Conversation with Akhil Amar about Section Three of the Fourteenth Amendment

A few weeks ago I linked to a new draft article with Michael Stokes Paulsen, The Sweep and Force of Section Three, forthcoming in the Pennsylvania Law Review. The article argues that Section Three of the Fourteenth Amendment has continuing, self-executing, legal force and a relatively broad substantive sweep, and that among other things it disqualifies Donald Trump from future office because of his participation in the attempted overthrow of the 2020 presidential election. Since then Prof. Paulsen and I have generally been declining media interviews and the like, preferring to let the article speak for itself.

But we recently made an exception for a long conversation with my former professor, and Paulsen's former law-school roommate, Akhil Amar. In two episodes totaling about three hours we talk about many aspects of the argument about Section Three, including various issues of federal jurisdiction, congressional power over the electoral count, our reactions to the recent blog post here by our friend Professor Michael McConnell, and more. The two episodes are linked below.

The Two Experts on Section Three - Special Guests William Baude and Michael Stokes Paulsen

In a special episode, the two distinguished authors of a recent major article, which dives deep into Section 3 of the Fourteenth Amendment and finds that Donald Trump is disqualified from the Presidency, join us for a thoughtful and rigorous examination of the tough questions about their conclusions. These are leading conservative scholars who have gone where their methodologies, and the law, has taken them. Reaction has been swift and impassioned around the country, and in this episode they respond for the first time to some of the critiques, explore the implications of their work, and in doing so, they bring an integrity to our civic conversation. This is an important discussion of important issues, by real experts.

The Two Experts, Part Two - Special Guests William Baude and Michael Stoke Paulsen

We continue our exclusive discussion with the Professors Baude and Paulsen, authors of the bombshell article declaring Trump ineligible for the Presidency. This time we explore some concerns that have been voiced in the media and elsewhere; we look at how this provision might make itself effective in practice. We trace the possible routes such an effort might take; where would it be initiated - and importantly, who would be the final authority? Along the way we enter the Fed Courts classroom and look at - what else - the Constitution's voice on these matters, in the 14th amendment, and elsewhere.

Comments

[Mr. Bumble]

"... the attempted overthrow of the 2020 presidential election...."
That's quite a unique construction in light of the many times election results have been questioned.

[Magister]

The first robbery at a new bank branch is quite a unique construction in light of how many times money has been withdrawn from that branch.

[Reallynotbob]

This comment is gold.

[JonBlack]

Fool's Gold.

Perfect for you.

[gVOR08]

What Reallynotbob said. A thing of beauty. Volokh really needs a Like button.

[Alpheus W Drinkwater]

lt almost makes me want to unmute Bumble to see the original comment. Almost.

[ReaderY]

Nailed it.

[Orbital Mechanic]

Over 60 court tests and not one of them presented any credible evidence of election theft whatsoever. No need to even go to trial.

Of course there are "questions." Never any evidence. Like Giuliani promised but never delivered. Like the Kraken idiot promised but never delivered. If there was any evidence then Fox News couldn't find it and as a result had to pay out over $700M.

So we are left to believe that "millions of votes" were stolen and it was all successfully covered up.

But Trump supporters want to believe it is true. So for them it is.

[Brett Bellmore]

"any credible evidence of election theft"

The problem was not election "theft", in the sense of fraud or destruction of ballots. The problem was extra-legal, which is to say criminal, failure to follow existing election laws.

It's not election "theft" when a local election office says, hypothetically, "Screw the official poll closing time. We're allowing people who show up late to vote anyway."

But it IS illegal, and DOES alter outcomes.

[Rev. Arthur L. Kirkland]

It’s not election “theft” when a local election office says, hypothetically, “Screw the official poll closing time. We’re allowing people who show up late to vote anyway.”

But it IS illegal, and DOES alter outcomes.

Extended voting hours are not illegal. Extended voting hours are not uncommon. Extended voting hours, in certain circumstances, are indicated, sensible, and embraced by all reasonable observers.

This has been true for decades.

[ducksalad]

Extended voting hours are not illegal.

Except in Massachusetts:
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleVIII/Chapter54/Section64

[Brett Bellmore]

Virtually all states have official voting hours set by law.

State Poll Opening and Closing Times (2022)

In most states, if you're already in line when the polls close, you can still vote, but nobody showing up AFTER that time is allowed into the line.

So, does the law set a criminal penalty for local elections officials who decide that they're going to let people vote after the legal closing time? Not generally. Doesn't mean it's legal for them to do so.

[ducksalad]

Of course. I was just pulling the Rev’s chain.

On those criminal penalties, a lot of states have some catch-all crime like malfeasance or abuse of office. But I’d hesitate to apply to them too readily on political disputes, where there tend to be a lot of false accusations.

[Krychek_2]

I have not read any of the statutes relating to polling hours. Do they say that those are the hours polls must open and close, or do they say those are the minimum hours they must be open, leaving it to election officials to extend them if circumstances warrant?

[Brett Bellmore]

At least in Michigan, when I still lived there, that was the time they MUST close, short of a court order extending hours for extraordinary reasons.

Which 'extraordinary reasons' reoccurred like clockwork every election in certain Democratic precincts, mind you, but that was still what the law said.

[David Nieporent]

I have not read any of the statutes relating to polling hours. Do they say that those are the hours polls must open and close, or do they say those are the minimum hours they must be open, leaving it to election officials to extend them if circumstances warrant?

Brett is leading you on a wild goose chase here. What he means is not some random precinct worker keeping the doors of his polling place open longer than allowed. What he actually means is that the governor or secretary of state or other election official tasked by law with making decisions about the manner of running elections, or perhaps a judge, decided that a specific rule would be applied differently in 2020 because of the circumstances of that year.

[Brett Bellmore]

Where 'applied differently' = 'outright violated'. The legislature enacted election laws, then somebody NOT empowered to enact laws decided, "Nah, we'll do something different from what the law actually says we have to do."

This is typically known as "violating the law."

[Sarcastr0]

They court, who is in charge of figuring out who has authorities, says otherwise.

You being really sure they are wrong does not make them violating the law. Plenty of cases I think have laughable reasoning, but I have the humility to just call them wrong.

Institutions doing their institutional work are how we do. Rando Internet people yelling about how everyone but them is in bad faith is not.

[David Nieporent]

No, this is typically known as Brett-doesn't-know-what-the-bleep-he's-talking-about. That's not how law works. Legislatures write laws, not policy manuals. Courts decide what laws mean. Elections officials administer elections.

[Brett Bellmore]

There is a categorical difference between,

1. The road leading to the polling place is blocked for an hour by a traffic accident, so a judge allows that one polling place to be open an extra hour.

and,

2. A pandemic has been going on for over a year, the legislature meets, contemplates election law changes, decides, "Nah, we're good.", and the court decides, "Nah, we're not good, the executive can make those changes the legislature considered and rejected."

1` is within the normal reach of a court. 2 is a clear abuse.

[Sarcastr0]

Judicial review is still a thing even if it disagrees with what you strongly believe.

[Brett Bellmore]

You're never going to get me to sign onto this "The judiciary is always right" point of view. Judges are as human and corruptible as anybody.

[David Nieporent]

You’re never going to get me to sign onto this “The judiciary is always right” point of view. Judges are as human and corruptible as anybody.

Area Man Passionate Defender Of What He Imagines Constitution To Be.

It is emphatically the province and duty of the judicial department [not Brett Bellmore] to say what the law is.

[Sarcastr0]

"You being really sure they are wrong does not make them violating the law. Plenty of cases I think have laughable reasoning, but I have the humility to just call them wrong."

[Rev. Arthur L. Kirkland]

Customarily, at least in my experience, a court order extends the voting period in response to a motion (generally from a political party's lawyer or two, or perhaps a solicitor who received information from a judge of elections).

Until relatively recently, this was not nearly a controversial issue.

I doubt you would know what was legal if it landed on your nose with a brass band.

[Alpheus W Drinkwater]

State laws vary very widely over who has the authority to extend voting hours, and under what circumstances. The three states where I have served as an election judge all had very different rules. One year a judge in Maryland extended voting for three hours because of an ice storm that day. In my precinct, those three hours produced exactly one extra voter.

[theobromophile]

I have been an Election Day attorney in three different states, and in every one of them, people needed to be in line at the close of polls in order to vote. It is common to mark the end of the line (if there is one) and station an Election Day worker there to ensure that no one gets in line after poll closing.

One state has a wild rule that it counts as being in line if you are in line to park at the polling place. One particularly snowy primary with a lot of havoc on the roads, several polling locations had lines of cars waiting to get into the lot at prescribed closing time. Police cruisers pulled in at the end of the line of cars; everyone in front of the cruisers were allowed to vote, and everyone behind was turned away.

[Alpheus W Drinkwater]

That was the rule everywhere I have worked as well. However, there are usually situations under which voting hours can be extended, either by a state election official or a judge. I think that is what Brett is talking about.

[David Nieporent]

He's not. He makes you think he's talking about that in this thread (and he's of course wrong about that; it is not "illegal"), but his complaint is much broader. He's talking about things like changing the rules on early voting, or having dropboxes, or whatever. Every single state, blue and red, did that in 2020, because — despite his autistic ideas of how laws work — executive branch officials are empowered to make rules for special circumstances.

[Alpheus W Drinkwater]

He's commenting in very general terms, which makes him hard to nail down.

[bernard11]

Nothing "wild" about it.

I mean, what's the damn problem, other than too many people voting to suit Brett?

[Brett Bellmore]

An awful lot of really stupid theories of election fraud were floated back in 2020, but this was the real case for Trump being robbed: That in 3 states, election laws were widely violated, in a manner that benefited his opponent.

It was a theory the courts ran screaming from, because even if true, the ballots were all commingled by that time, so there was no possible remedy.

[ducksalad]

It was a theory the courts ran screaming from, because even if true, the ballots were all commingled by that time, so there was no possible remedy.

Yup. There are many types of election irregularities that can be perhaps be deterred, but not reversed.

And it almost always goes back to the idea of a secret ballot. In return for protection of individual voters from retaliation, we make it much harder to detect problems and impossible to correct them.

I wonder if anyplace has tried coupling non-secret ballots with robust protections against retaliation.

[Reallynotbob]

Robust protections like...?

[ducksalad]

For example, something along the lines of expanding current anti-discrimination law to cover political views.

There are plenty of valid objections to such a move, ranging from violation of freedom of association on one side to impracticality of efficient enforcement on the other. Just wondering whether it would be worth it.

It's not unthinkable. Old-style town hall votes with a show of hands. Minor officials on school boards, zoning boards, etc who still have to hold down regular jobs and face a boss who might not like their vote.

[Brett Bellmore]

You don't need to get rid of the secret ballot. You need to double down on election transparency, so that every aspect of what the elections official do is tracked, and make it clear that no deviation from the rules on the books will be tolerated.

We've developed a culture of casual, ad hoc election administration in this country, of the sort most democracies would never tolerate. But it doesn't have to be that way.

[ducksalad]

Well, we’ve got a federal system, and within states, a tradition of cities with individual charters and varying structures. So there’s going to be local election administration and variations in procedure.

I do wonder why Congress never used Article I Section 4 to make congressional elections strictly uniform nationwide. They could even require that congressional elections be completely separate from any local elections. (One of those explicit and enumerated powers Congress leaves unused, while grabbing others that are obviously illegitimate.)

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Here's one system I thought of.

You keep your ballot stub, which has a ballot ID.

All ballots are published, showing all votes and the ballot ID. This makes changing or discarding ballots very risky, since every voter can check their own ballot without anyone knowing who any ballot belongs to.

Have as many observers as want to be there logging every ballot stub leaving the polling station, with the time. The observers also observe each other. This makes inserting extra ballots risky.

No absentee voting, mail-in voting. If you think your vote is so worthless that it's not worth getting to a polling station and waiting in line, when every employers gives time off, then your vote is too worthless for anyone else to care either.

[Brett Bellmore]

This clearly enables the exact banes the secret ballot was created to prevent: Once you can confirm to somebody else how you voted, your vote can be sold or extorted.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Frankly, so what? With cell phone cameras nowadays, you can do the same.

It's my damned vote. If I want to sell it, that's my business. If someone with power over me, like my boss, wants to extort me, that sounds like an excellent opportunity for a sting operation, put him behind bars.

[Alpheus W Drinkwater]

That's basically how provisional voting works. If the poll workers can't find your name in the list of registered voters, or if you are not voting in your home precinct, or for a few other reasons, you vote provisionally. You fill out a ballot, and are given a stub with an identifying number. The county board of elections determines whether or not to count your vote, and you can check their determination after the election on the BOE website using your stub number.

[David Nieporent]

We’ve developed a culture of casual, ad hoc election administration in this country, of the sort most democracies would never tolerate. But it doesn’t have to be that way.

Brett is not only an expert on American election law and procedures, but those of most other countries as well!

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

You must be making the same claim you are accusing Brett of making, or you are a liar.

[Sarcastr0]

No you can call someone out for acting like an expert when they are no, and not be an expert yourself.

Brett’s ipse dixit is just that. I’m sure you can find stuff agreeing with thst, it he doesn’t bother, relying on his own authority.

[theobromophile]

FWIW, I have heard political science academics make this same statement: our election procedures are sloppy and a result of more freewheeling times. They used to believe that if you weren't cheating, you weren't trying.

[Rev. Arthur L. Kirkland]

this was the real case for Trump being robbed

The level of legal insight (and grasp of the reality-based world) exhibiting by the conservative fans of this conservative blog reflects poorly and accurately on the right-wing law professors who operate it (and on conservative legal academia in general).

[Magister]

Are you asserting that there were in-person votes accepted in 2020 that were cast by people who arrived after the polls were supposed to be closed? In 2020, in-person voting generally favored Trump; that's why we had the red mirage where more in-person votes were counted before votes by mail.

There was a lot of litigation about mail-in ballots. I don't recall Trump's lawyers contesting anything about in-person voting hours. If they did, they lost them, as they lost almost all other cases.

[Brett Bellmore]

No, I asserted that there were extra-legal changes to election administration that were disadvantageous to Trump compared to having election laws strictly obeyed.

Holding the polls open was ("hypothetically") just a clarifying example of the fact that you could influence an election by violating election laws without technically committing fraud.

[Magister]

But no court cases upholding that claim.

[Alpheus W Drinkwater]

Brett, you have been commenting here in very general terms. Do you have specific circumstances to cite?

[Brett Bellmore]

For instance, in Pennsylvania, Act 77, the state revision to election laws in light of Covid, permitted voters to cast votes by mail, with the proviso that only ballots arriving by election day could be counted. Act 77, as a result of legislative balancing, had an explicit anti-severance clause stating that, in the event that any part of the law were not upheld, the entire law was void and state election laws would revert to what they were before it was enacted.

The legislature didn’t overlook the issue of the deadline, they explicitly stated that they’d considered extending it, and had rejected doing so.

The state supreme court decided to permit counting of ballots arriving up to three days after election day anyway, and refused to apply the anti-severance clause.

It was represented to the Court that the state would segregate ballots arriving after the statutory deadline, so that post-election c challenges would be feasible. “Although the Pennsylvania Supreme Court rejected Petitioner’s request for that relief, we have been informed by the Pennsylvania Attorney General that the Secretary of the Commonwealth issued guidance today directing county boards of elections to segregate ballots received between 8:00 p.m. on November 3, 2020, and 5:00 p.m. on November 6, 2020. ”

Right afterwards, the AG modified the guidance that had reassured the Court, leading to the Court ordering that segregation itself. But not until it was too late to catch them all.

[Nige]

'The problem was'

You are the only person claiming this was a problem. None of the fraudsters trying to steal the election used this spiel.

[David Nieporent]

Sigh. Please stop.

1) Everyone is talking about election theft in the sense of fraud or destruction of ballots. That you want to pretend that there's some other issue people care about doesn't make it so.
2) "Extra legal" is not, in fact, the same thing as "criminal."
3) Once again: Brett Bellmore's opinion about what election laws require is irrelevant.

[ReaderY]

Every court to have looked at the issue has said that the minor election irregularities the Trump team ended up coming up with, including things like broadening absentee voting eligibilty because of COVID, were within the realm of legitimate election decisions.

Characterizing government officials decisions to err slightly on the side of letting more legitimate voters vote because letting them vote hurts your side as “criminal”? Bullshit. You’re just abusing the word “criminal” to cover anything anyone does that you don’t find to your advantage.

[ducksalad]

Haven't read 60 court decisions. But I think one can distinguish between:

- Ruling that an irregularity is in fact not an irregularity and the officials have a legitimate and absolute right to do it, vs
- Ruling that an irregularity is not enough to justify the extreme step of invalidating the election results.

As Bellmore mentioned, Trump's requests were non-starters because he was trying to get the result changed.

[Josh R]

Trump's requests weren't about irregularities about whether states violated their laws. They were about Venezuelans changing votes, dead people voting and Biden votes being fed multiple times into counting machines. That kind of bullshit makes Trump unfit for office, and perhaps ineligible under Section 3.

[Brett Bellmore]

"Trump’s requests were non-starters because he was trying to get the result changed."

Exactly. The courts will, on rare occasions, overturn a local election on proof that enough corners were cut that you can't actually tell who genuinely would have won a properly conducted election. Then a new election gets called.

For Presidential elections, there's no provision for calling a new election, hence no remedy available even if you CAN prove the magnitude of the problems was large enough to have changed the outcome.

So the courts were never going to rule for Trump after the fact. And for the most part they rejected pre-election challenges as premature, a Catch-22 that left election laws effectively just non-binding suggestions.

This really needs to be fixed, once we're past Trump, and people can reason about it without thinking about him.

[Sarcastr0]

That remedy not being on the table is not really that big of an issue; it was not why courts ruled in ways that you don't like.

Our institutions did really well, actually, mostly preventing people from having to choose between voting and putting themselves at risk. And didn't deny anyone their day in court, even when pretty silly. The system functioned as intended, just not as you would have liked.
Your invented a formalism of how the system must be is factually incorrect, and increasingly obviously outcome oriented.

[jimc5499]

Keep spouting the Liberal rhetoric. Your "over 60 court tests" are bullshit. Every one of those never made it to Court because the Courts hid behind saying that the people bringing the claims lacked "standing" to come before the Court.

[NOVA Lawyer]

You have no idea what you are talking about. Here's an example of one thrown out for lacking any legal merit, not for lack of standing:

https://www.businessinsider.com/federal-judge-brann-rejects-trump-campaign-lawsuit-pennsylvania-2020-11

[SRG2]

Further, in some cases the courts even as they dismissed for lack of standing nonetheless commented on the merits (adversely).

Either Jimc5499 is ignorant or he's lying.

[Krayt]

I recall one, maybe two cases, where the judge said, “Ok, I’ll bite. Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you god and a jail sentence?”

“We do.”

“Ok, what happened, false fraud fake whatever vote-wise? Remember your oath. I recall tons blabbered in the media.”

“Mmmm…not much.”

[bernard11]

Inclusive "or."

[Magister]

Cases were decided on the merits. For example, Trump v. Wisconsin Elections Commission was decided on the merits in the District Court (by a Trump-appointed judge) and upheld on the merits by the Seventh Circuit (three Republican appointed judges).

Many of the cases failed because no evidence was provided; Trump lawyers claimed there was fraud in press conferences but could provide no evidence in court.

[Rev. Arthur L. Kirkland]

Every one of those never made it to Court because the Courts hid behind saying that the people bringing the claims lacked “standing” to come before the Court.

That is the thinking of a belligerently ignorant, worthless piece of culture war roadkill . . . and the target audience of this white, male, disaffected blog.

[Purple Martin]

"Every one of those [over 60 court tests] never made it to Court because the Courts hid behind saying that the people bringing the claims lacked “standing” to come before the Court."

A remarkably silly and ignorant (in the meaning of lacks knowledge) statement. Fewer than 40 of the 63 lawsuits were dismissed over threshold issues such as laches, lack of standing, no justiciable claim stated, ornon-admissible evidence (often bundles of sworn affidavits describing things that were either legal, or impossible).

Of the rest, Trump won only one case, which was not "outcome-determinative" (to quote Jack Smith) and was later reversed by the Pennsylvania Supreme Court. (All this information is available from lots of places—just search on "Post-election lawsuits related to the 2020 U.S. presidential election").

jimc, one reason Team Trump lost every case, is that is every time they had the opportunity to introduce evidence, they would not repeat—in court under oath—the falsehoods they told you on Fox, Newsmax, and OANN. One of the better examples of this was a Wisconsin decision by a conservative Federal District Court Judge, Trump appointee, Brett H. Ludwig

Trump v. The Wisconsin Elections Commission et al, No. 2:2020cv01785 - Document 134 (E.D. Wis. 2020)

Judge Ludwig rejected the defense argument of lack of standing, and said he'd run the trial based of the merits of each side's argument—including any evidence Team Trump wished to introduce. Andrew McCarthy, Former DoJ US Attorney, strong conservative, in most cases a strong Trump supporter (provided some of the most credible defenses of Trump and attacks on the Mueller investigation) wrote about it in The National Review.

Here are that article's core paragraphs (search on the title for the original):

A Stunning Passage from the Latest Court Rejection of Team Trump
National Review, ANDREW C. MCCARTHY, December 13, 2020
...
Publicly, the Trump campaign has been claiming there was extensive vote fraud and law-breaking. Specifically with respect to Wisconsin, President Trump tweeted on November 28: “The Wisconsin recount is not about finding mistakes in the count, it is about finding people who have voted illegally . . . We have found many illegal votes. Stay tuned!” The campaign further maintained that the recount it demanded would “show somewhere around 100,000 illegal ballots in the two counties that Biden carried” (i.e., Milwaukee and Dane).

This is in addition to the innumerable times the president and his surrogates have asserted that they were being systematically prevented from proving massive fraud and illegality. The courts and state officials, we’ve been told, have invoked legal technicalities, such as the supposed lack of standing to sue, in order to stop the campaign from calling witnesses and introducing voluminous documentary evidence.

Judge Ludwig denied the state’s claims that the campaign lacked standing. Instead, he gave the campaign the hearing they asked for — the opportunity to call witnesses and submit damning exhibits. Yet, when it got down to brass tacks, the morning of the hearing, it turned out there was no actual disagreement between the Trump team and Wisconsin officials about the pertinent facts of the case. The president’s counsel basically said: Never mind, we don’t need to present all our proof . . . we’ll just stipulate to all the relevant facts and argue legal principles.

In the end, after all the heated rhetoric, what did they tell the court the case was really about? Just three differences over the manner in which the election was administered — to all of which, as Ludwig pointed out, the campaign could have objected before the election [note: laches] if these matters had actually been of great moment.

There was no there there. Despite telling the country for weeks that this was the most rigged election in history, the campaign didn’t think it was worth calling a single witness. Despite having the opportunity of a hearing before a Trump appointee who was willing to give the campaign ample opportunity to prove its case, the campaign said, “Never mind.”

[Nige]

Probably because 'questioned' and 'attempted overthrow' are not the same thing.

[Brett Bellmore]

"because of his participation in the attempted overthrow of the 2020 presidential election."

"An". Grammatically the word would be "an", because "the" presumes that there was such an attempt, and that is very much a contested claim.

[Magister]

Grammar police, if any were present, were perhaps the only police not attacked violently on January 6th, 2021. I think you'd have to appeal to the semantic police, since sentences are not ungrammatical just because they imply a false premise. But the premise you dispute is in fact true.

[Reallynotbob]

"An" still wouldn't fix Brett's critique.

[Nige]

It really isn’t. Whether he atcually committed crimes in pursuit of this aim remains to be seen, but he unquestionably tried to overthrow the election.

[Brett Bellmore]

If you're going to pretend that "challenge" and "overthrow" are synonyms, I think we're not speaking the same language here.

[David Nieporent]

He was not "challenging" anything, Brett. He lost, bigly. He knew he had lost bigly. He tried to get himself declared the winner anyway. "Overthrow" is correct.

[Mr. Bumble]

He lost by less than 50,000 votes total spread over three states.

[Magister]

Al Gore lost in 2000 by 537 votes spread over one state. (Or by one vote in the Supreme Court.) Trump in 2016 would not have had an electoral vote majority but for 55,000 votes spread over two states (although no telling what the faithless electors would have done). In those two and the most recent election, the Democratic candidate won the popular vote by increasing margins. But an insurrection came only in support of the candidate who most clearly lost.

[Purple Martin]

...in three states with no more evidence of election misconduct than in any of the 24 states he won.

[Nige]

Me two hours ago: 'Probably because ‘questioned’ and ‘attempted overthrow’ are not the same thing.'

I most definitely meant 'attempted to overthrow,' not 'challenged.'

[Internet sloth]

Background music

[MaddogEngineer]

Still left wondering how any completely successful January 6 riot/insurrection would have successfully overthrown the 2020 presidential election.

We don’t have mobs proclaim our presidents from the speaker’s balcony of the U.S. Capitol.

Maybe you mean “overturn”? But still don’t understand how the violence that day would have accomplished that. See above.

People like Baude, who are lawyers and should know better, continue to fail to articulate how the violence as it occurred would lead to a legal result. Do they think the mob might have held Congress captive in the House chamber and forced a particular vote counting result? I would expect a lawyer to better articulate a theory of how such a thing could be achieved, if there was such a conspiracy.

On that day, Trump had a (preposterous) last ditch legal plan, starting with the Vice President throwing out electoral votes. The mob actually breaching the perimeter seems counterproductive to that.

Conflating overthrowing and overturning is bad faith argumentation, to try and check the insurrection box.

[Orbital Mechanic]

On that day, Trump had a (preposterous) last ditch legal plan, starting with the Vice President throwing out electoral votes. The mob actually breaching the perimeter seems counterproductive to that.

What Trump wanted was enough chaos and a breakdown of order in congress. His only chance was a delay of some kind, long enough for them to figure out something that would play well enough on cable news. The issue would be settled on Fox News.

I sincerely believe that he would have welcomed enough actual casualties among Democrats that the remaining congressional votes would be supermajority Republican. We know what would have happened then.

But they came back, finished the count, and so he was defeated.

[Brett Bellmore]

"We know what would have happened then."

Yeah. The same thing, only with a lot more anger. Congress is NOT going to reward killing members of Congress.

[Krychek_2]

In a sane, rational world, Congress would not reward killing members of Congress. In this world, Trump is polling at 58% among Republican voters, many of whom wouldn't care if a few Democrats got shot to keep their guy in power. And neither would at least some of the people they elect to Congress; you think Marjorie Taylor Greene or Matt Gaetz would have let that stop them?

[Brett Bellmore]

We do not live in a world where mortal members of Congress want to reward assassination.

And you have to remember, Trump wasn't even particularly LIKED by a lot of Republican members of Congress. So they weren't all looking for an excuse to elect him.

[Krychek_2]

But they do have to get re-elected, and any GOP member of Congress who doesn't toe the Trump line risks getting primaried. Ask Adam Kinzinger or Lynn Cheney what happens when Republican members of Congress stand up to Trump.

I have a theory that if Trump were to drop dead of a heart attack, most Republican members of Congress would pop champagne corks. But their voters are firmly in his thrall. In a sane, rational world he would be polling at 10% of Republican voters, if that. But that's not the world we live in.

[Bob from Ohio]

"Ask Adam Kinzinger "

Democrats gerrymander his district?

"Lynn Cheney"

Liz

[Krychek_2]

Democrats saved the Republicans the trouble of putting up a primary opponent for him. In the meantime, the GOP had done everything it could to make his tenure miserable.

And yes, Lynn was a typo. Doesn't detract from my main point.

[Krychek_2]

Too late to add an edit to my above comment: I never said Kinzinger was primaried; I said ask him what happens when GOP members of Congress cross Trump. Answer: They basically get run out of the party.

[ducksalad]

Since you brought them up, Krychek: Do you think Marjorie Taylor Greene and Matt Gaetz are disqualified from office by Section 3? If so, do you agree with Baude that it is the constitutional obligation of local election officials to take their names off the ballot and/or to not count votes for them?

[Krychek_2]

I will say what I said on an earlier thread: The first time I heard the Section 3 disqualification argument, I thought it was silly, but enough legal scholars have now signed onto it that I'm now wondering if there might be something to it. I do not think that local election officials should be making the call ad hoc; I think that if people are going to be disqualified there needs to be a clear national standard.

If I were an election official, I would not disqualify anyone without a court order telling me to do so.

The real question is what is the remedy if a candidate is unqualified. Suppose an 18-year-old decides to run for president, and has enough support that he might actually win. Do local election officials refuse to put him on the ballot? Does someone need to file a lawsuit (and if so, who would have standing)?

The issue has come up before. I don't recall the details, but back in the 1940s or so, a 29-year-old was elected to the US Senate, and the Senate simply refused to seat him until after he turned 30. So maybe he can run but he can't take office. Maybe it's ultimately a political question; Congress could refuse to certify election results if the winner was unqualified.

[Michael Ejercito]

There is an argument that, by botching the withdrawal from Afghanistan, FJB provided aid or comfort to the Taliban (the only charitable thing I would write about this argument is that it is not totally batshit crazy.)

It does seem to me that any disqualification of FJB could only be enforced, under current law, by Congress.

[Nige]

You guys think Biden is disqualified because he's a Democrat.

[Michael Ejercito]

My personal feelings about FJB being disqualified is different than 14th Amendment, Section 3's definition of disqualification.

[Nige]

That's what I said. They're trying to disqualify Trump for what he did. You want to disqualify Biden purely because Democratic electoral victiories are illegitimate to right-wing eyes and are making shit up to push it.

[ducksalad]

I'd say the difference with the 29-year old (and for that matter, actual Confederate rebels) is that no one was seriously disputing the facts, not even the people disqualified.

Even if one thinks Trump is slam-dunk obvious insurrection, if you go down the list into Congress there are going to be genuinely borderline or uncertain cases. I wish we could trust Congress to make the call who to seat but I fear party line votes regardless of presence or absence of any evidence.

[Rev. Arthur L. Kirkland]

Congress is NOT going to reward killing members of Congress.

A number of members of Congress fled the attackers, expressing fear and exhibiting urgency . . . yet tried to give the attackers what they wanted, turned on those who had defended the members of Congress, and expressed sympathy for the attackers and their un-American cause. (Yes, that is the "Little Scurrier" himself in that first clip.)

It resembled the Ted Cruz two-step . . . Express outrage and issue vague threats when someone repeatedly calls one's wife a hideously ugly pig (with pictures), then spend years figuratively kissing the jerk's ass (and tongue-bathing other areas).

Carry on, clingers. Ask some of the Jan. 6ers about the limits to be imposed on clingers by better Americans, though.

[Nige]

But voters are apparently going to reward the attempt.

[Bob from Ohio]

"actual casualties"

Keep dialing up the hysteria.

[Area Man]

Here's the thing about overturning elections: It's never legal to do so at the time. You make it "legal" after the fact. This happens in other counties--or as a certain president once called them, "shithole countries"--fairly regularly.

Trump and Co.'s plan was to do whatever they had to do to stay in power for as long as possible so that enough of the country might accept it as legitimate. It was clumsy and stupid, but, as the "shitholes" prove, sometimes the plan works out.

And if he had to fight a war to get it done, then the Proud Boys would no longer have to "stand back and stand by." Maybe parts of the military and police forces join in. Maybe state legislatures, governors, and attorney generals get on board. Who knows? But just because it wasn't legal doesn't mean (from Trump's narcissistic perspective) it wasn't worth trying.

[Brett Bellmore]

It’s easy to dismiss evidence somebody couldn’t have planned something, if you just explain it away as their planning being really stupid.

Trump could never have taken over without legal sanction. He barely had any control over the Executive branch on a good day, with his administration being unambiguously legal! The bureaucracy were routinely ignoring his orders, the State Department casually lied to him in order to defeat his policies, you had people in government literally using burner phones to get around him without being caught!

Give them the slightest legal basis for it, and he’d have been a non-entity. There wasn’t any way at all that he could have continued that administration without a legal sign-off.

And if Congress had been threatened into providing it? The moment the threat went away, they’d have renounced it and impeached him for real.

Trump conducting a coup is just Never-Trump fanfiction. It couldn’t have happened in the real world.

[Area Man]

"Trump conducting a coup is just Never-Trump fanfiction. It couldn’t have happened in the real world."

That's completely irrelevant regarding Trump and Co.'s motivations. They sure seemed to believe their bullshit. And, even if they didn't, they had to give it a try. It may have had little to no chance at success. But you never know. You miss 100% of the shots you don't take, after all.

A normal politician would have accepted the inevitable and said, "I'll be back in four years when you're missing me." But not Trump. He simply could not accept that he had lost and was, therefore, willing to do whatever it took to "legitimize" his "win."

[Nige]

'Trump conducting a coup'

Your main defence of Trump has always been his incompetence at everything he does, and people pointing out the things he does are fantasists because an incompetent like Trump could never acheive those ends. Yet you're going to vote for him.

[David Nieporent]

Trump could never have taken over without legal sanction. He barely had any control over the Executive branch on a good day, with his administration being unambiguously legal! The bureaucracy were routinely ignoring his orders, the State Department casually lied to him in order to defeat his policies, you had people in government literally using burner phones to get around him without being caught!

None of that is true, but you do you.

[Purple Martin]

Brett, he gets no credit for trying and failing. With the first as a proof-of-concept test, do you want to give him a chance for a second?

[Bob from Ohio]

"Proud Boys"

More hysteria, A couple hundred cosplayers would overthrow the US government!

[Nige]

Yes you are an utterly preposterous bunch of people, some of you strutting about in uniforms and guns calling for the overthrow of an elected president and the installation of a dear leader, the rest of you saying aw, aren’t they cute, please ignore the silly white nationalist paramilitaries utterly devoted to a slightly ridiculous do-no-wrong figurehead and his weirdly cult-like following with their selection of utterly bizarre beliefs. That's never turned out badly.

[Rev. Arthur L. Kirkland]

Which is worse . . . the dumbasses who spew these comments, or the dumbasses whose blog courts these kooks and rubes as a target audience?

[Brett Bellmore]

I would be hard put to exaggerate how much I'm bothered by your treatment of Victor Berger. He was disqualified after being convicted of espionage. He was seated after the conviction was overturned.

Neither in your paper nor here you do talk about that. It does NOT appear he was disqualified over speech, however incendiary, but instead because of a crime he was convicted of.

Of course, your treatment of Berger in the paper was extremely brief, amounting to barely more than a couple of vague footnotes. Which by itself was troubling, a rather dismissive treatment of the one, solitary application of Section 3 outside the context of the Civil war.

Perhaps you have some evidence that his disqualified on account of the speech, not the crime, and that his being seated after the conviction was overturned was mere coincidence?

[Will Baude]

The House committee expressly stated "that it would not be governed by the action of the judge and jury at the Chicago trial" and considered the evidence on its own. https://www.govinfo.gov/content/pkg/GPO-HPREC-CANNONS-V6/pdf/GPO-HPREC-CANNONS-V6.pdf#page=75 Cannon's Precedents (cited in the paper) also summarizes the evidence against Berger.

But if you have an argument that the paper is too soft on Berger, I am willing to listen.

[Brett Bellmore]

My argument is that the paper is too brief about Berger, not too soft on him. That the case deserved more than a couple footnotes which omitted key facts.

So, if Congress didn't consider the conviction relevant, why was he seated after the conviction was overturned?

To be sure, they're never going to say that they'd let a state court dictate their actions, but actions speak louder than words.

[Alpheus W Drinkwater]

They gave the Berger case the attention it deserved, which is just a mention. The relevant judicial precedent was Griffin, and it was discussed at length.

[Brett Bellmore]

They gave the Berger case so little attention we literally discussed it in more depth here in the space of a couple comments. No, I don't think that's all the attention the only post-Civil war application of Section 3 deserved.

[Mr. Hook]

Why? Saying you want more discussion is not a meaningful argument. The laziest student book reviews I get have "critiques" that the author should have spent more time discussing X or less on Y … but never explaining why. I know that what they mean is they enjoyed the stuff on X and were bored by Y, but that's not intellectual engagement. Why do you think their argument would be strengthened or compromised by, say, three paragraphs in the main text rather than the footnote they presumably think it merits?

[Brett Bellmore]

1. It was literally the only application of Section 3 after the Civil war, and thus not in a context where the government was doing all sorts of extraordinary, and often procedurally dubious things. Civil war era precedents are often pretty questionable in their legitimacy, the government was barely even pretending to comply with the Constitution at times. That it was the only Section 3 case in normal times makes it significant enough to have bothered discussing.

2. Facially, the Berger case would appear to contradict their whole thesis: Berger wasn't kept off the ballot, nobody at the state level took any action based on Section 3. He was on the ballot, he ran, people voted for him, the votes got counted, he won. It wasn't until Congress exercised their constitutionally independent power to judge the qualifications of their own members that any Section 3 application happened. A power that exists independent of Section 3! Which, I think, is the basis for their having said that they weren't bound by court decisions. But, still:

3. That Congressional action took place after Berger had been convicted of a disqualifying offense, espionage, in a criminal trial. Moreover, when that conviction was overturned, Congress relented and seated him. Which would tend to indicate Congress actually was doing this on the basis of a criminal conviction, not just their opinion of his guilt. They were NOT treating it as self-executing!

4. It might be reasonable to treat a case that confirms your thesis as trivially redundant, and relegate it to a footnote. But when a case looks at first glance like it contradicts your thesis, you're normally obliged to grapple with it, explain why it doesn't really contradict it. Not paper over it.

[Mr. Hook]

There you go—that at least has more to go on than "it's too brief."

[Brett Bellmore]

As I was addressing "too brief" to Baude, and he's aware of all these issues, I didn't think I needed to go into such detail.

But, fair enough, I should have gone into more detail about my complaint initially. I doubt Baude will revisit this comment thread at this point, so I blew my chance to get a response.

[Will Baude]

Thanks for these comments and criticisms. For what it is worth:
1. This is an originalist article, and since Section Three was written during the Civil War Era, I think those views are more relevant to its meaning, even if one believes the lawmakers of that era generally did dubious things.
2. I don't understand why you think Berger was excluded separately from Section Three. The House said it was excluding him under Section Three (and, less importantly, under the later decision of Powell v. McCormack that would have been the only basis to exclude him.)
The question of why Berger was on the ballot would turn on 1918 Wisconsin election law, but would be worth looking into, thank you.
3. That isn't what the House said, but I can now see how somebody would have drawn this inference. Thanks.
4. I appreciate your raising these issues, I hadn't realized that a serious person might take that view of the Berger case and it's useful to consider. Thanks.

[Brett Bellmore]

Thanks much for the reply.

1. I think it very much matters if you take something written by the winners in a recent war, to be used against the beaten down losers, and try to apply it without a war, to people who aren't beaten down. Call this a prudential consideration, if you wish. I simply don't think the immediate post-war approach is viable in a nation at peace. You need more due process when you're not dealing with a conquered people from the position of their conqueror. People don't LIKE being treated like they just lost a war, when there wasn't any war.

2. I don't think he was excluded separately from Section 3, I think Congress' power to determine the qualification of their members gave them a basis for invoking Section 3 without need of a court finding of guilt, which is a basis for invoking it nobody else can lay claim to.

3, 4. Really, that's all I was asking, that a case that on the face of it seems important not be glossed over.

[David Nieporent]

Brett, let's assume you've interpreted the events correctly, which is itself dubious:

1. Your claim that they seated him after his conviction was overturned is true as a matter of chronology, but your implication that the latter caused the former does not appear to me to be a matter of established fact. It's not like they called him up and said, "Oh, your conviction was overturned? Well, then, come on down and take your seat." It was several years and intervening elections later, and they may have just relented.

2. As Prof. Baude points out, your claim that they relied upon his conviction is belied by their own words anyway.

But regardless, why on earth do you think that a single incident, 60 years after the amendment when everyone involved in the amendment was dead, reflects the meaning of the amendment? There's no precedential value in the Berger case; it's just how one random group of people decided to apply it.

[Sarcastr0]

Brett is an originalist except when he is passionately not.

[Rev. Arthur L. Kirkland]

Trying to reason with Brett Bellmore? Are you out of your fucking mind?

[JonBlack]

Is there a definition for "insurrection" at any point in this discussion?

Anyone have a good source for how that term was defined prior to January of 2020?

[Mr. Bumble]

By the lack of response, the simple answer is no.
I've asked on other threads and the response was crickets.

[Magister]

You could read Baude and Paulsen's paper.

[Mr. Bumble]

Like I said, crickets.

[Magister]

I recall answering you twice about insurrections. Since you just replied to me, I conclude you don't have me muted.

https://reason.com/volokh/2023/08/31/why-efforts-to-invoke-section-3-of-the-14th-amendment-to-keep-donald-trump-off-the-ballot-may-fail/?comments=true#comment-10220481

https://reason.com/volokh/2023/09/02/district-court-in-florida-concludes-voters-lack-standing-to-challenge-trumps-eligibility/?comments=true#comment-10222645

[not guilty]

In re Charge to Grand Jury, 62 F. 828, 830 (N.D. Ill. 1894):

Insurrection is a rising against civil or political authority by a number of persons to the execution of law in a city or state. . . . It is not necessary there should be bloodshed; it is not necessary that its dimensions should be so portentous as to insure probable success, to constitute an insurrection. It is necessary, however, that the rising should be in opposition to the execution of the laws of the United States, and should be so formidable as for the time being to defy the authority of the United States. When men gather to resist the political power of the United States, or to oppose the execution of its laws, and are in such force that the civil authorities are inadequate to put them down, and a considerable military force is needed to accomplish that result; they become insurgents; and every person who knowingly incites; aids, or abets them, no matter what his motives may be, is likewise an insurgent.

https://law.resource.org/pub/us/case/reporter/F/0062/0062.f1.0828.pdf

[Will Baude]

The paper defines insurrection as "concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect" and rebellion as "an effort to overturn or displace lawful government authority by unlawful means." (p. 64).

If you want more definitions, it also canvasses contemporaneous dictionary definitions at pp. 69-72.

[Michael Ejercito]

"The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.",

Congress has the power to decide how the 14th Amendment is enforced.

[bookwork83]

Does advocating for this make one eligible for section three also? For that matter why isnt it applicable against the current executive. Their quite expansive reading would seem to encompass numerous acts and its no stretch of the imagination that this newfound expertise would be applied against other politicians

[Michael Ejercito]

There is an argument that, by botching the withdrawal from Afghanistan, FJB provided aid or comfort to the Taliban.

The most generous thing I will write about that argument is that it fits under the Baude/Paulsen interpretation of 14th Amendment, Section 3

[Internet sloth]

This whole legal engagement is levitating Trump's poll numbers
https://www.youtube.com/watch?v=lpyg94OzHK0

[Enrique]

Baude is just plain wrong; see: https://priorprobability.com/2023/09/06/taking-the-con-out-of-constitutional-law-yes-even-donald-trump-is-entitled-to-due-process/

and https://priorprobability.com/2023/09/02/due-process-and-the-disqualification-clause/

[Alpheus W Drinkwater]

That was a horrible article. How would article 3 being self-executing deny Trump due process? He could still challenge any such decision in federal court, as the paper states. Weak sauce.

[Alpheus W Drinkwater]

Okay, now I read Guerra-Pujol part 1. Even worse. You think this drivel shows Baude - Paulsen to be "just plain wrong?"

[Michael Ejercito]

They are wrong.

I explained, in comments, how they are wrong.

[David Nieporent]

I like how Guerra-Pujol pretends he's a law professor. (That's independent of the merits of his argument, but it is indicative of how seriously he should be taken.)

[Josh R]

You are plain wrong about what Baude/Paulsen said about due process. They envision a fair hearing in court during the normal appeal process.

[Michael Ejercito]

Ah, so if some raw recruit deposes the military leadership, including FJB, for aiding or comforting the Taliban, an appeals court will provide a fair hearing to determine if deposing the military leadership was lawful.

Got it.

[Josh R]

What process would allow a raw recruit to depose the military leadership or Biden?

[Brett Bellmore]

Right, they envision sentence first, then trial. That latter is a nice concession, I'll admit, but the whole business of adverse action against Trump coming first, which he then has to appeal to escape the application of?

It inverts the burden of proof, and invites gaming the timing of actions to prevent an appeal being in time to matter.

[Josh R]

We have no idea what the burden of proof will end to be during appeal (the courts are likely to review the case de novo).

It would be foolish for a secretary of state to wait until the last minute. That would most likely result in SCOTUS keeping his name on the ballot until appeals played out.

[David Nieporent]

Brett, this is not a criminal case. There is no "sentence." It is 100% routine in an administrative context to take action first, and then the person affected can challenge the action if he wants.

If it takes 10k signatures to get your name on the ballot, and you turn in your petitions, they will look to make sure your paperwork is in order and that you have sufficient signatures. If it's not, they do not put you on the ballot and then hold a trial to decide whether you should be taken off the ballot. Rather, they say, "You didn't do X, Y, and Z, and you only turned in 9,600 valid signatures; we're not putting you on the ballot." Then you can challenge that if you think they're wrong. That's exactly identical to what we're talking about here.

[David Nieporent]

Note that even in a criminal context, you don't necessarily get to challenge something in advance. If cops want to search your house, they get a search warrant and then show up and conduct the search. If you think the search is invalid, you can then go to court to get the evidence suppressed, and perhaps sue the cops for damages. What you can't do is refuse to let the search be undertaken and demand that you get a hearing on the validity of the warrant before they can come inside.

[Brett Bellmore]

Are you perhaps unaware that "sentence first, then trial" is a classic phrase I was just reusing?

[Stephen Lathrop]

What a disappointment these comments are. Barely any sign that VC commenters have listened to the Baude – Paulsen podcasts—which, entirely apart from the Trump case are a brilliant primer on the clarifying power of attention to history to improve thinking about American constitutionalism. And nicely accented by Akhil Amar’s accurate observation that Scalia was not really conversant with history, and did not much care about it.

Hearing Baude – Paulsen comment gives the experience of encountering constitutional thinking retro-cast for presentation in the contexts relied upon by the founders. I have been complaining for years about the failure of would-be originalists to attend to history. I did not know how deeply these scholars have been delving into that world, or with what insight.

[James K. Polk]

Sad, Will Baude will never be taken seriously again.

[Stephen Lathrop]

Let's see, Paulsen, Tribe, Luttig, Katyal, Amar. What do you see in that lineup of Baude allies to make you think Baude is an outlier? That's a lot of Supreme Court experience and citations. Did you listen to the entire first podcast, by the way?

[Alpheus W Drinkwater]

Maybe he'll get a song written about him by They Might Be Giants.

[M L]

The 14th amendment was never constitutionally ratified. That may be water under the bridge now, but it's worth remembering. Not something they usually cover in law school I think.

[Sarcastr0]

Why, praytell, is it worth it for a lawyer?

[M L]

Won't be useful for writing a brief or arguing a motion in traffic court. When it comes to the highfalutin science of political science and legal theory, it's a piece of history, for example the history of how the basic founding principles and structures were incrementally inverted over time.

[Alpheus W Drinkwater]

As it turns out, Professor Paulsen has written extensively on this topic, as well as questioning the constitutionality of other actions taken during and just after the Civil War. For Instance his paper on whether West Virginia was constitutionally established is pretty widely read.

[M L]

From the paper:

"culminating in a violent and deadly assault on the Capitol (and Congress and the Vice President) on January 6, 2021."

How was it deadly? A security guard shot an unarmed protestor, but other than that there were no deaths. Not even any serious injuries that I'm aware of.

[M L]

From the paper, insurrection means “concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect.”

If that’s the definition, insurrections are far more commonplace than I ever imagined. Just as a random example the Kavanaugh protest. And that one protest in Wisconsin. But really much broader than that too.

[Captain Motion]

I hate to suggest that people read the provision carefully before opining on it; "officer of the United States" would have to apply to a POTUS to apply this disqualification to Trump. Authority that has considered that concept unanimously urge that the term does not apply to a president. What is the authority that it does [other than what one thinks the diction imports]? [I am viscerally opposed to Trump, but I won't tamper with the Constitution to keep him out of office.]