Tag Archives: January 6

“Prosecutors Ask Appeals Court to Reject Trump’s Immunity Claims in Election Case”


Federal prosecutors asked [the U.S. Court of Appeals for the District of Columbia Circuit] on Saturday to reject former President Donald J. Trump’s claims that he is immune from criminal charges of plotting to overturn the 2020 election and said the indictment should remain in place even though it arose from actions he took while in the White House. . . . 

. . . In their 82-page filing to the appeals court, prosecutors focused on legal arguments and said that nothing in the Constitution or the country’s other founding documents supported the idea that a former president should not be subject to federal criminal law.

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“Exclusive: Recordings, emails show how Trump team flew fake elector ballots to DC in final push to overturn 2020 election”


Two days before the January 6 insurrection, the Trump campaign’s plan to use fake electors to block President-elect Joe Biden from taking office faced a potentially crippling hiccup: The fake elector certificates from two critical battleground states were stuck in the mail.

So, Trump campaign operatives scrambled to fly copies of the phony certificates from Michigan and Wisconsin to the nation’s capital, relying on a haphazard chain of couriers, as well as help from two Republicans in Congress, to try to get the documents to then-Vice President Mike Pence while he presided over the Electoral College certification.

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“Don’t blame democracy’s woes on the GOP or ‘tyranny of the minority’”

Jennifer Rubin in the WaPo

Two of the year’s best books on politics present contrasting diagnoses for what ails American democracy.

Liz Cheney’sOath and Honor: A Memoir and a Warning lowers the boom on the mendacious and cowardly Republicans and the now four-times-indicted former president Donald Trump, whom they enabled in nearly destroying our democratic system. “Tyranny of the Minority: Why American Democracy Reached the Breaking Point,” by Steven Levitsky and Daniel Ziblatt, cites structural protections for the minority that have been exploited to the point that self-government is threatened. Both books have a point, but neither puts the blame squarely where it should be. . . . 

Plainly, we need both structural change and public virtue to repair our democracy. But there is another element the analyses do not fully acknowledge: voters. We get the government we want and deserve.

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“From Bush v. Gore to ‘Stop the Steal’: Kenneth Chesebro’s Long, Strange Trip”

N.Y. Times has an in-depth profile of Kenneth Chesebro.

“Some former colleagues say Mr. Chesebro’s 180-degree turn came after a lucrative 2014 investment in Bitcoin and a subsequent posh, itinerant lifestyle. Others, like Mr. Tribe, see Mr. Chesebro as a ‘moral chameleon’ and his story an old one about the seduction of power.

‘He wanted to be close to the action,’ said Mr. Tribe, who is among 60 lawyers and scholars who signed an ethics complaint in New York that could result in Mr. Chesebro’s disbarment. At Harvard, Mr. Chesebro assisted Mr. Tribe on many cases, including Bush v. Gore, which Mr. Tribe, as Mr. Gore’s chief legal counsel, argued before the Supreme Court.”

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“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?”
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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
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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.

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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
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“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”
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“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”
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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.

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“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.” 

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