Prof. Larry Lessig (Harvard) Criticizing the § 3 Disqualification Argument as to Trump

An excerpt from Lessig's article in Slate (read the whole piece for more), discussing the same issue that has been discussed on this blog by Profs. Ilya Somin, Steve Calabresi, Will Baude, and Michael McConnell (and see also Jonathan Adler's post citing Prof. Derek Muller):

The provision of the 14th Amendment that [the advocates of disqualifying Trump] rely upon describes a range of offices that one becomes disqualified from occupying if one, "having previously taken an oath, … shall … engage[] in insurrection or rebellion." …

Imagine that on Jan. 6, Vice President Mike Pence did what Trump's lawyer John Eastman was advising him to do: assert a constitutional authority to decide which electoral votes should be counted. Imagine he then excluded the ballots for Joe Biden in a number of critical states, and instead counted the ballots for Donald Trump in those states. And then imagine, on the basis of that count, that Pence declared Donald Trump reelected….

What, then, would be the status of anyone who would act to resist that outcome? What is the line that would divide "insurrectionists" from protesters? If 50,000 gathered on Capitol Hill to protest the Pence coup, would that render the protesters insurrectionists under Section 3? Would they be acting to overthrow a government? Or would it require violence for resistance to become a violation of Section 3? And if so, how much violence? If protesters on the House side broke into the Capitol, would protesters on the Senate side who didn't break in be disqualified? Or, more pointedly, would those who rallied the protesters to resist the Pence coup then be disqualified from future office?

Don't get me wrong. I believe that those who charged the Capitol on Jan. 6 committed a crime. I believe that their crimes should be prosecuted. But I also believe that the vast majority of them thought not that they were overthrowing a government but that they were pressuring their government to do the right thing—at least as they (wrongly) saw it.

If such behavior qualifies as Section 3 "insurrection," then every leader who might resist a future coup attempt risks disqualifying themselves from serving in any subsequent government.

This is a nightmare of uncertainty — and one that wouldn't end with declaring Donald Trump disqualified…. [N]o court should transform even criminal protest and violence into a Section 3 disqualification. We should punish those who breached the Capitol on Jan. 6. I think we should also punish those who encouraged those people to believe that there was a "steal" that they should "stop." But the act they were engaging in was not rebellion. It was an effort to assure what they wrongly believed was the rightful result. Section 3 cannot police a contest over an election….

Comments

[Brett Bellmore]

“I think we should also punish those who encouraged those people to believe that there was a “steal” that they should “stop.””

Seriously, punishing people for disputing the legitimacy of an election outcome? That’s actually worse than what he’s objecting to, it’s real banana republic territory.

I can't think of much that would absolutely convince people elections were being rigged more effectively than punishing people for saying elections were being rigged...

[Josh R]

I’m pretty sure Lessig assumes those who encouraged the Jan 6 rioters to believe the election was stolen knew their claims were wrong.

[ObviouslyNotSpam]

Which they did.

[Michael Ejercito]

And which is not a crime.

[Nige]

Unless they were doing so as part of a conspiracy or fraud.

[Michael Ejercito]

Indeed, the Cunt's®™ (legally known as Hillary Rodham Clinton) whole "Trump Colluded with the Russians®™ to Steal the 2016 Election" propaganda campaign was most definitely a conspiracy and a fraud.

[Rev. Arthur L. Kirkland]

Is Prof. Volokh ever going to get around to taking a position on whether this series of comments complies with the “civility standards” he claimed to be enforcing when he censored commenters who are not bigoted conservatives?

Maybe a reduction in teaching responsibilities could enable him to address this issue.

[David Nieporent]

Are you ever going to STFU about some imaginary thing that didn't happen to you fifteen years ago?

[Rev. Arthur L. Kirkland]

More than once, Prof. Volokh publicly admitted censoring me — scrubbing some words, banishing Artie Ray entirely.

Are you upset because you believe that is part of how he wore out his welcome? I think the partisan, hypocritical, cowardly censorship was no part of it.

[David Nieporent]

So is that a "No"?

[jdoeford]

That was my assumption as well. But even then, what Lessig wrote was awfully broad/vague, i.e. surely he doesn’t mean that willfully lying that the election was stolen, in itself, is a criminal violation.

[myself]

You're walking down the street and a crying woman runs up to you and says her ex who lives in the house right in front of you just took their young child from her and was seconds away from killing it.

You kick in the door run inside... and find yourself interrupting an ordinary family gathering. It turns out the woman was the mother who had no visitation rights and really hated the ex.

Should you be prosecuted for B&E? I guess that depends on local law enforcement. But I see a much better argument for prosecuting the woman (even though she never explicitly told you to kick down the door).

This strikes me as a comparable situation. For the most part, the main people asserting the steal were saying something along the lines of "I've looked at the evidence and the election was clearly stolen". The election was not stolen and the evidence clearly showed that. I see them as more liable than the people they incited to illegal activity.

[ObviouslyNotSpam]

Hence the second federal indictment...

[Michael Ejercito]

. For the most part, the main people asserting the steal were saying something along the lines of “I’ve looked at the evidence and the election was clearly stolen”.

This is what the Cunt®™ (legally known as Hillary Rodham Clinton) and her lackeys did in pushing their whole "Trump Colluded with the Russians®™ to Steal the 2016 Election" propaganda campaign.

To further that campaign,. Kevin Clinesmith committed perjury and forged evidence. By this argument, the Cunt®™ is more liable than Kevin Clinesmith.

[Nameless But Highly Opinionated]

Excuse you.

[Savagely Average]

Yeah, it sounds like he's being a bit imprecise here. I'd give him the benefit of the doubt that he just generally means that Trump and some of his cronies should be punished, not that they should be punished for their speech about the election.

Even folks like me who support conspiracy charges against Trump generally acknowledge that he was entitled to publicly lie about the election. Pressuring election officials to act on his lies is another matter.

[Michael Ejercito]

Do you have a strict, rigorous definition of pressuring?

Is pressuring different from bribery or extortion?

[Savagely Average]

I’m not trying to get hung up on semantics. Pressure versus extort, etc.

Imagine that in 2024 Joe Biden loses the deciding state of Wisconsin to Trump by 10,000 votes. Not a hard thing to imagine.

Imagine, then, that he does what Trump did. Calls up the Wisconsin secretary of state and asks her to “find” and invalidate enough Trump votes to enable Biden to win the state, knowing there is no legitimate legal or factual reason for the secretary to do so.

Would you say that Biden’s actions were wrong?

I think you would.

Would you say that Biden should be impeached, convicted and prosecuted under state or federal law for making that call?

I think you’d say that, too. And you’d be right.

Maybe this particular wrongful conduct doesn’t line up with any criminal statutes, though, and a President can’t be convicted for it. We will see.

[SimonP]

If anyone wondered how the vast majority of the legal community would react, if Trump had managed to pull off his attempted coup, I suppose that Lessig provides a good example:

"Hm, that's interesting. So it looks like Trump has now seized power despite losing the election. Does that mean that he has the power to activate the military against the protesters who have risen up to try to force him out of power? Let's examine that question..."

[Brett Bellmore]

Congress would have had to have been in on it, though; If Pence had gone and done that without a majority of both chambers backing him, Congress would have publicly repudiated his action, and that would have been all the excuse needed for the bureaucracy to just completely ignore him.

Our government has a lot of faults, but being vulnerable to coups is not one of them. You need buy in from too many independent power centers to actually run the government.

That's why authoritarian leaders go around destroying any alternate power centers, especially ones outside of the government: You need an actual, not nominal, monopoly on power, to pull off things like coups.

[SimonP]

Congress would have had to have been in on it, though;…

Are you somehow under the mistaken impression that Republican leadership wasn’t in on it? They had a whole plan for Grassley to preside after Pence was whisked away by the Secret Service. After Pence rejected the electoral slates from disputed states or accepted the Trump slates, what would the options be? Either the Republicans immediately move to vote, state-by-state, for Trump, or somehow a majority of Democrats and independently-acting Republicans move to block that from happening. Realistically, how do you expect that to play out?

That’s why authoritarian leaders go around destroying any alternate power centers,…

Perhaps then you can understand why people like me are concerned about the consolidation of, and close alignment with the GOP of, right-wing media (including cable news, local TV syndicates, AM radio, and online sources, including especially Twitter); plans under a second Trump term to eliminate independence within the executive branch; the pattern of decisionmaking by Trump-appointed judges and justices; the lack of voices in GOP leadership that are independent of Trump; and so on.

There is a whole game plan for seizing power and entrenching corruption. Putin did it in Russia, Orban followed it in Hungary, it’s in process in Poland, it’s being rolled out in Turkey by Erdogan. In each case, it’s as you say – authoritarianism is predicated upon the elimination of competitive sources of power. Aspiring autocrats take over independent media voices, or outlaw them; they “reformed” their judiciaries to stack them with their own supporters and gerrymander districts to give them competitive advantages in elections; they go so far as to amend constitutions to give themselves more power and the ability to stay in power for life.

And Republicans in this country are paying attention. That is exactly what they’ve done in Florida, where the legislative and judicial branches have ceased being an effective check on executive power. DeSantis throttled Disney and is putting the public universities and schools under more direct control. He sees no need to engage with unfriendly media. The legislature is barely more than a rubber stamp for his agenda. They’re trying to do that in Texas, too, though from the outside it appears that there remains enough dissension among Texas Republicans – perhaps merely a jealously for power – to prevent a full snapping-to-alignment behind any of its statewide elected officials.

You could try – and I’m sure you will – to find the same thing happening in “blue” states. But competition and “jealousy” appear to be alive and well on the left. You have some legislative wins in places like Michigan and Minnesota, and a governor in California trying to make a name for himself with some grandstanding. But it’s hard to find examples where the left is following the Orban model, implementing an accretion of power designed to be immune from accountability. Here in New York, we have kind of the same dynamic we’ve long had, where the Assembly is split between a left-right-infuriating middle, and the current governor is not inspiring a fundamental realignment. Importantly, one of the things happening in swing states that have swung blue this cycle is the re-establishment of unions, which is an independent source of power (and again, one that Republicans try to tear down at every opportunity).

On the national level, I take some solace in the fact that Congressional Republicans are not so dependent upon Trump’s patronage that, were he somehow re-elected, they would become a rubber-stamp for his agenda. Similarly, the judges he appointed have not universally been MAGA-adjacent; some have proven to be genuinely principled judicial conservatives, skeptical of executive power and government over-reach. But it is clear that Trump and his camp view that as a “problem” that requires solution. They want to bend the Fed to their will, eliminate broad swaths of the career officials who are essential for the federal government to function in a reliable, consistent way, and are leaning on their allies in Congress to set an agenda they can’t otherwise just dictate.

Surely you must see this?

[SMP0328]

Are you somehow under the mistaken impression that Republican leadership wasn’t in on it? They had a whole plan for Grassley to preside after Pence was whisked away by the Secret Service. After Pence rejected the electoral slates from disputed states or accepted the Trump slates, what would the options be? Either the Republicans immediately move to vote, state-by-state, for Trump, or somehow a majority of Democrats and independently-acting Republicans move to block that from happening. Realistically, how do you expect that to play out?

This sounds like something straight out of conspiracy-theory website. If Pence had been stupid enough to attempt to void electoral votes, the Congress would have ignored his idiotic decision. If Congress had been stupid enough to go along with Pence, Biden and Trump would both declare themselves the winner (which Blue States siding with Biden and Red States siding with Trump), then we would have plunged into a Second Civil War.

[GKHoff]

Second civil war? Neither side has an army. No army, no war.

[SMP0328]

In my off-the-wall scenario, in response to SimonP's off-the-wall scenario, I assume the military would fracture: some siding with Biden, some with Trump, some staying neutral.

[Ed Grinberg]

https://en.wikipedia.org/wiki/1963_Argentine_Navy_revolt

[Tom for equal rights]

I think the most aggressive thing the military would do is step in the maintain control to prevent a coup then let the civilian constitutional process settle the issue.
I would further add that it would very unlikely the military would take sides no matter which canidate they preferred , even if 99.9% of the military preferred trump.

[SimonP]

This sounds like something straight out of conspiracy-theory website.

Or indictments issued by federal and state prosecutors.

Trump's been charged with crimes that were intended to set up the congressional conflict that I'm talking about. Do you think they failed to consider what Congress would do, when the electoral count was completed and either Trump had a majority of electoral votes (including the illegitimate electors) or neither candidate had a majority? Are you pretending that it's not a matter of public record that the Secret Service tried to whisk Pence away from the Capitol, or that Grassley was prepared to step in if Pence couldn't somehow make it?

You say that Congress would have ignored Pence's "idiotic decision" to go along with Trump's plot to somehow install him as president. And what I am asking, about that confident assertion, is why, exactly, you're so confident. We've seen how this GOP operates. We saw how the impeachment votes proceeded. You're telling me that more than a couple of Republicans would have voted in a way that would directly prevent Trump from being re-elected? Talk about a fairy tale!

[myself]

Or indictments issued by federal and state prosecutors.

You're going to be more specific than that. This is the first I heard of a GOP plan to take over when Pence was whisked away by the secret service.

Trump’s been charged with crimes that were intended to set up the congressional conflict that I’m talking about. Do you think they failed to consider what Congress would do, when the electoral count was completed and either Trump had a majority of electoral votes (including the illegitimate electors) or neither candidate had a majority?

I'm pretty sure the plan was simply "Pence declares Trump the winner" and to try and get as many people as possible to go along with it. The House was majority Democrat so was never going to certify a Trump victory. But if Pence and the GOP majority Senate declared him winner it's a legal deadlock, and the super-majority on the SCOTUS might say "2/3rds majority, Trump is President".

If that failed he might have simply proclaimed himself President and hoped the military stayed loyal to put down dissent.

It wouldn't have worked, but I think he was taking the only infinitesimally possible path to remain in power left.

With the post-2020 GOP if they had majorities in both houses I think the next election could be a different story.

[Brett Bellmore]

The House was majority Democrat, sure, but in the event of such a situation, it votes by majority vote of each delegation.

50 state delegations, and the Republicans easily had a majority in a majority of them, so if the vote is party line, Trump wins.

[bacchys]

The Senate would have rejected Pence's actions. The Republican-controlled House might have (narrowly) supported it. But I don't think the Republican leadership was "in on it." Some were, some weren't. McConnell wasn't, imo, but I don't think he'd have broken ranks with the majority of his caucus in the Senate. Whichever way they went, McConnell would have gone.

[Krayt]

There would be no civil war. Red states would not go for it, nor The People. They would look at it like the clownish BS it was and is.

Give people some credit.

[Brett Bellmore]

"Are you somehow under the mistaken impression that Republican leadership wasn’t in on it? "

Keep in mind that, even after the 2020 election gave Republicans back control of the House, the chamber was closely divided, and there were enough NeverTrump members that any attempt to back up Trump on anything besides investigating the election would have been a non-starter. The Republican leadership, even if they HAD been all in on some insurrectionist scheme, don't have that level of control.

"Perhaps then you can understand why people like me are concerned about the consolidation of, and close alignment with the GOP of, right-wing media (including cable news, local TV syndicates, AM radio, and online sources, including especially Twitter);"

Because you don't want to lose your near monopoly control of media? I don't know how delusional you'd have to be to think we were remotely within reach of Republicans co-opting more than a small corner of the media universe. But it's pretty impressively delusional.

[SimonP]

Because you don’t want to lose your near monopoly control of media?

What "monopoly" control are you talking about? You can whine and bitch about gender ideology being pushed in entertainment programming, but when it comes to politics and news, conservatives control a huge portion of the leading outlets, and those outlets never criticize Republicans except for being insufficiently extreme.

I can't read the NYTimes or WaPo, for instance, without encountering some story worrying about Biden's age and how he's polling, or hand-wringing over the deficit, or other similar coverage. But that's a kind of criticism that never seems to come from right-wing media. Are there any star pundits on FoxNews worrying that Trump's not mentally capable of being president again, or that GOP policies risk alienating older or working-class voters? Compared with the kind of messaging coordination we see in right-wing political and news media, the so-called "monopoly" among MSM outlets seems awfully weak.

Anyway, if your point were charitably to be read that the kind of media consolidation and control that has occurred in Hungary is unlikely to happen here, you'd be right - we're a ways off from that, at least for now. But as we've seen with Twitter, it only takes a single corporate transaction to take a platform and shift it enormously in the wrong direction. The Sulzbergers, Bezos, and any of the media conglomerates that own the networks could sell their holdings tomorrow to a right-wing controlled trust, and the fourth estate would be dead.

[Area Man]

"even after the 2020 election gave Republicans back control of the House"

The GOP didn't win control of the House in 2020. It wasn't until 2022.

[Brett Bellmore]

That's fair, I had my elections confused.

It's hell getting old.

[Martinned]

What, then, would be the status of anyone who would act to resist that outcome? What is the line that would divide "insurrectionists" from protesters?

In a word: violence.

[Brett Bellmore]

But it was conclusively established while Trump was in office and several billion dollars of property damage 'spontaneously' happened, (Because Antifa is an idea, not an organization, or some such nonsense.) that the presence of violence doesn't mean people aren't protesting. Only the people in the crowd who personally commit the violence aren't "protesters", not the identically dressed people who obstruct the police from identifying and arresting them.

Seriously, as I keep saying, if you lower the bar for "insurrection" low enough to capture January 6th, you have lowered it enough to capture a LOT of stuff Democrats are implicated in. They're counting pretty heavily on people allied with them always being the ones to make that call.

[ObviouslyNotSpam]

No, they still must be engaged in "insurrection", i.e., attempting to overthrow the government, not just protesting against it for other reasons.

[WuzYoungOnceToo]

No, they still must be engaged in “insurrection”, i.e., attempting to overthrow the government, not just protesting against it for other reasons.

That response probably should have been directed at Martinned, who is the one who proclaimed that the difference between protesters and insurrectionists could be summed up in the single word "violence".

[Drewski]

Are you saying that the difference between protestors that want to overthrow the government and insurrectionists that want to overthrow the government is that one group wants to overthrow the government and the other does not? Which is to say, it's already part of the hypo Martinned was responding to. Brett doesn't understand hypos well enough not to fight them so ONS's response to him was appropriate.

[WuzYoungOnceToo]

Are you saying...

Take that weak strawman crap somewhere else. It's already been done to death by others who are better at it than you.

[CountmontyC]

Would that include attacking the White House as occurred in May of 2020? How about repeated assaults on a federal courthouse as happened in Portland for several months? Perhaps it might include the sacking of police stations and declaring entire areas of cities " autonomous zones" and no longer part of the USA?

[bacchys]

A lot of MAGAts were happily decrying the protests and riots in 2020 as insurrections. They scoffed at the phrase "mostly peaceful" until Jan 6th, 2021.

The bar hasn't been lowered for insurrection. J6 was a violent uprising against the government of the United States. It was also an attempted autogolpe: an attempt to keep Trump unlawfully in power.

[Michael Ejercito]

Here is Jack Marshall.

https://ethicsalarms.com/2021/01/06/ethics-observations-on-the-pro-trump-rioting-at-the-capitol/

First and foremost, anyone who did not condemn all of the George Floyd/Jacob Blake/Breonna Taylor/ Black Lives Matters rioting that took place this summer and fall is ethically estopped from criticizing this episode.

That means I can, and will, condemn it as stupid, useless, self-destructive and anti-democratic violence, but most Democrats, progressives and media pundits cannot.

Does this mean you?

[Vryedni]

Show me where most Democrats said the post-Floyd riots -- not the non-violent protests, but the violent riots -- were A-OK. Otherwise, Jack Marshall is full of it.

[Michael P]

Seattle's mayor criticized Donald Trump because he recommended Seattle shut down CHAZ. This was before leftists renamed it CHOP to make it seem less insurrection-y. She said they were having a "summer of love", not an insurrection, and so she wouldn't do anything.

One warlord, two murders, and countless other crimes later, she changed her tune.

[Vryedni]

Jack Marshall said most Democrats. You gave one anecdote. I’m still waiting for evidence that most Democrats are accurately described by Marshall.

[Michael P]

It was pretty widespread for the first month or so. All the burning, looting and murdering eventually made them wake up. You may remember a bullshit study claiming that 93% of BLM protests were non-violent, as a way to pretend that criminal behavior during the protests should be ignored -- even though that study also found that almost every violent protest in their study period was a BLM protest.

[Vryedni]

In other words you've got nothing. Just goalpost shifting, and even by your new standards, you have no evidence of "most."

[damikesc]

CHAZ/CHOP were dramatically more of an insurrection than 1/6 could have hoped to be.

And it is still quite odd that the most vocal person demanding they enter the Capitol got the lightest punishment and the least time in prison.

[MatthewSlyfield]

Violence alone can't be the only deciding factor. Otherwise every riot becomes an insurrection.

[Nameless But Highly Opinionated]

Every case of resisting a lawful arrest, in fact, becomes "insurrection" or "rebellion"

[ObviouslyNotSpam]

And you think that was the meaning captured by the 14th Amendment?

Really?

[Nameless But Highly Opinionated]

I don't. And I think rebellion can be distinguished from insurrection pretty easily. Certainly secession.

But if insurrection is forcible resistance to authority, even if there's a wide range of degrees involved, how can a principled line be drawn? Compare resisting a warrantless officer to Jan. 6. Both involve violence. Both involve resisting lawful government authority. Is there a magic number of people that have to be involved? Otherwise, how does this not become a case of "I know it when I see it!"?

[Kazinski]

Well what violence did Trump use?

[Seamus]

Don’t pretend you don't know. He told his followers to protest “peacefully and patriotically.” Which every one knows was a dog whistle telling them to “burn the motherfucker down.”

[WuzYoungOnceToo]

We must protect democracy, by trying to remove a duly elected president (twice) and, failing that, preventing people from voting for the candidate they prefer.

[ObviouslyNotSpam]

Impeachment is part of the Constitution, which makes the exercise of that power by the House legitimate. It was for Trumps "record-breaking" two impeachments, and it will be for Biden's impending impeachment(s).

Likewise, if by some miracle the Supreme Court agrees that Section 3 of the 14th Amendment bars Trump from holding the presidency again, it will be because the Constitution demands it.

None of this is "anti-democratic" in a Constitutional sense. It's the Constitution Trump has a problem with. Hence his threat to "terminate" "all rules, regulations, and articles, even those found in the Constitution" if things don't start going his way.

[WuzYoungOnceToo]

***** WHOOOOOSH *****

The legality of the attempts was not the point.

[ObviouslyNotSpam]

Apologies. I had thought your point was that the impeachments and contemplated use of the 14th Amendment were somehow not "democratic".

[WuzYoungOnceToo]

Like I said, you completely missed the point.

[Michael Ejercito]

Is the Constitution absolute or something?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I used to think Trump Derangement Syndrome was a joke. Then came that first impeachment, whereby telling a foreign country to investigate corruption if they wanted foreign aide was somehow wrong. Then came that second impeachment, rushed through like a a book review after reading the first and last pages. It has continued on, weaker and stranger.

And now trying to disqualify a Presidential candidate backed by half the country, on the grounds that a weak-ass riot was somehow the equivalent of the slavocracy waging four years war to keep millions of slaves. It's enough to make one think there just might be a deep state.

This is one of the few times I've agreed with Lessig.

[SRG2]

whereby telling a foreign country to investigate corruption if they wanted foreign aide was somehow wrong.

Not what he was impeached for.

[WuzYoungOnceToo]

Uh…from the very first Article of impeachment:

Using the powers of his high office, President Trump solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election. He did so through a scheme or course of conduct that included soliciting the Government of Ukraine to publicly announce investigations that would benefit his reelection, harm the election prospects of a political opponent, and influence the 2020 United States Presidential election to his advantage. President Trump also sought to pressure the Government of Ukraine to take these steps by conditioning official United States Government acts of significant value to Ukraine on its public announcement of the investigations.

[Josh R]

You left out:

President Trump engaged in this scheme or course of conduct for corrupt purposes in pursuit of personal political benefit.

[WuzYoungOnceToo]

I left out most of the article, because it wasn't required to show that the action in question was most certainly something he was impeached for.

[Nige]

That action was not 'telling a foreign country to investigate corruption if they wanted foreign aide.'

[Seamus]

Well, it certainly wasn't "telling a foreign country to *stop* investigating corruption if they wanted foreign aid," which is what Biden did.

[David Nieporent]

Really? Biden said, "I demand that you stop investigating corruption"? What source do you have for that quotation?

[Savagely Average]

Yes, absolutely. Trump's actions were proper because the only thing he was interested in was finding out if Ukrainian law had been violated. Clearly this had nothing to do with smearing a political rival. If it had been Joe and Hunter Schmoe instead of Biden Trump absolutely would have done the same thing because he's just that passionate about the sanctity of Ukrainian law.

Seriously!

[Michael Ejercito]

The House is conducting an impeachment inquiry into the very allegations of violations of Ukrainian law.

[Savagely Average]

And the people of Ukraine can rest a little easier knowing that House Republicans have such deep concern and care for decade-old violations of Ukraine's laws that no one was ever charged with.

[WuzYoungOnceToo]

I'm sorry that you're not bright enough to discern the difference between action and alleged motivation.

[Jason Cavanaugh]

While we are all sorry that you continue to post here with your shameless half-truths like you think anyone won't fact-check you of all people.

[Michael P]

If you ever had an actual point, you might make it. Instead you just come in with empty bluster and insults.

WuzYoung correctly identified the fallacy in the argument put forth by SRG2, Josh R and Savagely Average. Trump was impeached because the House didn't like how Trump encouraged Ukraine to investigate the Biden Bribery Business. Congress also -- "without evidence", to borrow a favorite leftist qualifier -- claimed that Trump did that for corrupt reasons rather than to "take Care that the Laws be faithfully executed".

[Savagely Average]

Spot on. Trump was doing it exactly like it says in the Constitution: "Take care that the laws [of the proud nation of Ukraine] be faithfully executed."

[Michael P]

Savagely Stupid, bribery and foreign corrupt practices are against the law in the US too.

[Savagely Average]

Michael Pee-Pee, Ukraine doesn’t have authority to investigate or prosecute violations of US law. US agencies do that. Trump was specifically asking Zelensky to have his prosecutors target Joe and Hunter Biden for violating Ukrainian law.

Again, obviously because he’s extremely passionate about Ukrainian law.

[Josh R]

WuzYoung correctly identified the fallacy in the argument put forth by SRG2, Josh R and Savagely Average. Trump was impeached because the House didn’t like how Trump encouraged Ukraine to investigate the Biden Bribery Business.

It’s not a fallacy to believe Trump encouraged Ukraine to investigate (*) Biden to corruptly further his own political career (rather then to legitimately root out Biden’s supposed corruption). It’s an opinion that likely determines whether Trump’s conduct justified impeachment.

(*) Trump did not encourage an investigation. He asked Ukraine to announce an investigation, even if there wasn’t one. That’s part of the evidence in support of concluding Trump acted corruptly.

[Savagely Average]

Josh, IMO you’re giving Trump too much leeway by suggesting his actions would be somehow OK if he genuinely believed Biden broke Ukrainian law.

We rightly assume that if the President has the power to initiate DOJ investigations and prosecutions, he will abuse that power to harm his rivals. Therefore, we don’t give the President that power. We don’t make an exception where it’s OK for the President to order the DOJ to target his rival if the President believes his rival is corrupt. It’s a categorical rule.

If the President can’t order DOJ prosecutors to go after his domestic rivals, he also can’t use his position as head of US foreign policy to have foreign prosecutors do so. Doesn’t matter if he believes his rivals are up to no good. It’s a betrayal of his office regardless.

On a more basic level the President is supposed to protect US citizens from foreign powers. Even the citizens he hates. Asking foreign countries to target US citizens for violations of the foreign countries’ laws is a major POTUS no-no.

[Savagely Average]

You raise a critical point, Wuz. It's only an "alleged" motivation! Nobody can claim to know Trump was motivated to smear Joe Biden! We're not mind-readers!

[damikesc]

...as opposed to Biden using the DoJ to attack a political rival.

Biden was not even a declared candidate when the Ukraine call happened.

And Biden did PRECISELY what Trump thought he did.

[Savagely Average]

Exactly! He wasn't even a candidate! The fact that absolutely everyone saw Biden as Trump's top political rival was irrelevant unless Biden formally declared his candidacy.

[Savagely Average]

Not only did Biden do what Trump thought he did, Trump was also, totally 100% right about Hillary's email servers being in Ukraine. Nobody talks about that.

[Stephen Goldstein]

Simply . . . perfect! Thanks.

A much needed reminder . . . that which seems so obvious (to some) at first glance maybe less so with a deeper examination.

[windycityattorney]

“If protesters on the House side broke into the Capitol, would protesters on the Senate side who didn’t break in be disqualified?”

I am having a hard time understanding this point regarding 50,000 protestors. Why would any of them be subject to Sec 3? What oath to the constitution did the 50,000 protestors take?

Also, is it not presumed in the language of sec 3 that the insurrection or rebellion was against the *legitimate* government of the U.S.? If according to the analogy Pence successfully pulls of the coup and this is widely acknowledged by everybody that it was an illegitimate transfer or power from the rightful winner of the election to the loser…resisting an unlawful government is not the same as resisting the legitimate government? I am thinking of constitutional doctrines which speak to an unconstitutional law being void ab initio. If the transfer of power was illegitimate from the start, then resisting that to restore the legitimate government seems to be a different fact pattern than what sec 3 is actually meant to deal with.

All in all, the analogy is rather convoluted and not sure its actually helpful at all in deciding whether or not what actually happened on Jan 6th should or could act as a disqualification of Trump being on the 2024 ballot.

Certainly somebody could come up with a more apt analogy -maybe even consistent with the historical period in which sec 3 was proposed. Some confederate sympathizing Congressman who was not disqualified by sec 3’s terms (because they didn’t take up arms against the US or sign loyalty oath to the confederacy or similar) somehow wins the presidency and then starts immediately taking actions to weaken the US Govt (maybe sells off all its cannons, ships, guns, fires all generals, etc…) whilst plotting with actual disqualified civil war veterans and generals for the ‘south to rise again’ or something along those lines. Would resisting *that* government trigger sec 3? Interesting questions but not particularly helpful in deciding whether what Trump is accused of doing or known to have done disqualifies him.

[Brett Bellmore]

"Also, is it not presumed in the language of sec 3 that the insurrection or rebellion was against the *legitimate* government of the U.S.? If according to the analogy Pence successfully pulls off the coup..."

I think what you're missing here is that for legal purposes, if you "successfully" pull off a coup you ARE the *legitimate* government, as you're the one in a position to decide who's legally legitimate. As the saying goes,

"Treason doth never prosper; What's the reason?
For if it does prosper, none dare call it treason."

So, yeah, in your scenario they would be rebelling against the "legitimate" government. According to the government that would be arresting them and subjecting them to penalties.

[windycityattorney]

That is fair. It seems to me that his analogy is declaring that Pence is successful in the coup BUT also that everybody knows Pence was wrong to do what he did. That 'wrong-ness' may or may not matter legally I suppose.

Regardless, I don't see the benefit of interpreting these far fetched hypotheticals. We know what happened on Jan 6th or at least saw it unfold in real time on live television. We know even more about the lead up to Jan 6 from the congressional investigation into Jan 6th and some of the criminal cases that arose out of it. We have the legal memos justifying the attempt and the pending charges in Georgia and the federal indictment which lays out facts in astounding detail.

I just think it would be more helpful to analyze that and say whether any of that reaches Sec 3 disqualification. Baude and Paulson say yes. If Lessig thinks none of the actions taken were sufficient because there wasn't enough 'violence' or whatever...then just argue it.

[ObviouslyNotSpam]

The answer to all of Lessig's questions is that the Supreme Court would decide.

The Court would almost certainly decide whether there had been a coup or not before any of these tenuous questions about the application of Section 3 would be litigated.

[Nameless But Highly Opinionated]

How will it get that far?

[Michael P]

Some of the J6 protesters — including at least one who was convicted over it — were members of the armed services, who definitely took an oath and owed a duty to uphold the Constitution. I’m not sure whether bureaucrats (as opposed to elected politicians) have to make such an oath, but that’s another potentially disqualified group.

[mydisplayname]

This is excellent work by Lessig... and it's unusual for me to applaud his work.

I continue to assert, though, that the question "What is the line that would divide 'insurrectionists' from protesters?" has been answered by the Court: an insurrectionist is any person the sitting Chief Executive -- the President -- deems an insurrectionist. Such a definition avoids chaos at the expense of absurdity; however, any such absurdity results from a choice made by the people in selection of a Chief Executive, not from unilateral action by the Court.

I don't like the answer... but it's the answer nonetheless: if it is not, reparations are due to the millions of Americans deemed by President Lincoln to be insurrectionists. I don't like the answer... but I prefer it to any court, particularly a petty court, exercising power reserved to 75% of the population except in emergency situations necessitating (and making proper) action by the Chief Executive.

[Sisu]

Given all the noise, I may have missed where in this “Conspiracy” banter discussion of the Forty-Second Congress, May 22nd, 1872, “Chap. CXCIII. – An Act to remove political Disabilities by the fourteenth Article of the Amendments of the Constitution of the United States.”

Attorney David Hardy, “Of Arms & the Law”: “Attorney Don Kilmer points out that [Sect.] 3 also allows Congress to remove that bar by a 2/3 vote, and in 1872 Congress did so as to all but a handful of offices, not including the presidency. 17 Stat. 42.” https://armsandthelaw.com/archives/2023/09/off_topic_but_i_1.php

Then, I wonder, where is the discussion of the American fundamental legal precept: “Guilty until proven innocent.” ? That discussion should be sufficient to disqualify Trump, Biden, every other wannabe presidential candidate, as well the entire sitting congress and all future wannabes thereto. … Problem solved: De facto return “delegated powers” to the People and their states.

The banter about Section 3. of Amendment XIV. is undermining the credibility of this blog and several of those individual contributors commenting who claim to be "constitutional experts" and supporters of the “rights of the People”.

“One of the things that has really surprised me about this is how many conservatives now want to ignore the text of the Constitution or suddenly view the Constitution as a living, breathing, changing document,” (ninth to last para., https://www.washingtonpost.com/politics/2023/09/12/trump-gop-lawyer-14th-amendment/)

Let the “regulars” and those afflicted with “TDS” Attack ! ... or offer comment.

[Brett Bellmore]

I think it's kind of silly, personally, to treat that amnesty act as applying to actions that took place after it was enacted. That's not how amnesties work, it simply isn't.

As for the rest of it, yes, the presumption that Trump is guilty, and that this doesn't actually have to be proven before proceeding against him, does the community of legal theorists pursuing Section 3 no credit.

[ObviouslyNotSpam]

Who is suggesting that Trump be denied due process?

[Brett Bellmore]

"Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. "

Hm, who was it who recently wrote that, I wonder?

The whole argument here is about what process is due. Saying that Trump won't be denied due process, while muttering under your breath, "And that's no process to speak of..." really isn't helping anything.

I think he's entitled to due process, and even more, the people who'd vote for him are entitled to that due process, and by that I mean process commensurate with the wrongs he's accused of, not "the least we can get away with", which seems to be what the people advocating application of Section 3 have in mind.

[Sarcastr0]

Except that the paper explicitly talks about any ballot access action being tested in court.

process commensurate with the wrongs he’s accused of is Brettlaw and both subjective and outcome oriented as all hell.

[Brett Bellmore]

No, it's not the tiniest bit subjective. To be disqualified, he must be guilty of insurrection, rebellion, or giving aid or comfort to the nation's enemies.

All three are crimes, all three as a statutory matter carry a penalty of disqualification, and all three have the same due process: A criminal trial.

The insurrection act was written BY the people who drafted the 14th amendment, you think they weren't referring to it in section 3? In large measure the point of the 14th amendment was to retroactively give constitutional legitimacy for acts the Radical Republicans had undertaken prior to it, without any constitutional basis!

So, of course they were referring to these CRIMES, with the due process of a criminal trial. Nothing even the slightest bit subjective!

What's outcome oriented here is the desire to not have to convict Trump of the offenses identified in Section 3 in order to use it against him!

[Jason Cavanaugh]

1) No, he does not have to be found guilty of anything. The Amendment does not state such a requirement.

2) They were not crimes when the Amendment was passed, so your hand-waving effort to ignore that fact and pretend that (again) your imagined words are appropriate is typical bullshit from you.

3) Until such a time as you can prove the words "convicted" or "guilty of" appear in section 3 of the 14th Amendment, you should really just shut the fuck up.

All you're doing here is lying. Typical for you.

[Brett Bellmore]

“They were not crimes when the Amendment was passed, so your hand-waving effort to ignore that fact and pretend that (again) your imagined words are appropriate is typical bullshit from you.”

Geeze, do you ever bother doing even a moment’s research before making these absurd claims?

The 14th amendment was sent to the states in 1866.

In 1862? The Confiscation act

“Section 2

And be it further enacted, That if any person shall hereafter incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States, or the laws thereof, or shall give aid or comfort thereto, or shall engage in, or give aid and comfort to, any such existing rebellion or insurrection, and be convicted thereof, such person shall be punished by imprisonment for a period not exceeding ten years, or by a fine not exceeding ten thousand dollars, and by the liberation of all his slaves, if any he have; or by both of said punishments, at the discretion of the court.

Section 3

And be it further enacted, That every person guilty of either of the offences described in this act shall be forever incapable and disqualified to hold any office under the United States.”

Written by the very people who afterwards originated the 14th amendment to retroactively constitutionalize it and other acts that they’d done as part of the Civil war without any constitutional basis.

It's my position that the 14th amendment incorporated the Confiscation act, by referencing the exact crimes it had specified, and imposing the same penalty.

[Michael P]

Jason, I cited the 1862 Confiscation Act in yesterday's open thread, and pointed out explicitly that it was the clear referent for the Fourteenth Amendment. You clearly didn't read what you were replying to then. https://reason.com/volokh/2023/09/21/thursday-open-thread-155/?comments=true#comment-10244491

You owe Brett a huge apology for accusing him of lying when you should have known full well exactly why he was right.

[Doug Heffernan]

Lessig's argument, while strong, is a consequentialist argument more so than a textualist argument.

Whether or not the text/history supports §3 as self-executing, or what act(s) constitute an insurrection, are different questions.

Lessig's argument is good, and his remedy is good, but both are band-aid attempts to keep certain norms in place.

Absent some change to the 14th amendment, or some other law, norms are dependent on those in power (and/or some large fraction of the population) actually caring about those norms and adhering to them absent any clear legal requirement to do so.

Trump, and his release-the-kraken team (& other participating stooges) not only didn't care about the norms, they took affirmative action to undermine them. The difference here is that there were quite a lot of them. Usually it is only a lone nutcase that will adopt nutcase ideas. But here Trump himself has a knack to sell a bill of goods to all of his fans, which increased the number of people that didn't care about the norms to a dangerous level.

The founders realized that the system, no matter how carefully designed, won't work absent citizens that care about it. So Lessig's consequentialism doesn't matter to them. If it got Trump back in, they wouldn't care.

[Michael Ejercito]

What were these norms in question?

[Josh R]

The peaceful transition of power after you lost an election.

[Michael Ejercito]

A norm broken by the Cunt®™, legally known as Hillary Rodham Clinton.

[Josh R]

She did nothing, with perhaps (*) the one exception of Podesta lobbying that electors hear intelligence briefings, to block the peaceful transfer of power.

(*) It's not clear if that rises to the level of blocking the peaceful transfer of power. But even if it does, it was one isolated incident that at worst was a small impediment. It was nothing even remotely like what Trump did.

[Michael Ejercito]

If her scheme had actually succeeded, it absolutely would have blocked the peaceful transfer of power.

[Josh R]

What scheme? What did she do to block the peaceful transfer of power.

[Roger S]

The election was stolen. Votes were cast and counted using procedures that had never been allowed before, and much of the counting was done in a way that could not be verified by outside observers. Most people agree to that. What Trump did was to try to stop a Biden coup. So the Lessig scenario has already happened.

[ReaderY]

Claiming that the kinds of procedural deviations that occurred, things like counting signatures that appeared in the wrong place on the form and such, is equivalent to “stealing” the election, is bullshit. Just total bullshit. No honest person would believe it. Only thieves would to try to promulgate bullshit like that.

Trump’s lawyers didn’t attempt to argue this in court. They knew it was bullshit. They knew they could be sanctioned if they tried to claim the election was stolen in court. So they didn’t. They reserved this bullshit for their pronouncements to the public. They even bullshitted to the public that they were making these claims in court when they hadn’t and they knew they hadn’t. They bullshitted to the public that courts tossed their cases on technicalities and such when they knew they had tossed them on the merits.

[Roger S]

We do not know who would have gotten more votes, if proper election procedures were followed. That is why those arguments could not win in court. So yes, the election was stolen, but it could not be proved in court. Go ahead and say bullshit about 20 more times.

[ObviouslyNotSpam]

You know, "we do not know who would have gotten more votes" contradicts "so yes, the election was stolen".

[Rev. Arthur L. Kirkland]

The election was stolen.

These are your fans, Volokh Conspirators, and your target audience . . . and the reason none of you can be a good fit on a strong, mainstream campus.

You'd be suitable stars at Ave Maria, Regent, Liberty, and a few others, though!

[Sarcastr0]

As Will Baude said in the Amarica's Constitution podcast, the truth needs to matter to the Constitution.

Defensive Constitutional practice in fear of a bunch of assholes who are either deluded or don't care that they're in the wrong is not constitutional practice, it's policymaking.

What matters is if this is whether this is how the Constitution operates. And whether it applies to Trump.

[Krayt]

Straining at the bit to get a political opponent certainly is not in the spirit of the Constitution, even when making a half-assed legal effort to stay within the lines, however dubiously.

After all, isn’t that what Trump did? A dubious effort his lawyers said was within the lines? The riot is a separate issue.

[Sarcastr0]

You need to establish this is straining at a bit. And the argument that the GOP would get big mad won't get you there.

isn’t that what Trump did? A dubious effort his lawyers said was within the lines?
No. The indictments establish that's not what he did. He was advised by counsel many times a bunch of stuff he did was not within the lines.

[ReaderY]

I think Professor Lessig is answering the wrong question.

The question is not what an average rioter knew or intended. The question is what Mr. Trump knew and intended.

I agree with Professor Lessig that for any finding of insurrection as a result of the riot, the accuser would have to prove that the accused knew that claims of a legitimate election dispute were completely false and fraudulent. I also agree that for the average riot participant, it is quite likely going to be impossible to prove this. The average rioter may have genuinely believed the election was stolen.

Mr. Trump, however, is not an average riot participant. He knew things the average rioter did not know, and there are more witnesees to his plans and ststements. The admittedly high burden of proof might be met here.

For this reason, I think Professor Lessig’s basic thesis, if Mr. Trump can be disqualified, then anybody who participates in an election protest that turns into a riot can be disqualified - just ain’t so. The two situations simply aren’t comparable. One result just does not lead to the other.

[Brett Bellmore]

"I agree with Professor Lessig that for any finding of insurrection as a result of the riot, the accuser would have to prove that the accused knew that claims of a legitimate election dispute were completely false and fraudulent."

You'd also have to prove, and a lot of people want to skip over this, that Trump was responsible in some legally meaningful way for the riot.

[ReaderY]

I think that also can potentially be proved.

Stand back and stand by. Be there, will be wild!

Then there were behind-the-scenes measures like making sure most attendees at his “protest” stayed outside the secure area so the security people wouldn’t confiscate their weapons and they’d have them ready for their march on the Capital.

I could go on.

[ObviouslyNotSpam]

But, but, but...it was the perfect insurrection!

[Josh R]

Don't forget doing nothing for hours to stop the riot while watching it on TV in the hope it would succeed.

While it is likely true knowledge that his claims were false is required for a criminal conviction, I'm not sure that ought to be the case for 14/3. And I am certain it is not the case for impeachment, removal and disqualification by Congress where being delusional in your attempt to steal an election suffices.

[Michael Ejercito]

Well, Democratic elected officials the year before allowed riots to go on.

Why are you whining about it?

[Josh R]

Assuming you are correct (citations, please), were those decisions to let the riots proceed motivated by support for the riots or an honest belief it was a better tactic to achieve a more peaceful outcome? If it was the former, that likely rises to the level of impeachment.

[Michael Ejercito]

https://nypost.com/2021/01/08/rage-at-capitol-assault-makes-excuses-for-summer-riots-all-the-more-disgraceful/

In Portland, Ore., where I’m from, masked extremists from both BLM and Antifa smashed their way into the Multnomah County Justice Center on May 29. The building houses the Sheriff’s Office, a police station and jail. Rioters ransacked the ground floor, hoping to break into the jail to free prisoners. When that failed, they started fires; city and county staff fled for their lives.

But the rioters were just getting started.

Portland police were bedeviled by nightly violent antifa protests.
The anti-cop hypocrisy of Portland’s pols
For the next four months, BLM-Antifa rioted every night in Portland, setting fire to streets and buildings and assaulting responding officers with concrete and mortar explosives. In July, they tried to storm into a federal courthouse downtown. Night after night, hundreds and then thousands of rioters brought in electric tools, rope and explosives to breach the barrier erected to protect the building.

More than 277 injuries of officers were reported by the Department of Homeland Security in Portland alone. Hundreds of injuries were reported by other police departments in different cities.

Local politicians at the time condemned law enforcement and lionized the criminals. Portland city councilwoman Jo Ann Hardesty spread a conspiracy theory that police were engaging in false-flag arson attacks to frame left-wing protesters. Mayor Ted Wheeler told President Trump in a news conference to take his “troops” and leave. Oregon Sen. Ron Wyden called the officers an “occupying army.” Oregon Gov. Kate Brown described them as “secret police abducting people in unmarked vehicles.”

[Josh R]

Those snippets do not establish that the criminals were lionized. I'd have to see the full context of the remarks.

[questioner7]

"Treason doth never prosper? What's the reason?
for if it prosper, none dare call it treason." (J. Harington)

[Rev. Arthur L. Kirkland]

Does this indicate post-UCLA Prof. Volokh will feel freer to express his support for Donald Trump?

If so, that is good. He should feel free to express his genuine positions.

[dwshelf]

Trump advanced a novel legal attempt to, in his mind, right a wrong, and he hoped others would see the wrong as he did.

Trump's not the best choice, but it sure would feel good to see him crush his enemies by winning the election.

[Sarcastr0]

Well, if you call it legal...

[Kleppe]

"Trump’s not the best choice, but it sure would feel good to see him crush his enemies by winning the election."

This sentiment, right here, shows far greater insight into the contemporary American conservative mind than any political analysis you will find by the Twitterati, "experts", etc. Trump is, and always has been, a protest candidate. And no amount of indictments (or convictions) can change what he represents to the conservative voter. If anything, it will make him even more of a protest candidate.

[Sarcastr0]

Do you realize how awful this makes conservatives look? No ideology, just fuck the world.

[Josh R]

If Trump honestly felt that he lost because half of Biden's voters were Martians, does that justify his "novel legal attempt" to block the peaceful transfer of power and steal the election?

[Michael Ejercito]

Justify as a matter of law, or a matter of ethics?

[Josh R]

Both. And concerning the law, there are three different applications: 1) criminal liability, 2) disqualification under 14/3, and 3) disqualification by the Senate after impeachment and removal.

[Michael Ejercito]

The pursuit of a novel legal theory, in and of itself, can not be a crime.

It was not a crime for Kevin Clinesmith to ask the FISA court for a warrant against Carter Page. What were crimes was his perjury and his forgery of evidence.

[Josh R]

I'll buy that as applied to criminal liability. What about the other two legal applications? And the moral question as well?

[Michael Ejercito]

Seeking relief under a novel legal theory can not be insurrection, nor providing aid or comfort to an enemy.

[Josh R]

In and of itself, of course not. But let's add in you persuade people that Martian voters (as you honestly believed they did) resulted in Biden's victory, thus requiring the steal to be stopped. And, then Jan 6 occurs.

And for the same scenario, impeachment/removal/disqualification and the moral question?

[Michael Ejercito]

There would be no disaqualificatiopn, as that is not an insurrection,. Indeed, " persuad[ing] people that Martian voters (as you honestly believed they did) resulted in Biden’s victory, thus requiring the steal to be stopped" is fully protected by the First Amendment.

[Josh R]

The counter argument is calling the mob Washington and doing nothing for hours while they rioted suffices for 14/3. While it's possible the First Amendment provides protection from criminal charges, whether it does so for 14/3 is a close call.

Are you going to continue to duck the questions about impeachment and morality?

[Michael P]

Josh R, where is the support for any of those naked assertions? What did you mean by "calling the mob Washington"? Did Congress and the Capitol Police engage in insurrection by refusing to have troops on site to keep order, or can someone only engage in insurrection by inaction after the fact?

[Josh R]

A few hours after the notoriously unhinged meeting at the Whitehouse, Trump tweeted, "Big protest in D.C. on January 6th. Be there, will be wild!" I agree that's not enough for 14/3 by itself. But, it's a reasonable argument it is in the context of all that Trump did in his attempt to steal the election (noting, there is no such context for not having enough security).

But even assuming his actions don't qualify under 14/3, care to weigh in about impeachment?

[Michael Ejercito]

Organizing a protest can not be insurrection.

[Josh R]

If it's just organizing a protest, of course that can't be insurrection. But, if it is one part of an attempt to steal the election, and violence results, it might qualify under 14/3.

Still ducking impeachment and the moral question.

[bacchys]

He didn't commit perjury or forge evidence. He altered an internal email. He altered it in a way which kept (and clarified) the original meaning. Page was not and never had been an informant for the CIA, and Clinesmith added he wasn't an informant to the email.

[Michael P]

Clinesmith was convicted because he did forge evidence. https://www.nbcnews.com/politics/justice-department/ex-fbi-lawyer-gets-probation-falsifying-carter-page-surveillance-application-n1256179

[Brett Bellmore]

They live in an alternate universe where none of this stuff actually happened. Oh, and the sky is puce, too, I gather.

FBI Attorney Admits Altering Email Used for FISA Application During "Crossfire Hurricane" Investigation

"Prior to the submission of the fourth FISA application, and after Individual #1 stated publicly that he/she had assisted the U.S. government in the past, an FBI Supervisory Special Agent (“SSA”) asked Clinesmith to inquire with the OGA as to whether Individual #1 had ever been a “source” for the OGA. On June 15, 2017, Clinesmith sent an email to a liaison at the OGA (“OGA Liaison”) seeking clarification as to whether Individual #1 was an OGA source, and the OGA Liaison responded via email to Clinesmith. On June 19, 2017, Clinesmith altered the email he received from the OGA Liaison by adding the words “not a source,” and then forwarded the email to the FBI SSA. Relying on the altered email, on June 29, 2017, the SSA signed and submitted the fourth FISA application to the U.S. Foreign Intelligence Surveillance Court. The application did not include Individual #1’s history or status with the OGA."

Here's the alteration to the OGA liason's email about Paige:

"My recollection is that [Individual #1] was or is “[digraph]” and not a “source” but the [documents]will explain the details. If you need a formal definition for the FISA, please let me know and we’ll work up some language and get it cleared for use."

The bolded text is what Clinesmith added to the quoted email. In fact, Paige WAS a source, and the referenced documents gave the details. Clinesmith altered it to say the opposite.

[Sarcastr0]

They live in an alternate universe where none of this stuff actually happened.

No, we live in a universe where that one act was not material and didn’t invalidate the general FBI investigation. Also it does not somehow render the FBI a lawless agency.

You, on the other hand, act like this one dude was an insurrection lead by Hillary and Obama.

[damikesc]

Fruit of the poisoned tree is still a thing.

[Sarcastr0]

Draw the causal line, then.

[Savagely Average]

I have no doubt that in Trump's mind he was "righting a wrong."

The "wrong " being that he lost.

[Magister]

Can we just put Trump on the ballot to end this sort of stupid commentary?

If the Constitution were violated, would it violate the Constitution to oppose that violation, or would you only violate it if you violently opposed the violation? And what if C-A-T really spelled dog? Heavy, dude!

[ReaderY]

See, I’m not making any sense! I’m not making any sense! Nothing makes sense. Don’t you feel confused? It’s so confusing!

If it doesn’t make sense, you must acquit.

[Dan Schiavetta]

Any time before 2015 this question would have been regarded as too outlandish for a law school exam. Then it became real life.

[bacchys]

Why doth treason never prosper?

It if prosper, none dare call it treason.

[arpiniant1]

Most of the Jan 6 charges were simple
trespassing
assault
viewpoint neutral as it were
In the kicking in the door example, what if there were 50 people shouting that the woman was wrong and not to do it
YOu did it anyway, and proceeded to beat the peaceful family members
Then you rightly go to jail

[ReaderY]

Suppose the CEO of a company honestly felt its revenue was 10 times what the accountants had reported and told investors what he honestly felt.

No deception? Not so. A CEO of a company is charged with, responsible for, knowing certain things about the company, and can’t claim honest belief in things he simply made up. That’s why “I felt in my gut the accountants were wrong” doesn’t cut it as a defense to a financial fraud charge for overstating the revenue.

Why should the President of the United States be treated differently?

[Nameless But Highly Opinionated]

The common views on disqualification are, in a nutshell, what's wrong with American politics today.

People like Lessig - who actually think about what will happen when the shoe is on the other foot, who actually think about the kind of precedent something sets, who are capable of thinking beyond "This guy/thing is good/bad" - are alarmingly rare anymore.

[BLW]

I had some thoughts about this https://brucewilder.substack.com/p/the-fourteenth-amendments-section
It all comes down to how one establishes "rebellion or insurrection'" and/or "aid and comfort" for purposes of the remedy proposed, i.e., not necessarily a criminal conviction. Ga. court seemed to say preponderance of evidence.