary in early March.

“I will be asking the attorney general’s office for their input,” Secretary of State David Scanlan told the Globe. “And ultimately whatever is decided is probably going to require some judicial input.”

The legal theory that Scanlan is probing to keep Trump from running is nothing new. It revolves around the “insurrection” language cited in the Fourteenth Amendment.

A challenge was recently filed in federal court in Florida to have Donald Trump removed from the 2024 race under the 14th Amendment. Attorney Lawrence Caplan filed the challenge claiming Trump cannot legally be on the 2024 ballot because he “engaged in an insurrection.”

“The bottom line here is that President Trump both engaged in an insurrection and also gave aid and comfort to other individuals who were engaging in such actions, within the clear meaning of those terms as defined in Section Three of the 14th Amendment,” Caplan said. “Assuming that the public record to date is accurate, and we have no evidence to the contrary, Trump is no longer eligible to seek the office of the President of the United States, or of any other state of the Union.”

The Special Counsel’s January 6 case against Donald Trump, in particular, is charging the former president with Civil War-era statutes on ‘seditious conspiracy’ that seem tailor-made to keep him from running for re-election or holding public office again.

Section 3 of the 14th Amendment, ratified in 1868 post-Civil War, declares that anyone who has sworn an oath to uphold the Constitution, yet later participates in or supports insurrection against it, cannot serve in Congress or any civil or military office. However, Congress can lift this restriction with a two-thirds majority vote in both chambers.

Historically, this clause aimed to prevent ex-Confederate officers and officials from resuming public office unless Congress allowed it. This provision has rarely been applied in the past century and a half and never against a sitting or former president.

Nevertheless, this clause is gaining new traction as a way to prevent Trump from running for the presidency. Special Counsel Jack Smith’s indictment of Donald Trump for “conspiracy” to overturn the results of the 2020 election has given the 14th amendment argument renewed interest.

The argument that Donald Trump in any way condoned or advocated violence on January 6 is exposed as flawed for a number of reasons.

Trump’s speech did not finish before orchestrated violence first took place at the Capitol. The president explicitly told supporters to “peacefully and patriotically make their voices heard.” Donald Trump later stated, “I’m asking for everyone at the US Capitol to remain peaceful. No violence!”

According to the Trump Twitter Archive, this message was posted at 3:13 pm local time. It followed a tweet at 2:38 pm which read “Stay peaceful!” — a mere NINE MINUTES after numerous protesters entered the Capitol complex.

“I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order – respect the Law and our great men and women in Blue. Thank you!”

In a video message the following day, Trump called for a peaceful resolution to the election dispute and acknowledged that he would no longer be president after January 20, 2021.

“I would like to begin by addressing the heinous attack on the United States Capitol… America is and must always be a nation of law and order. The demonstrators who infiltrated the capitol have defiled the seat of American democracy. To those who engaged in the acts of violence and destruction, you do not represent our country, and to those who broke the law, you will pay.”

“Now, Congress has certified the results,” he added. “A new administration will be inaugurated on January 20th.”

Congressional scholar Jonathan Turley further lays out why Trump’s opponents cannot legally make the “insurrection” charge stick.

“It’s really approaching the urban legend status,” Turley replied. “Because he’s not charged with incitement. He’s not charged with insurrection. He’s not charged with seditious conspiracy. He’s not charged with all of those things the Democrats impeached him on the second time.”

“So they’re really bigfooting the Constitution here,” he added. “It’s not there.”

“But the question is what is here?” he continued. “I have to tell you, this is thin soup in my view. They have a colossal Constitutional problem that they will have to overcome from the outset. They have to establish all of these lynchpins, that he not only believed the truth of the matter, that he understood he was lying, but then he played a criminal role in getting these other individuals to take the steps mentioned in the indictment. That is a very difficult case to prove.”

Nonetheless, regardless of the merits of the case, it is clear that various states are willing to ignore the will of the people and attempt to keep Donald Trump off the 2024 presidential election ballot. It may very well be that the upcoming election will wind up being settled in the courts in much the same way as the 2020 election.

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