Vivisecting Section 3

  

I'm still kind of dubious about the magical qualities of the 14th Amendment Section 3, as I was back in September, but I should add that I'm a lot more impressed than I was expecting to be by the case Colorado's Supreme Court makes for reversing the original district court ruling, which had concluded that Donald Trump did indeed "engage in" an "insurrection" against the United States, but 14/3 didn't apply to him, because as president he was not an "officer under the United States", as the Amendment specifies:

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.

The president isn't an officer? Even though he holds the Office of the presidency and swears to execute the Office faithfully when he is inaugurated and can be removed from Office if he's impeached and convicted? Not to get all originalist on you, but that's what "officer" meant in the 18th century, what we more often call an official, somebody who holds an office in an organization, and of course the president of the United States is one. Imagine a law that removes all the other officers, in Congress or the judiciary or the civil service, it they've taken part in a rebellion against the government, but doesn't disqualify the big cheese? That won't let Lieutenant Henry Numbnuts of the former Confederate Army serve as a section head in a customs office, but it's OK for Jefferson Davis to be president? No.

And so the Colorado Supreme Court reversed that, unsurprisingly, but there was no reason to mess with the main part of the decision, which was very solid, and it's intact in the new ruling. Unless you were working on such a tight deadline that you didn't have time to read it, as apparently happened to Jonathan Chait:

I am not a lawyer, and I won’t comment on the legal merits of the case. I can assess its political and civic logic, which strikes me as dangerous and likely to backfire.

The argument for disqualification is quite simple. The Constitution bars officeholders who engaged in insurrection; on January 6, 2021, Trump engaged in insurrection; therefore, Trump is ineligible to hold office.

The weak point in this argument is the finding that Trump’s behavior constitutes “insurrection.” This is a defensible shorthand for January 6, one I’ve used frequently myself. But it’s not the most precise term. When I have the chance to use a longer description, I generally say that Trump attempted to secure an unelected second term in office.

In which, immediately after promising not to discuss the legal merits of the case, he leapt into a discussion of the legal merits of the case, but without realizing what the case consisted of, an exhaustingly precise delineation of the meanings of "insurrection" and "engaged in" as well, followed by a detailed account of how the events of January 6 constituted an insurrection in the sense in which the term was used around the time the 14th Amendment was written (it's the mob's behavior, not just Trump's), and of how Trump was engaged in it, as one of many ways, some of them more or less legal, in which he attempted to "secure" himself the position of president-for-life (there's certainly no evidence his ambition was just for another term), from a hurricane of frivolous lawsuits against mostly state governments to a series of attempts to shake the state governments down through threats and intimidation (a major component of the Georgia racketeering charge). The assault on the Capitol was an insurrection 

the record amply established that the events of January 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country. Under any viable definition, this constituted an insurrection...

and Trump incited it, participated in planning it, tried to join it physically (but the Secret Service prevented him), and refused for hours to do anything to stop it, until it was clear it was going to fail to meet his purposes.

[I]t is not necessary to prove that the individual accused, was a direct, personal actor in the violence. If he was present, directing, aiding, abetting, counselling, or countenancing it, he is in law guilty of the forcible act. Nor is even his personal presence indispensable. Though he be absent at the time of its actual perpetration, yet if he directed the act, devised or knowingly furnished the means, for carrying it into effect, instigating others to perform it, he shares their guilt. In treason there are no accessories.

The relevant section of the 14th Amendment doesn't say you can be barred from holding office for seeking "an unelected second term" in the presidency; it says you are barred (that's what "self-executing" means) from holding office if you have engaged in insurrection against the United States, and that's what the Colorado Supreme Court demonstrates he did.

Which, by the way, satisfies my biggest original objection to the 14/3 project, back in August in the Substack, to the Federalist Society law professors, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of Saint Thomas, and their paper "The Sweep and Force of Section Three":

you need an individual or group with standing to file the action, which was a controversial issue in White v. Griffin, and a court has to consider it: did an insurrection or rebellion or other hostility take place? Had the person in question taken an oath to support the Constitution? Had the person engaged in the hostilities against it? And the defendant and his attorney have to be given an opportunity to disprove the allegations (Baude and Paulsen don’t mention that, but it is what happened). And then the court can issue an order.

But the court has to ascertain the truth of what happened: it has to confirm that there was an insurrection. A very substantial minority of the US population doesn’t believe there was, and Special Counsel Smith hasn’t so far charged anybody with making one (I’ve got a vague hope some more seditious conspiracy counts could be on the way, including for Trump himself, but don’t put any money on it), and what’s clear to a judge in Santa Fe is not clear to a judge in Marion County, Kansas.

The ruling makes clear to me at last that the judges in Denver really didn't have to wait for somebody in D.C. to decide whether or not an insurrection had officially taken place: they were able to use the facts and the law to determine it for themselves (subject to appeal, of course). Most importantly, Trump and his attorneys and supporters had been given every opportunity to argue for themselves, but didn't; all their many objections were addressed to questions of legal procedure, they didn't dispute any of the facts at all. That's because the facts aren't disputable.

I do still feel kind of queasy about the idea of kicking the candidate off the ballot as opposed to kicking them out of office after their elections, as has been done in all the cases of 14/3 action in the historical record (usually by Congress, including that of Rep. Victor Berger, Socialist-WI, who was convicted of espionage in the 1919 Red Scare and kicked out of the House under 14/3, but not prevented from running again, and winning three more terms, too); it looks like an attack on the voters rather than the candidate, and that's undemocratic to at least some degree. But it doesn't look like such a big deal, on reflection—voters could always write in Trump's name if they want. 

But you'd never get Congress to vote to disqualify him, with a filibuster-proof majority in the Senate, if he got reelected in the first place. It's better to get the work over with now, and get it set down in the record, and move on to the next thing.

My strongest feeling about the project, to tell the truth, was well articulated by the lawyer known as Popehat:

The only way we're ever going to save democracy is through doing the work of getting better at voting.  More teachers and librarians, fewer Moms for Libertines. The excitement over this development, and Messrs. Tribe and Luttig, is illusory. Or as I wrote myself in August,

It’s another one of those deus-ex-machina plans for pretending we’re going to rid of Trump without putting any work into it that we’ve been excitedly waiting for ever since we were counting the days to indictments of Dick Cheney and Karl Rove coming down the chimney on “Fitzmas” in 2005. Those things never come through, and still less when it’s Republicans that are boosting them. Their plan is the exoneration of the Republican Party by putting all the blame on Donald Trump, and don’t forget it.

 You don't suppose Popehat reads me, do you?

Anyhow, it's not going to happen. There's no way the United States Supreme Court is going to commit itself to acknowledging that January 6 was an insurrection—or plunge us into the weirdness of a presidential election where a third of the states have different ballots from the rest either. I don't know how they're going to wriggle out of it, but they'll find a way.

Cross-posted at The Rectification of Names.