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dreaminginthedeepsouth · 1 year ago

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Not communists, as it turns out, but MAGA Republicans.

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Disqualifying Trump under Section 3 of the 14th Amendment.

Last week, I criticized a scholarly article by two law school professors (William Baude and Michael Paulsen) who contend that state election officials can unilaterally disqualify Trump from ballots based on their independent “duty” to enforce Section 3 of the 14th Amendment. Section 3 provides that no person may hold federal office if—after having taken an oath to uphold the Constitution—they

shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

After I wrote my piece last week (which is here: The only path forward . . . . - by Robert B. Hubbell (substack.com)), Professor Laurence Tribe and retired federal court of appeals Judge Michael Luttig published an article in The Atlantic that praised and endorsed the article by Baude and Paulsen. The article by Professor Tribe and Judge Luttig is here: The Constitution Prohibits Trump From Ever Being President Again. (The article should be accessible to all.)

While Professor Tribe and Judge Luttig agree with Baude and Paulsen, they admit a practical consideration that is not front and center in the article by Baude and Paulsen, who emphasize unilateral action by state officials unbounded by due process and the First Amendment. Professor Tribe and Judge Luttig write,

As a practical matter, the processes of adversary hearing and appeal will be invoked almost immediately upon the execution and enforcement of Section 3 by a responsible election officer.

Dozens of readers sent me copies of the article in The Atlantic and asked me to comment on (read: dispute) the legal analysis by Professor Tribe and Judge Luttig.

Come on, people! I am not that stupid! You will not bait me into disagreeing with Professor Tribe and Judge Luttig on legal matters.

Instead, I will change the terms of the debate.

I believe that attempting to enforce Section 3’s disqualification clause by urging state officials to unilaterally and variously block Trump from the ballot (or not) is a bad idea from a political standpoint.

Why?

I believe there is no scenario in which Trump will be disqualified from enough state ballots to preemptively determine the outcome of the election in the electoral college. The most likely result is that Trump will be disqualified in a few deep blue states that he has no chance of winning in any event. But if he thereafter loses an election in which he has been barred from the ballot in a handful of states controlled by Democrats, tens of millions of Americans will believe that the election result is illegitimate. Without agreeing that Republicans would be correct in their view of the illegitimacy of the election, a reasonable observer should be able to see why Trump supporters would feel aggrieved in that scenario.

After the bruising attack on the legitimacy of the 2020 election, inviting disputes over the 2024 election based on a contested legal theory does not seem to be the best political path forward.

As before, I remind readers that I believe Trump engaged in insurrection and should be disqualified from holding the office of president and that Section 3 is still operative today. But as much as I believe those premises, we must recognize they are not shared by tens of millions of Americans. Setting aside the legal analysis about whether Trump engaged in insurrection, let’s examine whether there is a solid footing for a political consensus on that point such that unilateral enforcement of Section 3 would not damage the legitimacy of the 2024 election. I won’t bury the lead: I do not believe that such a political consensus exists.

Let’s begin by recognizing that, as applied to Trump, Section 3 includes two elements that must be satisfied: (1) That the events of January 6th constitute a rebellion or insurrection, and (2) that Trump “engaged” in that rebellion/insurrection or gave “aid or comfort to the enemies” of the United States.

Those who oppose the disqualification bar would say that the question of whether Trump has engaged in insurrection has been answered in the negative by Congress and the DOJ, for the following reasons:

The Senate acquitted Trump in his second impeachment of the charge of “incitement to insurrection.” In so doing, the Senate refused to apply the very remedy that proponents of the Section 3 bar would nonetheless apply.

The January 6th Committee recommended that the DOJ indict Trump for engaging in insurrection or rebellion in violation of 18 U.S. Code § 2383 (Rebellion or insurrection). See also DOJ Referrals | Jan-6.com.

Although the DOJ did indict Trump on other grounds recommended by the January 6th Committee, it has not indicted Trump for “rebellion or insurrection” under Section 2383, as recommended by the J6 Committee. A reasonable observer should be able to see why Trump supporters would feel that the DOJ’s apparent decision not to charge Trump with “rebellion or insurrection” means that—in the view of the DOJ— January 6th was not an insurrection and Trump is not guilty of having engaged in insurrection on January 6th.

Indeed, the DOJ has not indicted anyone for “rebellion or insurrection” under Section 2383. True, some defendants have been indicted and convicted for “seditious conspiracy” under Section 18 USC § 2384, which legal commentators would rightly note is effectively “the same thing” as planning an “insurrection or rebellion.” Fair point. But the DOJ has not indicted Trump for seditious conspiracy. As before, a reasonable observer should be able to see why Trump supporters would feel that the DOJ’s apparent decision not to charge any defendants (including Trump) with “rebellion or insurrection” means that—in the view of the DOJ— January 6th was neither.

Against that backdrop, arguing that state election officials should nonetheless unilaterally conclude—as a matter of constitutional certainty—that Trump engaged in rebellion or insurrection on January 6th is a proposition ripe with the potential for political strife.

And we haven’t even begun to discuss the impracticalities of urging secretaries of state to bar Trump from the 2024 presidential ballot. Republicans hold the secretary of state seat in twenty-six states, including the swing states of Georgia and Pennsylvania. Democrats hold the secretary of state seat in twenty-two states, including the swing states of Arizona, Michigan, Wisconsin, and Nevada.

We cannot assume that each of the secretaries of state has the authority under state law to determine which candidates appear on the ballot. One reader wrote to the Washington State Secretary of State urging them to bar Trump from the ballot and received this reply:

Political parties submit the candidate names to appear on the Presidential Primary ballot. That’s in RCW 29A.56.031. The Office of Secretary of State has no statutory power to evaluate a candidate’s qualifications for the office, which are set in federal law.

But let’s assume for argument that the secretaries of state in the four swing states of Arizona, Michigan, Wisconsin, and Nevada bar Trump from the ballot in those states. If that happens, Trump would have no realistic chance of gaining the electoral votes necessary to be elected president.

The net result is that four individuals holding the office of secretary of state in four states may decide who will serve as our next president.

Really?!

Even if that result is ultimately adjudged to be the correct outcome from a legal standpoint, the question remains whether that is what our democracy needs at this contentious moment in our history. I do not believe it is.

I have done my best to avoid crossing legal swords with Professor Tribe and Judge Luttig. Indeed, I agree with their ultimate legal conclusions. My point is that their view of the law will be rejected by tens of millions of Americans given the actions by Congress and the inaction by the DOJ described above. The law is not a popularity contest (nor should it be)—but political legitimacy is. Given those facts, I believe it would be a political mistake to follow a strategy with a low probability of electoral success and a high probability for undermining the outcome of the 2024 election. As I wrote last week,

Here is the point: There is only one way to ensure that Trump does not hold the office of the presidency again: We must beat him decisively at the ballot box. I worry that the emotional energy that readers are investing in a contested legal theory is a distraction and a setup for disappointment. The argument regarding the “self-enforcing” feature of Section 3 is contested and, in my view, bristling with unintended consequences. Keeping Trump off the ballot is not going to work; and if it does, it will result in retaliatory actions by MAGA secretaries of state. Let’s not go there. Let’s beat Trump at the ballot box. That is the only path forward . . .

I recognize that many readers will disagree with my views. I have heard from many of you already. I hope that I have convinced you (at least) that the legal theory will be challenged, and that the political fallout will be substantial. If you nonetheless support the effort, that is obviously a legitimate choice with substantial legal support. But, please, let’s recognize the political realities of attempting to enforce Section 3 through state election officials applying their own views about whether Trump engaged in insurrection or rebellion.

[Robert B. Hubbell Newsletter]

#Robert B. Hubbell #Robert B. Hubbell Newsletter #DOJ #14th Amendment #Professor Tribe and Judge Luttig #disqualifying Trump #armed insurrection

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evilkitten3 · 3 months ago

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i would agree with the latter point

i think op is on the right track but like. the metaphor falls apart once you realize that. the people in power can just ignore you if no one stops them. this has happened before. voting does do stuff, it's disingenuous to say it does nothing, but it does stuff bc we've all agreed that it should, and currently we're all at least on some level behaving as tho we want it to stay that way

but trump lost the popular vote twice, and both times he just. said he didn't. the second time he incited an insurrection about it.

since prev used britain as an example, let's keep on that track - the prime minister of the uk is, as i understand it, chosen by the monarch. however, that monarch always picks the head of the party that got the most seats in the commons, but that's not actually a written rule, it's just convention. technically, the king could pick whoever he wants, so why doesn't he? what's keeping him from doing that?

the most obvious answer is the fear of what would happen after - the fear or violent retaliation.

the same general idea is true here in the usa - while we all love telling ourselves that we get to decide our politicians, the reality is that thanks to the electoral college and insane laws regarding who gets to draw voting districts (usually politicians, who may have a slight conflict of interest there), what actually tends to happen is that politicians pick their voters.

as op says - there is no super-cop coming to arrest trump if he breaks the rules. we know that bc he's been breaking them in public on tv for the better part of a decade, and he's not going to be sentenced until after the election - meaning that if he wins, he can just pardon himself, which he's obviously going to.

you can - and should - vote according to your political beliefs, but to act as tho the vote is a magic spell that wards off evil is just as if not more disingenuous than pretending it does nothing at all.

ask yourself this - what would you have done if the jan 6th insurrection had been successful? would you have taken up arms to overthrow an undemocratically elected leader? or would you have called your representatives to ask them to politely tell him to go away and encouraged everyone to just vote harder next time?

at the end of the day, your vote only means something so long as you're willing to commit to enforcing the idea that it does. if you aren't, you're just adding your name to a meaningless list of people with a preference.

Like, getting political for a moment. A thing a lot of people need to understand is that, ultimately, rules only exist if they are enforceable. The mechanism of enforcement is what determines the realness of a rule.

If you're playing Monopoly and you decide that being in Jail sucks so you move your piece to Go and call it a tunneling loophole, there's nothing built into the game to actually stop you from doing that. Other players yelling at you and banishing you from the table is how the rule is enforced. But if they don't, if they let you do that, then I'm sorry but that's just how the game is played now. If you're allowed to do it then it's not against the rules.

We all instinctively understand that when you're running track, you're not supposed to cross the lines into someone else's lane. But the lines are not a wall. They're not physically preventing you from doing anything. If you decide you want to run into the lane to your right and jump-kick the other racer, you physically can do that.

The line on the ground is a social construct. It's part of the magic circle; A thing that takes on special meaning, even psychological power, so long as we exist within its play space. But it's not real, and it only has power if somebody comes over and drags you off the field for striking that other racer.

At the highest echelons of power, a lot of what "can" and "can't" be done are actually just the boundaries of a magic circle with few real enforcement mechanisms. The President can't do that. But. Like. Who's going to stop him if he does?

The biggest thing we learned during the Trump Presidency was just how many restrictions on government power are illusory. Trump spent his four years in office testing the limits of what he can and can't do. Stepping over the lines of the magic circle to see which ones had enforcement mechanisms and which were merely decorative. And revealing that an alarming number were decorative.

Because the thing about the highest offices, about POTUS and SCOTUS and Congress, is that they're the highest offices. There's nobody above them. The only check on their power is each other and, contrary to what high school social studies might tell you, those checks aren't very strong at all.

Trump wants to redefine the game rules to be dictatorial. The magic circle says he can't do that. But the only factor that truly decides whether he can or can't is whether the other players at the table will let him do it. And if you listen to the way Republican Congressmen talk, it's not reassuring.

There are no executive super-cops who will arrest Trump if he breaks the rules. The Avengers are not going to show up and stop him from continuing to reconfigure the magic circle to his liking. The only thing, the only true restriction on his power, is the vote. It's the fact that we, as a population, get to make a choice as to whether or not he even gets to sit back down at the table to play again at all.

In a democracy, voters are the enforcement mechanism. Let's try and remember that when November comes around.

#us politics #i'm honestly kinda baffled by the original post tbqh #like you had a pretty great start but. the vote is also only effective if enough people agree it is #plenty of people got in trouble after jan 6 but most of them weren't really people with actual power or influence #those guys are still just. there #and the reason for that is bc the people who don't support them weren't able to vote them out and nobody wanted to look at other options #it was made very clear that enough powerful people will be able to get away with an armed insurrection if they want to try again #voting isn't going to stop that #but the vote has power bc it's allowed to have power #and certain parties have been testing the waters with how much of that power the usamerican people are willing to allow to be taken away #but at the end of the day if you broadcast that you don't consider violence to be an option. that message will end up being received

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