Wednesday, September 06, 2023

Our McGyver Constitution


Illustration by George Cruikshank, via.

Once upon a time there were three brothers, the youngest one called America, and one day America was out in the forest chopping wood, and when he knocked off for a lunch break, bread and cheese and a pint of beer, a little man appeared next to him looking hungry. So America shared his lunch with the little man, and when they were done the little man said, "Hi, I'm Jemmy Madison, and if you dig under the root system of that sugar maple over there you'll find a nice little gift from me, in thanks for your hospitality," and wandered away.

So America dug, and sure enough there was a whole Constitution, stuffed with stuff America would be able to use when he went out to seek his fortune! I won't tell the whole story of how many scrapes that Constitution got him out of (I will note that the oldest brother Britannia said, "I don't need no stupid constitution" and the middle brother Francia said, "One lousy constitution? I'm going to need at least five!") but in the climax, when he's been all but defeated by a treacherous and tasteless orange-faced villain, when he thinks of looking for help one more time in the good old Constitution, and it turns out there's this little apparently useless trinket right there in the 14th Amendment, Section 3, that says or at least suggests it's illegal for treacherous villains to run for president, so hahaha, Mr. Orange-Face, you cheated last time around so this time you're not allowed to play! Go eat salted dicks!

I'm not sure what I hate most about this latest please-God-save-us-from-Trump proposal, but it's probably the idea that we can get rid of Trump without doing any work—that there's this little totally scientific doohickey in our McGyver Constitution toolbox that does it for us, automatically, for free. As if that's what a constitution were, a collection of old screws from old projects for which a use might turn up some day.

Or maybe it's the suddenness with which the legal eagles have developed this concern for the constitutionality of Trumpery:

I never feel I've been able to convey why I feel so strongly about Trump's emolument misconduct beginning on Day One (the day after Trump settled the class action fraud suit by 7000 Trump University students with a $25 million payment) of his presidency, when he fired Norman Dong, acting administrator of the General Services Administration, which had held that the language in the lease of Trump's Pennsylvania Avenue hotel saying it could not be held by any governmental official meant that it could not be held by any government official including the president of the United States, and replaced him with Tim Horne, the official who had coordinated the agency's transition with the Trump team, leaving Trump in possession of the hotel, full at that very moment, as it would be for much of the next four years, with the representatives and agents of foreign governments, drinking the president's health with the president's cronies and operatives and pouring cash into the presidential coffers. While at least four foreign governments (from Qatar, China, India, and United Arab Emirates) rented premises from Trump, the state owned Industrial and Commercial Bank of China occupying two floors in Manhattan's Trump Tower where they didn't seem to be doing any business, for something like $2 million per year, and that's saying nothing about all the hotel space booked by foreign governments, especially notoriously Saudi Arabia ($270,000 in December 2016 alone, not long before Trump decided to make the Kingdom the destination of his first overseas trip as president, instead of the more conventional Canada or United Kingdom).

Corruption—plain old common-as-dirt financial corruption and fraud—has always been at the heart of everything Trump does, the racism and fascism being more or less incidental. Even the technically treasonous association with the Russian government arose from his desire to own a hotel in Moscow, and his interest in taking the presidency was always in the hope of cashing in on it, something he worked extremely hard on, though of course he's such a lousy businessman he could never make it work. When he finally went to war against democracy itself, in the wake of the 2020 election, you can bet it was because he saw holding on to the presidency as the only way to rescue his failing finances, that or collecting more grift from his fans, to which, as Jack Smith will soon be telling us, he was devoting his most serious attention, as he defrauded them into the belief that he was spending their money on "Stopping the Steal" when he was spending it on himself and his legal battles. Why are the distinguished lawyers only showing an interest in his constitutional behavior now?

Kevin Kruse shows us in his Substack how the disqualification clause of Amendment 14 Section 3 worked, but he fails to show how it would work in the Trump case: nearly all his examples are of representatives who were disqualified by Congress, after being duly elected; two from the aftermath of the Civil War; John Young Brown of Kentucky in 1868 and Zebulon Vance of North Carolina in 1870 (both of whom were pardoned and welcomed into the House not long afterwards), and one from the Debs era, the Wisconsin Socialist Victor Berger, during the 1919 Red Scare, who had been convicted, like Debs, of violating the Espionage Act, and who Wikipedia tells us was seated in the House without being pardoned but rather exonerated by the Supreme Court:

In 1919, Berger was convicted of violating the Espionage Act of 1917 for publicizing his anti-interventionist views and as a result was denied the seat to which he had been twice elected in the House of Representatives.[1] The verdict was eventually overturned by the Supreme Court in 1921 in Berger v. United States, and Berger was elected to three successive terms in the 1920s.[2]

The one exception is the "Cowboys for Trump" leader, New Mexican Couy Griffin, kicked out of his position on the Otero County Commission as a January 6 defendant (given 14 days in jail plus a $3000 fine and 60 days' community service) by a district court judge, following a civil suit by the Citizens for Responsibility and Ethics in Washington (CREW), which filed a similar action against the Trump presidential campaign today. He's the only case of someone who seems to have been successfully permanently banned from public office under Section 3.

But the CREW case against Trump is quite different from their case against Griffin, in that Griffin too was duly elected before being disqualified, where the action on Trump is meant to prevent him from being elected by preemptively striking him from the ballot, something that has never been done before, as it wasn't done to Debs. 

And Trump hasn't been convicted of January 6 offenses, either, not yet, unlike Griffin, though I'm sure I hope he will. There are many millions of people who claim they don't believe he's committed any crimes, and they're not going to like being told they're not allowed to vote for him when he's "innocent until proven guilty". This is such a bad idea, as the Debs example shows. It's anti-democratic to refuse the people their voice. Let's just defeat him, instead.

But the most irritating thing about it, to my mind, is who's supporting it, as I wrote at my own Substack a few weeks ago: people invested in rescuing the Republican party from the disgrace of its embrace of Trump in 2016, Judge Luttig; the two Federalist Society law professors, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of Saint Thomas, who wrote unpublished paper "The Sweep and Force of Section Three"; and NeverTrump enthusiast Charlie Sykes. Maybe hoping to force the nomination of Tim Scott or Nikki Haley. And I don't want to rescue them. Trump is their fault.

Cross-posted at The Rectification of Names.

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