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PaperclipPerfector  1yr ago (text post)   29463 thread views

Culture War Roundup for the week of August 7, 2023

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A 126 page legal analysis of section 3 of amendment 14 of the constitution was released yesterday, arguing that Donald Trump, among others, is ineligible for public office, including the presidency. The authors are conservative, active in the Federalist society.

For reference, the relevant part of the constitution is

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, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Among the arguments made were that it is legally self-executing—that is, it applies, like the 35 year old minimum age, without an explicit system to handle it to be set up by congress. Further, they think that people at almost every step along the process, from state officials deciding who goes on the ballots, to those capable of bringing an Amendment 25 complaint have a duty to ensure that this provision is fulfilled.

In reference to Trump, they argued that the events on and surrounding January 6th intending to overturn the election would constitute "insurrection or rebellion" as understood at the time of the passing of the amendment.

I can't see this not being important, but I'm not sure how exactly it'll play out—we could get court cases, possibly going up to the supreme court (no idea how that would play out). We may see state officials refuse to put Trump on the ballot. I expect this to lead to a substantial increase in support for Trump if this is seen as illegitimate, as it undoubtedly will be. At the same time, if this happens during the primary elections, and Trump is not even on the ballot in some states, it might make it significantly easier for another candidate to become the Republican nominee, unless the national Republican party interferes with it.

Note on the link: the pdf isn't opening for me right now and the wayback machine isn't helping. It was fine earlier, not sure what the issue is.

Do the authors not remember the Birthers? If this was our standard, then there would certainly be county-level officials that would declare they haven't seen Obama's long form birth certificate and strike him from the ballots accordingly.

Similarly county-level officials could say Biden's "antifa is an idea" is providing aid to enemies of the United States and strike him as well.

shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof

I don’t see how this could be “self executed” as in not requiring a process to apply it, simply because the earlier amendments require things like trials and forbid self incrimination. In short you’d have to convict Trump of these particular crimes before he’s actually disqualified. I can say Biden is giving aid and comfort to China, but my say so doesn’t mean anything unless I can show that he helped China in some way that actually harmed the USA. Anything else violates the spirit of the laws requiring trials, and runs dangerously close to giving the majority party cart Blanche to simply refuse to put opponents on the ballot on the pretext of some supposed high crime or misdemeanor or aid and comfort.

I can’t imagine that Trump or his supporters aren’t going to fight pretty hard against anyone refusing to put Trump on the ballot. It’s definitely against the spirit of free elections to refuse to put a declared candidate who meets the qualifications in state law on the ballot. In most states, having signatures of a fairly small percentage of the voters by law qualifies a candidate for the official ballot. Without a conviction, and one that’s specifically mentioned in the constitution as disqualification for office, they’d have a very strong case.

simply because the earlier amendments require things like trials and forbid self incrimination.

They argue that if it conflicts with other portions of the constitution, it satisfies or supersedes them. I think they still think there are processes for dealing with these things and challenging actions of this sort, it just doesn't have to start with a conviction.

I can’t imagine that Trump or his supporters aren’t going to fight pretty hard against anyone refusing to put Trump on the ballot.

Certainly, as they should.

It’s definitely against the spirit of free elections to refuse to put a declared candidate who meets the qualifications in state law on the ballot.

Sure. But it might be what the constitution requires, if they authors are right on this. Keep in mind also that the constitution is "the supreme law of the land."

Without a conviction, and one that’s specifically mentioned in the constitution as disqualification for office, they’d have a very strong case.

This is another basis for disqualification from office.

While there is certainly the idea that the later in time controls, there is also the idea that repeals by implication are frowned upon (and certainly that is more true in the constitutional space compared to statutory). There needs to be a very heavy hurdle to claiming here that later in time controls over repeal by implication. The authors aren’t serious.

They, generally speaking, don't think it repeals them, because it's not imposing any criminal penalties, just a qualification for office, and isn't a law, but a constitutional provision.

That said, if we ignored that, we can all agree that it applied ex post facto, that is, to the members of the Confederate cause, so at least in that respect it can conflict with the spirit of other parts of the constitution. The enacters at the time also thought it would be equivalent to a bill of attainder.

But unless you establish that the person isn’t qualified, then it all becomes a game of simply declaring it and daring the other person to in essence prove you wrong. I can claim (as some on the right have) that Joe Biden has dementia and is thus unqualified. Except that without a medical diagnosis— in other words proof that the man has dementia — he’s still perfectly qualified. And absent two facts: that January 6 met the legal definition of insurrection (not what the media says, not what you and I believe, but the legal definition of insurrection), and secondly a conviction of one Donald J. Trump of instigating and materially aiding the insurrection in the first part. In other words, establish as per the rule of law and the American court system that there was an insurrection and that Trump actively and knowingly participated in it.

In the case of the civil war, they weren’t disqualifying random people on the basis of vague accusations. They either fought in a legitimate confederate army unit, or served in the confederate government, both of which were easily proven by the records of the CSA and the CSA army.

I don’t have a problem with that law as written. It’s a fine law, and I don’t want people who try to overthrow the government to later serve in that government. However, it is not and cannot be a simple matter of “somebody’s making a claim that this candidate is unqualified, therefore he can be summarily deprived of his rights to stand for election.” If that’s the standard, then nobody can say for certain they’re qualified until their political opponents weigh in on the issue in the form of deciding that this person is okay.

To be clear, the authors are not stating that state officials can just summarily decide. They're rather saying they can make initial determinations, which can be followed by judicial review as needed. (Although it looks like that's muddied a bit, since they think the proper procedure might vary state by state??)

Laws on who can be on the ballot do vary by state, especially for third parties. They have to have a given amount of support, and I think in some cases you can’t be a felon.

Sure. But it might be what the constitution requires, if they authors are right on this. Keep in mind also that the constitution is "the supreme law of the land."

In practice the Constitution is what the Robed 9 say it is. Three of them were appointed by Trump, and three more aren't going to buy this one either. Not even John Roberts. That a person can be disqualified from the office of President because their political opponents can get one judge, with no trial, to say that person committed rebellion is not going to fly. Hey, I know -- instead of impeaching Joe Biden over Hunter, the Republicans can find a judge to declare the Iran deal to be giving aid and comfort to the enemies of the United States, and bam he's out of office. Of course Democrats know Republicans are unwilling to try brazenly corrupt maneuvers like that, which is why the Democrats don't worry about the shoe is being on the other foot, but it's at least as supportable as any case against Trump.

Without a conviction, and one that’s specifically mentioned in the constitution as disqualification for office, they’d have a very strong case.

This is another basis for disqualification from office.

It is not. The Supreme Court has ruled in past cases that states may not add qualifications for the offices of President and Vice President. And the Constitution does not state that those convicted of crimes (state or Federal) may not stand for those offices.

Fair point about the first half, although I'm somewhat less confident on what the supreme court's takes would be—I think several, at least, like to consider themselves impartial, so won't do things merely out of a sense of personal loyalty.

As to the second, I don't see how that's the case? Isn't this clearly a case of the constitution disqualifying people? You can argue that it doesn't apply to the current case, or that it requires more than what the authors say, but you can't just say that the Constitution doesn't impose ineligibility for committing those acts after swearing an oath.

This would be a clear case of a person convicted of aiding an enemy or being involved in insurrection. Two problems being that: no legal ruling has declared 1/6 an insurrection, and Trump has not been tried or convicted of insurrection. Which are both clearly required. Our legal system is based on the presumption of innocence, meaning that the government must first prove a crime took place, and secondly that the accused actually did said crime. I cannot accuse someone of murder unless I can show pretty conclusively that the person I’m accusing you of killing is actually dead, and that the best explanation of the evidence is that you did it. Even then, I’d have to get a jury conviction. I can’t just blanket claim that the crime you committed requires 5 years in jail, that the law is “self-executed” and haul you away.

I don't see that they're clearly required. When determining eligibility, the government doesn't have to consider due process - it doesn't have to prove anything beyond a reasonable doubt. And due process is to do with rights. There's no right to run for president.

If there's a liberty interest in running for office, then there's a due process consideration.

Assertion without evidence. Why isn’t there a right to run for president? Moreover, it seems like doing constitutionally protected “things” (eg advancing legal theories or speech) cannot count as something that is disqualifying.

Directly inciting rebellion (which is more or less what his opponents accuse him of) is illegal and not protected by the Constitution. I don't believe Trump incited rebellion, but I think he did act through others to obstruct the lawful operation of the Senate, which is probably illegal, but not disqualifying.

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Why isn’t there a right to run for president?

If there is one, it's a right that is routinely denied to those 34 and below. I don't see any reason why it couldn't be similarly denied to insurrectionists.

Moreover, it seems like doing constitutionally protected “things” (eg advancing legal theories or speech) cannot count as something that is disqualifying.

A relevant part of the paper (pages 93-94) addresses this point with historical evidence:

The House addressed the John Y. Brown case first. “This election case,” Hinds’ reports, was “the first of its kind since the formation of the Constitution, and recognized by the House as of the highest importance.”338 It also involved an incident of pure speech as disqualifying a member-elect from office: John Y. Brown had explicitly embraced and advocated violent resistance to the Union in Kentucky. Indeed, he had gone so far as to urge the shooting of any man who volunteered for service in Union forces. Brown’s disqualifying conduct consisted solely of such acts of speech.

In this particular case Brown was rejected by the House Committee on Elections, but not under section 3 (as it would not come into force until the following year). Nonetheless, it clearly shows that those who wrote and adopted the 14th amendment understood it to be possible and acceptable to disqualify a person from elected office purely on the basis of speech.

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I think several, at least, like to consider themselves impartial, so won't do things merely out of a sense of personal loyalty.

It's not a matter them doing things out of personal loyalty. It's a matter of the only way a competent jurist would buy this theory is partisanship or personal antipathy. This is crazy sauce legal theorizing.

As to the second, I don't see how that's the case? Isn't this clearly a case of the constitution disqualifying people?

You said a conviction would be "another" basis for disqualification from office; I assumed you meant other than Amendment XIV section 3. It would not. A conviction for treason, insurrection, or rebellion would be support for that basis of removal from office. Without that, there's nothing, particularly since the text says Congress can remove the disability but does not say it can impose it -- that rules out Congressional attainder, which is forbidden by Article I Section 9.

I assumed you were talking about conviction in the case of impeachments, so I actually meant Article I section 3 right there.

What do you mean by the last section, about imposition, attainder, etc?

He could be disqualified for impeachment and conviction, but only if he was actually convicted (which unlike a criminal conviction, definitely isn't going to happen), so that one's not relevant. As for the stuff about attainder, if we discard the notion that the law is somehow self-executing, there has to be some way of determining who committed the disqualifying acts and who did not. Traditionally there have been two ways of doing that -- an actual trial, or the legislature declaring the person so disqualified. This second method is called a "bill of attainder", and the US Congress and US States are forbidden from passing them. If the amendment had said Congress could impose the disqualification, it would have made a carveout, but it did not.

I'm not legally knowledgeable to make an informed evaluation of whether they're right here, but here's what they say:

On page 51, in a footnote, they list in support of their view, that both those at the time of its passage, both those in favor and those opposed considered that it was, in effect, a bill of attainder and an ex post facto law.

On pages 53-54, they argue that it's not a bill (since it's not congressional but constitutional), and it's not attainder, (since ineligibility from office shouldn't be considered a legal punishment).

All this was in the context of a section in which they argue that to the extent that it disagrees with earlier provisions, it supersedes them.

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And of course there is a process for Congress to do so — impeachment and conviction. So it wouldn’t be necessary.

Hey, I know -- instead of impeaching Joe Biden over Hunter, the Republicans can find a judge to declare the Iran deal to be giving aid and comfort to the enemies of the United States, and bam he's out of office. Of course Democrats know Republicans are unwilling to try brazenly corrupt maneuvers like that, which is why the Democrats don't worry about the shoe is being on the other foot, but it's at least as supportable as any case against Trump.

I don't know, actually removing Trump from the ballot seems like the sort of thing with entirely unpredictable backlash, especially in Florida and Texas(which has a captured federal judiciary).

If this isn’t contested before the election, Trump wins, and then someone (eg Baude) brings suit under this theory would Baude claim it is an insurrection?

Trump uses a shitty legal theory to try to stay in power. He didn’t even do enough with the crowds to cause incitement. Yet due to those two things Trump committed an insurrection? I hope the guy goes away too but damn. If that is an insurrection, is Joe Biden unfit for his attempt to prevent the peaceful transfer of power to Trump citing shitty legal theories such as the Logan Act?

Without a conviction, and one that’s specifically mentioned in the constitution as disqualification for office, they’d have a very strong case.

True, but they are incompetent at lawfare and have no effective counsel willing to work on their behalf.

If Donald Trump wins the general election, disqualified or not, he will still be the president.

I am not going to vote for him and he is a prat, but this is almost a sovereign citizen tier attempt to lawyer what cannot be lawyered, assuming it is actually in good faith.

I am not appreciative of people pushing the Kayfabe that covers "The President is who the most important people believe the president is" to the breaking point like this.

This argument has already won one court case. Never seen a sovereign citizen do that.

Also, there is a built in pressure-valve to ensure that a disqualification does not prevail against the clear wishes of the political system - a 2/3 vote of both houses can remove the disqualification.

And if the King of England went around ordering the execution of those who displeased him and it was his right to do so, how long would he keep the crown?

Not very long, I suspect.

Trump is either an insurrectionist or he isn't, and if he wins the General, rules written, by definition he isn't. Disqualifying him from the General is either perfunctory or damaging to the system and not Trump.

The actual fucking solution to the problem of a second Trump term is to corral the power of the executive rather than an executive.

Wait, how would that be true "by definition"?

if he wins the General, rules written, by definition he isn't

You know, I actually agree with this, there's a certain fairness to it. Someone charged with insurrection should, if they win a presidential election within a reasonable window (four years is fine), be acquitted on the basis that they ultimately won a rightful claim on power.

In this case, though, it's telling that the challenge is from the right rather than the left. The DNC would probably be satisfied with a Biden - Trump rematch, the base rarely gets whipped up for a second term unless there's a real meanie who might otherwise win. Trump is great for Dem donors, street-level activists, all the local and state groups, excellent for down-ballot candidates, and a proven loser against Biden.

It's DeSantis' FedSoc fans, who want a much more radical legislative agenda (and to maintain the house and win the senate) than anything Trump could accomplish, who are mounting this effort.

You know, I actually agree with this, there's a certain fairness to it. Someone charged with insurrection should, if they win a presidential election within a reasonable window (four years is fine), be acquitted on the basis that they ultimately won a rightful claim on power.

It is more a practical thing where it is particularly hard to depose someone who wins 51% of the voting public without breaking everything.

And if the King of England went around ordering the execution of those who displeased him and it was his right to do so, how long would he keep the crown?

Many Kings of England have done exactly this? Not sure what you're getting at.

Presumably they're referring to the current king. Still, the government is quite unpopular, and Charles' enemies are things like the CEOs of fossil fuel companies, monsanto and modernist/brutalist architects, so it's unclear whether this would actually result in his overthrow.

Like every other British monarchist, I had been quietly hoping that our new King had a little list of architects. They'll none of them be missed.

It appears to be quite a lot of words to say not a bit of much. Let us imagine an alternative scenario:

Everything is the same, Trump does all the same things, gives the same speech, but instead of the FBI, DHS, and DOD failing to give the Capitol police up to date intelligence about the size of the protest, they give them that intelligence. Then, being given that, the Capitol police's request for reinforcement from the National guard is not denied by the House and Senate. Thus instead of its barricades being mostly unmanned and folding like a cheap suit, they perhaps stop the riot at the steps. Or, perhaps they just shut and lock the doors.

Who seriously thinks that in such a situation anyone would make a case for insurrection?

So, we see the truth: The whole thing is actually about incompetent security. Possibly intentionally incompetent.

The point of this particular legal tactic is none of that has to actually be litigated. A judge just says "Naa, looks like insurrection to me", higher courts deny standing and otherwise refuse to review, and the officeholder is dismissed and disqualified, as in the New Mexico case AshLael is flogging. But that's just pure partisan lawmaking by judges who care only about the result and not the law -- something rather common when used against the right, as when Judge Emmet Sullivan refused to dismiss charges against Michael Flynn. We're not quite yet at the point that'll work on a major candidate for President, though maybe next time it will.

I'm reminded of my favorite counter-factual: suppose that the BLM-adjacent riot at the White House that one night in summer (which resulted in dozens of injuries to the Secret Service) had succeeded in breaking down the doors. Would that have been an insurrection? I feel like the current battle lines would, for the most part, swap entirely.

I'm not sure what definition the authors are using for "insurrection" (once again, it would be great if we could read the actual damn paper), but I believe the modern one is "a violent uprising by a group or movement acting for the specific purpose of overthrowing the constituted government and seizing its powers". So just forcing your way into the White House doesn't count. If they did it with the aim of killing the President or otherwise installing someone else in his position though, it would.

If i recall, that was the night after protesters had shown up with a guillotine for their demonstration. So depending on how seriously you want to take that or other generic "Trump must go" rhetoric... note: I don't think tbey were serious, personally, but I also don't think either that or Jan 6 rose to the level of "insurrection ". But if people are going to use the symbolic gallows that the Jan 6 protestors had as evidence, it only seems fair to take into account the symbolic guillotine.

They have a (mostly) weaker definition for insurrection than rebellion. Now that the pdf works again, I can provide their tentative ones.

They give as their working definitions: "Insurrection is best understood as concerted forcible resistance to the authority of the government to execute the laws in at least some significant respect." "Rebellion implies an effort to overturn or replace lawful government authority by unlawful means."

Oh neat so the republicans can call the entire summer of love an insurrection and we can shoot everyone running for office.

Yep. Biden supported it. I guess Baude is claiming Biden cannot run for office?

Also how the fuck could he claim Trump did this? At no point did Trump ever lead any violent uprising. Pretty much everyone agrees what Trump did did not reach the level of incitement. Yet Baude thinks this…reached the non-incitement reached the level of insurrection? Crazy pills.

While Baude absolutely does claim that Trump meets the standard of "insurrection" as understood at the time of the passage of the 14th amendment, I'l note that even if you don't agree with him, disqualification may still apply under section 3 to those who took no active part in insurrection. It is enough if you merely give "aid or comfort" to an insurrection.

Which again proves too much. What aid or comfort did Trump give them? How was that different compared to the aid or comfort given the BLM rioters (Kamala raised legal funds for them). If Baude is right, there are many people in Congress right now who have no right to be there.

Of course, since we know this will only be used against Trump and his supporters (much like the Jack Smith legal theory) the right response is to say (correctly) this novel legal theory is bullshit and the people who propagate it (eg Baude) should never be taken seriously again.

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The claim is any court can simply do as the DC Courts have been doing with the January 6 defendants and the New Mexico courts with the case mentioned earlier, and accept the media consensus that January 6 was indeed an insurrection led by Trump, and declare Trump is disqualified on those grounds. No substantive determination need be made because the provision is "self-executing". This may fly for New Mexico politicians no one likes and the QAnon shaman, but when it involves a major candidate for the US Presidency you're not going to be able to depend on friendly courts accepting this stuff, and all you'll get is an acerbic (and probably per curiam, which for the Supreme Court does not necessarily mean unanimous) rejection from the Supreme Court.

Perhaps. For some reason I doubt the media would buy a Trumpian argument that his own secret service's incompetence means we should jail Nancy Pelosi. I'll note that more police and secret service were injured on that day than were injured on J6 (both being far too trivial to be considered a serious coup attempt).

Was wondering where you got the numbers to show the white house attack injured more than the capitol riot. A quick google says 60+ at white house and 100+ at capitol.

Police injuries? The numbers I saw were like 4 and 10.

Yes. It is weird in that the WH attack was objectively more violent yet it isn’t often mentioned.

It is probably relevant to mention there is direct and relevant precedent here: Last September Couy Griffen was removed from his office as Otero County Commissioner under section 3 because of his involvement in Jan 6.

Obviously it's possible to argue that the New Mexico judge who made that ruling got it wrong, or that Trump's actions were different to Griffin's in determinative ways. But it does suggest that the legal system is going to take this section 3 argument seriously and that it can't be brushed off as a nothingburger, as some posters here are suggesting.

EDIT: I just looked it up, the NM judge in this case was a Republican appointee. No idea how conservative/partisan he is in other cases.

Cowboys For Trump founder from Otero County:

Subsequent to his 2022 conviction for the trespassing charge, a suit was filed by the group, Citizens for Responsibility and Ethics in Washington (CREW), and the residents of New Mexico under Section 3 of the Fourteenth Amendment to the United States Constitution that would bar him from holding a public office for life due to his participation in insurrection.[11]

Following the Disqualification Clause of the Fourteenth Amendment, District Court Judge Francis J. Mathew removed Griffin from public office on September 6, 2022, due to his participation in insurrection.[12][13] The debarment from holding public office for insurrection is "for life", he may never hold a public office again unless the debarment is overruled by a higher court or an Act of Congress. Removal of Griffin from his office marked the first instance of a democratically-elected official being disqualified from holding public office under the constitutional provision since the disqualification of the socialist, Victor Berger, in 1919 by a special committee of Congress.[14][15]

Griffin appealed the case to the New Mexico Supreme Court, which dismissed the appeal on procedural grounds in November,[16] and reaffirmed this dismissal in February 2023.[17]

The legal details on this case are hidden in the footnotes on Wikipedia, but if the case ends up being used as precedent against Trump, you can bet it’ll be a full article of feature quality, and locked for editing, shortly.

Dismissal on procedural grounds by the Supreme Court of New Mexico makes me smell something foul, but I haven't been following the case since it hasn’t been discussed on the podcasts I listen to or the news I watch.

Griffin was convicted of trespassing, was also already considered a useless putz by the broader New Mexico GOP, and appeals floundered because the man's lawyers didn't bother filing the full appeal.

I'm not sure that system was taken seriously, so much as used as an excuse to get rid of a meddlesome priest.

((Conversely, I'm incredibly skeptical that someone's going to get published arguing the same in any other political direction.))

People absolutely shouldn't be dismissing it as a nothingburger. Nothingburgers go away on their own; this is very likely going to have to be fought in court, and has a reasonable chance of changing who gets the Republican nomination. It's absolutely a consequential event.

The productive argument is over what the consequences are likely to be.

And the consequences could even be pro-Trump! If this is popularly seen as the extreme of suppressing political dissent, and fails at the supreme court, you could easily see this giving Trump a good bit of momentum.

I think the question of whether the consequences are pro- or anti-Trump are largely irrelevant.

The most significant consequence is that, sometime soon, when people really need consensus on rule of law to be there, it won't be there. I'm well past the point where any appeal to legal precedent or argument sways me, because I do not believe that the rule of law actually exists, or has for quite some time. I will, as I have before, use this incident and others like it to argue that any attempt to share society with Blues is hopeless, and that separation or war are the only alternatives remaining. I think this incident makes my argument more persuasive than it was before to the marginal Red.

The most significant consequence is that, sometime soon, when people really need consensus on rule of law to be there, it won't be there.

No. Mainstream conservatives have thoroughly demonstrated that they will accept the decisions which come out of the mechanisms of law even when those mechanisms are throughly corrupted. The skinsuiting gambit works. The dissenters are few enough to simply be jailed or shot.

Do you have examples in mind?

(to be clear, this is more to understand than to challenge)

January 6 verdicts. Alex Jones verdicts. Tiki torch felony convictions. The mainstream right just doesn't care; once the left uses the proper mechanisms of the state to declare the guilt of a rightist, the mainstream right accepts that as just and proper. "Well if you didn't want to be a felon maybe you shouldn't have taken that tiki torch to the rally".

In reference to Trump, they argued that the events on and surrounding January 6th intending to overturn the election would constitute "insurrection or rebellion" as understood at the time of the passing of the amendment.

Why?

The 14th amendment was, after all, passed after the Civil War, a conventional war in which field armies were marshalled to fight against the uncontestedly lawfully elected government. (The Confederates did not deny that Lincoln won the election, which is why they cited other casus belli.) The contemporary acts of insurrection included federal garrisons being overrun, cities sacked, massive civil destruction the likes had never been seen in North America since maybe the fall of the Aztecs, and millions dead directly or indirectly. In the drafters' own lifetime, non-insurrectionary violence in the capital included beating Congressional representatives with canes and honor-duels.

January 6, by contrast, wasn't even in the top 5 violent acts of political violence within a year of it happening.

I can't see this not being important,

Why not?

Trying to frame January 6 as an insurrection or rebellion has been an attempted narrative line since January 6, 2021, with generally only partisan effectiveness. It has been approximately 945 days and American public polling has consistently held viewing this along partisan lines. What, besides the appeal to Federalist society credentialism, is supposed to make it more significantly more persuasive after day 950?

Trying to frame January 6 as an insurrection or rebellion has been an attempted narrative line since January 6, 2021, with generally only partisan effectiveness. It has been approximately 945 days and American public polling has consistently held viewing this along partisan lines. What, besides the appeal to Federalist society credentialism, is supposed to make it more significantly more persuasive after day 950?

It doesn't need to persuade you, and it doesn't need to persuade the voting public. It needs to persuade John Roberts, Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas.

The Federalist Society credentialism is probably pretty significant in that regard.

Again, why?

I hate to consensus build, but this seems a pretty transparent 'the definition means what I want it to mean at the time, not consistently applied,' and the argument that the conclusion is self-enacting is just assuming the conclusion in a way that would drastically expand the power of the executive branch vis-a-vis the other branches by creating a precedent that the people who would make the determination can invoke magic words to make the appropriate un-appealable conclusion.

I see no reason why the members you cite would suddenly be onboard with a very expansive and novel interpretation of the executive branch's authority to arbitarily ban opposition politicians for conduct less severe than members of the ruling party that remain in good standing.

To be clear, they do think most of the actions done on account of their theory should be able to be appealed.

How is the argument that it's self-executing assuming the conclusion? They argue that the text supports that, especially in comparison with other texts, like the age requirements, I believe. Do you have a problem with any part of the constitution being self-enacting?

How is the argument that it's self-executing assuming the conclusion?

Because the self-executing argument assumes that Trump meets the criteria for the sanctions to be leveraged against him without Trump having been charged through the processes that would bestow that criteria.

Moreover, the opening argument claimed legal validity and influence by appealing to claimed influence of originalist principles, without actually validating that the claims mast originalist muster or that that the events of Jan 6 would be considered a rebellion by the standards of the original authors of the amendment.

You have consistently retreated from these points when challenged, and you will continue to do so, and they will remain points that undermine the thesis. The claim that this interpretation is based on actual as opposed to self-claimed originalist principles has not been supported, and the amendment does not negate the need for the government to establish guilt before moving against people on the basis of guilt.

They argue that the text supports that, especially in comparison with other texts, like the age requirements, I believe.

Then you believe wrong. The text of the Constitution does not support that Donald Trump is guilty of insurrection or rebellion without trial by appropriate institutions. This is trivially verifiable via any CTRL-F search of the text, as there is no mention of Donald Trump and thus no Donald Trump exception.

Do you have a problem with any part of the constitution being self-enacting?

Have you stopped beating your wife yet? Probably not, if you never started, but it would remain as invalid a question when the premise itself has been challenged.

The Constitution not being self-enacting in this legal argument, the claimed justification is being executed by the Executive branch because the Judiciary has not taken the case and the argument is that the Legislative branch does not need to.

The American Constitution sets out rules by which the branches of government act through their various powers. The advocates are ignoring the Constitution's own outlined procedures for establishing guilt on the pretext of self-enacting, and ignorring Constitutional principles on presumption of innocence and separation of powers to argue that the agencies of government controlled by the ruling party can ban political opponents from running on their say-so without going through said processes on the basis of implied repeal.

As such, there's no reason to believe the argument that the de-listing / banning / whatever measure is presumed to occur would be self-enacting, as opposed to being enacting by partisans with no sincere belief in the theory and no intention to uphold it as a standard, at which point it's non-enaction outside of the context of Donald Trump (not having been done before, or against contemporarier,s or with any credibility of consistency in the future) would demonstrate that it is not, in fact, self-enacting Constitutional action, but the actions of a branch of government.

Because they are heavily involved in the conservative legal movement, so ideas that gain traction within the conservative legal movement are likely to have traction with them. If this argument was coming from a fringe Marxist or something, I would expect it to carry much less weight among the Republican lawyers that make up the majority of the court. But it's coming from Republican lawyers, written from an explicitly Originalist perspective.

I see no reason why the members you cite would suddenly be onboard with a very expansive and novel interpretation of the executive branch's authority vis-a-vis opposition politicians.

This has nothing to do with executive branch authority. Their argument is that the disqualification is automatic, with no executive act to make it happen.

They are in academia. This is within that community very useful for them because then they can be seen (at least in their minds) as the “good ones.” That doesn’t imply most conservatives will give this the light of day.

And? It's not "most conservatives" who will decide this issue. It's elite Republican lawyers.

Your evidence is a couple of law professors prove that “elite Republican lawyers” support this position? It is a crack pot theory because it proves too much. We could disqualify most people in two of the branches. You should do what most people do with legal academics — disregard what they have to say.

I am not claiming that this one article proves that the Republican justices on the Supreme Court will see the issue the same way. We will have to wait and see. My point is that the specific people that need to be convinced by this argument for it to apply are people very much like the authors and very unlike the average Republican voter.

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Because they are heavily involved in the conservative legal movement, so ideas that gain traction within the conservative legal movement are likely to have traction with them.

But we don't have evidence that the ideas have gained traction within the conservative legal movement.

This is assuming the conclusion by backwards reasoning that because the two members are Federalist Society affiliated, both the reasoning is conservative in nature and shared broadly amongst conservatives.

If this argument was coming from a fringe Marxist or something, I would expect it to carry much less weight among the Republican lawyers that make up the majority of the court. But it's coming from Republican lawyers, written from an explicitly Originalist perspective.

That is what is what is being challenged!

The Originalist perspective would be, of course, the viewpoints on what rebellion meant to the people whose framework of rebellion was the civil war. Hence asking for by what standard the January 6 is being held as rebellion, but which other actions in that year did not. If the original framers wouldn't recognize something of the scale of January 6 as a rebellion, then the originalist interpretation works against the claim that it's an originalist interpreation of the amendment. If the legal argument is that they were all insurrection, but this legal standard has not, is not, and will not, be enforced consistently, it's not an Originalist perspective, it's an argument for arbitrary political interference on grounds of special pleading, which is not an Originalist principle, as one of the points of the original writers of the Constitution was to prevent arbitrary use of government power against citizens.

Moreover, the amendment isn't the only Originalist perspective relevant to the subject, since the implications to division of powers of course broach on the other parts of the Constitution, and those originalist perspectives, for what self-executing would imply when functionally meaning giving the ruling party to ban opposition party members doing what potentially election-winning pluralities of the American public view as legitimate democratic processes.

This has nothing to do with executive branch authority. Their argument is that the disqualification is automatic, with no executive act to make it happen.

And this argument is nonsensical, because nothing in the government happens automatically, but is executed and enforced through the Executive branch.

As the saying goes, organizations don't make decisions, people in organizations make decisions, and the people who would decide to execute- and then enforce- this policy proposal are the executive branch.

But we don't have evidence that the ideas have gained traction within the conservative legal movement.

We have Bayesian evidence. Two Fed Society authors have published a paper arguing for the position, and a Republican-appointed judge has already removed a low-ranking official from office under section 3 for his involvement in Jan 6.

These things do not prove that this is a mainstream position among conservative legal thinkers. But they are much more likely to happen in a world where it is.

The Originalist perspective would be, of course, the viewpoints on what rebellion meant to the people whose framework of rebellion was the civil war.

Correct. The paper spends a considerable amount of time talking about what the original meaning of "insurrection" and "rebellion" was, to the people of that time. You don't have to agree with the authors' conclusions, but they explicitly deal with that question as the central one.

I really want to delve into the detail of these arguments more and see if I agree with them but unfortunately I can't get the paper to open at the moment, and I didn't get through the whole thing on first read.

Moreover, the amendment isn't the only Originalist perspective relevant to the subject, since the implications to division of powers of course broach on the other parts of the Constitution

I believe their argument is that later amendments to the Constitution override earlier versions (otherwise amendments would not be possible). So to whatever extent Section 3 is in conflict with earlier Constitution provisions, Section 3 prevails.

And this argument is nonsensical, because nothing in the government happens automatically, but is executed and enforced through the Executive branch. As the saying goes, organizations don't make decisions, people in organizations make decisions, and the people who would decide to execute- and then enforce- this policy proposal are the executive branch.

Nope. You can look at the New Mexico case for example - state law allowed private citizens to sue to remove disqualified officials from office, a group did so, and a judge decided to remove him. No executive action involved.

We have Bayesian evidence.

Which is to say you do not have evidence, hence why you are inferring to assume there is rather than demonstrating there is.

Two Fed Society authors have published a paper arguing for the position, and a Republican-appointed judge has already removed a low-ranking official from office under section 3 for his involvement in Jan 6.

And as has been noted elsewhere, that case did not rise, and came with very different political contexts.

These things do not prove that this is a mainstream position among conservative legal thinkers. But they are much more likely to happen in a world where it is.

They are also very easy to happen in a world where Trump Derangement Syndrome driving novel legal theories is a thing, and we actually are in that world.

The Originalist perspective would be, of course, the viewpoints on what rebellion meant to the people whose framework of rebellion was the civil war.

Correct. The paper spends a considerable amount of time talking about what the original meaning of "insurrection" and "rebellion" was, to the people of that time. You don't have to agree with the authors' conclusions, but they explicitly deal with that question as the central one.

Then you should be able to answer the question regarding the standard, and its consistency as a standard.

I believe their argument is that later amendments to the Constitution override earlier versions (otherwise amendments would not be possible). So to whatever extent Section 3 is in conflict with earlier Constitution provisions, Section 3 prevails.

But this isn't an argument that Section 3 is in conflict with other provisions of the Constitution. This is an argument that execution of section 3 by the executive over the conduct of elections prevails over other elements of the constitution, which obviously does not hold to any limit because otherwise any executive could claim that any action in support of a later constitutional amendment is inherently constitutional if it conflicts with others.

There is not, in fact, an unlimited blank check to the American executive drawn just by claiming a more recent ammendment. Where Section 3 does not require overruling other parts of the Constitution, it doesn't. The arguments to date do not indicate that Section 3 requires doing so, on that Section 3 would have to do so to permit the interpretation, which is the sort of backwards reasoning previously noted.

Nope. You can look at the New Mexico case for example - state law allowed private citizens to sue to remove disqualified officials from office, a group did so, and a judge decided to remove him. No executive action involved.

And yet, yup. This isn't state law- this is Federal-level. Moreover, this isn't something the judiciary has made a conclusion on (i.e. that Trump has engaged in Rebellion), and the legal theory is to explicitly leave the Legislature out of it, and thus the only branch of government to make the conclusion and enact and enforce it is the Executive.

They go into the cotemporary legal definitions, and note that there were smaller scale insurrections that were considered insurrections.

Their main argument was that the January 6 mob was an attempt to use at least the show and threat of force in opposition to the constitutional order, and maybe, but more dubiously, that the assorted plans, second sets of electors, etc. could be considered rebellion even without force.

But yeah, it's no civil war.

What makes this newsworthy to me isn't so much that people are arguing that January 6th was an insurrection, for the reasons you say, but the fact that actions could be taken because of that that could have a substantial effect on the upcoming election.

They go into the cotemporary legal definitions, and note that there were smaller scale insurrections that were considered insurrections.

Insurrections smaller than January 6, but which other events in contemporary American politics haven't surpassed? Which?

Their main argument was that the January 6 mob was an attempt to use at least the show and threat of force in opposition to the constitutional order, and maybe, but more dubiously, that the assorted plans, second sets of electors, etc. could be considered rebellion even without force.

But the argument made was that this is an interpretation should qualify as a rebellion to the perspectives of the people who drafted the amendment- but the amendment was drafted by people whose concept of Rebellion was intrinsically one of mass, organized force on the scale of war.

So again- why should anyone believe the Amendment drafter's views of Rebellion were such that Jan 6 qualified?

What makes this newsworthy to me isn't so much that people are arguing that January 6th was an insurrection, for the reasons you say, but the fact that actions could be taken because of that that could have a substantial effect on the upcoming election.

Which actions can be taken because of this that couldn't have been taken already?

This is not a position claiming a consensus of Federal Society legalists, or concurrence by government lawyers, or a position made by anyone else in the last several years of lawfare. It's novel, not authoritative.

Sorry, by contemporary I meant to the time, not to today, if that wasn't clear.

I can't go into details because I can't get the pdf to open, but I believe they referenced assorted earlier cases that were smaller than the civil war (the one I remember was the Whiskey rebellion, but they referenced a bunch more). I don't know the details, but I wouldn't be surprised to learn that even those were larger than the Trump events.

Sure, it's novel and not authoritative, but it being more mainstream could make an impact, since all that it needs to do so is convince a few officials. If no one else, I could see state officials in democratic states not listing Trump, and that could make a big difference in the primaries if it doesn't get to the supreme court before then.

Sorry, by contemporary I meant to the time, not to today, if that wasn't clear.

It was clear, and I am still awaiting a standard that distinguishes January 6 as a rebellion but which does not also catch many more non-contested politicians to the point that it's not an arbitrary special pleading.

I can't go into details because I can't get the pdf to open, but I believe they referenced assorted earlier cases that were smaller than the civil war (the one I remember was the Whiskey rebellion, but they referenced a bunch more). I don't know the details, but I wouldn't be surprised to learn that even those were larger than the Trump events.

Then the comparisons are not validating the necessary claims that the events of January 6 are a rebellion from an Originalist perspective. If January 6 is not a rebellion from an Originalist perspective, then banning Trump from running would not be an argument based on Originalism, but something else trying to claim the mantle of originalism to disguise smuggled assumptions. It's still assuming the conclusion that Trump conducted rebellion, and then arguing that the assumption warrants ignorring the sort of due process that is set out for actually establishing the conclusion.

Sure, it's novel and not authoritative, but it being more mainstream could make an impact, since all that it needs to do so is convince a few officials.

But there's nothing here indicating it's any sort of mainstream. Again, no claim has been made this reflects a common or shared viewpoint of the Originalist legal establishment, let alone the non-Federalist legal schools of thought, let alone the opposition party that has been deriding the Federalists for years.

For something to be mainstream, it needs to be, well, not novel and actually be authoritative.

If no one else, I could see state officials in democratic states not listing Trump, and that could make a big difference in the primaries if it doesn't get to the supreme court before then.

What, besides political cover of preferred justifications, makes you think Democratic states would de-list Trump based on this, and but would not de-list Trump on grounds that Trump has been indited and impeached multiple times?

I can't respond to the first half until I'm able to access the pdf again, since that's still not working, last I checked.

But to the ending, they might be persuaded that this could present at least the possibility that it might be the correct and legal thing to do—there's no way the indictments would disqualify, and the impeachments weren't agreed to by the margin required in the Senate.

I can't respond to the first half until I'm able to access the pdf again, since that's still not working, last I checked.

Given that the nature of political violence in the last half decade has been quite considerable with more than a few cases with far more violence and damage than conducted on January 6, you absolutely can respond as to what sort of standard might meaningfully identifies January 6 as a rebellion and other acts of violence in and around the capital and country in the years prior as not.

It certainly wasn't the timing that would make it a rebellion, as there is no requirement nor does proximity automatically qualify. It wasn't the death count. It wasn't the property damage. It wasn't the degree of organization. It wasn't the amount of backing from political elites. It wasn't the proximity to Congress persons.

But to the ending, they might be persuaded that this could present at least the possibility that it might be the correct and legal thing to do—there's no way the indictments would disqualify, and the impeachments weren't agreed to by the margin required in the Senate.

Neither would trying to delist the opposition candidate on charges he has never been convicted of, and yet here you are taking it seriously.

So I ask- why on earth should anyone believe a Democratic politician was sincerely persuaded of the correct and legal nature of an unprecedented attempt at political attack against an opposition party candidate... by an opinion piece of non-authoritative lawyers associated with an organization the Democratic party has regularly identified itself in ideological opposition to?

Does this hypothetical Democrat find all of the Federalist Society writings convincing, or just this pair of writers? Or just this article? Do they plan to apply this standard consistently even if it means coming to odds with their own party, or is this new novel legal theory they sincerely believe in only going to be used to the broad approval of their caucus before being put away?

I'm not making any assertion that other acts of violence wouldn't qualify (again, assuming the authors are right on all this).

Nor am I claiming that it wouldn't be politically motivated, or inconsistently applied.

The difference is that now they can claim to be doing it because of law, and it will have to go through courts instead of being shot down right away.

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Never Trump 2: Electric Boogaloo

I'd think the game plays out in a similar way as it did last time. Republicans denounce and disavow. Trump calls their wives ugly. Republicans then, a week later, pledge support for Donald Trump when they realize which way the wind is blowing.

I'd think the only hope for the establishment and DeSantis is the fact that Trump is old and he's spent a lot of his powder. In that sense Biden may manage to serve as a tactical landmine. You can't make fun of a geriatric dude for 4 years to then support another one without some part of your brain noticing. But ehh, maybe.

Right, but things like not even being listed on the ballot in some states could be big.

So big, in fact, that it would enrage Trump voters who are, as far as I can tell, still a sizeable portion of the Republican voting block. Like, what's the gameplan here? Get your voters to hate your party?

The narrative of the Republican party having 'never Trumpers' in it was a great thing for the party itself, since it kept Trump supporters from hating the party directly. But this? I'm not seeing it.

Extending what seems to me to be an unsupportable amount of charity, the gameplan would be to sideline Trump through an "impartial, rules-based" process, thus removing an incompetent, unpopular, and generally useless blowhard from his position at the head of the party, so that people actually worth a damn can have a shot at securing power and maybe actually getting something done. They think that there's still a nation to fight over and perhaps to salvage, and that the system of power can still be used productively for its intended purposes, and they think Trump is getting in the way of productive business.

In so far as the article is meant to be actionable advice to someone, rather than academic blowhardery, I suspect the aim is to provide the GOPe with a playbook to dump Trump if it becomes necessary. If done while Trump was still viable, this would destroy the Republican party, but there are some fairly obvious situations where Trump is losing and dragging the GOP down with him, but has enough delegates that he can't be dumped in line with the rules.

In particular, the bit about Section 3 being self-executing and everyone involved in the electoral process being obliged to enforce it is an open invitation to Ronna Romney McDaniel to stop the Convention nominating Trump regardless of the delegate counts, should that turn out to be a good idea at the time. (For instance, because Trump has been convicted after a process which leaves the median voter agreeing that he is clearly guilty, or because he ended up running a defense along the lines of "I am so disconnected from reality that I cannot possibly form the mens rea for a crime of dishonesty" and beclowning himself).

When faced with a widespread and rapidly-accelerating collapse in trust in rules-based systems of governance, it would not seem to me that the best response would be repeated appeals to ever-more-novel and finely drawn rules-based arguments, but perhaps that is why I am not invited to the nice parties.

The obvious response hasn't changed.

Stop pretending that the outcomes of orderly systems can be trusted. Justice is not, under present conditions, the presumed outcome of a process. Findings and verdicts and rulings do not settle a matter if the outcome is not just. Demand Just outcomes, and never, ever let an unjust outcome rest.

It's entirely not important. It's Logan Act or Emoluments Clause levels of sophistry. The idea that someone could be disqualified from office for something with a definition very close to that for treason (which, you may note, requires two witnesses to the same act, or confession) without any sort of formal determination that they did that is absurd. If there's 126 pages, it's to bury that simple absurdity in bullshit.

You thinking it's absurd doesn't mean it's not important. As long as other people take it seriously, it'll have effects.

If they're correct (which I'm not certain about), I believe they'd have no objection to Trump or others presenting suits to argue that he is, in fact, eligible, if people try to remove him from ballots or take other actions, which might mitigate some of your concern about no formal determination? The authors go into its civil war era application for some examples of how it played out.

You thinking it's absurd doesn't mean it's not important.

That it is absurd means it's not important. That it is absurd means there's at least 6 and maybe 7 members of the Supreme Court who are going to throw it out quickly if anyone manages to get a lower court ruling based on it.

I believe they'd have no objection to Trump or others presenting suits to argue that he is, in fact, eligible, if people try to remove him from ballots or take other actions, which might mitigate some of your concern about no formal determination?

No. A formal determination would involve either Congress declaring him attainted (which has other Constitutional problems) or some sort of criminal trial. If the clause is self-executing it means one can skip to actions removing him from the ballot without any prior determination that he has engaged in insurrection. That is, any judge can make a determination (probably by a preponderance of the evidence) with the same effects as impeachment. This is not what that clause was for.

I'm not going to get down in the weeds of parsing the arguments in a 126 page document about this; that's like trying to engage with Time Cube.

I saw this again after deciding to look through my most downvoted comments. You were right.

Hey great idea! Someone should try this. Then when Justice Sotomayor and Jackson dissent we can use Jack Smith’s theory on defrauding the US by pursuing bogus legal theories to jail Sotomayor and Jackson!

That it is absurd means it's not important. That it is absurd means there's at least 6 and maybe 7 members of the Supreme Court who are going to throw it out quickly if anyone manages to get a lower court ruling based on it.

There's already a lower court ruling based on the same legal theory: https://www.citizensforethics.org/wp-content/uploads/2022/09/D101CV202200473-griffin.pdf

It appears they got prevented from appealing to Federal court for lack of standing, the usual procedural nonsense. They won't be able to pull that off with Trump. It's still absurd.

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