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Michael Cianchette is a Navy reservist who served in Afghanistan. He is in-house counsel to a number of businesses in southern Maine and was a chief counsel to former Gov. Paul LePage.
Somewhere between Earth and Mars, there is a teapot orbiting the sun. Prove me wrong.
That thought experiment is known as “Russell’s teapot,” after creator Bertrand Russell. It was first offered in the context of debates about the existence of God. It has found modern life in religious parodies like the “Flying Spaghetti Monster.”
In essence, Russell inverted the standard burden of proof to poke fun at theism. He declared the existence of the teapot, and it was up to his challengers to “prove the negative,” or that the teapot does not exist.
Setting the intricacies of philosophy and formal logic aside, this thought experiment can help inform the hoopla surrounding Donald Trump’s candidacy and the Fourteenth Amendment.
Now, in full disclosure, I do not want Donald Trump to be the GOP nominee for president. Forget questions of policy, character, or indictments for the moment; there is a simpler, practical reason. If he won in 2024, he would be nearly 80 years old.
Watching recent incidents of President Joe Biden, Sen. Dianne Feinstein, and Sen. Mitch McConnell drives home the fact that we need to start electing younger people to office. Someone born after the Korean War would be a good start.
Yet that does not mean it is wise or prudent for state officials, such as Maine Secretary of State Shenna Bellows, to keep Trump off the ballot by fiat.
The Fourteenth Amendment argument — detailed by two brilliant scholars — has significant heft. To summarize it, they point out that the Constitution states people who engaged in or aided insurrection or rebellion may not hold office.
The twist is that this is not a criminal punishment enforced by courts, but rather a qualification for the job. The same as qualifications such as “natural-born citizen” or reaching 35 years of age.
They are spot on.
But their application of the provision would force Trump — or anyone else — to prove the negative.
Walk through the mechanics of this with me. Trump applies to be on the Maine ballot. Secretary of State Bellows says no, you provided aid to an insurrection.
What is Trump’s recourse? It seems there are two options. One is that Bellows’ decision is final and every secretary of state nationwide can now decide who they want on the ballot. That’s crazy and a recipe for chaos, akin to the “Independent State Legislature” theory rejected by the Supreme Court.
Or, two, he has to go to court and prove he did not commit an insurrection. In other words, prove the negative. That is the exact opposite of the very foundation of our legal system, which is innocent until proven guilty.
The Fourteenth Amendment was adopted following the Civil War. In 1861, Congress declared the Confederacy a “revolt.” A legal authority determined that an insurrection existed and the rebellious states were the perpetrators.
After the war, answering the eligibility question was easier. The election official could ask, “did you hold any political or military office in the Confederate States of America, or in any subdivision thereof?” If the candidate said yes, he’s out on Fourteenth Amendment grounds. If he said no but lied, he’s liable for perjury.
Trump is facing plenty of legal charges. However, Special Counsel Jack Smith has not brought charges for rebellion and insurrection, for aiding and abetting rebellion and insurrection, nor for treason. Presumably, his failure to do so is because there is not sufficient evidence to convict on those charges.
And until either Congress declares the January 6 event an “insurrection” or a court determines Donald Trump guilty of the applicable crime, he shouldn’t be kept off the ballot if he otherwise qualifies.