The Volokh Conspiracy
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Don't Be So Certain About Trump And Section 3
The jurisdiction element of Section 3 does not "definitely" or "plainly" apply to Trump.
Section 3 of the Fourteenth Amendment includes a jurisdictional element. The jurisdictional element specifies which positions are subject to Section 3: a "person . . . 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."
The only way for Section 3's jurisdictional element to cover President Trump would be if he took an oath to support the Constitution as an "officer of the United States." Trump only swore one constitutional oath: as President of the United States. In short, for President Trump to be subject to Section 3 disqualification, the President must be an "officer of the United States" for purposes of Section 3.
Two op-eds were recently published about President Trump and Section 3. And these pieces contend that this issue is open-and-shut: Trump is clearly an "officer of the United States" for purposes of Section 3.
In Politico, Bruce Ackerman and Gerard Magliocca wrote:
Section 3 of the 14th Amendment — the Disqualification Clause — expressly bars any person from holding "any office, civil or military, under the United States" if he "engaged in insurrection" against the Constitution after previously swearing to uphold it "as an officer of the United States." These terms definitely apply to Trump, and some Democrats are exploring the use of Section 3 against him.
In the Washington Post, Cliff Sloan and Brendan Gants wrote:
That category plainly includes Trump. As president, he took an oath to support the Constitution.
Seth Barrett Tillman and I address this issue in our new article, Is the President an 'Officer of the United States' for Purposes of Section 3 of the Fourteenth Amendment?. We write that there is some evidence to support our position. And we acknowledge there is some evidence on the other side. But nothing here is "definite" or "plain."
To pre-empt an obvious, and extraneous response, the Jefferson Davis example is a red herring. Davis was a Senator, a position that was expressly enumerated in Section 3's jurisdictional element. Trump took one, and only one constitutional oath–the presidential oath of office.
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Why on earth would Congress and the several state have wanted to preclude a treasonous senator or postmaster from holding office, but not a treasonous president?
As they are using it to prevent re-election, not removal from office (which failed, twice) would they want to disallow a democratic choice?
There was no shortage of blather how impeachment was a political operation, with the only check being the vote of the people in response to their Congresspersons’ actions.
If that was insufficient, and if The People choose to reelect, then is it right to deny it?
We like democracy. Until we don’t, and can use a trick to get in the way.
And I am no Trump supporter. What are my choices? Him? A bunch of people causing a collapse of my savings value so they can purchase reelection and get kickbacks paying off innumerable buddies in business?
Stop wrecking the Constitution along your poisonous walks for power grabbing.
One of the issues is, the Senators and Representatives are elected on a state basis. One could imagine that the majority of a population of one of the states still had the sense (or lack thereof) to elect a Senator who had committed treason (on a national basis).
But the President is elected by the nation as a whole. If the President is elected, can he still be considered “treasonous” for previous actions? It leads to an odd situation where the people elect a president, but a class of people above them say “no you can’t elect that person, they’re guilty of treason, according to us”
AL,
Why not? Imagine some incredibly charismatic 25-year old wins a presidential election in terms of votes. She’s so captivating, that she dominates those whose names are printed on the ballot, and gets 150 million write-in votes. The people have spoken, and have spoken loudly, with this overwhelming vote total. (She got 55% of the vote, while the Dem candidate and the Rep candidate each got about 22% of the vote.)
Would she now become president? Answer: Of course not! She does not meet the constitutional requirements. We would all agree that: We will, and we must, ignore the will of the people. (Another example. There is another massive vote-in ‘victory’ for Obama. Or for W. Bush. Would they now become president? Answer: Of course not…they are constitutionally prevented from being elected to a 3rd term–EVEN WHEN that means totally ignoring the will of the people.)
I guess I’m not seeing why you’re bothered by this possibility of this same principle being applied to Trump.
It’s the principle being applied in general that’s a problem. Here’s why.
Age and number of terms is a static qualification. You can’t magically make someone ineligible if they are undesirable. You can’t “make” their number of terms increase, or age decrease.
“Treasonous activity” or “insurrection” isn’t the same. You can claim any number of people are guilty of “treasonous activity” or “insurrection” at any time, for almost any reason.
Accusing political opponents of “treason” or “insurrection” and getting them invalidated from the ballot is common in dictatorships and autocracies. Doing the same in the US, especially from a president-elect who won the majority of the votes would be antidemocratic in the extreme. Examples of this type of behavior is below.
(For example https://www.nytimes.com/2015/08/24/world/americas/9-opposition-candidates-barred-from-venezuelas-december-ballot.html)
Let’s put this into context for a moment, with a series of hypothetical examples.
In 2024, Biden and Trump run against each other. Trump wins the election, but in the intermediate few years, Biden manages to get a 5-4 majority on the SCOTUS (or he expands the court). Biden argues section 3 (“Trump engaged in insurrection) before the SCOTUS. The new court agrees with Biden, declares Trump ineligible as President, and since now Biden obtained more votes, Biden is President again. (There are some details around the EC and certification of electors that need to be clarified, but for the sake of argument, assume this).
How does that look and feel?
We’re not talking about whether a treasonous official is disqualified from serving as president. Prof. Blackman’s claim is that the disqualification doesn’t apply to someone who committed their treason while president, and thus even if Trump indisputably has “engaged in insurrection or rebellion”, he would still be eligible to be president, senator, judge, ambassador, etc.
You’re hypothetical is an argument against section 3 altogether, but it’s not an argument against having it apply to everyone but the president. Why would it be any different if you replace Trump with, say, Josh Hawley or Marjorie Taylor Greene?
Yes, the question here is whether the President is an “officer of the United States”. If he is, then a disqualifying act while President would bar him from subsequent election to Congress, at least.
It is a separate question whether the President is an “officer under the United States” such that a disqualification affects eligibility for that office too. Profs. Blackman and Tillman also have definite views on that question that I’m sure we will hear more of in his threatened 10 part series, but it isn’t the question he poses here.
Armchair, in that scenario Section 3 of the 20th Amendment would apply. Trump would suffer a “failure to qualify” to be President and so his running mate, as Vice President would become Acting President. Biden would still have lost the election.
It’s…a little more sketchy there.
If Trump outright died, you’d may be right. But, here’s the section. “If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified”
So, what’s it mean to “qualify”? We can go back to Article 2, section 1. In the electoral college, assume that the Biden wins a number of votes. Trump’s votes are ineligible, because he is ineligible. Trump’s VP doesn’t actually have any presidential votes. Biden doesn’t have a majority, so it goes to the House who must choose between the top 3 candidates who got presidential votes.
Since Trump is ineligible, and Trump’s VP didn’t actually GET any presidential votes, Biden would win by default.
Except that votes are by state delegation, and Republicans are the majority in the majority of state delegations, and Republicans would figure this was all total bullshit, and have no qualms about declaring him the winner.
We are talking about preventing the re-election of a person that did not uphold his oath. As President, Mr. Trump promised to uphold the constitution. He failed to do this in attempting to stop a peaceful transfer of power as required. He did not uphold his oath the first time, there is no reason to give him a second chance.
If you do not like the current administration, you have the option to support an alternate candidate. Ex-president Trump is hardly the only candidate available to people.
No, we’re talking about preventing the re-election of a person Democrats don’t like, with the claim that he didn’t uphold his oath as just an excuse.
They actually started discussing impeaching Trump before he was elected. Polls showed that a majority of Democrats favored impeaching him even before they could identify a basis for doing it.
So they threw together a couple of phony charges, impeached him twice, and failed to convict twice, and then started groping around for other things they could do. And somebody stumbled across Section 3, and said, “Hey, let’s try this!”
But it was never an honest effort to enforce the Constitution or the laws, it’s all about going after somebody they don’t like, no matter what it takes.
Take a look at that anti-Trump blog, Take Care, “Ensuring the President “shall take Care that the Laws be faithfully executed””.
They shut down as soon as Biden took office. Because it’s not important that Democrats uphold their oath of office. And even while Trump was in office, about half their complaints came down to Trump actually taking care to enforce laws they happened not to like!
So it was just a BS excuse to attack him, all along.
“preventing the re-election of a person Democrats don’t like”
They think they can do it without payback. Just like Reid with the fillibuster change.
Ex-President Trump failed in his oath of office. The Constitution requires a peaceful transfer of power and his tried to stop that transfer. Trump had a right to appeal the election and he did. When the recounts and court cases upheld the election, he had a responsibility to his oath to transition the power of the Presidency.
The fact based inquiry doesn’t even matter yet, Brett.
Blackman is arguing you can’t even make the inquiry.
No, Brett. We are talking about whether Section 3 even applies to the President, regardless of how badly he may have behaved.
You’re impossible to reason with, because everything to you is a conspiracy theory, or some kind of disingenuous nonsense.
Do you ever feel shame?
I’m not a CNN producer, so, sure, I occasionally feel shame.
But it’s kind of strange of you to expect me to feel shame over not agreeing with you about everything.
Let’s try this again:
Whenever news about the GOP, or Trump, or somehow-Republican comes out, if it’s negative, then you find a way to conjure up a conspiracy which attempts to eliminate culpability from whatever the Republican aspect is.
The worst part, is that at the end of the day, whatever ‘evidence’ you produce is usually not just wrong, but predictably so because it was generated by the “reporting” of a basement-dwelling private investigator whose primary sources are either tweets of fellow idiots, or their own butthole.
Case in point: Your claims about voting machines in the 2020 election. I believe it was either Michigan or Wisconsin. Your ‘source’ made claims regarding voting machines which were not even in USE BY THAT STATE.
Case in point: Your repeated claims about Jan. 6th being the work of Antifa infiltrators making Trump people look bad.
Case in point: Democrats just don’t like Trump, so let’s not examine whether he violated his Oath or not, because it’s all disingenuous anyways. Why bother looking at the evidence when you can just claim the entire question is partisan to begin with and therefore not deserving of even a cursory look!?
You don’t need to agree with me all the time, but you do need to stop rejecting reality because you read something, somewhere, from someone, that happened to support what you already believed.
But didn’t we learn with the birther issue with respect to Obama and Cruz that nobody has standing to challenge a person’s eligibility to be president?? So I don’t believe Marco Rubio and Nikki Haley are NBCs but I voted for Rubio and nobody has standing to challenge his eligibility if he were to win the Republican nomination. So this might be something individual voters could enforce…imagine that! 😉
No. We learned that the courts protect the establishment, not America. If they protected America, they’d recognize every citizen having standing.
This was not treason. I don’t think it’s even accurate to call it an insurrection, but insurrection is admittedly a debatable claim. But treason falls far outside the scope of what took place last January
Even if it were accurate to call it “insurrection”, they’ve got diddly squat to implicate Trump, and if you lower the bar far enough to implicate Trump, a whole lot of Democrats have Section 3 problems after the last few years’ riots.
I mean, helping bail out people who’d tried to set fire to a federal courthouse while people were inside it? That’s more directly ‘insurrection’ than anything Trump did.
Yeah, they’ve got tons of audio, video, and print, but they’re not trying to clear him, they’re trying to implicate him.
As I’ve said before, Son of Sam’s confession didn’t convict the dog, you’re not going to convict Trump on the basis of some morons thinking they were doing what he’d want, unless you can prove that he literally told them to do it.
It is not necessary to show Trump’s vicarious liability for the mob that breached the Capitol. It was all part and parcel of Trump’s attempt to corruptly obstruct, influence or impede an official proceeding. Trump told Mike Pence to violate 3 U.S.C. 1915. Everything flowed from that corrupt endeavor.
If past is prologue, Brett, you will counter that the term corruptly in 18 U.S.C. 1512(c) requires something akin to bribery. I have pointed out that that is an incorrect reading — Trump and his cohorts were importuning Pence to perform an unlawful act, based on a demonstrably false factual premise, in order for Trump to obtain a benefit to which he was not entitled (a second term in office). The epitome of acting corruptly.
When I have pointed this out before, you have run away from further discussion like a scalded dog. Face it, Brett. Your hero is a common crook.
Where “all unbiased people” is defined as, “all people who agree with me about this.”
In this contest of credibility, nine of ten disaffected, bigoted, autistic misfits indicated they supported Brett “The Birther” Bellmore.
I’m using treasonous as shorthand; section 3 expressly applies to someone who has “engaged in insurrection or rebellion”, to the extent you think that’s different.
At any rate, my point is not that Trump
Is disqualified from serving as president in the future. My point is that Prof. Blackman’s argument as to why he’s not disqualified doesn’t seem very persuasive.
“Why on earth would Congress and the several state have wanted”
Not the first time bad drafting would have been done.
They could have specifically written President/VP.
Sure, the absence of any rational purpose doesn’t completely foreclose Prof. Blackman’s reading. But I do think it’s a pretty big red flag.
“officer of the United States” is a term of art, its used in the Appointments Clause so it then has the same meaning in the 14th amendment
” They could have specifically written President/VP. ”
You figure that would have derailed Prof. Blackman’s efforts in this context?
More contrarian, result oriented twaddle from Professor Blackman. In what universe is a chief executive not an officer?
You could read and discover the legal arguments which you claim to want knowledge of.
But now we know why Blackman is devoting a 10 part series on the wholly obscure subject of who is an ‘officer’. It is his contribution in service of the coup. Everyone knows your a partisan hack soaked in self-preoccupation, Blackman. But are you a seditionist? I’ll reserve my judgment until I know more.
If the president is not an officer, just who is?
Cabinet officers and other appointed officers.
There is a whole jurisprudence about who is an officer who must be appointed in a certain way. Multiple posts here over the years.
Is the Chief of Police a police officer?
How about the Chief of CONTROL? Is he an Officer of CONTROL? I mean normally, not when he’s temporarily laid off and has to take a moonlighting-job like this one:
https://www.youtube.com/watch?v=knKkZVTL5yM
Volokh: i am so diverse i let any fucking idiot Professor on my blog! I don’t care about my reputation at all!
Josh: oh man I’m so going to milk every ounce of human kindness from you till you fucking hate humanity and want to burn the first amendment
Jaypd: ha ha i’ll show this fifth-rate professor how smart i am
If Trump actually took this so called oath then why did he sell our children to the small hats?
I’ve still got my kid; Which ‘small hats’ did he sell your kids to?
Too clever by half.
A person excluded by Sec. 3 can’t be an animal-control officer (I think the term is “couldn’t be elected dogcatcher”), and can’t be a Presidential elector, but can be President?
If normal canons of construction lead to that result, then at least in this particular instance normal canons of construction should be set aside in favor of sound sense and the public interest.
(For those interested in the Punch-and-Judy show, I’m not even sure Donald Trump is subject to Section 3 in any way, so tying the Constitution in knots just to protect him is silly either way.)
If presidents were officers, that would be written so. Can’t go making shit up now.
Blackman summarizes: “We write that there is some evidence to support our position. And we acknowledge there is some evidence on the other side. But nothing here is “definite” or “plain.””
So we apply the maxim of statutory construction that “interpretatio talis in ambiguis semper fienda est ut evitetur inconveniens et absurdum,” which being translated means “if the law is unclear, adopt the interpretation which *isn’t* retarded.”
Heh. That sort of sums up the counter-argument.
Bobby Jindal (the super-conservative Republican governor and former GOP presidential candidate) famously said about his GOP: “We’ve got to stop being the stupid party.” I don’t think any other of us Republicans could put it better. Sadly, in 2022, the bar has been lowered so much that he’d probably say, today, that, “We’ve got to stop being the retarded party.” (Or maybe some more gentile term, like “brain-dead party”???)
Yeah, while you can make arguments that they might have thought that it didn’t need to apply to Presidents because it applied already to the electors who nominally select Presidents, by the Civil war the role of the electors was already pretty much ministerial, so they wouldn’t have thought that way.
Realistically, at most it would be a drafting error, they had no reason to make an exception for Presidents.
Perhaps they did not want to let a minority of Congress overrule the wishes of a majority of duly elected electors.
After a civil war, there is a very real chance that the breakaway regions would want to elect people who were sympathetic to the rebellion, and so there is reason to prevent them from being elected to represent those specific parts of the country. On the other hand, if the overall populace wants to elect a President who is sympathetic to that rebellion, then could the cause really be so treasonous or revolutionary?
“On the other hand, if the overall populace wants to elect a President who is sympathetic to that rebellion, then could the cause really be so treasonous or revolutionary?”
Today’s Simple Answer to Stupid Questions:
Yes.
You know, this gets at my opinion about this whole “officers” nonsense, all ten chapters or whatever.
If this distinction really existed and is important, why is the language so murky? I mean, were the framers such bad writers that they couldn’t make the whole business quite clear, so we don’t have to wait for Blackman and Tillman to dig out the truth?
The real problem here isn’t whether Section 3 applies to Trump, though. It’s the question of whether or not he actually did anything Section 3 relevant, and what the standard of evidence and due process are.
The Democrat/NeverTrump answers seem to be, “Yes, it’s obvious, and not really any.”
That might be the real problem but as you know, Standing is always addressed first and often courts don’t address the merits because of lack of Standing.
Doesn’t standing relate to the status of the person making the complaint, though? I would think “Section 3 doesn’t apply to Presidents” would be more of a merits thing.
Not the real problem. Just the argument you’d rather have than defend Blackman’s ridiculousness.
I’ve never been fond of the use of standing arguments to avoid reaching the merits. And, yeah, I find the claim that Section 3 doesn’t apply to Presidents kind of dubious.
But, really, I don’t think Blackman’s argument is a standing argument. It’s not about who can bring the complaint, it’s about whether the law in question applies to a potential defendant. That’s merit, not standing, isn’t it?
Correct; it’s not a standing argument it’s a jurisdictional argument.
Wait, that doesn’t sound right.
“Standing” is who can bring a complaint.
“Jurisdiction” is who they can bring it before.
Demonstrating that the law in question doesn’t apply to the defendant is “merit”.
It’s certainly not merits, since there under Blackman’s interpretation there are *no facts* that would allow any action against Trump here.
Merits is the application of the law to a set of facts.
It certainly is merit, because if there are no facts under which the law applies to the defendant, the defendant is innocent of violating it. And that’s a matter of merit.
Standing is one component of subject matter jurisdiction of a federal court. Jurisdiction extends to cases or controversies. No standing, no subject matter jurisdiction.
I think Brett is right on this narrow point. If someone is trying to deny Trump the presidency (whether directly or via ballot access, a la Madison Cawthorn) under this rule, then Trump has standing. But Blackman’s position violates the canon of absurdity.
I think it’s not the best reading, but not absurd, in the sense that, if electors still had a discretionary job to fill, it would make perfect sense that, having averted any insurrectionist electors, you could trust the electors to distinguish between possible Presidents who could and couldn’t be trusted with the office.
It’s just not the best reading, wrong, but not absurd, the argument is perfectly sensible and in some other context would be reasonable.
?
I’m not saying Trump doesn’t have standing – you can have standing to make a jurisdictional argument.
Blackman is inventing a technicality so that Courts don’t get to inquire into Trump at all. That’s an argument based purely on the law, not an argument on the merits.
A claim that the law doesn’t apply to you is a claim that you didn’t violate it. And a claim that you didn’t violate the law is a merits claim.
12(b)(6) is not a merits analysis.
That is what Blackman is arguing – that *no set of facts* could be alleged under Section 3 that would reach Trump.
The Democrat/NeverTrump answers seem to be, “Yes, it’s obvious, and not really any.”
Bellmore answer is, “No. Absolutely not, and if you show me evidence that he did I’m going to close my eyes and ignore it.”
Well, until you actually have some evidence to show me, that claim is kind of unfalsifiable.
Since you will refuse to look there is little point in showing you evidence.
You’re still running around screaming “Reichstag fire.”
Note that nothing in your reply constituted “evidence”.
It scarcely matters. There is more than enough evidence to justify an indictment. If that happens, Trump will come up with some response so outlandish that everyone who ever worked with him will decide to cooperate with prosecutors. Trump will be convicted and locked up for a long time.
Loyal acolytes will elbow forward. “Elect me to vindicate Trump,” they will howl. “Donate now, to free Trump,” their campaign finance managers will plead. “When you vote for me, you will be voting for Trump,” their campaign slogans will insist. And finally, “When I am elected, my first act in office will be to pardon Trump!”
Whether or not any of those guys wins, Trump will not be president.
“There is more than enough evidence to justify an indictment. ”
Only in the sense that Trump is a ham sandwich. But I will agree that if the trial were in DC, given the realities of a DC voting pool, conviction would be quite likely regardless of the degree of evidence.
This is actually starting to be a real problem, comparable to what we saw in the South with juries during Jim Crow.
“This is actually starting to be a real problem, comparable to what we saw in the South with juries during Jim Crow.”
Luckily for you Jimmy and ABC guy will be starting to shoot us so you won’t have to worry about this much longer.
The fact is that there is a growing body of evidence that the ex-President attempted to thwart the will of the voters and for him to stay in power. The ex-President survived two impeachment trials, not for lack of evidence, but for political reasons. Impeachment is a political process. This will not be the case if he is brought to trial on any of the developing evidence. That is because he will be facing twelve citizens who have no political interest in saving his backside.
True.
One could just as easily say the ex-President was subjected to two impeachment trials, not for any amount of evidence, but for political reasons. Impeachment is a political process.
Agreed. You could say that Trump’s impeachment was political and that the failure to remove from office was also political. Pending and possible court cases will be more evidence focused.
The recent revelation that the State Department had concealed Brady material from Trump’s defense during the impeachment is kind of interesting, I think. Of course, they weren’t exactly working for him even before that; You’ll recall that one diplomat bragging about how they’d been lying to the administration about troop levels.
An evidence based proceeding would, I suspect, be even more likely to acquit him, unless the Democrats are really hiding their cards at this point.
Setting aside that there’s no such thing as “Brady material” in impeachment proceedings, what the hell are you talking about?
I was wondering that myself. Must be like all the double voters in GA.
Yeah, yeah, the “We don’t have provide due process in impeachments, so there!” argument.
The Brady material was a letter from the State department to Shokin, thanking him for his good work, and looking forward to future cooperation.
It was shortly after that letter was sent that Biden started working to get Shokin fired.
Your first sentence is just more Dunning-Krugering from you. It’s completely nonsensical in so many ways. Too many to list them all. Let me just pick this one: Congress impeached Trump. This document wasn’t in the possession or control of Congress, so Congress couldn’t have had any duty to turn it over to Trump even if all of your other arguments had merit. It was in the control of Trump!
But of course even if we were using “Brady” as a metaphor rather than an actual thing, this wouldn’t be “Brady material” anyway. It’s not exculpatory in the slightest. It doesn’t help establish that Trump didn’t illegally try to coerce Ukraine into announcing an investigation of his political rival.
Moreover, you’re making up facts when you say that it was “shortly after” that letter that “Biden started working to get Shokin fired.” Making them up in two ways. In reverse order:
2. Biden didn’t work to get Shokin fired. The official position of the U.S., E.U., and IMF was that Shokin needed to be fired. Biden was the messenger, not the decisionmaker.
1. It wasn’t “shortly after.” This letter was sent a couple of months after Shokin took office, and the U.S. was hoping he’d be better than his corrupt predecessor. But several months after this “Brady material” [sic], the U.S. ambassador — not Biden — was publicly attacking Shokin for corruption; Nuland herself (the author of this diplomatic missive) explicitly testified to Congress about Shokin’s corruption; the EU called for Shokin’s firing; and then Biden began doing the same.
I think Brett’s trying to re-raise his theory that if Biden was corrupt and had the prosecutor fired to cover it up THEN Trump is innocent because Biden is guilty and therefore the impeachment could not have proceeded.
This is actually starting to be a real problem, comparable to what we saw in the South with juries during Jim Crow.
WTF??? That’s goddamn ridiculous. You are completely deranged.
The Jim Crow juries in the South were practicing nullification. Not comparable at all.
They were practicing nulification where white defendants were concerned. When the defendants were black? Hardly.
“There is more than enough evidence to justify an indictment.”
Do mean indict him for treason? If so, that statement is far from the truth. Treason is very narrowly defined, and it is clear to even the casual observer, though perhaps not the zealous opposing partisan, that there is nowhere near enough evidence, it any at all.
Note he was already tried for incitement of an insurrection, and acquitted. And, note also, no one has been indicted for insurrection, despite all of the howling that the events of January 6th amounted to an (armed) insurrection, which they did not.
You’re a bit behind the times, they finally got embarrassed about that, and charged a few of the Oath Keepers with insurrection. Well, technically “seditious conspiracy”, but it amounts to about the same thing.
I’d say obtaining a conviction would be difficult, given the evidence, (Such as leaving all their guns behind outside of DC to avoid violating the local gun laws.) but again, DC jury, they likely hardly need any evidence at all.
Except they are not the same:
“Sedition is conduct or speech that incites individuals to violently rebel against the authority of the government. Insurrection includes the actual acts of violence and rebellion. ”
I still stand by my statement: no one has been charged with insurrection.
Sure, but I’d argue that seditious conspiracy works for a Section 3 application, it does say, “insurrection or rebellion”, you could make a case for the conspiracy being rebellion.
“you could make a case for the conspiracy being rebellion.”
Perhaps rhetorically you can, but that doesn’t have legal force. You would have to actually charge him with the violation of some statute, no? What’s the specific charge? Was what happened on 1/6 a rebellion? No. I think that would be laughable. Have you seen the video of the Capital police holding the doors open and ushering-in the rally participants? It is closer to a Capital tour than a rebellion, by a long shot.
s/capital/capitol
I think the whole thing is laughable, January 6th was no more an insurrection than the two years of riots preceding it. There’s a massive double standard going on here, by any single standard either Trump has nothing to worry about, or a substantial fraction of the Democratic caucus would be in the dock.
But it’s not clear to me that the “insurrection or rebellion” of Section 3 has to meet the legal requirements for a criminal charge. I think it SHOULD have to, but lots of legal things fall short of THAT standard.
The real issue here is that they’re trying to set the bar for applying Section 3 extremely low, and then counting on selective enforcement to protect themselves.
Which is reinforced by the alleged insurrectionists being charged with glorified trespassing. Wouldn’t they be charged with insurrection, sedition treason or whatever.
Like “seditious conspiracy?”
You should probably make sure that you’re up to date on the facts before commenting ever again.
For all the talk about insurrection and treason, where are the legal charges? It has been over a year. I guess what I would say is that a year is plenty of time to figure out if there was an insurrection and whether treason charges are warranted (or not). So…to those who are so confident about this, bring the legal case to court. Name the statutes that were violated and make the legal case. Enough with the bleating….bring it, and let’s get this over with.
You’re right ThePublius, the Congress had the political trial (2nd impeachment). The evidence was not sufficient to remove POTUS Trump from office. I mean, that is the reality. That actually happened. People can kvetch about the people, the process, whatever: The political trial was had, and it is done and over with.
Our Republic is ill-served by dragging this process out. That I know. It is pretty obvious the political battle lines have been hardened to the point where compromise is no longer possible.
As for all the negative comments about Professor Blackman…I thought VC was the place for law professors to publish different legal arguments and legal theories. You know, push the boundaries kind of thing. Don’t we actually want that? Is his legal Section 3 argument sound? I don’t know. But I don’t begrudge Professor Blackman (or demean him) from testing out his arguments in the public square. Or anyone else, for that matter.
How many VC Conspirators can say they publish papers at SSRN? Particularly, I ask that question of those who are the nastiest (you know who you are) toward him: Name your papers so that we might read them and subject your work to critical examination; link them. I would like to read your work; I bet others would, too.
Excellent post, thank you. Regarding Blackman, and his detractors here: I posit that those who rail against him are representative exclusively of the progressive, liberal movement, and this is their version of cancel culture. Conservatives don’t try to cancel opposing voices, they hear them and argue with them. Liberals try to silence the opposition.
I take it you’re new here.
Railing against != cancel.
Funny it’s mostly the right who confuses criticism for censorship.
” Conservatives don’t try to cancel opposing voices, they hear them and argue with them. Liberals try to silence the opposition. ”
Artie Ray Lee Wayne Jim-Bob Kirkland probably would find your observations interesting, but we will never know because conservative law professor Eugene Volokh censored Artie Ray with prejudice (which means you picked an inconvenient venue at which to advance your silly claims).
Carry on, clingers. So far as your bigotry and backwardness could carry anyone in modern, improving, liberal-libertarian America, I suppose.
Your position is wrong.
So is your argument about “Conservatives don’t try to cancel opposing voices.”
Maybe you’ve missed the book-banning bandwagon of late? All “conservatives.”
Maybe you missed this nugget of a new law introduced in Oklahoma (OK SB1470):
“No public school of this state, as defined pursuant to
Section 1-106 of Title 70 of the Oklahoma Statutes, shall employ or contract with a person that promotes positions in the classroom or at any function of the public school that is in opposition to
closely held religious beliefs of students.”
Maybe you’re just a partisan jackass.
That’s not “book banning”! Book banning is when you tell somebody ELSE they can’t have a book, not when you decide YOU aren’t going to have a book.
That was public schools. Government employees. And they weren’t telling the employees they couldn’t have a book at home, even. They were telling them what they couldn’t do on the job.
You’re the guy who thinks Twitter not platforming someone is censorship.
But politicians telling a teacher they can’t teach with this book is totally fine? A great use of state power?
Banning books from the school library isn’t banning books?
Before we continue, can you please tell me what language we’re going to use?
I noticed that you didn’t have any comment on SB 1470, but “banning” isn’t “banning?”
Ok…
Insulting Blackman for being stupid in comments he doesn’t seem to read isn’t canceling or silencing him.
Treason is over the top. I have no suggestion that any prosecutorial authority is investigating treason.
Attempt to obstruct, influence or impede an official proceeding is a different matter. Trump’s conduct vis-a-vis the vice-president is indefensible. I suspect that the DOJ is still looking into more definite links between the White House and those who breached the Capitol. In my view, that is unnecessary and possibly unproductive.
I am impatient for charges to be brought against Trump, Giuliani, Eastman and others, but I will leave that to the professional judgment of those in the arena who will bear the burden of proof.
Treason is virtually never prosecuted, even in cases where it ought to be. Look at Bowe Bergdahl: Deserted in time of war and joined the Taliban. Obvious treason. They charged him with desertion and misbehavior.
Because the constitutional threshold for conviction is so high obtaining one is almost impossible: Two eye witnesses to the same act? Very rare that you’ll be able to produce that, even though actual treason isn’t THAT uncommon.
That they wouldn’t have him doesn’t change what happened, David.
Right. And that you make shit up doesn’t change what happened. He deserted. There is zero evidence that he “joined the Taliban” — something you yourself apparently now concede — or that he tried to.
Prepare to be disappointed. Trump is not getting indicted over the 1/6 protest.
I wouldn’t bet on that. Ham sandwich, and even a doomed indictment could be useful politically if he does run in 2024.
It sucks up oxygen from Biden.
A year is not a terribly long time when you’re talking about such a large number of potential defendants, in somewhat uncharted waters, during a pandemic, in addition to the caseload of stuff unrelated to 1/6. I was on a grand jury in the Eastern District of Virginia. We routinely heard cases that were a few years old that were far less complex than this.
It has been over a year. I guess what I would say is that a year is plenty of time to figure out if there was an insurrection and whether treason charges are warranted (or not). So…to those who are so confident about this, bring the legal case to court.
That above is almost exactly the message Laurence Tribe offered Merrick Garland (Tribe’s former student) two nights ago on MSNBC. Tribe went on to say that Trump had confessed at least one federal crime in public a day or two before, and had committed another. Tribe said Trump’s reiteration that Pence had power to overturn the vote count, and Trump’s renewed criticism of Pence for not doing it, amounted to confession of Trump’s participation in insurrection. Tribe said Trump’s offer that if he were reelected to pardon people convicted of insurrection at the Capitol was another crime.
Not being a lawyer, I did not follow that second point completely. I may have missed hearing some of it. I presume Tribe is legally competent to comment. He is 80 years old but seems in complete possession of his faculties.
I saw the claims of treason in the comments and was wondering what idiot started it. Not surprised.
“When the President does it, it’s not illegal.”
The whole argument ignores one vital fact. The Jan. 6th riot did not remotely resemble an insurrection in any way, shape or form. Even if Trump is an officer of the United States, he did not participate or even attempt to participate in an insurrection.
Agreed.
I never thought I’d live in a country holding political prisoners. I thought that was the province of banana republics and totalitarian states. But those people being held in prison over January 6th are just that. The treatment of them is far out of proportion to the treatment of rioters, vandal, and arsonists on the BLM, Antifa, liberal, progressive, Democrat side of the issues. People are literally committing murder, arson, and rape in blue cities and being treated far more leniently than January 6th protesters charge with trespassing!!! We should not stand for this.
Those being held in jail, (not prison) pending trial are a small fraction of the several hundred who are charged in the breach of the Capitol. They are being held because a judge or magistrate has found a risk of flight or a danger to the public if released. Calling them political prisoners is unwarranted hyperbole.
Those who hold political prisoners usually use legal proceedings too.
It’s not hyperbole, nor is it unwarranted. There is no legal definition of political prisoner, it’s an assessment that comes from evaluating the supposed crime in terms of the punishment – which can be simply, detention, and compared to conventional punishment for equivalent acts of the favored party.
There were and apparently still are people held in jail without bond for alleged offenses far less serious than those committed by some BLM and Antifa members who were summarily released, without bail, bond, or even charges. That’s the kind of favoritism that leads one to conclude that the January 6th prisoners are political prisoners. Unauthorized entry vs. arson, for just one example.
Even for the ones who have pled out and been released, they were typically pleading to offenses so minor that the max penalty was less than the time they’d already spent in jail, so they got released on a time served basis. They pled out to avoid spending even more time behind bars, because it’s not like they’d get that time back afterwards.
It was a cheap way to rack up a fake conviction rate.
No, I think it should happen to nobody. I actually am pretty down on coercing guilty pleas.
And here’s a list of all your posts over the years decrying the ordinary practice of pretrial detention: .
An example of me decrying coercing guilty pleas.
Pre-trial detention can make sense in the case of violent and property crimes, because repeat offenders tend to repeat offend.
But I’ve asserted that the justice system should be set up so that the acquitted are made whole for any such impositions.
Pretrial detention is not punishment. Federal courts and state court systems which are dealing with the BLM protests are not comparable. And I don’t know of anyone charged merely with unauthorized entry who is being denied bail. You are engaging in motivated reasoning.
The courts pretend that pretrial detention isn’t punishment. That’s not the same thing as it not being punishment, or else there’d be no such thing as “time served”.
This is special pleading.
It’s absurd to say that holding you in jail after a conviction is “punishment”, but holding you in jail prior to it is something completely different.
You’re right.
But you only care right now, and only about these people.
That is special pleading.
Incompetent, lazy, disorganized insurrectionists are still insurrectionists.
Democrats – a noun, a verb, and January 6th.
Republicans — bigotry, superstition, and backwardness, with sides of gun nuttery and statist womb management.
This is why a half-century of progress establishes that you can’t win in modern America, clingers.
Let’s see. Looking at the past 30-50 years…
The past 10 Presidential elections resulted in 5 Republican and 5 Democratic victories. Biden’s 51.3% of the popular vote – hardly overwhelming – is the second-highest percentage of the popular vote either party has managed in the last eight Presidential elections; 4 of the 8 had *nobody* in the majority. In the last 40 years, Republicans have been in the majority in the House for 20 and Democrats for 20. In the last 40 years, I believe Republicans have controlled the Senate for 20 of those years and Democrats for 20, or near enough (I won’t get into fractional years.) Neither side has had 60% of either body for almost 30 years.
Looking at the last half century or so reveals that both sides can, and do, win.
Are the Democrats REALLY sure that they want to go there? Providing for the security of the Country is one of the primary duties of the Federal Government. Biden’s opening of the border and failure to follow the current laws on immigration is a bigger violation of the Oath of Office than anything Trump did.
Agreed. The failure to secure the southern border, compounded by the facilitation of distribution of illegal immigrants throughout the United States, using federal resources, is a clear violation of Article 2.
“The president must “take care that the laws be faithfully executed.” This clause in the Constitution imposes a duty on the president to enforce the laws of the United States and is called the Take Care Clause, also known as the Faithful Execution Clause or Faithfully Executed Clause.”
A clause which has never been taken seriously in my lifetime.
Disagreeing with Brett is not the same as nor faithfully executing.
Likewise, agreeing with Sarcastro is not the same thing as faithfully executing.
When you leave a law systematically unenforced, that’s pretty much exactly what the clause was trying to forbid. And there’s a LOT of that going around.
Right, but luckily I have institutions on my side.
You give credit only to your own opinion, but don’t pretend it’s symetrical – I don’t just care about Sarcastr0’s take.
It’s important what the institutions we chose to arbitrate these things say above and beyond my humble opinion.
I see that the border is the latest Republican ‘squirrel!’ It ain’t gonna work this time
what is “this time”?
The coup that is unravelling
The cool kids use “autogolpe”, just as dumb as thinking there was a “coup”.
Jefferson Davis in addition to being a Senator twice he was also a Representative, Secretary of War, an Army Officer and graduated from West Point. All of those involved taking an oath.
Let me see what outcome could aid and abet the “get Trump” folks in “the party” that is the Democratic party.
That will be the ruling
So I guess the esteemed Prof. Blackman is just going to skip over Article 2 ?
“The executive Power shall be vested in a President of the United States of America. He shall HOLD HIS OFFICE during the Term of four Years….”
“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the OFFICE of President; neither shall any Person be eligible to that OFFICE who shall not have attained to the Age of thirty-five Years….”
“Before he enter on the Execution of his OFFICE, he shall take the following Oath or Affirmation:–‘I do solemnly swear (or affirm) that I will faithfully execute the OFFICE OF PRESIDENT of the United States….”
We could go on with examples from Article 2. But no need.
The 14th Amendment itself makes clear “officer” relates to an earlier clause in that very same amendment: “No person shall…HOLD ANY OFFICE, civil or military, under the United States….”
So Blackman’s sophistry relies on bending over backward to read “hold any office” and “taken an oath…as an officer” to indicate different people despite appearing in the same sentence. That is because the 14th Amendment lines up well with the language of Article 2, wherein a President shall HOLD HIS OFFICE only upon swearing an oath to execute that OFFICE faithfully.
Bingo. Well said.
So anyone who holds an OFFICE is an OFFICEr?
Cute! Who knew this legal stuff was so easy?
It’s amazing what even you could learn from just reading the dictionary, Brian.
14th Amendment:
“Section 3. 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.”
Rereading the article on the 14th in Levy’s Encyclopedia of the American Constitution, I find:
“Section 3 deprived all persons who had voluntarily supported the Confederate cause of the right to vote in federal elections prior to 1870 …. The Senate also weakened section 3; instead of disfranchising those who had supported the Confederacy, it merely barred from federal office those Confederate supporters who prior to the Civil War had taken an oath to support the Constitution.”
Sounds to me like the “use by date” of 14th Amendment Section 3 expired a long time ago.
Congress can remove the disability. But one Congress cannot bind future Congresses.