Will Baude and Michael Stokes Paulsen hyper-launched an essential discussion, but the question now is whether anything will be done about it. Also: Four other good weekend reads.
Thanks, though I honestly could do without the second half of that headline. Every day for the past 7 years, it’s been a new version of “Trump shot someone on 5th Avenue. Will it matter?” And it’s just been so soul-crushing for those of us who care about political accountability and the rule of law. We’ve got to find a new way to look at this.
If I were Trump I’d argue this was not an insurrection because it sought to effectuate, not displace or change, the Constitution. Also, as a thought experiment, posit that a Trumpish cult leader claimed to be a native born citizen but could not prove it (or there was a credible claim his proof of native birth was fake) Who would bear the burden of proving citizenship and by what standard and in what forum?
(Cardinal sin alert) I haven’t read the paper... but absent a conviction, who can determine if a candidate was sufficiently insurrection-y to be disqualified?
Ultimately, the Supreme Court. But, up to that point, the argument that Baude and Paulsen make, echoed by Luttig and Tribe and Foley and others, is that it is officials who determine the validity to appear on the ballet who make the initial determination. (Hence, Michael McConnell’s concern.) Because of that ballot determination, Foley argues that legislatures should make it clear those officials are authorized to do so, in order to avoid a scenario where it’s only a state Supreme Court saying that it’s authorized (because of Moore, as discussed in the piece).
I would love for Trump to be disqualified but even I am having trouble reading Section 3 as applying to the presidency. It seems odd that the language would specifically mention senators and representatives and electors (of the president and vice president) but not mention the president or vice president themselves except to lump them in with any and all other officers of the United States under the catch all “any office, civil or military, of the United States.” I want it to be the case that it applies to the president; it just seems like a stretch me.
No matter how obvious it is to many of us, even conservatives, I do think that a court has to decide whether trump's acts meet the requirements of "insurrection and rebellion" before anyone can ban trump from the ballot. Does anyone really want THIS supreme court deciding that? The restrictions the court might put on what the words mean could hamstring attempts to thwart other would be dictators. I can see them requiring that the person accused has to have actually marched armed on the capitol. Easy for any would be dictator to avoid. Perhaps the Secret Service SHOULD have let him go to the capitol.
I think the Baude and Stokes Paulson article's main use is persuasive. Imagine (its not hard) someone who does see trump's actions as fitting the term, but who just can't bring themselves to vote for a Dem. What you MIGHT be able to do is use the argument to persuade them to simply not vote for trump--leave the space blank, even if they vote down-ticket.
Agreed that ultimately this would probably end up at the US Supreme Court. Two questions, then: how fast does it actually get there, and what are there 5 votes to do.
The timing question first: I assume that first you have some kind of executive action, like a SOS saying he's disqualified. This gets litigated, first in the state trial court. Any state judge you can imagine is going to grant a preliminary injunction allowing him to appear on the ballot pending trial on what Trump did, and whether it counts as an insurrection. (If a state trial judge denies the injunction, a state supreme court is going to grant it.) There are not going to be 5 votes on the USSC to keep him off the ballot pending trial, I don't think.
When does the case get brought? Here in Montana, candidate registration is in March 2024 -- our Republican SOS isn't going to be the one to raise the issue, so presumably a voter could commence an action in March.
Do we have trial on the merits of whether this was an insurrection and whether Trump did enough to be disqualified, and then a state appellate decision, before June 1, 2024? Who's actually trying the case? Think about it: how many witnesses are you calling, how many is Trump calling?
Are there going to be 4 votes for cert if a state supreme court declines to disqualify?
If there isn't a US Supreme Court decision before the start of the October 2024 term, are there 5 votes for the chaos of tossing Trump this close to voting? Assuming Trump wins the election, being on the ballot because of a PI, what I think there might be 5 votes for -- if there are even 5 for the proposition that he's disqualified -- is to toss him out after inauguration, and make his new VP president. Is there any way there are 5 votes for 'well Trump won the election, but we're putting Biden in'?
What I'd think is more likely is that they'd call it a political question which was resolved by Trump's acquittal on insurrection charges.
I'd love to be proven wrong, and for this 'one weird trick' to actually work.
(It's probably not directly relevant, but in the Montana Code voters have to contest the qualifications of a nominee within 5 days of the nominee's certification of nomination. That's in the first half of June. This implies -- I haven't looked because there probably aren't any cases -- that a challenge before the primary may not be ripe.)
‘Took a backseat to prosecutions’ is a stretch considering Garland’s 100,000+ person DOJ made no effort to even preserve evidence of the involvement of powerful people not physically at the Capitol Jan6th until shamed repeatedly...and has not addressed the disqualification issue to date. DOJ looked away from its job after #Jan6th and its hard to say they are doing anything on their own initiative other than prosecuting stooges, however deserved.?
Well, no. It’s an even higher standard than impeachment. And, that makes sense, as it’s kind of a reverse impeachment — it’s removing a disqualification.
As I responded to Dahlia Lithwick earlier -- the authors are absolutely, 100% correct, and Trump is rightly unqualified to run. In a healthy democracy not plagued by a two-party system where one of the parties is quite publicly jonesing for the downfall of the Republic, Section 3 would have been deployed already.
The US is not a healthy democratic system any longer, and I don't see a viable way for Section 3 to be executed, much less a likelihood it will do so. Republicans won't use it to deny Trump (who wants that political sword over their heads?), and Democrats know that if they use this nuclear option, that Republicans will absolutely wield it against Biden and every Democrat until the United States dissolves.
So, it will sit, discussed in op-eds and law review articles, discussed by pundits and legal scholars, never to see the light of day.
How did he fool so many people for so long? Hope all his victims get the restitution they deserve and he spends the rest of his days behind bars in Georgia
Section 3 states: But Congress may by a vote of two-thirds of each House, remove such disability.
It seems like the quickest way to get there is for a Congressional Representative from the House & the Senate (preferably on a bi-partisan basis) - to put-forth to Congress - a Vote on the question of whether our Congressional leaders want to “remove such disability” (& i think Chris G said it better…”it’s removing a disqualification”).
If Congress gives DJT a vote of 2/3 of each house - then he would not be subject to Section 3, and therefore would be eligible to run for the Presidency again. If Congress can’t reach the 66.6% vote in the House & the Senate, then Congress confirms for the entire Country that they’ve declared DJT ineligible to run for any Office.
Could this work? Sure, Congress has never had to do this before, but DJT provides the Constitutional requirement for Congress to figure out this training opportunity for the present & the future of our Country!
We the people elected Congress & they need to do this job quickly, so each State and multiple other groups don’t have to wing it & waste money. Also, we the people could flood our reps in Congress with how we want them to vote on Section 3, which would also help voters. Lastly, it seems that DJT and the Supreme Court, would have a more difficult time going up against an Act of Congress about the US constitution.
Kevin McCarthy is never going to let this go to a vote.
Unless the US Supreme Court has already determined after a Trump victory that he's nonetheless disqualified, and the same wave that got him elected turns the Senate red.
Thanks, though I honestly could do without the second half of that headline. Every day for the past 7 years, it’s been a new version of “Trump shot someone on 5th Avenue. Will it matter?” And it’s just been so soul-crushing for those of us who care about political accountability and the rule of law. We’ve got to find a new way to look at this.
I struggled with the headline, tbh, but I thought just having the first sentence would be misleading.
Can we disqualify the *sitting* aiders and abettors of January 6 also? That would clear quite a few seats in the House and the Senate.
^^^^What she said.
Thanks for this lucid review. I was thrilled when Luttig and Tribe picked up the baton. Let’s see how quickly states can act.
If I were Trump I’d argue this was not an insurrection because it sought to effectuate, not displace or change, the Constitution. Also, as a thought experiment, posit that a Trumpish cult leader claimed to be a native born citizen but could not prove it (or there was a credible claim his proof of native birth was fake) Who would bear the burden of proving citizenship and by what standard and in what forum?
This argument may read “insurrection” too narrowly. See Magliocca in Balkinization
(Cardinal sin alert) I haven’t read the paper... but absent a conviction, who can determine if a candidate was sufficiently insurrection-y to be disqualified?
Ultimately, the Supreme Court. But, up to that point, the argument that Baude and Paulsen make, echoed by Luttig and Tribe and Foley and others, is that it is officials who determine the validity to appear on the ballet who make the initial determination. (Hence, Michael McConnell’s concern.) Because of that ballot determination, Foley argues that legislatures should make it clear those officials are authorized to do so, in order to avoid a scenario where it’s only a state Supreme Court saying that it’s authorized (because of Moore, as discussed in the piece).
Thank you!
Understood! Something like “What happens next?” would feel a little less painful...
I would love for Trump to be disqualified but even I am having trouble reading Section 3 as applying to the presidency. It seems odd that the language would specifically mention senators and representatives and electors (of the president and vice president) but not mention the president or vice president themselves except to lump them in with any and all other officers of the United States under the catch all “any office, civil or military, of the United States.” I want it to be the case that it applies to the president; it just seems like a stretch me.
See pages 104-111 of Baude and Paulsen's paper for their response to that.
Okay, thank you - I’ve been skimming the article, trying to find where that is addressed. Thanks for pointing me to it!
No matter how obvious it is to many of us, even conservatives, I do think that a court has to decide whether trump's acts meet the requirements of "insurrection and rebellion" before anyone can ban trump from the ballot. Does anyone really want THIS supreme court deciding that? The restrictions the court might put on what the words mean could hamstring attempts to thwart other would be dictators. I can see them requiring that the person accused has to have actually marched armed on the capitol. Easy for any would be dictator to avoid. Perhaps the Secret Service SHOULD have let him go to the capitol.
I think the Baude and Stokes Paulson article's main use is persuasive. Imagine (its not hard) someone who does see trump's actions as fitting the term, but who just can't bring themselves to vote for a Dem. What you MIGHT be able to do is use the argument to persuade them to simply not vote for trump--leave the space blank, even if they vote down-ticket.
Agreed that ultimately this would probably end up at the US Supreme Court. Two questions, then: how fast does it actually get there, and what are there 5 votes to do.
The timing question first: I assume that first you have some kind of executive action, like a SOS saying he's disqualified. This gets litigated, first in the state trial court. Any state judge you can imagine is going to grant a preliminary injunction allowing him to appear on the ballot pending trial on what Trump did, and whether it counts as an insurrection. (If a state trial judge denies the injunction, a state supreme court is going to grant it.) There are not going to be 5 votes on the USSC to keep him off the ballot pending trial, I don't think.
When does the case get brought? Here in Montana, candidate registration is in March 2024 -- our Republican SOS isn't going to be the one to raise the issue, so presumably a voter could commence an action in March.
Do we have trial on the merits of whether this was an insurrection and whether Trump did enough to be disqualified, and then a state appellate decision, before June 1, 2024? Who's actually trying the case? Think about it: how many witnesses are you calling, how many is Trump calling?
Are there going to be 4 votes for cert if a state supreme court declines to disqualify?
If there isn't a US Supreme Court decision before the start of the October 2024 term, are there 5 votes for the chaos of tossing Trump this close to voting? Assuming Trump wins the election, being on the ballot because of a PI, what I think there might be 5 votes for -- if there are even 5 for the proposition that he's disqualified -- is to toss him out after inauguration, and make his new VP president. Is there any way there are 5 votes for 'well Trump won the election, but we're putting Biden in'?
What I'd think is more likely is that they'd call it a political question which was resolved by Trump's acquittal on insurrection charges.
I'd love to be proven wrong, and for this 'one weird trick' to actually work.
(It's probably not directly relevant, but in the Montana Code voters have to contest the qualifications of a nominee within 5 days of the nominee's certification of nomination. That's in the first half of June. This implies -- I haven't looked because there probably aren't any cases -- that a challenge before the primary may not be ripe.)
‘Took a backseat to prosecutions’ is a stretch considering Garland’s 100,000+ person DOJ made no effort to even preserve evidence of the involvement of powerful people not physically at the Capitol Jan6th until shamed repeatedly...and has not addressed the disqualification issue to date. DOJ looked away from its job after #Jan6th and its hard to say they are doing anything on their own initiative other than prosecuting stooges, however deserved.?
My problem with Section 3 is that very last sentence with the big fat "But..." sticking out. It seems to almost nullify the previous paragraph.
Well, no. It’s an even higher standard than impeachment. And, that makes sense, as it’s kind of a reverse impeachment — it’s removing a disqualification.
As I responded to Dahlia Lithwick earlier -- the authors are absolutely, 100% correct, and Trump is rightly unqualified to run. In a healthy democracy not plagued by a two-party system where one of the parties is quite publicly jonesing for the downfall of the Republic, Section 3 would have been deployed already.
The US is not a healthy democratic system any longer, and I don't see a viable way for Section 3 to be executed, much less a likelihood it will do so. Republicans won't use it to deny Trump (who wants that political sword over their heads?), and Democrats know that if they use this nuclear option, that Republicans will absolutely wield it against Biden and every Democrat until the United States dissolves.
So, it will sit, discussed in op-eds and law review articles, discussed by pundits and legal scholars, never to see the light of day.
Can’t see the Rudy article (paywall) but Noel Casler has been saying for a long time that Rudy has always been an awful human being
I mean, many — many — of us have. It’s a “reminder.” And a good one.
How did he fool so many people for so long? Hope all his victims get the restitution they deserve and he spends the rest of his days behind bars in Georgia
Sadly, I think a lot of the answer comes down to Sept. 11.
Which, if he hadn’t stupidly headquartered the emergency response center inside the WTC, may not have resulted in so many deaths of first responders 😢
Section 3 states: But Congress may by a vote of two-thirds of each House, remove such disability.
It seems like the quickest way to get there is for a Congressional Representative from the House & the Senate (preferably on a bi-partisan basis) - to put-forth to Congress - a Vote on the question of whether our Congressional leaders want to “remove such disability” (& i think Chris G said it better…”it’s removing a disqualification”).
If Congress gives DJT a vote of 2/3 of each house - then he would not be subject to Section 3, and therefore would be eligible to run for the Presidency again. If Congress can’t reach the 66.6% vote in the House & the Senate, then Congress confirms for the entire Country that they’ve declared DJT ineligible to run for any Office.
Could this work? Sure, Congress has never had to do this before, but DJT provides the Constitutional requirement for Congress to figure out this training opportunity for the present & the future of our Country!
We the people elected Congress & they need to do this job quickly, so each State and multiple other groups don’t have to wing it & waste money. Also, we the people could flood our reps in Congress with how we want them to vote on Section 3, which would also help voters. Lastly, it seems that DJT and the Supreme Court, would have a more difficult time going up against an Act of Congress about the US constitution.
Kevin McCarthy is never going to let this go to a vote.
Unless the US Supreme Court has already determined after a Trump victory that he's nonetheless disqualified, and the same wave that got him elected turns the Senate red.