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UH experts examine unprecedented legal and ethical crossroads of presidential indictments

UH experts discuss the legal, political, and ethical dimensions of presidential indictments during a joint presentation by the UH Law Center and UH Hobby School of Public Affairs. In the top row from left are Jessica Bregant, Leonard M. Baynes, and Jeronimo Cortina. In the bottom row, from left to right, are Seth J. Chandler and Renee Knake Jefferson.

UH experts discuss the legal, political, and ethical dimensions of presidential indictments during a joint presentation by the UH Law Center and UH Hobby School of Public Affairs. In the top row from left are Jessica Bregant, Leonard M. Baynes, and Jeronimo Cortina. In the bottom row, from left to right, are Seth J. Chandler and Renee Knake Jefferson.

Feb. 20, 2024 – A joint conversation between the University of Houston Law Center and the Hobby School of Public Affairs recently explored the legal, political, and ethical impact of presidential indictments. The timely discussion addressed past and current indictments, specifically those surrounding former President Trump. UHLC’s Dean Leonard M. Baynes said that the evening’s goal was “to provide light but not heat” on the topic.

UHLC Law Foundation Professor of Law Seth Chandler discussed the topic of ballot disqualification, focusing on Section 3 of the 14th Amendment and Section 1 of Article 2 of the U.S. Constitution.

Chandler highlighted the ongoing battle revolving around the interpretation of these two key constitutional sections.

“Over 60 lawsuits and administrative challenges have been filed trying to stop Donald Trump from being on various ballots based on his alleged violation of Section 3 of the 14th Amendment, stemming from of his involvement in the events of Jan. 6.,” said Chandler.

He further noted that “there have only been six occasions in history when anyone was actually disqualified,” citing that one of those six was a New Mexico county commissioner for participation in the events of Jan. 6, 2021.

The most significant challenge is the Trump v. Anderson case before the U.S. Supreme Court, questioning whether Colorado has the authority to bar former President Donald Trump from the state’s 2024 presidential primary ballot.

Chandler emphasized that “the crux of the problem” is the potential impact on the entire nation “if states can enforce these various presidential disqualifications.” As such, he predicts that SCOTUS is likely to reverse the Trump v. Anderson case on the grounds that states have limited authority to enforce Section 3 of the 14th Amendment.

“It is also possible," Chandler said, “that the court could issue a narrow ruling saying that, because Donald Trump was never ‘an officer of the United States,’ Section 3 of the 14th Amendment was not triggered. Such a ruling would leave states free, however, to try to disqualify future candidates with the sort of political histories clearly covered by Section 3." 

When UHLC Professor of Law Renee Knake Jefferson addressed the ethical implications of a former president and potential future president being indicted, she said it highlights how foundational this moment is to the systems the United States is built on.

“It is fair to say that the country has never seen a crisis in legal ethics like this,” said Jefferson, the Joanne and Larry Doherty Chair in Legal Ethics at UHLC.

Jefferson drew comparisons to Watergate, when Richard Nixon was running for a second presidential term and was implicated in a burglary attempt at the Democratic National Committee Headquarters.

However, she said, “that pales in comparison to what we’re seeing now.”

When it comes to the 2024 election, UH Associate Political Science Professor Jeronimo Cortina looked at what was at stake. He believes the election could be impacted by how the indictments are perceived differently by Republican, Democrat, and independent voters. He also noted how the political institutions in Washington D.C. are behaving around this moment compared to Watergate. All the institutions closed ranks against Nixon and “were very clear on what they had to do,” said Cortina, however this “institutional backbone is very weak, and they don’t know what they have to do.”

Jessica Bregant, UHLC Assistant Professor of Law and Associated Faculty in the Department of Psychology examined the language of insurrection noting that the Constitution does not define the word.

This, Bregant said, makes it difficult for a court to determine what Section 3 of the 14th Amendment means when it says, “having engaged in insurrection.” Bringing the conversation full circle back to the Colorado trial to remove Trump from the ballot, Bregant explained that the decision in that case relied on expert testimony to dissect language used in former President Trump’s speech on January 6th.  Phrases like “We will never give up, we will never concede, it will never happen. You don’t concede when there’s theft involved,” she explained, were part of a pattern that the Colorado court decided was intended to incite the crowd to violence.

As Bregant pulled back to examine what this moment means in the history of the United States, she believes it is “a test of institutions that many people thought were set in stone and that Trump showed were just a courtesy.”

This timely discussion is now available on demand for CLE credit.

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