Former President Donald Trump’s indictment by a grand jury in Fulton County, Georgia (In Midnight Presser, Fulton DA Fani Willis Calls Trump’s Election Integrity Team a ‘Criminal Enterprise’) brings to 91 the number of criminal charges he faces in four separate jurisdictions. Even though the former president is arguably more popular than the current resident of the Oval Office, he’s tied with Biden in general election polling, and he’s the clear frontrunner for the Republican nomination; see NEW: Quinnipiac Poll Shows Trump Holding Massive Lead Ahead of the Pack—Including DeSantis.
I fully expect former president Trump to be convicted and go to prison (Today’s Supreme Court Cases Show Why President Trump Is Very Likely to End up in Prison); the establishment, left and right, is pulling out all the stops.
Even if former president Trump somehow avoids prison, he may very well be barred from running for president.
How is this possible? The best TDS-infected legal minds have concocted a theory that if not successful nationwide, it could disqualify Trump from receiving votes in a minimum of the 20 states with a Democrat holding the position of secretary of state.
In the aftermath of the Civil War, the Reconstruction Congress passed the Fourteen Amendment to the US Constitution. This amendment did several things; one of them was to bar from political or military office at the state and federal level anyone who had served in the Armed Forces of the Confederacy or who had aided the governments of any of the states of the Confederacy. At the time, this made sense. There was a sense that if the nation was going to recover from the Civil War — and part of the new order was going to include the abolition of slavery without compensation and the right of former slaves to vote and hold office — that would be hindered, if not outright blocked, by the post-war governments and militia officers being former Confederate politicians and soldiers.
This is how Section Three of the Fourteenth Amendment reads:
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.
The claim is that by contesting the vote count and giving a speech on January 6, Trump committed acts of insurrection or rebellion and therefore is not eligible.
This Is Not New…at Least Since January 6
Even though the Civil War was settled nearly 160 years ago, and other than some incidents in 1968 and 2020, nothing vaguely resembling an insurrection or rebellion against the United States government has occurred, January 6 gave kooks who hate Trump to latch onto. A nutty group called “Free Speech for People” and local opponents of former representative Madison Cawthorn tried to have him stricken from the ballot as an “insurrectionist” in 2022. A trial court judge ruled the sun had set on Section Three a hundred and fifty years ago when a bill passed Congress by a three-fifths vote
That all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States.
The Fourth Circuit, which has gone from a solid conservative circuit to one trying to out-reverse the Ninth Circuit, said that Section Three was still in effect but didn’t rule on whether Cawthorn was implicated in such acts. Cawthorn lost his primary campaign, and the case died.
The same group filed an identical complaint against Georgia Representative Marjorie Taylor Greene, but the judge dismissed it as silly. Fourteenth Amendment challenges to Republicans have appeared in many places.
A legal effort to disqualify from re-election lawmakers who participated in events surrounding the Jan. 6, 2021, attack on the Capitol expanded on Thursday, when a cluster of voters and a progressive group filed suit against three elected officials in Arizona to bar them under the 14th Amendment from running again.
In three separate candidacy challenges filed in Superior Court in Maricopa County, Ariz., voters and the progressive group, Free Speech for People, targeted Representatives Paul Gosar and Andy Biggs and State Representative Mark Finchem, who is running for Arizona secretary of state with former President Donald J. Trump’s endorsement.
It was unclear whether the challenges would go anywhere; an initial skirmish, also led by Free Speech for People, failed to block Representative Madison Cawthorn’s candidacy in North Carolina. But they were the latest bids to find a way to punish members of Congress who have encouraged or made common cause with those who stormed the Capitol on Jan. 6.
In all three suits, the plaintiffs claim that the politicians are disqualified from seeking office because their support for rioters who attacked the Capitol made them “insurrectionists” under the Constitution and therefore barred them under the little-known third section of the 14th Amendment, adopted during Reconstruction to punish members of the Confederacy.
The only success using this strategy has been in New Mexico, where the viciously partisan Citizens for Responsibility and Ethics in Washington were able to get New Mexico County Commissioner Couy Griffin permanently disqualified from holding office because he’d been in DC on January 6; see Democrat Judge Teams up With Leftwing Nutters to Boot a Republican County Official From Office as an ‘Insurrectionist.’ This travesty survived because, in my opinion, Griffin didn’t have the interest or resources to fight it.
The Real Target Emerges
The attacks on Cawthorn, Greene, and a minor local official in New Mexico were just the warm-up.
The real target was Donald Trump.
With Trump looking strong in the GOP primary and Biden looking weak and ineffectual every day, the TDS sufferers in both parties have united to use the Fourteenth Amendment to block Trump from office. You can hardly swing a stunted, short-tailed cat without smacking some notable personage making the case.
Naturally, with something this visible, you’ll find the “conservative case of barring Trump from office.” Hell, if David French could discover the “conservative case for drag queen story hour and having kids stuff dollar bills in some fat guy’s g-string,” it isn’t a shock that a couple of members of the Federalist Society would make the “conservative case” for disqualifying anyone from running without any reason.
The argument comes courtesy of University of Chicago law professor William Baude and Michael Stokes Paulsen, a professor at the University of St. Thomas School of Law. In the draft posted on SSRN, which is scheduled to be published next year in the University of Pennsylvania Law Review, they argue that Trump is barred from becoming president under Section 3 of the 14th Amendment. That clause, in summary, says that no person who previously swore to support the Constitution but then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” can be allowed to hold any federal or state office.
It’s not exactly a new argument. A recent report from Citizens for Responsibility and Ethics in Washington titled “Disqualified” used similar logic last month. Both analyses cite the recent case of Cuoy Griffin, a former New Mexico county commissioner who was removed from office last year under the provisions of Section 3. Both reject the notion that Trump’s First Amendment right to free speech supersedes the provisions laid out in the 14th Amendment. And they both draw heavily on the House Jan. 6 committee’s final report. That report, they say, proves Trump mobilized and motivated the mob that attacked the Capitol on Jan. 6, 2021, and thereby “engaged in” an insurrection against the Constitution through his actions and inactions.
But Baude and Paulsen’s specific legal pedigree makes their analysis stand out. Like the conservative majority on the Supreme Court, both scholars are originalists, who believe that the Constitution needs to be read and interpreted with its original meaning in mind, as well as textualists, who believe judges should primarily come to decisions based on the plain text of the law as written. Baude argued in The New York Times in 2020 that conservatives — including the justices on the court — need to stick with these guiding principles. Meanwhile, Paulsen and Baude are both members of the highly influential — and many would argue harmful — Federalist Society.
IANAL, I’m not even enough American Indian to be a law professor so I’m ill-equipped to sling precedents and legal references at them. In my view, assuming that Section Three applies to any situation other than the years after the Civil War, and I think the argument for that being the case range from specious to ludicrous, there has to be a law with elements of proof that a person has been found guilty of violating. In the case of January 6, I don’t think it rises to the level of insurrection. For instance, neither National Guard nor Federal troops were used. No one convicted after January 6 has been charged with rebellion or insurrection. In terms of damage, it barely rose to the level of a riot, and the only fatalities were two protesters who were killed, at least one of whom was murdered by Capitol Police.
The authors contend that the offense is sort of how Potter Stewart thought of porn; they can’t describe it but recognize it when they see it. Moreover, they claim that anyone can accuse anyone of insurrection and, by golly, by gosh, that is just the American way.
In many cases, Section Three will give rise to judiciable controversies in the courts. In others it will be enforceable by state and federal officials. But no prior judicial decision, and no implementing legislation, is required for Section Three to be carried out by officials sworn to uphold the Constitution whose duties present the occasion for applying Section Three’s commands. Section Three is ready for use.
This is obviously bonkers, and if you can’t see where this leads, maybe you take a sabbatical to Pakistan or Myanmar and look around.
The Real Purpose
So if there is no law with elements of proof to describe insurrection and rebellion, and there is no need for anyone to be charged or arrested for that offense, and there is no legislative or judicial vehicle for declaring people insurrectionists, how does this all work?
To get on the ballot, you must meet specific Constitutional criteria, such as age, citizenship, and residency. It is the duty of the secretary of state in each state to ensure those criteria are met no matter how many qualifying petitions you turn in. The paper by the two law professors isn’t aimed at convincing us, the voters. It is aimed at the 20 Democrat secretaries of state and any other secretary of state who loathes Trump. Under the formula laid out in the law journal article, all that is needed to disqualify someone as an insurrectionist is that you have taken an oath to the Constitution and you want to do it. Your legal reasoning is free to download.
Will this madness survive contact with the judicial system? Most likely, it won’t. If not being able to vote for a person of your skin color deprives someone of their Constitutional rights, then depriving them of the right to vote for a candidate of their choice based on an arbitrary ruling by a partisan official should be, too. But it isn’t important that the challenges to Trump’s eligibility stand. All that is important is that a handful of states refuse to place Trump on the ballot in the general election. By the time the case is decided, the voting will be well underway if votes haven’t already been cast. The confusion will be Biblical. It will have the disorganization of Florida in 2020 with the integrity of any Democrat-run city in any other election.
This strategy of barring politicians from running for office for insurrection or rebellion is little short of evil. Using the “we don’t need no stinking laws” standard advocated, anyone who participated in the annual March for Life and worked to overturn Roe vs. Wade could probably meet the criteria for being declared in rebellion against the laws of the United States.
On the positive side of the ledger, this will probably never come up as the odds of Trump not merely dodging the bullet but evading a Battle of the Somme quality barrage of felony charges is slim. The fact that we have people supposedly on our side advocating this bullsh** is deeply disturbing.