Professor Calabresi in WSJ: President Trump Can Not Be Disqualified

Professor Calabresi changes his mind based on Tillman's argument: the President is not an "Officer of the United States"

Professor Steven Calabresi wrote a letter to editors of the Wall Street Journal. He now concludes that President Trump cannot be disqualified under Section 3. In particular, Calabresi changed his mind on a debate he had with Professor Seth Barrett Tillman in 2008. Calabresi now agrees with Tillman that the President is not an "Officer of the United States."

Former U.S. Attorney General Michael Mukasey's op-ed "Was Trump 'an Officer of the United States'?" (Sept. 8) has caused me to change my mind about an argument that I have had with Prof. Seth Barrett Tillman for 25 years. Mr. Mukasey is right: Looked at in the context of the Disqualification Clause of the 14th Amendment, the president is neither an "officer of the United States," nor, obviously, a "member of Congress." That must be why the Constitution prescribes a separate oath for the president.

As a result, former President Donald Trump isn't covered by the Disqualification Clause, and he is eligible to be on the ballot in the 2024 presidential election. I am correcting the public record on this important issue by sending you this letter.

Last month, Calabresi endorsed Baude and Paulsen's article, concluding that Section 3 does disqualify Trump. I appreciate that Calabresi took the time to correct the public record.

Calabresi is not the only person who was persuaded by Tillman. Last week, former Attorney General Michael Mukasey wrote an op-ed in the Wall Street Journal. He contended that the President is not an "Officer of the United States." Many of Mukasey's arguments track a 2021 article that Seth and I wrote in the NYU Journal of Law & Liberty. Long-time readers may remember that Tillman persuaded Mukasey on this issue back in 2015. (This issue also came up with the Mar-A-Lago raid.)

I am grateful that Calabresi and Mukasey came around to the Tillman position. It is not easy to admit one has made an error, and these two jurists did so graciously.

I was persuaded by Tillman nearly a decade ago. I still think the best description of Tillman's work was offered by Will Baude in 2016: "Professor Tillman's theory makes sense of patterns that most of us never saw. It brings order out of chaos." Indeed. And given the efforts to disqualify Trump, Tillman's view would in fact bring order out of the chaos.

If you haven't had a chance to review our new draft article, now is a good time. You too may change your mind! In particular, here is the summary of Part V, which focuses on the office issue:

Part V considers another threshold question: was Trump ever subject to Section 3? President Trump was unique among all of his predecessors in that he did not hold any prior government position before he took the presidential oath of office on January 20, 2017. Section 3 of the Fourteenth Amendment could only disqualify Trump if the presidential oath he took on that date was as an "Officer[] of the United States." In 2021 we published an article concluding "that the President is not a Section 3 'officer of the United States.'" In their article, Baude and Paulsen summarily dismiss our position. But Baude and Paulsen disregard substantial evidence about the meaning of the phrase "Officers of the United States" in the Constitution of 1788. And they disregard the fact that the debates they cite from the 1860s in support of their position look back to debates from the early Republic. Instead of parsing the Constitution of 1788 and early debates, Baude and Paulsen focus on original intentions and consequentialism. These sorts of arguments are weak evidence of original public meaning and do not pass originalist muster. More importantly, Baude and Paulsen offer no complete or comprehensive theory to explain what other positions are included and excluded by the phrase "Officer of the United States." Without ever explaining what Section 3's "officer of the United States"-language means, they only seek to establish that the President falls in that category. In short, Baude and Paulsen punched a textualist ticket good for one ride on the Trump train.

Calabresi and Mukasey are on board. Others may follow.

Comments

[Rev. Arthur L. Kirkland]

Let him run from a prison cell. A state prison cell, ideally. The feds can have him after Georgia is finished with him, if he outlives the state sentence.

[not guilty]

Being confined in a state prison would not preclude a defendant's being tried in federal court. In the event of a conviction the federal court can order consecutive sentencing.

[Dr. Ed 2]

He could pardon himself.

He could also parole a lot of violent criminals in Georgia -- in fact, establish BOP policy that any violent Federal felon (anywhere) willing to reside in Atlanta gets paroled.

[not guilty]

He could pardon himself? Not for a Georgia conviction.

BTW, there is no federal parole. Not since 1984.

And while being confined in prison is not a legal impediment to running for president, it is very much a practical impediment.

[Mr. Bumble]

So in your fevered dreams he is convicted somewhere of something and is sentenced to prison. Is he still entitled to Secret Service protection whether elected president or not?

[not guilty]

I don't know the answer to that, but I surmise it would be worked out between the Secret Service and the Bureau of Prisons.

If Donald Trump dies outside of prison, he will have gotten away with serious criminal conduct.

[Mr. Bumble]

"If Donald Trump dies outside of prison, he will have gotten away with serious criminal conduct"

So much for any presumption of innocence prior to a conviction.

[David Nieporent]

Nobody is entitled to a presumption of innocence, except from the government itself.

[Mr. Bumble]

So potential jurors are free to presume a defendant guilty?

[Krychek_2]

I waited to respond to this to give David a chance since it was his comment to which Mr. Bumble is responding.

The presumption of innocence only applies to the actual criminal trial itself (including the jurors). Almost all of the process leading up to the trial is based on a presumption of guilt. The indictment is a presumption of guilt; if they didn't think he was guilty they wouldn't have indicted him. The arraignment is based on a presumption of guilt; if they didn't think he was guilty they wouldn't arraign him. In fact, the whole point of an investigation and grand jury proceeding is to determine who is most likely guilty and then charge them.

It's once the trial starts that the presumption of innocence kicks in. It kicks in then because the burden is on the prosecution to prove the case beyond a reasonable doubt. But the whole process up until that point is that the whole reason they're putting him on trial is that they think he's likely guilty.

[Mr. Bumble]

I'll respectfully disagree and argue that your position is what led to extra judicial actions like lynchings and vigilantism.

[Nige]

Look forward to this concern looming large in all your comments about and responses to comments about Biden going forward.

[Tom for equal rights]

perpetuating the russian collusion hoax is also serious criminal conduct. Though it seems that most democrats are okay if the criminal activity targets trump

[David Nieporent]

1) It was not, of course, a hoax.
2) What "criminal conduct" was it?

[Tom for equal rights]

David
you know better

A) hillary campaign paid for a fake dossier
B) Engaging the FBI is investigation based on fake dossier

[Nige]

Calling the dossier 'fake' doesn't actually have any actual significance in the real world, you know.

[Tom for equal rights]

nige - Okay not fake - though fabricated facts through out to dossier

[Nige]

Some parts of the dossier have not been verified. Not proof that they were 'fabricated,' and not unusual in that kind of raw information gathering. The Clinton campaign never used any of it.

[Joe_dallas]

Nige 3 mins ago
Some parts of the dossier have not been verified. Not proof that they were ‘fabricated,’ and not unusual in that kind of raw information gathering. The Clinton campaign never used any of it."

Its a waste of time to continue to playing the game of pretending the dossier was based on real facts and pretending that the HRC campaign was not involved in spearheading the dossier, including paying steele to create the dossier.

[Nige]

Pretending that it was anything other than standard oppo research into Trump’s Russian ties, consisting of raw intelligence, with certain key finding later verified by US Intelligence agencies, none of which was used by the Clinton campaign, is also a waste of time, but here you go.

[Brett Bellmore]

It was "oppo research" by Fusion GPS, whose gig is fabricating scurrilous rumors, and then using subcontractors in the media to get them reported as serious news.

Only this one was so out there the media refused to promote it without a "hook", which Comey obligingly provided by briefing Trump on the dossier, so that they'd be able to use that as an excuse for treating it as serious enough to be worth reporting on.

That is WHY he briefed Trump on it, in fact: So that it would get reported on. His own memos revealed that.

[Nige]

You made all that up. Completely. Including the Comey thing. He literally says he briefed him BECAUSE the media was going to run with it.

[Nige]

(Ok not the Fusion GPS bit, that’s a rare nugget of fact, but a Trump supporter angrily accusing any other entity of 'fabricating' anything is funny.)

[Brett Bellmore]

"He literally says he briefed him BECAUSE the media was going to run with it."

"“I said media like CNN had them and were looking for a news hook,”

His briefing WAS the news hook he knew the media wanted. He engineered their getting it.

[Nige]

That’s your inference, it's nothing he admits to explicitly as you claim. Tough shit, Trump, either way.

Even so, that's got nothing to do with the dossier being fake, fabricated, a crime, or anything other than standard oppo research which wasn't used by the Clinton campaign, key parts of which were later confirmed by US intelligence.

[David Nieporent]

Its a waste of time to continue to playing the game of pretending the dossier was based on real facts and pretending that the HRC campaign was not involved in spearheading the dossier, including paying steele to create the dossier.

Hillary/her campaign/the DNC (just to cover all bases) did not pay Steele to create the dossier. Hillary's campaign hired/paid Fusion GPS to conduct oppo research on Trump. Hillary's campaign had no connection to Steele — at least not until after the fact — and there's no evidence that anyone involved knew what was correct or incorrect. (Steele wasn't being hired (by Fusion) to write an attack ad against Trump; he was being hired to gather whatever rumors and raw intel he could about Trump's activities in Russia. )

But let's assume for the sake of argument that Hillary had said, "Someone make up some damaging lies about Trump!" (Why they'd have hired Steele, whose expertise was in Russian intelligence gathering, rather than just hiring a creative writing major, I'm not sure.) That might be defamatory, but it's not a crime.

[David Nieporent]

That is WHY he briefed Trump on it, in fact: So that it would get reported on. His own memos revealed that.

Brett, it's bad enough when you lie. It's worse when you link to the thing proving that you're lying as though it supports you. His own memos do not say anything even a little bit like that.

[David Nieporent]

His briefing WAS the news hook he knew the media wanted. He engineered their getting it.

Remember, Brett doesn't think that Trump was telling the Georgia Secretary of State to fabricate votes for him, even though we have a transcript in which Trump told the Georgia Secretary of State to fabricate votes for him.

But Brett just "knows" that Comey briefed Trump so that CNN would report it, even though there's not one shred of evidence to ascribe that motive to Comey.

[Joe_dallas]

David
Again you know better - the funds to pay steele for the dossier originally came from the hillary campaign and got funnelled through a few organizations, at least one law firm (perkins coie as I recall) before going to steeles pocket.

[David Nieporent]

Again you know better – the funds to pay steele for the dossier originally came from the hillary campaign and got funnelled through a few organizations, at least one law firm (perkins coie as I recall) before going to steeles pocket.

Not responsive to anything I wrote. The money was paid to Fusion GPS. Not to Steele. There's no evidence that anyone involved other than Fusion GPS had ever heard of Christopher Steele at the time, let alone that they knew he would be getting paid to gather intel on Trump. Some of the money paid by Hillary for this also ended up in the pockets of the janitors who cleaned the Fusion GPS offices at night, but that doesn't mean that Hillary hired the janitors.

[mulched]

These guys are still out there hoping the pee tape is going to show up any minute. It's Mueller Time!

[Sarcastr0]

this one was so out there the media refused to promote it without a “hook”, which Comey obligingly provided by briefing Trump on the dossier, so that they’d be able to use that as an excuse for treating it as serious enough to be worth reporting on.

You gotta stop making shit up about why people did what they did! You always, always, find conservative persecution. Which is a bad cognitive cycle to be in.

[Sarcastr0]

“He literally says he briefed him BECAUSE the media was going to run with it.”

Brett, BECAUSE is not the same as IN ORDER ASSURE.

Did you even notice this fundamental switch from reactive to proactive?!!

[Krychek_2]

I'm less concerned about whether he's entitled to secret service protection than I am over what happens if there's another 9/11 and he's sitting in a prison cell with no ready access to the Situation Room.

My prediction, which is worth at least as much as all the other predictions here this morning, is that if he is elected, and is sitting in jail on January 20, 2025, the cabinet will invoke the 25th Amendment and his running mate will become acting president. He's obviously unable to perform his duties (at least the most significant ones) from prison.

[Mr. Bumble]

"It is difficult to make predictions, especially about the future."
...but.
Assuming Trump gets the nomination it is hard to believe that any of the cases against him will have been finally resolved (either tried, dismissed or not be subject to appeal) before the election and possible inauguration.

[not guilty]

"Assuming Trump gets the nomination it is hard to believe that any of the cases against him will have been finally resolved (either tried, dismissed or not be subject to appeal) before the election and possible inauguration."

Let's game this out. The D.C. trial is set to begin on March 4, 2024. That is ten and a half months before the presidential inauguration. The case will likely go to the jury sometime in the spring of 2024.

In the event of a guilty verdict, a federal defendant is detained pending sentencing unless the trial court finds by clear and convincing evidence that the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released. 18 U.S.C. § 3143(a)(1). Sentence is likely to be imposed not later than during the summer of 2024.

After imposition of sentence, confinement pending appeal is the rule and not the exception in federal court. Per 18 U.S.C. § 3143(b)(1), the trial court shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds—

(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c) of this title; and

(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in—

(i) reversal,
(ii) an order for a new trial,
(iii) a sentence that does not include a term of imprisonment, or
(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.

IOW, the prospect or pendency of an appeal does not mean that Trump will not be locked up following a guilty verdict.

[Krychek_2]

Agreed, assuming the trial doesn't get delayed for one reason or another. Last week I attended a hearing in a three year old case in which the trial has just been continued for the fourth time.

[Mr. Bumble]

ng also seems to be forgetting the other three cases.

[not guilty]

Mr. Bumble, you asserted that “it is hard to believe that any of the cases against him will have been finally resolved (either tried, dismissed or not be subject to appeal) before the election and possible inauguration.”

There is a difference between “any of the cases” and “all of the cases.” I responded as to the case which I anticipate will be tried to verdict soonest. The pendency of other criminal prosecutions of a federal defendant is no reason to grant release following a verdict and/or imposition of sentence. If anything, that would tend to increase the risk of flight.

Krychek_2, Judge Tanya Chutkan appears to be keeping proceedings in her court steadily on track. She does not appear to brook dilatory tactics (such as an absurd request for a 2026 trial date). Seven months from arraignment to the beginning of jury selection is ample time for fully resourced litigants on both sides to prepare for trial. What do you realistically anticipate could result in a continuance?

[Krychek_2]

NG, given that this is Trump we're talking about, almost nothing would surprise me, but here are some things that could result in the trial being delayed:

1. He fires his lawyers, and the new ones need time to get up to speed. Given the right to counsel, it would arguably be abuse of discretion to deny a continuance in such a case, and the judge would certainly be looking over her shoulder at the court of appeals.

2. Some "new evidence" (real or fabricated) is discovered at the last minute.

3. The judge's own docket requires a continuance as multiple cases are frequently set for trial at the same time hoping some of them will settle.

[Mr. Bumble]

"If anything, that would tend to increase the risk of flight."
nn, now you're talking out of your ass.

[California Dreamer]

In the garden variety case, there are many reasons why a matter may be continued. But these are not garden variety cases. Particularly in the Washington D.C. case, there’s a compelling national interest in determining, prior to the election, whether Trump committed the crimes charged. Very few grounds for a continuance are persuasive enough to override that concern. It is inconceivable that the matter would be continued because of the court’s docket, and it’s highly unlikely that any newly discovered evidence would be of sufficient significance to justify a continuance. If Trump fires his lawyers at the last minute, he’ll have to persuade the court in a closed hearing that the firing wasn’t done for purposes of delay. I agree that because the Georgia matter is a multi-defendant case, there’s a far greater likelihood that it will be put off, but I expect the Washington D.C. case to start on the scheduled trial date.

[not guilty]

"He fires his lawyers, and the new ones need time to get up to speed. Given the right to counsel, it would arguably be abuse of discretion to deny a continuance in such a case, and the judge would certainly be looking over her shoulder at the court of appeals."

For defense counsel to withdraw would require leave of court, which might not be granted -- especially if the trial court perceives that Trump is trying to game the system for sake of delay. If Trump fires his lawyers on the eve of trial, he would need to show good cause for any continuance. That would likely require an evidentiary hearing. The essential aim of the Sixth Amendment is to guarantee an effective advocate, not counsel preferred by the defendant. See Wheat v. United States, 486 U.S. 153, 159 (1988).

Where a substitution of counsel is accompanied by a request for continuance of the trial, the trial court would have boatloads of discretion. SCOTUS has opined:

Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary "insistence upon expeditiousness in the face of a justifiable request for delay" violates the right to the assistance of counsel.

Morris v. Slappy, 461 U.S. 1, 11-12 (1983), quoting Ungar v. Sarafite, 376 U. S. 575, 589 (1964).

"Some 'new evidence' (real or fabricated) is discovered at the last minute."

I suspect that the government has been and will be extra careful to prevent that from happening. The prosecution has an exceptionally strong case here, and there is no need to hide the ball. If the defense belatedly claims to have just discovered "new evidence," they will have several weeks to investigate between the beginning of voir dire on March 4 and the beginning of the defense proof in chief.

"The judge’s own docket requires a continuance as multiple cases are frequently set for trial at the same time hoping some of them will settle."

If multiple cases are set on the same day, a criminal trial takes priority over any civil trial. If multiple criminal cases are set -- uncommon in federal court and especially unlikely in this case -- the prosecution would elect which case to try.

[not guilty]

The only circumstance whereby I can foresee the D.C. trial being continued is if the jury trial of Donald Trump in Georgia begins sooner than the federal trial in D.C., and the Georgia matter has not concluded by March 4, 2024.

[Krychek_2]

Your question was what could realistically delay the trial, not what I think likely actually will delay it. And you’re right that this is not a garden variety case.

I think it’s likely that at least one of the four cases will try before the election. But, again, this is Trump we’re talking about so I wouldn’t bet the rent on it.

[David Nieporent]

1. He fires his lawyers, and the new ones need time to get up to speed. Given the right to counsel, it would arguably be abuse of discretion to deny a continuance in such a case, and the judge would certainly be looking over her shoulder at the court of appeals.

No. Judges do not need to, and routinely do not, permit that sort of gamesmanship. One cannot fire one's lawyer at the last minute to get an adjournment.

[Krychek_2]

Guys, who said anything about firing his lawyers "at the last minute"? I certainly didn't. And I can think of several possible reasons for why firing them wouldn't be gamesmanship. If they refuse to follow his instructions (especially on ethical grounds), or if he runs out of money (not likely but it could happen) or if one of them discovers a personal conflict, or if he says something in public that undermines them, all of those are perfectly legitimate grounds for new attorneys.

[Dr. Ed 2]

Clemency, whatever -- just pack Atlanta with felons. Heck, order the USMC to bust him out.

[David Nieporent]

So you want him to commit even more crimes?

[Nige]

Obviously, why else would anyone vote for the guy?

[Mr. Bumble]

Because he's NOT Biden?

[Nige]

Same thing.

[Krychek_2]

Nope. There are plenty of other candidates who are also NOT Biden. Trump is the candidate you vote for if you want to see the world on fire.

[Mr. Bumble]

The world is on fire and it's Biden who is President.

[VinniUSMC]

Now Trump is going to destroy the whole world? You TDS nutcases have entirely lost your minds. Well, what little you had to lose anyway.

[Nige]

Didn't you read Bumble, Vinni? Biden already destroyed the world.

[Azathoth!!]

One can only commit 'more' crimes if one has committed crimes.

Since Trump is being charged with normal legal actions as if they were crimes, even if convicted on every indictment he will have committed no crimes.

[Mr. Bumble]

Cue "We are the Champions"

I've paid my dues
Time after time
I've done my sentence
But committed no crime

And bad mistakes‒
I've made a few
I've had my share of sand kicked in my face
But I've come through

And I need to go on and on, and on, and on

We are the champions, my friends
And we'll keep on fighting 'til the end
We are the champions
We are the champions
No time for losers
'Cause we are the champions of the world

I've taken my bows
And my curtain calls
You brought me fame and fortune, and everything that goes with it
I thank you all

But it's been no bed of roses
No pleasure cruise
I consider it a challenge before the whole human race
And I ain't gonna lose

And I need just go on and on, and on, and on

We are the champions, my friends
And we'll keep on fighting 'til the end
We are the champions
We are the champions
No time for losers
'Cause we are the champions of the world

We are the champions, my friends
And we'll keep on fighting 'til the end
We are the champions
We are the champions
No time for losers
'Cause we are the champions

Trump should use this as a campaign theme.

[Nige]

Yes, we know, even if convicted of crimes he will have committed no crimes, because that is where you are at these days.

[Mr. Bumble]

You're such a whiny little bitch.

[Nige]

That means a lot, coming from a noble stoic like yourself.

[Don Nico]

"Heck, order the USMC to bust him out."
Mr. Ed, every day you manage to surpass yourself with stupid comments

[Dr. Ed 2]

I'm sure that a President could make Georgia regret such a decision without difficulty. Send the EPA after every Georgia hog farmer, the IRS after everyone else in the state, send the FRA after every inch of railroad track and the FHA after every inch of federal-aid highway, close military bases in the state (like Nixon did to Massachusetts), etc.

What people like you fail to understand is eventually the other side plays by your rules.

[Krychek_2]

Dr. Ed, you're not upset that Trump broke the law; you're upset that he's being held accountable for breaking the law. Which tells us far more about you than it does about Georgia.

[Dr. Ed 2]

Trump did not break the law -- a racist Black Democrat is breaking the law in a racist attack on him -- and don' be surprised to see his supporters respond in kind. It's been 50 years since we have seen wholesale attacks on Black civil rights, but nothing occurs in a vacuum and don't be surprised if this DA stirs up more than she intended to.

MAGAs not going away, even if Trump does, and while cities have done quite well over the past, that doesn't mean that they will continue to do so.

[David Nieporent]

Someone should start tallying the number of civil wars Dr. Ed has masturbated at the thought of.

[shawn_dude]

Just the Tea Party rebranded. And after Trump, the same set of backward knuckledraggers will rebrand again.

[Don Nico]

"and don’ be surprised to see his supporters respond in kind. "
And now your suggesting that a lynching is in order.
It must be terrible to be you, a true to life Masshole.

[Joe_dallas]

The Biden White House sent a letter to its media allies Wednesday, directing them to intensify their “scrutiny” of House Republicans after Speaker Kevin McCarthy announced an impeachment inquiry into the Biden family’s influence-peddling operation.

“It’s time for the media to ramp up its scrutiny of House Republicans for opening an impeachment inquiry based on lies. Impeachment is grave, rare, and historic. The Constitution requires ‘treason, bribery, or other high crimes and misdemeanors,” Ian Sams, a spokesperson for the White House Counsel’s Office, wrote in the letter to top U.S. news executives, according to CNN. “After nearly 9 months of investigating, House Republicans haven’t been able to turn up any evidence of the President doing anything wrong,” Sams added inaccurately.

In reality, Republican investigators have produced a mountain of evidence in the form of bank records, suspicious activity reports, wire transfers, text messages, whatsApp messages, emails, voicemails, photos, along with the testimonies of whistleblowers, and Hunter Biden’s former business partners, not to mention Joe Biden’s admission on tape that he got the Ukrainian prosecutor general fired by withholding $1 billion in US loan guarantees in exchange for his ouster.

[Sarcastr0]

You list kinds of evidence, not an actual story.

I do like how you’ve cited firing the prosecutor who wasn’t investigating Burisma fast enough for Europe or Obama as a slam dunk.
Good luck with that in any kind of actual factfinding.

[David Nieporent]

In reality, Republican investigators have produced a mountain of evidence in the form of bank records, suspicious activity reports, wire transfers, text messages, whatsApp messages, emails, voicemails, photos, along with the testimonies of whistleblowers, and Hunter Biden’s former business partners, not to mention Joe Biden’s admission on tape that he got the Ukrainian prosecutor general fired by withholding $1 billion in US loan guarantees in exchange for his ouster.

First, I believe Joe_dallas — though he's an expert in all fields (just ask him!) — is plagiarizing this comment; it reads exactly like things I've read on nutjob social media.

Second, of course, is that while Republican investigators have indeed produced a mountain of "bank records, suspicious activity reports, wire transfers, text messages, whatsApp messages, emails, voicemails, photos, along with the testimonies of whistleblowers, and Hunter Biden’s former business partners, not to mention Joe Biden’s admission on tape that he got the Ukrainian prosecutor general fired by withholding $1 billion in US loan guarantees in exchange for his ouster," none of this is actual evidence of any wrongdoing by Joe Biden. They still haven't found $1 of money going to Joe Biden, let alone that it was a quid pro quo for anything. Hunter Biden's former business partner certainly provided hours of testimony, but all of it exonerated Joe Biden.

[not guilty]

FWIW, Donald Trump has himself claimed to be a (former) officer of the United States. https://storage.courtlistener.com/recap/gov.uscourts.nysd.598311/gov.uscourts.nysd.598311.1.0_2.pdf

[JR74]

Oh ok so now he’s a con scholar. This is the same guy who recommended liquid draino or whatsoever for Covid. I think we can dismiss his
understanding of the office of the presidency.

[Dr. Ed 2]

Drain cleaner is either Sodium Hydroxide or Sulfuric Acid.

What Trump was talking about was what appeared to be promising research using a dilute solution of Sodium (or possibly Calcium) Hypochlorite to kill viri (e.g. Covid) in the lungs. It apparently didn't pan out, most research doesn't, but before you criticize this attempt, remember that we are successfully using WW-I era mustard gas to treat cancer, and have been doing so for over 50 years. (What do you think "chemo" is?)

Trump's sole offense was repeating some good news that he had been told, and telling a scared nation that there might be light at the end of the tunnel.

[JR74]

You’re missing my larger point. Please keep up

[Brett Bellmore]

No, your 'larger point' was totally blunt.

I'll agree that Presidents should probably not blue-sky over a live mike. But Trump didn't mention anything that lacked a basis in then recent research.

So, you're dismissing his opinion on the matter on the basis of his being better acquainted with medical research than you, which is pretty stupid on at least two scores; Knowledge of medical research and knowledge of governmental organization being unrelated, and his actually having more of the former than yourself.

[Krychek_2]

If that had been the only idiotic thing Trump said during his tenure I might be willing to say that everyone mis-speaks from time to time and give him a break.

But it wasn't. He said windmills cause cancer, he used a Sharpie to change the path of a hurricane, he autographed Bibles (did he claim to be the author?), he saluted a North Korean general, he stared into the sun twice, he said there were airplanes during the Revolutionary War, he wanted to nuke hurricanes, and suggested that bleach could cure Covid. The man is a total dolt. After all that, it's just laughable that his supporters are questioning Biden's mental faculties.

There are Republicans running who, while I disagree with their policies, would nevertheless be competent presidents. Trump is not one of them.

[Tom for equal rights]

Only 4 mistatements of fact in one paragraph
You can do better.

[Krychek_2]

Please identify the misstatements.

[Tom for equal rights]

distortion of material facts - You would also be familiar with the distortions if you got you info outside the left wing echo chamber

Sharpie
bleach
sun
planes ( mistatement)

then you go off trying to equate mistatements as equivilant to Biden's advanced mental decline.

[Krychek_2]

OK, none of those are distortions; he really did say/do those things. You can find all of them on the search engine of your choice.

[Nige]

Are you sure it's not your 'Russia hoax' echo chamber telling you he didn't say those things that's wrong?

[Tom for equal rights]

those were gross distortions and completely out of context - you know better. It doesnt speak well of your honesty

[Nige]

What context? The only context is you adding gloss to his words that were nowhere evident in anything he said and which appears highly speculative, and even if you're correct his actual words were so misleading and distorted from any factual or scientific basis or medical procedure as to be reckless.

[David Nieporent]

OK, none of those are distortions; he really did say/do those things. You can find all of them on the search engine of your choice.

No; Tom for equal rights is correct, and you're obviously lying to make Trump look bad. Trump talked about Revolutionary War airports, not airplanes. Totally different.

[Krychek_2]

David, I stand corrected. It was airports rather than airplanes. Oh well, you just blew my cover as a mole, though for whom remains undetermined.

[Krychek_2]

Trump reminds me of the famous prayer: God grant that we do not speak ill of our leaders. And God grant that they do not behave in such a way that we can't help ourselves.

[Krychek_2]

And by the way, Randy Rainbow did a magnificent parody of it, "Just a Spoonful of Clorox Makes the Temperature Go Down":

https://www.youtube.com/watch?v=DPDPzbLFeP4

[rrgg]

Trump never said the words "bleach" or "drink." He was referring to a UV treatment being discussed, and it was broadcast live. Feeding a UV device was being investigated at the time and the company had some research on their website. I hope you don't also think he said nazis are very fine people.

"So, I’m going to ask Bill a question that probably some of you are thinking of if you’re totally into that world, which I find to be very interesting. So, supposing when we hit the body with a tremendous, whether it’s ultraviolet or just very powerful light, and I think you said that hasn’t been checked, but you’re going to test it. And then I said supposing you brought the light inside the body, which you can do either through the skin or in some other way. And I think you said you’re going to test that too. Sounds interesting. And then I see the disinfectant, where it knocks it out in a minute, one minute. And is there a way we can do something like that by injection inside or almost a cleaning? Because you see it gets in the lungs and it does a tremendous number on the lungs, so it’d be interesting to check that, so that you’re going to have to use medical doctors with, but it sounds interesting to me. So, we’ll see, but the whole concept of the light, the way it kills it in one minute. That’s pretty powerful."

[Nige]

Trying to bluff his way through a global pandemic like a kid padding out an essay two minutes before its due.

The Great Communicator and master media manipulator sure does require a lot of post-hoc commentary to make him make sense.

Of course other politicians do this sort of thing, too. It’s just that other politicians don’t have a weird base that treat their words as Holy Writ.

[Life of Brian]

Here's a contemporaneous (May 2020) USA Today "fact check" that (through immensely gritted teeth and appeal to various super-specific straw-man claims that had nothing to do with Trump's quote above) verified UV light treatment for COVID was under active research at the time. The conclusion of the sad tapdance:

The claim that researchers are exploring a medical device that would use UV-A as a potential tool for treatment in COVID-19 patients is true, according to statements from Cedars-Sinai Medical Center and Aytu Biosciences.

But the presentation of that news includes a FALSE HEADLINE.

[Nige]

Nobody denied that there might have been research into UV light, just that how he mangled it was stupid and funny. The disinfectant thing, on the other hand, was alarming because his followers are so goddamn susceptible.

[Life of Brian]

Nobody denied that there might have been research into UV light, just that how he mangled it was stupid and funny.

I'm going to break my don't-engage-the-flaming-trolls rule for exactly one post, since this one is so egregious even for you. It took less than 30 seconds to surface another contemporaneous article that chose to mangle what Trump said into another straw man rather than acknowledge that any such research as I mentioned above. Key language:

Mr Trump has also floated the idea of exposing patients to "ultraviolet or just very powerful light".

There is some evidence that, in general, viruses on surfaces die more quickly when exposed directly to sunlight. But we don't know how much or how long they have to be exposed for UV light to have an effect.

And again, this is only about infected objects and surfaces - not about what happens once the virus is inside your body.

There are plenty of others like it, as I clearly recall from the time and the memory hole hasn't yet been able to erase.

At least try to be factual from time to time.

[Nige]

Can you trumpsplain some more? I have no idea what you think has been refuted by that quote. It doesn’t deny that there might be research into UV and covid, only that it couldn’t be used internally, (y’know, through the skin) as Trump was trying to suggest. Are you saying there was actual research into using UV internally?

[Brett Bellmore]

"The disinfectant thing, on the other hand, was alarming because his followers are so goddamn susceptible."

I swear, your regularly demonstrated ignorance of medical practices is epic. I don't suppose you know that it's actually fairly routine to use a little disinfectant in the water with a netti pot, to deal expediently with respiratory infections?

[Nige]

That’s not what he was talking about, susceptible trumpsplainer.

[Life of Brian]

Are you saying there was actual research into using UV internally?

OK, troll, you succeeded in drawing a second response: solely to tell you to actually read the research expressly discussed in the first USA Today fact check article I posted -- feel free to search in the article for "internal organs" to more easily narrow it down for your squinty troll eyes -- rather than further embarrassing yourself via ignorant follow-on questions. Bye now.

[Nige]

AHAHAHAHAHAHAHA. I stand corrected. I hadn't noticed that for once you linked to a credible source, normally your links directly contradict everything you say. That’s fuckin’ brilliant. No, seriously. Holy shit. He really has a talent for making everything sound too incredibly stupid to be real, even when it is. You elected a credibility black hole.

[Dr. Ed 2]

Depending on where you live, you're drinking a spoonful of Clorox (or more) on a daily basis. Chlorine bleach has been added to drinking water for over a century now, doing this was a major advancement in public health.

[Dr. Ed 2]

The actual paragraph reads:
"The Continental Army suffered a bitter winter of Valley Forge, found glory across the waters of the Delaware, and seized victory from Cornwallis of Yorktown. Our army manned the air, it rammed the ramparts, it took over the airports, it did everything it had to do. And at Fort McHenry, under the rockets' red glare, it had nothing but victory. And when dawn came, their Star Spangled Banner waved defiant."

Sadly, the most egregious error went unnoticed -- Fort McHenry wasn't even built until 1798 and the battle described was during the War of 1812 It didn't exist during the Revolution, nor did that particular flag...

Trump was reading a prepared speech in the pouring rain -- his mistake was in hiring the idiot who wrote it....

[Azathoth!!]

It's really sad that you believe all that.

And defend your belief.

It means you went, researched each one, got the entirety of the context, and STILL accepted the pravda that was shoveled into your head.

Sad

[JR74]

My larger point was, since you’re very slow, to say that what his view on what the office of the presidency is as authoritative as his views on Covid. Meaning if he thinks the president is an officer that doesn’t make it authoritative at all. If anything I’m in a round about way defending him from himself in these charges that he’s disqualified. If I could I’d write this in crayon for you.

[JR74]

My larger point was, since you’re very slow, to say that what his view on what the office of the presidency is as authoritative as his views on Covid. Meaning if he thinks the president is an officer that doesn’t make it authoritative at all. If anything I’m in a round about way defending him from himself in these charges that he’s disqualified. If I could I’d write this in crayon for you.

[JR74]

My larger point was, since you’re very slow, to say that what his view on what the office of the presidency is as authoritative as his views on Covid. Meaning if he thinks the president is an officer that doesn’t make it authoritative at all. If anything I’m in a round about way defending him from himself in these charges that he’s disqualified. If I could I’d write this in crayon for you. Got it?

[Tom for equal rights]

You are grossly and intentionally distorting Trumps Hclx comment. At the time which was very early in the covid pandemic that HCX may have potential to reduce the infection severity. This was due to the known fact at the time that lupus patients had a much lower infection rate than the general population and lupus were using Hcx. It turned out to be wrong, but At the time, it was a reasonable to explore whether hcx maybe a cure. It

[Nige]

'intentionally distorting'

If he meant all that he should have said all that. He didn't, he said the stupid and dangerous thing he did say.

[Mr. Bumble]

He was speculating about possible treatments while the experts were screaming for ventilators which wound up doing more harm than good.

[Nige]

Stupidly rambling about non-existent treatments he clearly had no real grasp of leading to widespread misunderstanding at worst, puzzlement at best, and Kushner and the White House were leading the screaming charge for ventilators, and Kushner managed to be corrupt and incompetent about them on top of all that.

[Mr. Bumble]

It was Cuomo screaming for ventilators demanding the whole nation's supply.

[Nige]

Everyone was screaming for ventilators for, yknow, a brand new respiratory disease. Kushner still fucked it up miserably.

[Don Nico]

Nonetheless, it was at best stupid and at worst exceedingly harmful for POTUS to repeat such speculations.

[Nameless But Highly Opinionated]

Everyone: The President is the highest officer in our government.

Law professors whisper among themselves, then wave a law book that had been on the shelves for who knows how long, rubbing it with a quill. "Hocus Pocus!"

A great cloud of dust appears: "An officer you say? Not anymore!"

[VinniUSMC]

Strange fairy tale.

[windycityattorney]

What is strange, is that the authors of the 14th amendment section at issue would have created a provision that says essentially, traitors to the country have forfeited their ability to run for federal office ever again EXCEPT for leader of the country itself and commander in chief of the armed forces.

You can't serve as a presidential elector, congressman or whatever...but you CAN be president!

What a glaring oversight.

[BadLib]

Or an intentional detail? That's how I read it - albeit without research into the historical record.

All the explicitly mentioned individuals (Senators, Representatives, and electors) are completely determined by the state legislator and/or state's voters.

The position of President is selected via a national consensus. If the voters in enough states think a person is qualified to be President, wouldn't it be strange to think that someone believing in a democratic system of government would deny the voters that choice?

There's a lot more room for skullduggery at the individual state level than there is at the collective national level.

(Also Section 3 doesn't prevent anyone from running for any office. Congress can eliminate the disability after the election and before the start of a "disqualified" winner's term. In the case of the President, the newly elected Congress can do so - which makes it even more speculative that Trump would not be eligible, even if guilty of insurrection by whatever method that might be determined, to take office come January 20, 2025. The Republicans could, conceivably, take 2/3 of the House and make significant inroads in the Senate and some Democratic Senators from purple states might see the folly in denying the winner of the Presidential election the seat to which the voters elected him.)

[Nameless But Highly Opinionated]

Yes. This!

If I may add a little:

While ratifiers'/drafters' intentions are not themselves law, the intention seems to have been to clamp down on disloyal *segments* of society. After all, the 1860s were a very populist age, and the Republicans a populist party at the time. Especially the Radicals. They weren't clamping down on democracy in the way Somin seems to suggest.

And prior to the late 1880s/90s, there was no such thing as the preprinted "Australian" ballot. Voters brought their own, and parties sometimes issued "straight ticket" ballots. People could - and did - vote for ineligibles. Sometimes they even elected them. If exclusion happened, it was at the end of the process. It was only in 2022 that a guy in New Mexico became the first person - questionably, and under a state court decision for a county office - to actually be kept off the ballot.

It's fair to note that simply electing someone could have the effect of indicating their electorate wants forgiveness. (Though DJT wouldn't get the 2/3 any time soon)

[dwshelf]

You can just jump ahead to the conclusion: the SC is not going to allow Trump to be removed from any state's ballot.

And it's not going to depend on whether he is or is not an Officer of the United States. It's going to depend on whether the SC thinks it's a good thing to have states bar Trump from their ballots, with the chaotic conflict that would ensue.

They may well might cite such analysis in their decision, but that will be secondary on their minds.

[Davy C]

the SC is not going to allow Trump to be removed from any state’s ballot.

Constitutionally the states could remove everyone from the ballot. They don't even need to hold an election. They could just say "Our electoral college members are these three guys, and they're all pledged to Biden."

[dwshelf]

In theory.

In practice, the SC just wouldn't allow that.

[Brett Bellmore]

Sure, the Supreme court would, so long as they didn't wait until after the voting started. It's dead simple textualism, 3 of the members don't care about what the text says all that much, but would happily claim to in order to elect a Democrat, all you need is another 2 Justices who'd let the text over-ride their personal politics, if that was even necessary.

But as a practical matter the occasion will never arise.

[Josh R]

As a practical matter, that won't happen. All the states award electors based on the popular vote and not one state will be changing those rules.

[Jason Cavanaugh]

No, “all” States do not do that.

[David Nieporent]

Yes, all states do that. If you're trying to be pedantic about Maine and Nebraska, you're still wrong. Both those states hold popular votes, and award their electoral votes based on the results of the popular votes. It's just that rather than winner-take-all, they divide up those electoral votes geographically within the states.

[not guilty]

"You can just jump ahead to the conclusion: the SC is not going to allow Trump to be removed from any state’s ballot."

How do you envision the matter reaching SCOTUS? If the matter is initially determined by a state court or administrative tribunal, it would need to be appealed to the highest court of the state in which a decision could be had before SCOTUS review by certiorari could be sought, per 28 U.S.C. § 1257. That may take a while, depending on whether the state expedites consideration of the matter.

As I have said before, the most prudent course of action may be for one or more state secretaries of state to sue for declaratory judgment in U. S. District Court pursuant to 28 U.S.C. § 2201 regarding Donald Trump's eligibility to serve as president if elected. "[A] State has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies." Storer v. Brown, 415 U.S. 724, 733 (1974), quoting Jenness v. Fortson, 403 U.S. 431, 442 (1971). "[A] state's legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office." Hassan v. Colorado, 495 F. App'x 947 (10th Cir. 2012) (Gorsuch, J.)

[Krayt]

How do you envision the matter reaching SCOTUS? If the matter is initially determined by a state court or administrative tribunal,

8 billion emergency lawsuits claiming short time and disenfranchisement by motivated partisan hacks, exhibit four thousand seven hundred fifty seven [insert your comment above] HELP US.

Would a court sit aside while an abomination occurred?

He needs to lose, properly, and not be attacked for the two hundredth different attack pattern using the power of government.

[not guilty]

What do you posit as the basis for SCOTUS jurisdiction? Review of state court proceedings is governed by 28 U.S.C. § 1257, which states:

(a) Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States.

(b) For the purposes of this section, the term “highest court of a State” includes the District of Columbia Court of Appeals.

Stamping your feet and squealing "I don't like it" doesn't feed the bulldog. Please cite specific statute(s) dispensing with the requirement that the matter first be presented to the highest court of a State in which a decision could be had.

[not guilty]

Still waiting, Krayt.

[David Nieporent]

How do you envision the matter reaching SCOTUS?

The same way any other state case does?

If the matter is initially determined by a state court or administrative tribunal, it would need to be appealed to the highest court of the state in which a decision could be had before SCOTUS review by certiorari could be sought, per 28 U.S.C. § 1257. That may take a while, depending on whether the state expedites consideration of the matter.

Like that. You just answered your own question.

How did Bush v. Gore reach the Supreme Court?

[not guilty]

Of course I knew the answer. I was trying to flesh out dwshelf's ipse dixit assertion about what the Supreme Court would do.

[Mr. Bumble]

Too clever by half.

[not guilty]

Mr. Bumble, have you heard of the Socratic method?

[Mr. Bumble]

Guess I'll have to re-watch "Bill and Ted's Excellent Adventure".

[dwshelf]

How would they get involved?

The SC is supreme over any court in the nation. As soon as Trump were to be barred from a ballot, it's certain to be legally challenged, and if timely return to normal wasn't apparent, the SC would take direct control. Details just irrelevant.

Trump looked forlornly at the SC for support in lots of stuff, but in this case, his instincts would turn out correct.

[not guilty]

"As soon as Trump were to be barred from a ballot, it’s certain to be legally challenged, and if timely return to normal wasn’t apparent, the SC would take direct control. Details just irrelevant."

Uh, no, the details are far from irrelevant. The Supreme Court's appellate jurisdiction is defined and limited by Congress. SCOTUS review of state court proceedings is fixed by 28 U.S.C. 1257(a), which limits jurisdiction to review of final judgments or decrees rendered by the highest court of a State in which a decision could be had.

Supreme Court Rule 14(1)(e)(iv) requires that a petition for writ of certiorari state the statutory provision believed to confer on the Court jurisdiction to review on a writ of certiorari the judgment or order in question. Rule 14(1)(g)(i) provides that if review of a state-court judgment is sought, the cert petition must include specification of the stage in the proceedings, both in the court of first instance and in the appellate courts, when the federal questions sought to be reviewed were raised; the method or manner of raising them and the way in which they were passed on by those courts; and pertinent quotations of specific portions of the record or summary thereof, with specific reference to the places in the record where the matter appears (e. g., court opinion, ruling on exception, portion of court's charge and exception thereto, assignment of error), so as to show that the federal question was timely and properly raised and that the Supreme Court has jurisdiction to review the judgment on a writ of certiorari.

Details matter -- a lot. When and where did you get your legal training, if any, dwshelf?

[TW]

[Magister]

Those who want Trump on the ballot flail around looking for any excuse why disqualification doesn't apply. I think Trump should be on the ballot; let's find out now how crazy this country is. But there is no way I'm joining Josh Blackman on the reasoning why.

[Krayt]

I beg your pardon! It is normal and American to have people on the ballot. It is sick and diseased and cheesy partisan hackery to use legal tricks to keep one's political opposition off the ballot.

Jfc what a planet.

[Sarcastr0]

This whole officer of the US is barely an argument, but it is an attempt to at the legal trickery you claim to hate.

It’s not a legal trick to note that Trump tried to overturn the election any which way. He doesn’t deserve to be on the ballot. You can get very angry and call it all the names you want, but you need to ignore the facts to think Trump is normal and good.

But yeah, he’ll be on the ballot. No one on here seriously contends otherwise, except for his paranoid supporters and one guy Monday I’d never seem before.

And yet even the academic exercise makes you angry and scared and calling it unamerican.

[Brett Bellmore]

"No one on here seriously contends otherwise,"

I think, yes, he's going to be on the ballot. But it's not going to be for lack of people trying to keep him off it using Section 3 as an excuse. The lawfare has already begun.

[Sarcastr0]

I don't believe there will be many attempts, noting the attitude of the liberals on here (including myself).

I do expect every action with a whif of Section 3 to be something you tear your hair out about.

[Brett Bellmore]

Well, the joke's on you then: I'm bald.

[Don Nico]

"calling it unamerican"
That is because it is.
If Republican assholes want to lose another election, let them. However, playing legalistic tricks to keep a major party candidate off the ballot is an abomination

[Sarcastr0]

1. This is an article about a legal trick to avoid Section 3.
2. This is an important touchstone about originalism versus being outcome oriented. Even with the outcome having zero expected real-world impact, many are failing, unsurprisingly.
3. Your principle here is wrong – if people want to elect someone who is not qualified to hold office, it’s not a legalistic trick to tell them no. The legitimacy of this is an academic question, but an important one.

[Don Nico]

Raising 'academic questions" is a legalistic trick of the worst kind. The only good thing about this business is the potential to get SCOTUS to rule on what Section 3 actually means.
I don't buy you declaration that my principle is wrong. Why should I? I think yours has the stench of authoritarianism as much as I would love to see Trump behind bars.
We can agree to disagree.

[Alpheus W Drinkwater]

I don't think Baude and Paulsen believe they are raising an "academic question." I believe they are arguing in good faith that election officials are required to disqualify Trump based on section 3. I'm not sure I agree, but I see no basis for labeling their position as undemocratic, or authoritarian. Or being given in bad faith.

[Azathoth!!]

It’s not a legal trick to note that Trump tried to overturn the election any which way.

Here's the issue.

Trump didn't try to overturn the election. At all. Ever.

That particular construction was devised to make the absolutely legal questioning of unverifiable election results appear illegal.

This has been a feature of all these cases and all of the media/left accounting of Trump's actions since it became clear that he would win if he got the nomination.

Everything, from the 'fine people' hoax, to the 'he said inject bleach' hoax to even the bizarre case wherein he was judged to have defamed the woman who falsely accused him of rape by saying the accusation was false and that she was a liar.

Every indictment, every statement by the dems, the left and the media are all in furtherance of this type of legal trickery.

[Sarcastr0]

Trump didn’t try to overturn the election. At all. Ever.

Except for:
1. Stop the Steal bullshit lawsuits
2. The fake electors
3. Pressuring the DoJ to falsely claim there was doubt about the election
4. Pressuring the DoD/DHS to seize voting machines and ballots and falsely claim evidence of election theft
5. Pressuring governors in Georgia, Michigan, Arizona, Wisconsin
6. Pressuring Pence to decertify.
7. J6 attempt to stop Congressional certification

[Azathoth!!]

You understand that none of that happened, right?

I mean literally, NONE of it happened.

Everything you listed is an example of twisting words past the breaking point, parsing sentences to syllables so they can be rearranged to whatever the agenda requires.

Even spinning your ridiculous assertions into several numbers is an example of this twisting.

It is not illegal to question the results of an election. It is not illegal to demand a total verification and audit of the ballots, the voting machines and the voter rolls.

And it is not illegal for the people to petition the government for a redress of grievances--even when they're asking that the certification of electors can be halted until the votes can be fully verified to the satisfaction of the people.

Donald Trump did nothing wrong.

[not guilty]

Cataloguing the crimes that Donald Trump committed would take more time than I have available, but the corrupt attempt to obstruct, influence or interfere with the electoral count in Congress, to which the fake elector scheme was central, is a slam dunk for conviction under 18 U.S.C. § 1512(c)(2). Agreeing with others to carry out such a corrupt scheme violated three distinct federal conspiracy statutes, to-wit: 18 U.S.C. §§ 241, 371 and 1512(k).

Have you read any of these statutes, Azathoth? Yes or no?

As an aside, baseless litigation is not immunized by the First Amendment right to petition for redress of grievances. As the Supreme Court has recognized:

The first amendment interests involved in private litigation -- compensation for violated rights and interests, the psychological benefits of vindication, public airing of disputed facts -- are not advanced when the litigation is based on intentional falsehoods or on knowingly frivolous claims. Furthermore, since sham litigation, by definition, does not involve a bona fide grievance, it does not come within the first amendment right to petition.

Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983).

[Azathoth!!]

All of them.

There was no 'fake elector' scheme. The alternate electors were chosen because without them one of the cases would not be able to continue. It's part of the process of challenging the results.

But you don't know that.

Because you don't know all the cases.

I was not referring to litigation when I pointed out that the people have the right to petition the government for a redress of grievances. I was referring to the demonstrations on January 6th.

Where, despite similar obstructions of Congress occurring previously without anyone being charged with insurrection or seditious conspiracy, people were charged with just such things. In fact, at one point demonstrators interfered with the peaceful transition of power to a new Supreme Court Justice. We have three co-equal branches of government --yet THAT transition was gleefully disrupted with the aid and assistance of not just a conspiracy of people, but a conspiracy of elected officials.

But no one was charged with insurrection or seditious conspiracy then.

Have the recent occupiers of the speakers office been charged with nsurrection or seditious conspiracy?

No?

Ah....

[David Nieporent]

There was no ‘fake elector’ scheme. The alternate electors were chosen because without them one of the cases would not be able to continue. It’s part of the process of challenging the results.

But you don’t know that.

That's because it's a fabrication on your part. There is no "process of challenging the results." That's not a thing. You don't get to "challenge" an election just because you wish the other side had won, and you certainly don't get to do so by forging documents. All legal actions were over.

I was not referring to litigation when I pointed out that the people have the right to petition the government for a redress of grievances. I was referring to the demonstrations on January 6th.

The demonstrations were stupid and performative, but fine. The attempt to overthrow the government after the demonstrations, however, was not fine. There is no "right" to do that, and of course the word "peaceably" is in the first amendment. (Smashing windows and assaulting cops in one's way != peaceably.)

[Azathoth!!]

David, just because you don't know something doesn't mean it doesn't exist.

And, the fact that you just accept whatever sewage is poured into your head speaks volumes against anything you might say.

The attempt to overthrow the government after the demonstrations, however, was not fine.

This also never happened.

No one was trying to overthrow the government with a bunch of unarmed grannies and anti-masturbation western chauvinists.

There was a demonstration to try to get the powers that be to take what the people were saying into account --that the votes needed more verification before the electoral votes could be certified.

Did they go where they weren't supposed to? Yes. Did things get broken? Yes. Did people get hurt? Yes.

Do those things make it 'insurrection' and 'seditious conspiracy'?

Based on legal precedent--no. It is not 'insurrection' and 'seditious conspiracy' even if one seizes control of US territory and declares it no longer part of the US. It is not 'insurrection' and 'seditious conspiracy' if one forms a group, plans socialist revolution, and violently attacks persons and property in and out of government. It is not 'insurrection' and 'seditious conspiracy' if one interferes and/or obstructs government functioning or occupies governmental property.

Unless one commits the much more heinous crime of not being part of the approved left.

And then, even breathing is a possible capital offense.

But you go on with your blind acceptance, after all, you're one of the useful ones, right?

[Alpheus W Drinkwater]

Perhaps you could cite the state laws that establish this "process of challenging the election" you claim that the Trump advocates were following after Election Day 2020. Prosecutors in Georgia seem unaware of them in that state, and would profit from your guidance.

[Azathoth!!]

Perhaps you could cite the state laws that establish this “process of challenging the election” you claim that the Trump advocates were following after Election Day 2020. Prosecutors in Georgia seem unaware of them in that state, and would profit from your guidance.

I could do some research for you, but why? I am relying on what one of the lawyers who worked on that case said about it. You can find it. He went into some depth. Just find the case, find the names of the lawyers, find the one who spoke in a public way about this and there you go.

I did it. So can you.

And why would the kangaroo court in Georgia care? If it is not evident to so many of the great legal minds here that there is not one real charge, one real crime here, what makes you think the people behind this farce will come to their senses in any of this?

[bacchys]

All of it happened. You need to get your head out of rightwing media's ass.

[Don Nico]

"Donald Trump did nothing wrong."
Nonsense. But let's see what four trials have to say about it.

[bacchys]

"Trump didn’t try to overturn the election. At all. Ever."

Nice way to show you're a braindead sheep.

[Azathoth!!]

Then cite a crime he's committed. An actual crime.

Not 'he said this because he wanted that even if he never said he wanted that'

A crime.

What 'treason' did he commit?

What makes the conspiracy 'seditious'?

See, there was none because he wasn't helping enemies of the US.....unless you're suggesting that anyone who supports Trump is the enemy of the US.

And it wasn't 'sedition' because he was trying to use the Constitution to force the elected officials and the bureaucracy to fulfill the TOTALITY of their Constitutional duty --part of which is ensuring the security of the election process.

But you leftists have defined it otherwise. You have taken what actually happened and imposed the narrative your masters demand of you upon it.

Sadly, you are not braindead.

You are of the willfully ignorant, that hideous spawn of humanity upon whose brow is written Doom.

[JasonT20]

Article 2 repeatedly refers to the President as holding the "office" of the Executive, but he is not an "officer" of the United States? Since all of these articles seem to be behind paywalls, I can't see what sort of pretzel logic they go through to make the President not an officer while holding the highest executive office. I wonder if they are mostly pointing to parts of the Constitution where they talk about officers that can't include the President, such as the President appointing officers of the United States.

Anyway, it seems to be the usual kind of thing people use originalism for: to find loopholes that allow them claim that what they want to be true is the way the Constitution must be interpreted.

[dwshelf]

it seems to be the usual kind of thing people use originalism for: to find loopholes that allow them claim that what they want to be true is the way the Constitution must be interpreted.

Correct. The right goes through the shenanigans. The left doesn't even pretend, they just say what they think the right answer is. Both doing pretty much the same thing, but the left is a bit more honest about it.

[SRG2]

It's just motivated reasoning.

Note this: That must be why the Constitution prescribes a separate oath for the president.

And what does the oath say? "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States"

If a thousand right-wing law professors swore on a stack of Bibles or T'nakhim that the president was not an officer, I would regard them all as guilty of self-deception, as it's that fucking obvious.

[Brett Bellmore]

I agree, I’m not the least persuaded that Trump isn’t subject to Section 3.

My position is simple enough: Either charge and convict him of an offense that carries disqualification as a penalty, (Enabling legislation!) or go pound sand.

If he were running for Congress, Article 1 gives Congress all the authority it needs to declare somebody an insurrectionist and refuse to seat them.

If he were being appointed to a non-elected federal position, the Senate can just refuse to confirm him.

That’s how Section 3 was enforced after the Civil war!

But, he’s running for President, and if the Congressional count of EC votes is ministerial, then it’s ministerial, damn it.

I object to this ‘self executing’ business, which looks like nothing more than an excuse to deny him due process, but, yeah, he’s subject to Section 3. The question all along has been about whether he’s actually guilty, and the procedure for establishing it.

[Sarcastr0]

Your position is simple because you got there first and picked an argument after. You read stuff into the text that isn’t there. You get the history of the 14A wrong. You discard your usual formalism for nonstop functionalist arguments and norms.

[Brett Bellmore]

Look, Sarcastr0, I actually followed Baude’s link to the Congressional account of action against Confederates. They refused to seat them as an exercise of Article 1, Section 5, “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members”

As they were elected to positions in Congress, Congress was constitutionally authorized to decide if they met the qualifications for that office, including the new qualification added by Section 3. But they excluded Confederates in 1865, prior to the 14th amendment, on this same basis. So it’s not like they needed Section 3 to do it, they were exercising an independent power of Congress that already existed.

Similarly, when voting to confirm or reject nominees to various positions, Congress acts on its own independent power to decide whether a nominee is qualified, they can take Section 3 into account at that point, but don’t need it.

BUT, the President doesn’t fall under that power! He’s not a member of Congress, after all. And he's not subject to Congressional confirmation either.

Didn't we already establish that the EC vote in Congress is ministerial, that they're NOT entitled to say, "Screw the electors, we're picking somebody else!"? Isn't that exactly why Trump's effort to get Congress to declare that Biden hadn't won was illegitimate?

As I see it, of course Section 3 applies to the President, just as it applies, expressly, to the Electors.

The states effectuate Section 3 by deciding who can be an elector, but I am unaware that any party has proposed people who could be accused of insurrection to be electors.

Then the electors themselves effectuate Section 3 when they vote on who will be President. Because that IS what they’re doing when they meet, after all.

[Sarcastr0]

A specific example of the implementation of a law does not exhaust all implementations of said law. And your 14A as ‘papering over existing practice’ is fully ahistorical. It may have been a sub rosa element in the reasoning but the actual Congressional record provides you no support.

It’s utterly out of left field that the electors must be the the sole implementers. It ignores who the Constitution says handles elections, as well as current practice with respect to other disqualifications like age and residency.

Bottom line, this is all handwaving. You ignore the actual text, which I maintain is the real tell of what’s going on with you. Because you myopically follow your take the text everywhere else, and here appeal to everything *but* the text.

It's okay if Trump technically falls under Section 3, you know. Plenty of janky legal things are technically true but will never be implemented. But I also know that you think we live in a political thriller so every potential avenue will be exploited by the evil Dems.

[Brett Bellmore]

"It’s okay if Trump technically falls under Section 3, you know."

He does fall under Section 3, in the sense that he could be subject to it if he'd committed a relevant offense. We're just disagreeing about what the due process would be.

"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."

It is NOT incidental that the bolded text identifies things that were ALREADY CRIMES. Insurrection? Already a crime. Rebellion? Already a crime. Treason? Already a crime.

I'm really amazed at your confidence that, in drafting the 14th amendment, and mentioning existing crimes, they were not incorporating by reference the definitions and due process for those crimes.

[not guilty]

As I have said numerous times, disqualification under the Fourteenth Amendment § 3 and disqualification as a criminal penalty (pursuant to a statute such as 18 U.S.C. § 2383) are distinct. No criminal statute is limited in its application to defendants who have previously sworn an oath to support the Constitution. Disqualification as a criminal penalty is not removable by Congress.

Anyone accused of a crime is guaranteed procedural safeguards which § 3 does not encompass. Criminal conviction requires proof beyond a reasonable doubt of every element of the offense; § 3 is silent as to the standard of proof. Disqualification under § 3 need not be charged by indictment or presentment of a grand jury. Disqualification under § 3 need not be litigated in the state and district where the offending conduct occurred. There is no mention in § 3 of a right to trial by jury. Proceedings to disqualify under § 3 may be litigated before a state court or administrative tribunal.

As the Sesame Street jingle goes, one of these things is not like the other.

[Brett Bellmore]

Yes, I know you've asserted that multiple times. And that's all you've done: Asserted it.

[Sarcastr0]

Since they are 2 different things in 2 different places, the burden is on you to show that they are the same.

[not guilty]

Brett, tell me what proposition(s) I have stated that you dispute.

Do you claim that the application of any federal criminal statute is limited to defendants who have previously sworn an oath to support the Constitution? If so, what is your authority?

Do you claim that Congress can remove disqualification from office when imposed as a criminal penalty? If so, what is your authority?

Do you dispute that criminal conviction requires proof beyond a reasonable doubt of every element of the offense? That § 3 is silent as to the standard of proof? If so, what is your authority?

Do you claim that disqualification proceedings under § 3 need be charged by indictment or presentment of a grand jury? If so, what is your authority?

Do you claim that disqualification under § 3 can be litigated only in the state and district where the offending conduct occurred? If so, what is your authority?

Do you claim that § 3 mentions any right to trial by jury? If so, can you read?

Do you dispute that proceedings to disqualify under § 3 may be litigated before a state court or administrative tribunal? If so, what is your authority? (Check Greene v. Raffensperger, 599 F.Supp.3d 1283 (N.D. Ga. 2022), before you answer and tell us specifically what Judge Totenberg got wrong.)

[not guilty]

Still waiting, Brett. What do you dispute, and what is your authority therefor?

[Brett Bellmore]

"Do you claim that Congress can remove disqualification from office when imposed as a criminal penalty? If so, what is your authority?"

"
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."

[MaddogEngineer]

Yes of course, there are 2 categories of Civil War era examples that fall under Section 3 do not require criminal conviction: serving in a rebel army, and serving in a rebel government.

Neither of those situations has occurred since then. Whether a person served in a rebel army or government can be a documented by a surviving government suppressing such an insurrection just like a birth certificate or naturalization document.

I don't understand why you would say "disqualification as a criminal penalty is not removable by Congress". If Congress can authorize such a penalty (I'm not really sure if it can on its own, beyond its Section 3 authority for insurrection/aiding enemies), it can certainly repeal it. More specifically, if there ever is such a disqualification for insurrection under Section 3, Congress can always remove it if it chooses. One Congress cannot bind a future one in this case via a criminal law, because the Constitution specifically provides for doing so.

If you're relying on Baude/Paulsen, they are simply mistaken to suggest that Section 3 overrides the due process of any citizen in peacetime (civil courts operating). Suggesting ad hoc procedures are allowed under Section 3 violates that. Which is why the idea that the section is somehow self-executing is nonsense. Allowing random government officials to decide as they choose regarding contested facts, absent specific law (federal or state) describing the rules of such a procedure, is Star Chamber madness.

[not guilty]

I don’t understand why you would say “disqualification as a criminal penalty is not removable by Congress”. If Congress can authorize such a penalty (I’m not really sure if it can on its own, beyond its Section 3 authority for insurrection/aiding enemies), it can certainly repeal it.

Congress cannot remove any criminal penalty imposed on a defendant by an Article III judge. That is so basic to the constitutional separation of powers as to not require citation of specific authorities.

Suppose a defendant is tried and convicted of 18 U.S.C. § 2071(b) or § 2383 or any other federal statute which carries disqualification from holding office as an available penalty. (In the case of conviction under either of the statutes I cite, disqualification is mandatory.) Suppose the District Judge enters a judgment of disqualification from holding office under the United States. The President can pardon such a defendant, but Congress can do nothing to set aside that defendant’s sentence.

Congress can amend the applicable statutes so as to prospectively modify the available penalties, but it cannot wipe out a sentence retrospectively.

[Brett Bellmore]

Did you somehow miss that Section 3 explicitly SAYS that Congress can lift such a disqualification?

[David Nieporent]

I’m really amazed at your confidence that, in drafting the 14th amendment, and mentioning existing crimes, they were not incorporating by reference the definitions and due process for those crimes.

I'm really amazed that you keep reading the words "been convicted of" when the actual text says "engaged in."

[not guilty]

Fish gotta swim.
Birds gotta fly.
Brett gotta prevaricate.

[Azathoth!!]

It is probable that he is quietly objecting to your desire that 'engaged in' insurrection or rebellion against the same, or given aid or comfort to the enemies thereof be so broadly interpreted that the mere suggestion at any place and at any time a person said something as innocuous as 'I'd like to go down to city hall and show those assholes how to get things done' would be enough to disqualify them

...at the discretion of the ruling leftist party, of course.

[TW]

My position is simple enough: Either charge and convict him of an offense that carries disqualification as a penalty, (Enabling legislation!) or go pound sand.

This is the correct and only sane position.

The alternative is a national game of tit-for-tat in which different states that are controlled by one party will try to exclude the other party's nominee from their ballot because of this supposedly "self-executing" provision.

[Sarcastr0]

Your position seems based on an appeal to potential consequences. I think it's a pretty decent policy argument, though obviously there are costs as well as benefits to letting an insurrection lie.

But it's not a Constitutional argument.

[Brett Bellmore]

No, my constitutional argument is that the acts Section 3 cites as disqualifying are all crimes, and were crimes at the time it was written, and that being the case, Section 3 incorporates their statutory definitions and procedures for determining guilt by reference.

They were already both defined in law, so no reason to suppose that Section 3 created new and conspicuously undefined definitions.

[Alpheus W Drinkwater]

So if a Confederate politician who had previously taken an oath to uphold the constitution hadn't been convicted of insurrection, your position is that they would not have been excluded by section 3? Say for instance if they had been pardoned by President Johnson.

[Nameless But Highly Opinionated]

That's not a way I'd looked at it before, but I think what you say is convincing. Modern legal thinking, with its sharp distinctions between categories of law, was only starting to creep in by that time.

So "insurrection" in the 14th amendment didn't mean "insurrection, according to the Constitution" vs "insurrection, according to the U.S. Code". It simply meant "insurrection" - as the shared Common Law tradition had long understood the concept.

[PeteRR]

Free link to he Mukasey article for the potentially persuadable:

https://www.wsj.com/articles/was-trump-an-officer-of-the-united-states-constitution-14th-amendment-50b7d26?st=rq8lariuvf9gioo&reflink=desktopwebshare_permalink

[JasonT20]

That's pretty short and doesn't say anything other than picking at what language was used in various provisions.

As a reminder, the text of 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.

The argument really comes down to this:

Section 3 forbids people from holding a number of positions and any "office, civil or military, under the United States". Now, claiming that the Presidency isn't an office under the United States would be ludicrous (since Article 2 explicitly calls it an office), instead, they are instead saying, "Well, they may have included being President in one of the positions someone could be barred from holding after betraying an oath to uphold the Constitution, but only if they had done so after holding any other position besides President or VP. Thus, a President that had never held any other position in government could betray their oath of office, including being convicted of criminal acts done while President, and they wouldn't be disqualified.

Like I said, pretzel logic and loopholes is the name of their game. It actually makes sense that they would think this. Trump is always the exception to having to follow laws everyone else has to follow, so why should this be any different?

[David Nieporent]

Now, claiming that the Presidency isn’t an office under the United States would be ludicrous (since Article 2 explicitly calls it an office),

The Blackman/Tillman argument is that prepositions are the lynchpin of the entire constitutional design of this country. President is an office of the United States but not an office under the United States, or some such nonsense.

[gVOR08]

I love all this pinhead angel dancing. If anything comes of this it’ll end up in SCOTUS. The six conservatives on the court will decide what they decide, and only the most innocent will believe the law and Constitution have anything to do with it except for the rationalizations.

[Krayt]

In the sense the presidency is an office, it should apply.

Should it apply in this case? Maybe

Is this the two hundredth use of government power to attack a political enemy? It certainly is, making the entire endeavor sketchy. “Look at Trump’s unconstitutionality!” squeal people wallowing in a manure pit of profound constitutional abuse, proudly directing the investigative power of government against a political enemy to git ‘im, while feigning a noble cause.

He’s a shit. But so are you all for this. Proof? There's no reason this shouldn't apply to the presidency. But a lack of a national concecensus permanently burdens the effort as relentless partisan bullshit.

[mydisplayname]

My simplistic definition of officer aligns with military (UCMJ) and international law.

Specifically, an Officer has a higher controlling power: neither the President nor Vice President have a higher controlling power and therefore neither is an Officer. Similarly, no member of Congress has a higher controlling power and therefore no member of Congress is an Officer; accordingly, the Fourteenth Amendment specifically references Members of Congress separately from Officers.

So, is Trump one "who, having previously taken an oath ... as an officer of the United States ... to support the Constitution of the United States"? No.

But the unspoken argument regarding the next phrase is more persuasive: who determines if an "insurrection or rebellion against the [*Constitution* of the United States]" has occurred? Again, I rely in part upon the wise words of Orrin Kerr from years ago and suggest that it is the sitting Commander In Chief (the sitting President) and he alone who can make such determination. While both the Chief Executive and Chief Justice are both entrusted with interpretation of the Constitution -- and both are subject to removal, but not direct control, by Congress -- only the Chief Executive has enforcement powers. Chaos would otherwise result: certainly, Petty Judge X (having the power of judicial review) cannot declare Citizen Group Y to be insurrectionists... and certainly Corporal Z (having enforcement power) cannot declare Citizen Group W to be insurrectionists. [Witness the ongoing chaos resulting from refusal by some to accept a plain-and-simple "everyman" understanding of the document he wrote to organize the government: our Omega Glory is that the Constitution -- "that which you call Ee'd Plebnista" -- "was not written for the chiefs or the kings or the warriors or the rich and powerful, but for all the people! " [https://www.youtube.com/watch?v=3bYkNptOJns]]

[Dr. Ed 2]

Exactly.

[apedad]

"Specifically, an Officer has a higher controlling power: neither the President nor Vice President have a higher controlling power and therefore neither is an Officer."

Huh?

The President as Commander of the Armed Forces

Art 2, Sect 2, CL 1: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States . . . .

Now whether he is an "officer" is the debate above, but the President certainly has 'a higher controlling power' over military personnel.

Let's see one of them disobey a presidential (lawful) order.

Also, the President can dismiss an officer.

Word search 'President' on this link to get edumacated on the UCMJ and the President's authority: https://jsc.defense.gov/Portals/99/Documents/UCMJ%20-%2020December2019.pdf

[Brett Bellmore]

“Now whether he is an “officer” is the debate above, but the President certainly has ‘a higher controlling power’ over military personnel.”

This is a simple misunderstanding of mydisplayname’s argument.

A “higher controlling power” in the sense he means is somebody higher up than you, who controls you. He’s arguing that you’re not an “officer” unless somebody is higher than you in the org chart, and has authority over you.

If you’re a cabinet officer, for instance, the President would be that “higher controlling power”. But the President doesn't stand in that inferior position to anybody at all.

[apedad]

Er....I guess OK.

But Congess can impeach and find the President guilty (and remove them from office), and write laws (and override vetos), so that authorize or prohibit presidential actions (within constitutional boundaries), so sounds like to me a 'higher controlling power.'

[Brett Bellmore]

I'm not endorsing his argument, just clarifying what it was.

[SRG2]

Specifically, an Officer has a higher controlling power

Says who? Were that the case, it would be absurd to describe the position of the president as an office.

[Alpheus W Drinkwater]

The constitution specifically calls the Presidency an "office." End of debate.

[Dan Schiavetta]

The argument, as I understand it, is that the framers of the 14A didn’t want Jefferson Davis in Congress, or in the Cabinet, but his actually being President would be o.k.

[loki13]

Well, it's a little more than that.

The argument is this:

1. The framers of the 14A didn't want Jefferson Davis (et al.) serving in Congress or the Cabinet, but he would be awesome as President.

2. The framers of the 14A were not only aware of this, they actually discussed this, and decided that the language they used would bar Jefferson Davis (et al.) from being President.

3. Despite the clear intent of the framers of the 14A, and the original expected understanding of the 14A at the time by the ratifiers of the 14A, this is somehow overcome by Tillman's newly discovered meaning of what was written in the 18th Century.

4. Because, as we all have learned, later Amendments do not change the Constitution, they must be read in accordance with later secretly uncovered meaning of stuff that was written before that.

5. PROFIT!!!!!

[Alpheus W Drinkwater]

His being President would've been okay, but he couldn't serve as a Vicksburg small claims judge. That would've posed too great a threat to the country.

[OtisAH]

Who is “President Turnip”?

[Brett Bellmore]

A side character in one of the Oz novels. Didn't you read them as a kid?

[The Margrave of Azilia]

This may all make sense to legal intellectuals, but the idea that the President of the U. S. isn't an officer of the United States sounds like a parody which some satirist might have written to mock abstruse, anti-common-sense legal reasoning.

[BLW]

Illustrative of how language crafted over 150 years ago to deal with a unique situation can be problematic when read and interpreted today in light of developments not anticipated by the drafters.

[The Margrave of Azilia]

I’d say that we can resolve any alleged ambiguities over the Presidency and Sec. 3 by recurring to republican (small r) principles – should Sec. 3 be read so that someone who is deemed unfit to be a local postmaster is capable of being President of the whole country? Let’s see…my answer would be…no, it should apply to the President. I mean, are you kidding?

This doesn’t mean that the specific ex-President we’re talking about did the things Article 3 specified, but if he did (as ascertained by a proper procedure) then no, he can’t be President.

[Brett Bellmore]

What the proper procedure is, is the whole argument. The idea that Presidents aren't subject to Section 3 isn't going anywhere.

[The Margrave of Azilia]

I used "proper procedure" as a weasel phrase. I have my own ideas of proper procedure (special federal court), but saying no President can be touched by Sec. 3 is a total, complete nonstarter, and rightly so.

[windycityattorney]

I suppose the proper procedure would be : if any State election official acts to keep Trump off a primary or general election ballot, then the Trump campaign sues to put him on it. A trial court judge makes a decision, that decision is appealed to the State's highest court and regardless of outcome, that decision is appealed to US Sup Ct?? Something like that at least.

[The Margrave of Azilia]

Not as good as a single tribunal specified by Congress, with provision for an expedited hearing.

Or we could wait for challenges to any Trump votes in Congress under the Electoral Count Act. That would be fun, too.*

*Not really fun.

[Alpheus W Drinkwater]

"The proper procedure" is that people empowered by state law to make decisions about candidate qualifications go ahead and make decisions. Those adversely effected can challenge said decisions through channels specified by state law, and if necessary through state and/or federal court. That's how it works. I'm not aware of any challenges to the constitutionality of that system, which is how every single state does it.

Is there a state or county election official or board somewhere that will have the guts to try to disqualify Trump under section 3? Maybe. All we've seen so far is voters outside that process challenging Trump's right to appear on the ballot, which is a vastly different thing.

[BLW]

Well, there is also 18 U.S.Code §§ 2383 and 2384, for which Trump has not yet been charged, but conceivably could be as new evidence may emerge in the trial defenses of several other defendants, or in plea deals.

[BLW]

There are other ways to look at the issue: https://brucewilder.substack.com/p/the-fourteenth-amendments-section

[SRG2]

What we can be pretty sure of is that every Trumpsucker who guzzles down Trump-bubble news daily will start repeating confidently that the president is not an officer, having had no knowledge or opinion one way or the other right up until the issue was raised.

[David Nieporent]

Yep. In pretty much the same way that they're all certain that the Presidential Records Act allows the president to steal classified documents even though they had never heard of the PRA before Trump was arrested.

[bacchys]

The Tillman argument is idiotic. The contention a President who committed insurrection isn't barred, but some elected dogcatcher would be, is clearly stupid.

[myself]

To play the originalist card it seems a little bizarre that the authors of the 14th amendment would bar insurrectionists from any position in the federal government... except President.