This was the key point in dispute at the May 2 Drake hearing, IMO.
Judge Berzon agrees with you, as I suspect does most of the federal bench, but DeJute, on orders from Obama and Holder, disagrees with you and, as teased out by Judge Fisher in the final minutes, argues that elligibility of a president-elect cannot be determined by the courts, but goes to the electors and congress and as soon as POTUS is inaugurated, both eligibility and the very constitutional definition of NBC language in A2 is the sole responsibility of the Senate, and not the federal courts including SCOTUS!
This cringing by the federal bench over the DOJ stripping them of ability to rule on the meaning of constitutional language is why the 9th agreed to hear this case.
Hmmm...I might have to post a vanity on this...:
DeJute even
DEJUTE: It’s a distinction worth noting because the commitment to the House is that that body has the sole authority under the Constitution…
BERZON: …to impeach.
DEJUTE: To impeach. And the Senate has the sole authority…
37:00 BERZON: But this wouldn’t be grounds for impeachment, would it?
DEJUTE: Wouldn’t it be a high crime and misdemeanor? I don’t know…we’re in the area of there has clearly been no case law. But I do know that if the Constitution says that the only body that can remove a sitting president is the Congress in both houses, then the…
37:22 BERZON: Where does it say that?
Your number 459 is a significant legal point. On one hand, having known personally and directly, a number of members of the bench of the 9th Circuit, I not sure they are smart enough to appreciate the point.
Maybe if it is repeated often enough, they will get it.