Month: August 2023

Just when it seemed the 2024 presidential election couldn’t get more combustible, with Donald Trump facing four criminal indictments containing 91 felony counts, two law professors fan the flames. In a forthcoming law review article, William Baude and Michael Stokes Paulsen argue that Trump is disqualified from being President by a heretofore obscure constitutional provision.

They cite section 3 of the Fourteenth Amendment, which disqualifies from federal or state office individuals who previously took an oath to support the Constitution of the United States as government officials and then “engaged in insurrection or rebellion against the same, or [gave] aid or comfort to the enemies thereof.” They maintain that Trump’s efforts to overturn the 2020 election clearly fall within section 3; therefore, “every official, state or federal, who judges qualifications” has not only the authority but the obligation to keep him off the 2024 ballot.

Needless to say, the professors’ theory is attracting lots of attention both pro^[1]See here, here, and here. and con.^[2]See here, here, here, and here. One argument gaining ground among the “cons” is that the presidency is not an “office” subject to section 3 disqualification. No doubt many Trump opponents will be eager to give it a try.^[3]Indeed, it is already attracting increasing interest on the left. However, invoking section 3 against Trump would add more chaos to our already chaotic and polarized politics and the case for doing so is far less clear-cut than the professors let on.

By way of background, section 3 was enacted to penalize former government officials who served the Confederacy during the Civil War in violation of their previously sworn allegiance to the United States. Section 3 includes language giving Congress the option to remove its disqualification. Congress did just that in two late Nineteenth Century statutes by freeing all Civil War era individuals from disqualification. This effectively nullified section 3 in relation to its original purpose, and it has lain largely dormant until now.

However, section 3 is still part of the Constitution and its text is not explicitly confined to its original purpose. Thus, the professors are surely correct that section 3 remains legally operative. They are also probably correct (although less obviously) that an individual can be subject to disqualification under section 3 without having previously been adjudged an insurrectionist or revolutionary as, for example, by conviction in an impeachment or criminal proceeding.^[4]In making this point, the professors rather confusingly describe section 3 as “self-executing.” Of course, no law is literally self-executing; laws cannot enforce themselves. An individual would … Continue reading

Their conclusions regarding the scope and application of the reincarnated section 3 are more problematic. They insist that the case for disqualifying Trump under it is “not even close.” But this is because they resolve virtually all relevant legal and factual ambiguities in favor of interpreting section 3 “sweepingly,” both in general and as applied to Trump. Without attempting to address everything in their 126-page article, the following are some major sticking points.

First, while section 3 is not a dead letter and must be presumed to mean something today, why give it the “capacious” scope that the professors do? Section 3 was enacted with a very specific and relatively narrow purpose in mind. Its original public meaning is clear:“insurrection or revolution” referred to the Civil War, and those disqualified for “engag[ing]” in it or giving “aid or comfort” to “enemies” were servants of the Confederacy—a regime that sought the forcible dissolution of the United States.

Although no longer operative, section 3’s original purpose and meaning should be relevant to assessing its current application. Thus, it seems  reasonable to construe section 3 as limited to contexts at least roughly equivalent to them, i.e., involving some kind of existential threat to the United States itself. Contrary to this, the professors give section 3 the broadest scope its language can bear, extending it far beyond anything resembling its original context.

There are additional reasons for giving section 3 a much narrower scope. The professors’ sweeping approach creates many potential slippery slopes between “insurrection or rebellion,” on the one hand, and protests or even riots that may be violent and disrupt government functions but still, as they recognize, fall outside of section 3.^[5]See footnote 407 on page 113 of their article. Their approach also creates potential conflict between section 3 and other constitutional provisions, such as those guaranteeing freedom of speech and due process of law (see below).^[6]They acknowledge these issues but give them short shrift. See pages 49-61. For example, they argue that section 3 takes precedence over constitutional provisions enacted earlier in time in case of … Continue reading

Equating section 3 to the application of routine candidate eligibility rules, as the professors do, is highly dubious. In marked contrast to section 3, such qualification requirements (e.g., age, citizenship, residency) are non-punitive and usually self-evident. Prospective candidates naturally assume the burden of meeting them; those who can’t simply have no right to run for office. By contrast, section 3 deprives otherwise qualified candidates of their right to run for office. Under the professors’ theory, election clerks could simply refuse to list a supposed section 3 violator on the ballot without any prior due process, thereby forcing the individual to assume the burden of proving their non-disqualification.^[7]Application of section 3 to candidates for election would depend mainly on state law. As a practical matter, resorting to the varied state processes could prove more challenging than one might think.

Another reason to construe section 3 narrowly and permit its use only sparingly is its fundamentally undemocratic effect. By keeping candidates for election off the ballot, it denies voters the opportunity to make their own judgments about the qualifications and fitness of those candidates.

Finally, sweeping application of section 3 is a recipe for more dissonance in our already discordant politics. In the near term, it encourages a host of lawsuits over Trump’s eligibility, probably lasting well into the 2024 election cycle and creating further uncertainty and instability. But that’s just for starters. While the current focus is on Trump, section 3 extends far beyond him—reaching all candidates for federal and state office, as well as incumbents of those offices, who have taken the federal constitutional oath. Injecting the professors’ expansive reading into our increasingly toxic politics will likely spawn attempts to weaponize section 3 in many different ways against many candidates and incumbent officials.

Turning to the application of section 3 to Trump, the professors base their case on “the overall package of events” following the 2020 election.^[8]See generally pages 111-121. Here again, they consistently resolve ambiguities, including many over interpretation of the facts, in favor of section 3’s applicability.

They maintain that the January 6 attack on the U.S. Capitol clearly constituted an “insurrection” within the meaning of section 3. But there is considerable debate featuring much political spin over how to characterize this disgraceful event. Another at least equally plausible interpretation is that an unruly protest careened out of control and turned into a riot, but one falling well short of an “insurrection.”

In this regard, the January 6 mob was largely unorganized and unarmed. Although some were violent, most participants who entered the Capitol wandered about aimlessly–taking selfies, committing minor acts of theft and vandalism, and acting more like jackasses than insurrectionists. The breach of the Capitol and disruption of the election certification were attributable less to any grand strategy or concerted effort on their part than to the incompetence and leadership failures of law-enforcement agencies, for which they have yet to be fully accountable.

The prosecutions of January 6 participants are also telling. Federal prosecutors have come down very hard on January 6 defendants. Yet fewer than 10 percent of the over 1,100 participants who have been indicted face charges involving weapons or acts of violence. Fewer than 5 percent face conspiracy-related charges, mainly seditious conspiracy under 18 U.S.C. 2384. Not a single participant has been charged with the specific federal crime of “rebellion or insurrection” (18 U.S.C. 2383).^[9]Seditious conspiracy under 18 U.S.C. 2384 overlaps insurrection in some respects. Section 2384 prohibits, in part, conspiracies “to overthrow, put down, or to destroy by force the Government of the … Continue reading Indeed, the Justice Department document describing the various charges nowhere refers to January 6 as an insurrection or rebellion.

Even if one still insists that the January 6 attack on the Capitol was an insurrection under section 3, it’s far from clear that Trump “engaged” in it.^[10]Of course, Trump’s reprehensible behavior regarding the January 6 events was clearly impeachable on other grounds. He did not participate directly, and his remarks in advance of it seem too ambiguous to constitute incitement. The professors concede that much of Trump’s “rambling” speech to the protesters was “innuendo.”^[11]Page 119. Significantly,  Congress specifically acquitted Trump of “incitement of insurrection” in his second impeachment.^[12]The professors emphasize that a majority in each House of Congress agreed with this charge. But this is as irrelevant as the fact that a candidate who lost the presidency in the Electoral College won … Continue reading Moreover, Federal Special Counsel Jack Smith declined to charge Trump with insurrection or rebellion, seditious conspiracy, or any other potentially insurrection-related crime.

The professors further stretch in suggesting that Trump gave aid or comfort to “enemies.” This concept, closely akin to treason, usually connotes assisting enemies of the United States during a declared war. Still another stretch is including in their “overall package” Trump’s many efforts apart from January 6 to overturn the election by pressuring election officials to “find” votes, organizing fake electors, etc. While these actions may well be fraudulent and criminal in other ways, they lack the element of violence that an “insurrection or rebellion” generally features.

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Trump is manifestly unfit for the presidency. However, conjuring up section 3 to disqualify him rests on a shaky legal foundation and would add considerably more devisiveness and instability to our already fragile politics. It would be better to adopt a limited interpretation of section 3 that reserves it for extreme situations bearing at least a passing resemblance to its original context. Presumably, such situations would arise very rarely if ever.

Nevertheless, it’s all but inevitable that someone (probably many) will employ this tactic in the coming months. When that happens, one can only hope that the issue reaches the Supreme Court quickly for definitive resolution.

 

 

 

 

The indictment is solid legally and factually. Criticisms of it based on its substance and other considerations are unpersuasive. Disregarding this case would be far more problematic than pursuing it.

Donald Trump now faces three criminal indictments and counting. ^[1]A Georgia grand jury may issue a fourth indictment for election interference, and the current indictments could be expanded. The first indictment, by the Manhattan District Attorney regarding hush money payments to Stormy Daniels, is by far the weakest. It was widely panned as politically motivated and legally dubious. If this case goes to trial and Trump is convicted, the conviction would likely be overturned on appeal.

The second indictment, by Justice Department Special Counsel Jack Smith relating to improper possession and handling of classified documents at Mar-a-Lago and obstruction of federal efforts to recover them, is the strongest. There is a broad consensus among legal experts across the political spectrum that prosecutors have Trump dead to rights in this case. His best hope may be a hung jury, given the relatively Trump-friendly jury pool in the Florida district where the case will be tried.

The third and most recent indictment, also brought by Special Counsel Smith, presents the most serious and complex case. It goes to the heart of Trump’s efforts to overturn the 2020 presidential election result based on his pervasive, patently false “stolen election” claims. This case has also produced the most diverse reactions. Media and expert opinion on the left is generally supportive; much opinion on the right, although not all, is highly critical.

The Facts

The 45-page indictment was released on August 1.^[2]The Lawfare website has an excellent overview of the indictment as well as detailed explanations of the facts and statutes it cites. The facts it alleges are familiar: Invoking knowingly false claims of election irregularities, Trump and his co-conspirators pressured state election officials to alter their vote counts, “find” votes for him, dismiss legitimate electors, and substitute fake pro-Trump electors. They organized the fake electors and had them submit false certificates in connection with the January 6 congressional election certification proceeding. They relentlessly pressured Vice President Pence to exceed his constitutional role and assume control over the election certification by rejecting legitimate electors in favor of Trump’s fake ones or at least delaying the certification. (¶ 10 of the indictment)

According to critics, it will be hard to disprove that Trump sincerely believed the election was “stolen” from him. They point out that the indictment contains no “smoking gun” evidence from Trump’s own mouth that he knew he lost.^[3]Its absence from the indictment does not necessarily mean that such evidence does not exist. In fact, there are indications that Trump acknowledged his loss to some staffers, including White House … Continue reading However, this is a red herring argument; the case doesn’t turn on whether Trump somehow actually believed the election was stolen.^[4]Of course, it’s highly implausible that Trump did (does) believe this given the total lack of supporting evidence, the mountain of contradictory evidence, and the fact that he has shown himself … Continue reading Rather, the key factual issue is whether the many false claims of specific election irregularities by Trump and his co-conspirators in support of their actions to overturn the election were knowing lies.

The indictment presents copious evidence that they were. Trump and the others asserted detailed factual claims they had no basis to believe were true and that they had been repeatedly and authoritatively told were false. (See generally ¶¶ 13-52) Moreover, the indictment cites instances in which Trump unquestionably knew he was lying. For example:

• • He asserted that Georgia election officials did not address a series of his false claims just one day after the officials refuted those claims in detail in a phone conversation with him. (¶ 32)
  • He told Pence that the Justice Department was finding major infractions regarding the election after they told him they were not. (¶ 90.b)
  • He approved a statement that he and Pence “are in total agreement that the Vice President has the power to act” despite Pence’s repeated denials to Trump that he had such authority. (¶ 99)
  • He asserted that some states wanted to re-certify their elector submissions when he knew they had no such intention. (¶ 104)

Finally, the indictment presents evidence that Trump knew he was engaged in a scheme of lies. After Justice Department officials refuted  his claims and declined to challenge the election, Trump responded: “Just say that the election was corrupt and leave the rest to me and the Republican congressmen.” (¶ 74) After Pence refused Trump’s demand that he assert broad authority over the election certification, Trump responded: “You’re too honest.” (¶ 90.c)

The Law

The indictment is noteworthy for the crimes it charges as well as those it omits. The included charges focus on the efforts of Trump and his co-conspirators to overturn the election and prevent its certification through various fraudulent schemes. It does not contain charges relating directly to the attack on the U.S. Capitol, such as insurrection and seditious conspiracy, as the House January 6 Committee had recommended.^[5]See pp. 109-112 of the Committee’s Final Report. This reflects a measured approach that best matches the charges with the evidence. For the most part, the charges set forth in the indictment are straightforward in relation to the facts alleged.

The first count of the indictment charges a violation of 18 U.S.C. 371, which makes it a crime to “conspire . . . to defraud the United States, or any agency thereof in any manner or for any purpose.” As summarized above, the indictment alleges extensive fraudulent efforts by Trump et al. to undercut the legitimate outcome of the presidential election and defeat or delay congressional certification of it.

Some critics of the indictment contend that 18 U.S.C. 371 does not apply because fraud under federal criminal law is limited to schemes to swindle victims out of money or property. As discussed in the Justice Department’s prosecutorial manual, however, the courts have applied section 371 broadly, consistent with its sweeping language, and have held specifically that it is not limited to fraud aimed at money or property. Those arguing for a narrower reading rely on cases dealing with a different fraud statute (18 U.S.C. 1343) that, unlike section 371, does explicitly reference fraud to obtain money or property.

The second and third counts of the indictment charge violations of 18 U.S.C. 1512(c)(2) and 1512(k). Subsection 1512(c) provides:

“(c) Whoever corruptly—

     “(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

     “(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.”

Subsection 1512(k) criminalizes conspiracies to violate subsection (c).

Section 1512(c)(2) has been successfully invoked to convict many of the rioters in the January 6 attack on the Capitol, and its use for that purpose has been affirmed by the U.S. Court of Appeals for the D.C. Circuit. This statue does not require acts of violence and seems clearly applicable to Trump and his co-conspirators as well.

One potential complication is that a January 6 rioter is seeking Supreme Court review of his conviction on the basis that section 1512(c)(2) only applies to evidence-tampering in connection with an official proceeding. He contends that that the word “otherwise” in paragraph (c)(2) means that a violation of that paragraph is limited to conduct within the general scope of paragraph (c)(1). If the Supreme Court were to adopt this more restrictive interpretation, it would jeopardize the convictions of many January 6 rioters. However, Trump could still be covered since his conduct involved tampering with documentation and other evidence relating to congressional certification of the election. In any event, the section 1512(c)(2) charge against Trump, like the 18 U.S.C. 371 charge, is clearly consistent with the law as it stands now.

The fourth and final count is a violation 18 U.S.C. 241, which prohibits conspiracies to injure, oppress, threaten, or intimidate anyone in the exercise of a right or privilege under the Constitution or laws of the United States. This count may be a stretch since section 241 typically applies to voter intimidation rather than actions relating to ballots already cast. On the other hand, the courts have applied section 241 more broadly.^[6]See the Lawfare statutory summary cited in footnote 2 for more on this.

Other Considerations

Critics have raised objections that go beyond the specifics of the indictment, but they are tenuous at best.

Some argue that the prosecution violates Trump’s free speech rights under the First Amendment. However, Trump is not being prosecuted for insisting, no matter how implausibly, that the election was stolen from him or for the many lawful, if frivolous, judicial actions he pursued to contest the election. Rather, the prosecution is based on the alleged fraudulent schemes he and his co-conspirators instigated to overturn the election through extralegal means featuring extensive, knowingly false claims.

Critics also assert that the prosecution is politically motivated and an example of uneven justice compared, in particular, to the lenient treatment of Hunter Biden. They also make much of the timing of the indictment in relation to the 2024 presidential election. Of course, it would have been much better if this case (and the others involving Trump) could have been resolved prior to the election campaign. However, to the extent that the time taken involved anything more than the complexities of the case, it seems attributable to an abundance of caution on the part of Justice Department leaders in going after Trump.

In any event and most significantly, there is no hint of political motivation or bad faith on Special Counsel Smith’s part. As detailed above, his indictment is measured and well supported by the facts and statutes cited. The same is true of his indictment in the classified documents case, which even many of the critics here supported. The attacks on the good faith of this prosecution call to mind liberal assaults on the legitimacy of the Supreme Court, which conservatives rightly decry. Both illustrate the degradation of our public discourse in which partisans on each side are quick to attack the integrity of government officials and institutions when they disagree with their decisions.

Finally, some critics maintain that the prosecution of a former president for conduct while in office, particularly one running again, is a grave and potentially divisive undertaking that should be attempted, if at all, only when the case is airtight. One critic prone to hyperbole went so far as to compare the indictment to the action of a “banana republic.”

It’s certainly true that prosecuting a former president is a very serious matter, but so is the conduct Trump is accused of. His reprehensible actions following the election clearly violated his constitutional responsibilities and demonstrated utter contempt for the most basic democratic norms. If anything equates to “banana republic” conduct, his surely did. Even critics of the indictment (other than MAGA zealots and craven Republican politicians) acknowledge the outrageousness of Trump’s post-election conduct.^[7]See, e.g., here and here.

It’s by now clear as day that Trump committed impeachable acts  warranting his removal from office and disqualification from future office. However, the timing did not permit full development of the impeachment case against him, and the House overreached by charging him with “incitement of insurrection.” Also, it was questionable whether Trump could be convicted after leaving office.

The case laid out against Trump in the indictment is not a slam-dunk; no case this complex could be. However, it is well grounded in the facts and the law. Declining to pursue it and failing once again to hold Trump accountable would be far more divisive and harmful for the Nation than allowing it to play out.