Video: Heritage Panel on Section 3 Case

"The Legal Issues Behind the Colorado Ballot Disqualification Case"

Today, I spoke on a panel at the Heritage Foundation about Trump v. Anderson, the Section 3 case. My remarks begin around 44:45.

Comments

[bernard11]

I stopped watching after two minutes. Fascinating.

[Rev. Arthur L. Kirkland]

I tried, but couldn't make it all the way to the part where these clingers started ranting about how God commands that gays, Blacks, transgendered persons, women, immigrants, heretics, liberals, and libertarians are to be afflicted mightily by laws intended to vindicate white nationalism, Judeo-Christian dominionism, the natural male authority, and traditional American values.

[Dr. Ed 2]

IT WASN'T AN INSURRECTION!!!!

[MoreCurious]

Yelling isn't going to make your fantasy come true, Doc.

[Drewski]

Of course it was. Don't be silly.

[gradientz]

At 6:14, the speaker misquotes Section 5. That section states “Congress shall have power…”, not “Congress shall have the power…”

This error also appears on the copy of the Constitution posted on Heritage Foundation’s website. They refuse to correct it even though they have been informed of the error.

Why does the Heritage Foundation continue to misquote the Constitution? Do they not care about textualism?

[Rev. Arthur L. Kirkland]

Did the Volokh Conspiracy outsource Today In Supreme Court History to the Heritage Foundation? That would explain the frequency with which Noble Prizes have been earned . . . and the failure to correct errors that have been expressly identified for these losers.

[Armchair]

So, a question for all the commentors out there…

Assume for a second that the SCOTUS finds that Trump did engage in insurrection. Would that make Trump a “Enemy of the United States”?

For reference 50 USCS § 2204 lists an “Enemy of the United States” as “Any country, government, group, or person that has been engaged in hostilities, whether or not lawfully authorized, with the United States;”

The way I read it, if the SCOTUS found Trump engaged in insurrection (A violent attack against the government), he would almost certainly be classified as an “Enemy of the United States”. But perhaps other people have different opinions?

[Commenter_XY]

Armchair, if SCOTUS actually found that POTUS Trump did engage in insurrection, I would expect immediate detention of POTUS Trump, pending a trial. The charge? Whatever they want. It really will not matter anymore, trust me. Now, if POTUS Trump refused to surrender voluntarily, then the USSS can escort him (reluctantly?) to the nearest Federal facility for processing.

Suppose POTUS Trump tells the USSS: You leave Mar-a-Lago, I'm staying until the bitter end. As a last resort, a drone attack with multiple drones on Mar-a-Lago is a perfectly acceptable way to resolve the impasse. In this scenario, we need to be sure to alert all of the major networks to be there on-site with trucks and equipment to catch the early-morning drone fireworks. /sarc

The legal question SCOTUS is addressing is not evaluating whether POTUS Trump engaged in insurrection, only whether the CO court erred in removing POTUS Trump from the ballot.

[Armchair]

Nah, that would be criminal charges. Those are much harder to prove. "Beyond a reasonable doubt" and all that.

But I'm actually going somewhere else with this. "Enemy of the United States" has a specific meaning, in regards to two specific clauses in the US Constitution.

[Commenter_XY]

Now...I am curious. Do tell. Not sarcasm at all. I learn here.

[Armchair]

There are two clauses that use that type of terminology.

The first is section 3 of the 14th amendment. While a lot of attention is paid to the insurrection bit, directly after that is an interesting clause. "or given aid or comfort to the enemies thereof"

Hypothetically speaking, if Trump was an "enemy of the United States," anyone who gave him "aid or comfort" (and previously took an oath to the US) would be disqualified from office. That's...pretty broad. And doesn't necessarily have to be aid and comfort in connection with any insurrection...once Trump is an "Enemy of the United States" any aid may count. And remember, Section 3 is self-executing, and doesn't require a criminal trial.

At it's broadest? Any donation to Trump, any political support of Trump, all of that may count as aid to an enemy of the United States. And instantly disqualify any officeholder. Self-Executing.

It sounds extreme, but think how we treat a financial donation to Al Queda.

"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."

[Commenter_XY]

Ok, I follow the logic. That financial donation analogy is...scary. That is a lot of people caught up in a wide net. Is that an entire political party, too? That gets really messy really quickly.

[Armchair]

The second clause is more difficult, but with higher penalties. That's the treason clause.

Article III, Section 3, Clause 1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court

Now this sounds extreme as well, but remember...Trump has been declared an "Enemy of the United States". This requires two items, not only aid and comfort, but also adhering (loyalty) to the enemy, But, it logically follows. Ironically, it may be difficult to persecute Trump himself for this, but once Trump is declared an enemy, then those who help him and are loyal to him become guilty of Treason.

[Commenter_XY]

This feels like a stretch, but I can easily see a progressive trying out the argument in the press. 🙂

An interesting take, Armchair. I hope to see you post this in Thursday thread. Interesting possibilities.

[Dan Schiavetta]

What Trump and his mob did was so unprecedented, so strange to us, that the implications are necessarily strange also.

[bernard11]

This is some kind of panel. Besides Josh we have:

Todd Rakita, the IN AG who attacked a gynecologist for performing a legal abortion, and was ultimately disciplined by the IN Supreme Court for misconduct in the matter.

Hans Von Spakovsky, one the leading liars in the voter fraud business.

Patrick Strawbridge, a well-known RW lawyer.

Heritage continues to be a laughable institution.

[Rev. Arthur L. Kirkland]

No worse than the Federalist Society, the Hoover Institution, the American Enterprise Institute, Focus on the Family, or at least another half-dozen like them. Just cogs in the disaffected, obsolete Republican-MAGA-QAnon clingerverse.

[SimonP]

Josh fit right in, is what you're saying.

[Rev. Arthur L. Kirkland]

Any aging white male in a loose and dark suit (white shirt, of course) with a goofy smile and receding hairline would have fit right in.