[guest post by Dana]

Today:

David C. Weiss, the special counsel investigating Hunter Biden, said on Wednesday that he planned to indict the president’s son on a gun charge before the end of the month — a move prompted by the acrimonious collapse of a plea deal in July.

In a three-page update filed in federal court in Wilmington, Del., Mr. Weiss laid out plans to bring charges related to Mr. Biden’s purchase of a pistol in 2018, when prosecutors say he lied on a federal form by stating that he was not using drugs at the time. Mr. Biden had previously agreed to participate in a two-year diversion program for nonviolent gun offenders as part of the plea deal, which unraveled dramatically at the last minute this summer.

Mr. Biden’s lawyer, Abbe Lowell, signaled in a statement that he would challenge any effort to proceed with a trial, arguing that the original agreement reached over the summer “remains valid and prevents any additional charges from being filed.”

The government’s filing, while expected, adds an additional and volatile element to an already packed calendar of criminal cases coinciding — and colliding — with the 2024 presidential race. It piles on a possible federal trial of President Biden’s son to former President Donald J. Trump’s two federal and two state criminal cases.

As a reminder, this was the opening paragraph from Marjorie Taylor Greene’s statement about Attorney General Merrick Garland appointing David Weiss to investigate Hunter Biden:

“Today’s move by Merrick Garland to appoint David Weiss as Special Counsel to investigate (and in reality cover up) Hunter Biden’s criminal career is the latest action in a continuous pattern of corrupt behavior by Joe Biden and his regime. Behavior typically only seen in juntas in third-world nations or early twentieth-century dictatorships in Europe…This is a cover-up, plain and simple…

Because that’s what the presidential 2024 race needs: even more craziness with these extraordinary circumstances (assuming it comes down to Biden and Trump):

The government’s filing…adds an additional and volatile element to an already packed calendar of criminal cases coinciding — and colliding — with the 2024 presidential race. It piles on a possible federal trial of President Biden’s son to former President Donald J. Trump’s two federal and two state criminal cases.

Prosecutors did not reveal how many charges would be brought.

–Dana

[guest post by Dana]

The 14th Amendment, (Sec. 3), in part:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same…

From the report:

Six Colorado voters filed a lawsuit on Wednesday seeking to keep former President Donald J. Trump off the state’s ballots under the 14th Amendment, which says anyone who “engaged in insurrection or rebellion” against the Constitution after taking an oath to defend it is ineligible to hold office.

The lawsuit, which was filed in a state district court in Denver with the help of the watchdog group Citizens for Responsibility and Ethics in Washington, demands that the Colorado secretary of state not print Mr. Trump’s name on the Republican primary ballot. It also asks the court to rule that Mr. Trump is disqualified in order to end any “uncertainty.”

…

The plaintiffs are Republican and unaffiliated voters who argue that Mr. Trump is ineligible and that they will be harmed if he appears on primary ballots. They aim to ensure “that votes cast will be for those constitutionally qualified to hold office, that a disqualified candidate does not siphon off support from their candidates of choice, and that voters are not deprived of the chance to vote for a qualified candidate in the general election,” the suit says.

Several other states are facing pressure from voters to keep Trump off the ballot, including Florida, New Hampshire, New Mexico, Ohio and Wisconsin, and New Hampshire (wherein a Republican candidate has sued).

Determining what is considered engagement in an insurrection is at the heart of the suit:

The theory that the 14th Amendment disqualifies Mr. Trump has gained traction among liberals and anti-Trump conservatives since two prominent conservative law professors argued in an article last month that his actions before and during the Jan. 6, 2021, attack on the Capitol constituted engagement in an insurrection.

It’s clear from reading the report and other commentary that law professors are not necessarily in agreement about standing:

The first fork in the Colorado case will be whether individual voters have the right to sue. Challenges to a candidate’s eligibility — on any basis, not just the 14th Amendment — often come from opposing candidates, who are directly affected by the challenged candidate’s presence.

“Section 3 of the 14th Amendment is old — it has not been truly stress-tested in modern times,” said Jessica Levinson, a professor at Loyola Law School who specializes in election law. “There are some big forks in the road where you can argue both ways.”

But Derek Muller, a professor at Notre Dame Law School, emphasized that standing requirements are looser in state courts than in federal courts, especially when it comes to voters’ ability to challenge candidates’ eligibility.

“I don’t think that the standing argument is going to be a significant barrier to these claims going forward in state court,” Professor Muller said, adding that a bigger hurdle could be “ripeness”: Because candidates haven’t formally filed for ballot access yet, a judge could decide that the legal questions are not ready for review.

–Dana