Tag Archives: January 6

“Could Trump be barred under the constitution’s ‘engaged in insurrection’ clause?”

Sam Levine for The Guardian:

“Disqualification under the 14th amendment does not require a criminal conviction, Noah Bookbinder, the executive director of the watchdog group Citizens for Responsibility and Ethics in Washington (Crew), said in an interview earlier this month. The push to disqualify Trump is likely to play out at the state level in parallel to both the federal and state cases criminally charging Trump and allies in connection with their efforts to overturn the election. The left-leaning group Free Speech for People has already sent letters to election officials in 10 states urging them to declare Trump ineligible to run for office under the 14th amendment. Crew is also preparing to file litigation in several states to disqualify Trump from the ballot, Bookbinder said.

“’It’s really important to resolve this as soon as possible and definitely before the election and not afterwards,’ said Edward Foley, a law professor at the Ohio State University. ‘I am worried that if this doesn’t get resolved definitively, this issue could arise on January 6, 2025 if Trump were to win the electoral college having been on the ballot.

“’You could envision an effort to try and disqualify Trump after he’s won. And I think that would be a disaster. That would be a real constitutional crisis,’ he added.

Continue reading “Could Trump be barred under the constitution’s ‘engaged in insurrection’ clause?”
Share this:

David French on Section 3

His N.Y. Times opinion column:

“[The Baude-Paulsen article presents] a fascinating and compelling argument that only grows more compelling with each painstakingly researched page. But as I was reading it, a single, depressing thought came to my mind. Baude and Paulsen’s argument may well represent the single most rigorous and definitive explanation of Section 3 ever put to paper, yet it’s difficult to imagine, at this late date, the Supreme Court ultimately either striking Trump from the ballot or permitting state officials to do so.

“As powerful as Baude and Paulsen’s substantive argument is, the late date means that by the time any challenge to Trump’s eligibility might reach the Supreme Court, voters may have already started voting in the Republican primaries. Millions of votes could have been cast. The Supreme Court is already reluctant to change election procedures on the eve of an election. How eager would it be to remove a candidate from the ballot after he’s perhaps even clinched a primary?

“While I believe the court should intervene even if the hour is late, it’s worth remembering that it would face this decision only because of the comprehensive failure of congressional Republicans. Let me be specific. There was never any way to remove Trump from American politics through the Democratic Party alone. Ending Trump’s political career required Republican cooperation, and Republicans have shirked their constitutional duties, sometimes through sheer cowardice. They have punted their responsibilities to other branches of government or simply shrunk back in fear of the consequences.

Continue reading David French on Section 3
Share this:

Asa Hutchinson Invokes Section 3 of the 14th Amendment

On CNN’s State of the Union, presidential candidate (and former governor of Arkansas) Asa Hutchinson invoked the argument that Trump may be constitutionally disqualified from being president again. He anticipates that the issue will be raised in various states and will need to be resolved in the courts. (This post will be updated with a link to the video and/or transcript when available.)

UPDATE: Here’s The Hill’s report on this. And here’s the video; the discussion of section 3 starts at about 1:30.

Share this:

When and how the issue of Trump’s disqualification gets to the U.S. Supreme Court

On the Smerconish broadcast, the issue arose of how and when a case involving Trump’s status under section 3 of the Fourteenth Amendment would get to the U.S. Supreme Court.

I made the point that a case is likely to reach the Court on its “shadow docket” this fall. Yesterday’s L.A. Times article helpfully notes this point.

But I think it’s crucial that this issue, as momentous as it is, be adjudicated on the Court’s merits docket, after full briefing and oral argument (even if on an expedited basis), rather than through the issuance of a “shadow docket” emergency decree.

Continue reading When and how the issue of Trump’s disqualification gets to the U.S. Supreme Court
Share this:

“The Constitution Prohibits Trump From Ever Being President Again”

Judge Luttig and Larry Tribe in The Atlantic, agreeing with the Baude-Paulsen view of Trump’s disqualification under section 3 of the Fourteenth Amendment:

“The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation. The clause was designed to operate directly and immediately upon those who betray their oaths to the Constitution, whether by taking up arms to overturn our government or by waging war on our government by attempting to overturn a presidential election through a bloodless coup.

“The former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the U.S. Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again. The most pressing constitutional question facing our country at this moment, then, is whether we will abide by this clear command of the Fourteenth Amendment’s disqualification clause. …

Continue reading “The Constitution Prohibits Trump From Ever Being President Again”
Share this:

“When the Law Is Not a Trump Card”

Ross Douthat in N.Y. Times expressing strong disagreement with the Baude-Paulsen view of Trump’s disqualification under section 3 of the Fourteenth Amendment–and aligning himself with Michael McConnell’s and Eric Segalls’s critiques of the Baude-Paulsen view:

“My concern is that not enough people do clearly see what’s risked in these kinds of proceedings, that many of Trump’s opponents still regard some form of legal action as a trump card — that with the right mix of statutory interpretation and moral righteousness, you can simply bend political reality to your will.

“Certainly that’s my feeling reading the argument that the 14th Amendment already disqualifies Trump from the presidency and that indeed no further legal proceedings — no trial for rebellion or treason, no finding of guilt — are necessary for state officials to simply exclude him from their ballots. …

Continue reading “When the Law Is Not a Trump Card”
Share this:

Jeffrey Goldberg on the Chuck Toddcast

This episode is very much worth listening to, especially for its discussion of how the nation seems to be “sleepwalking” into a disastrous situation next spring as a consequence of the Senate’s failure to reach 67 votes to convict Trump on his January 6 impeachment. One detail was news to me: Chuck Todd said definitively that Senator Mitch McConnell had the 67 votes necessary for a conviction, but chose not to pursue it for fear of its effect on the Republican Party’s chances in the 2022 midterms. That was not my understanding from reading Jonathan Martin and Alexander Burns, This Will Not Pass. Nor, by my reading, is the account provided by Rachel Bade and Karoun Demirjian, which was excerpted in the Washington Post from their Unchecked book, as definitive as that. I’d be curious if any ELB readers are aware of reporting in books or articles that support the proposition that McConnell would have been successful in securing a conviction on this impeachment charge if McConnell had chosen to pursue it.

Share this:

“The federal cases against Trump are legitimate: Bill Barr”

Video of Fox News interview yesterday. N.Y. Post has a story describing the interview. With respect to the federal indictment for conspiracy to subvert the 2020, Barr made clear that he believes that Trump “crossed the line” into criminal culpability:

“Barr added that he believes Trump ‘crossed the line’ after the 2020 election and that his alleged efforts to impanel fake electors in conjunction with demanding that former Vice President Mike Pence not certify Joe Biden’s 2020 election victory ‘was a calculated and deceitful plan.’

“’I think the chances are that he will be convicted on some counts,’” Barr said.” 

Share this:

“Mark Meadows Is Everywhere and Nowhere”

N.Y. Times opinion essay by Katherine Miller.

This is an interesting summary of Meadow’s relevance to some key issues. From my perspective, I would add that Meadow’s testimony would be especially relevant to any adjudication that might occur of Trump’s status under section 3 of the Fourteenth Amendment. In particular, did Trump’s behavior on January 6 itself rise to the level of “engage[ing]” in the “insurrection” by refusing to use his presidential powers to stop the attack on the Capitol that was in support of his orchestrated campaign to derail the joint session of Congress so that it would not officially declare that his opponent had won the election?

Share this:

“Trump supporters post names and addresses of Georgia grand jurors online”

NBC News.

“The purported names and addresses of members of the grand jury that indicted Donald Trump and 18 of his co-defendants on state racketeering charges this week have been posted on a fringe website that often features violent rhetoric, NBC News has learned.

“NBC News is choosing not to name the website featuring the addresses to avoid further spreading the information. …

“The Fulton County Sheriff’s Office, which is handling the surrender of Trump and his co-defendants over the next 10 days, initially declined to comment, but said in a statement Thursday after this article published that they are ‘aware that personal information of members of the Fulton County Grand Jury is being shared on various platforms.’

“‘As the lead agency, our investigators are working closely with local, state, and federal law enforcement agencies to track down the origin of threats in Fulton County and other jurisdictions,’ a statement fro the sheriff’s office said Thursday. ‘We take this matter very seriously and are coordinating with our law enforcement partners to respond quickly to any credible threat and to ensure the safety of those individuals who carried out their civic duty.’ …

“’These jurors have signed their death warrant by falsely indicting President Trump,’ a post on a pro-Trump forum read in response to a post including the names of jurors, which was viewed by NBC News.”

Share this:

“Texas Woman Charged With Threatening to Kill Judge in Trump Election Case”

N.Y. Times. I think this extremely disturbing story qualifies as election law news given that the case concerns election law. Also, it relates to the concerns about the possibility of violence, or threats of violence, surrounding the 2024 election–and the degree to which this risk escalates depending on how events unfold over the next months.

Share this:

“Trump triggers the politics of emergency”

Important Jason Willick column in the Washington Post on the perilous nature of disqualification politics:

“Baude and Paulsen concede that their sweeping constitutional vision of disqualification-for-disloyalty could “perhaps” be “a little dangerous” for ‘First Amendment liberties of speech, press, assembly, religion, and the right to dissent generally.”’But they argue that disqualification is nonetheless required by the Constitution. To support their interpretation, they point to President Abraham Lincoln’s restrictions on dissent during the Civil War. That the Jan. 6 riot wasn’t a full-scale rebellion like the Civil War is immaterial, they say; it was an ‘insurrection,’ and any insurrection triggers Section 3.

“Their analysis is not persuasive — certainly not oftheir view that Trump’s “case is not even close.” An insurrection in a colloquial or political sense is not the same as an insurrection in a constitutionally binding sense. The Congressional Research Service notes that the Insurrection Act describes a situation in which it is ‘impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.’ That doesn’t seem to apply to the Jan. 6 violence, after which participants were vigorously prosecuted in federal court.

“Trump probably gave ‘aid or comfort’ to the mob with his disgraceful delay in responding to the violence at the Capitol — but to be constitutionally disqualified, an official must give aid or comfort to “enemies” of the country. As the Congressional Research Service also notes, ‘history … suggests that an ‘enemy’ is one who owes allegiance to an opposing government and not merely a U.S. citizen opposing the U.S. government.’

“Such arguments are likely to lose relevance, though, if Trump’s rise to the GOP nomination, and potentially the presidency, continues. His disqualification could become a partisan imperative, a titanic political struggle. Edward B. Foley recently described in these pages how the question could be resolved in a timely fashion by the Supreme Court. I hope he’s right, but such a polarizing controversy about a major candidate’s eligibility for office is a leap into the unknown — in the states, in the electoral college and in Congress. …

“The nation is playing with fire. Through his egregious conduct after the 2020 election, Trump ensured that a third presidential campaign would trigger a sense of emergency in the American establishment. Special counsel Jack Smith is racing to convict him before the 2024 election (and Trump could be muzzled or jailed before trial if he defies District Judge Tanya S. Chutkan’s admonition that his “defense is supposed to happen in this courtroom, not on the internet”). Trump voters’ sense that elites are trying to forbid them to vote for the candidate of their choice might only grow if a campaign to disqualify him gets underway.

Whether Trump is disqualified or not, or convicted or not, and whether he wins or loses the presidency, American political legitimacy will be inescapably damaged by the 2024 election if the former president remains the GOP standard-bearer. The only realistic opportunity to control the flames now belongs to Republican voters, who can still make a different political choice.”

These cautionary words deserve serious and sustained consideration, and there will be opportunity for additional reflection, analysis, and commentary on these issues. Meanwhile, I note here a few quick points:

  1. One court in New Mexico has already disqualified an officeholder (Couy Griffin) for his participation in the January 6 insurrection. While that is not a U.S. Supreme Court decision on the issue, it does indicate that it is possible that the Court will consider the January 6 insurrection (in the colloquial sense) to be a qualifying “insurrection” for purposes of section 3 of the Fourteenth Amendment.
  2. The question of Trump’s role in the January 6 attack on the Capitol is, of course, very different from Couy Griffin’s, who was at the Capitol that day. But the Baude-Paulsen argument for Trump’s disqualification does not rely solely on the “aid and comfort” portion of section 3, but instead that the totality of Trump’s actions and inaction surrounding the January 6 attack suffices to constitute “engage[ing]” in insurrection within the meaning of the clause. That surely is debatable, but it’s not an implausible interpretation.
  3. Disqualification of a leading presidential contender certainly is fraught with great peril for a democracy. That is why I previously compared Trump’s candidacy to the (not entirely unrealistic) possibility that John Breckinridge might have tried to run again for president in 1872 as he had in 1860. Another historical figure to think about in this regard is if hypothetically Clement Vallandigham had tried to run for president in 1872 or 1876 (if he had not died accidentally in 1871).
  4. In considering Willick’s valuable point about just how dangerous the current situation, with its upcoming 2024 election, is, we would do well to revisit the history of partisan competition between Republicans and Democrats during the Civil War and Reconstruction, including the relevant presidential campaigns during that time. A bit of brief research disclosed that Horace Greeley, Grant’s opponent in 1872, was accused colloquially of being a “traitor” for his promoting peace during the Civil War–but to my knowledge he was never accused of being disqualified under section 3 of the Fourteenth Amendment.

Share this:

“Burt Jones braces for legal fight in Fulton County election probe”

The Jolt in the Atlanta-Journal Constitution.

“Lt. Gov. Burt Jones avoided charges in the far-ranging Fulton County indictment filed Monday that accused former President Donald Trump and key allies of a criminal conspiracy to overturn the 2020 election results. But Jones did participate in one of the election interference activities cited in the indictment — the Georgia fake electors scheme — and could still face prosecution. 

“On Wednesday, the Prosecuting Attorneys’ Council of Georgia signaled it is considering a criminal complaint against Jones. The state agency’s head filed a motion to unseal a special grand jury report that potentially includes findings about Jones. 

“The lieutenant governor told Fox News he welcomed the chance to tell a prosecutor his story. 

“Jones’ case is complex. He was among the 16 Republicans who met secretly on Dec. 14, 2020 to sign election certificates claiming Trump as the state’s popular vote winner. Like the other alternate electors, Jones was notified last year by Fulton County District Attorney Fani Willis he could face charges.

“But a conflict-of-interest complaint against Willis led Superior Court Judge Robert McBurney to bar the DA’s office from investigating Jones. The ruling was in response to revelations that Willis hosted a fundraiser for Jones’ Democratic opponent in the 2022 election — a former colleague of hers. 

“Enter the Prosecuting Attorneys’ Council to probe Jones. …”

Share this: