Author: Henry Wray

The guilty verdict against Donald Trump in his New York “hush money” trial certainly conveys a sense of schadenfreude. Trump’s lifetime of playing fast and loose with the law may finally be catching up with him. No doubt some also view this conviction as a proxy for the more compelling federal criminal cases against him that are unlikely to go anywhere before the election and will surely die if he wins. And it’s gratifying to see Trump’s usual scorched earth strategy—contest everything; attack everyone; deny all, including the undeniable—crash and burn. Many experts think this strategy cost him any chance for at least a hung jury.

The case looks quite different, however, from a dispassionate legal perspective. The result may not be the utter travesty those on the right claim it is. Trump is no innocent victim; and the jury can’t be faulted for the guilty verdict it delivered under the facts, legal arguments, and judicial instructions presented to it. However, this was clearly a politically motivated, selective prosecution based on dubious charges. In essence, the prosecution sought to make a crime out of something that was not illegal. The case lived up (down?) to its widespread reputation as the weakest of the criminal cases against Trump.

Background

The key facts underlying the case are well known and almost surely accurate: Trump had a tryst with Stormy Daniels, instructed Michael Cohen to buy her silence in order to suppress politically damaging information about it, and business records were falsified to cover up the true nature of Cohen’s payments to Daniels as well as Trump’s subsequent reimbursement to Cohen for those payments. The evidence of Trump’s personal involvement in falsifying the records is less clear-cut but sufficient for the jury to find him complicit.

The genesis of the decision to bring this prosecution leaves no serious doubt that it was politically motivated. According to the New York Times, the Manhattan District Attorney’s office under former DA Cyrus Vance spent years “hunting” for a criminal case to bring against Trump, but even it passed on this one. Then Alvin Bragg, who campaigned for office as a Trump nemesis, was elected DA. A generally friendly profile of Bragg in the Times described him as “a man of unmistakable ambition who has hitched his aspirations to the pursuit of Donald J. Trump.” Bragg also initially resisted this case, which had become known as “the zombie case.” He revived it only after a prosecutor in his office resigned and went public with a letter severely criticizing Bragg for not being sufficiently aggressive in pursuing Trump.

The specific charges, described in more detail below, attest to the contrived and selective nature of the prosecution. New York prosecutors hardly ever use falsification of records as the sole grounds for a criminal case, as they did here. The election law provision prosecutors invoked to bolster their case is quite obscure and hardly ever used in any way at all. The Washington Post could find only three prosecutions under this provision over its entire history.

It would be more than naive to think that a case based on such unusual charges and with such a major investment of investigative and prosecutorial resources would have been pursued against anyone other than Trump.

Analysis of the Case

In addition to its political origins, the case rested on convoluted, highly imaginative legal theories that distorted what were relatively minor misdemeanor falsifications of records into ill-defined felonies. Remarkably, the prosecution’s theory of the case and core narrative had little to do with the actual charges.

Based on the above facts, prosecutors had solid grounds to charge Trump with misdemeanor falsification of business records under Article 175 of the New York Penal Law, which criminalizes making or causing to be made false entries in the business records of an enterprise with intent to defraud.^[1]The “intent to defraud” element is somewhat elusive. There were no apparent victims of fraud—certainly not voters since all the entries were made after the 2016 election. In fact, because the … Continue reading However, the statute of limitations for such misdemeanor charges expired long before prosecutors finally decided to resurrect the hush money case.

In order to overcome the statute of limitations problem and make the case appear more serious, prosecutors decided to charge Trump under another provision of Article 175^[2]Section 175.10, Falsifying business records in the first degree. that elevates falsification of records to a felony (with a longer limitations period) when the “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”

Prosecutors did not actually charge Trump with any crime beyond falsifying records. They used the “another crime” theory only to enhance the records falsification counts. It took them a long time to decide, or at least disclose, what this other crime could be. They finally identified it as section 17-152 of the New York Election Law, which provides:

     “Conspiracy to promote or prevent election. Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.”

Prosecutors opened the trial by describing the case as “election fraud, pure and simple.” Their apparent theory was that Trump sought to interfere in the election and defraud voters by depriving them of knowledge about his affair with Daniels, which might materially affect their vote. One pundit observed at the end of the trial that the prosecutors “did a masterly job of telling a compelling story not of faulty bookkeeping but of criminal election interference.”

There are two basic problems with this. First, Trump was not prosecuted for criminal election interference; rather, he was charged only with bookkeeping violations. Second, the “hush money” payments to Daniels at the heart of the prosecution’s theory of election fraud or interference, while perhaps unsavory, were not illegal as such.

Section 17-152 prohibits conspiracies to influence an election by unlawful means. The alleged conspiracy here was to influence the 2016 presidential election (to promote Trump) by buying Stormy Daniels’ silence. But neither the objective (silencing Daniels) nor the means to achieve it (paying her off) was unlawful. Political candidates seek to limit negative information about themselves all the time, and paying to suppress information is commonplace in politics and other contexts.

In an effort to identify something illegal in this scheme that would convert it into a prohibited section 17-152 conspiracy, prosecutors came up with three alternative “unlawful means” of accomplishing it: (1) violations of the Federal Election Campaign Act (FECA), (2) falsification of other business records, and (3) violations of tax laws. Judge Merchan incorporated all three into his jury instructions.^[3]Pages 30-34.

This is a huge stretch. None of the three constitutes a “means” to achieve the alleged conspiracy’s objective of silencing Daniels under any reasonable interpretation of that term. All were at most peripheral to the scheme or consequences of it rather than ways to make it happen.

Injecting FECA into this case raises a number of legal issues.^[4]They include, among others, whether FECA can be used in state prosecutions, whether the Daniels payments constituted a campaign contribution under FECA, and whether Judge Merchan’s instructions and … Continue reading But putting those aside, any violations of FECA’s contribution limits or reporting requirements that may have occurred played no direct role–certainly not a determinative role–in buying Daniels’ silence. The same is true of any additional bookkeeping violations. They might be part of the effort to disguise the true nature of the Daniels payments, but they played no significant role in silencing her.

Possible tax violations are the most attenuated of all. Presumably,^[5]Judge Merchan’s jury instructions did not address what the alleged tax violations (or additional bookkeeping violations) were or how they could constitute an “unlawful means” under section … Continue reading the contention here is that the effort to disguise the purpose of Trump’s repayments to Cohen  resulted in improperly attributing income to Cohen and businesses expenses to Trump. But this has no bearing whatever on the Daniels payments.

In sum, FECA, bookkeeping, or tax violations cannot reasonably be substituted as an unlawful means of effecting an election-related conspiracy for purposes of section 17-152. Their relationship to the true means of carrying out the alleged conspiracy—the Daniels payments—ranges from tangential to nonexistent.    

Finally, it’s noteworthy that since Judge Merchan told the jury they need not agree on which of the three purported “unlawful means” satisfied section 17-152, what they decided on this issue is unknown. Therefore, if an appellate court rejects any one of the three as a viable unlawful means under section 17-152, that would seem to constitute automatic grounds for reversing Trump’s conviction.

Potential Impact of the Case

While the Trump verdict rests on a shaky legal foundation and appears vulnerable to reversal on appeal, its ultimate fate will not be determined for some time—almost certainly not until after the 2024 election. Its political effect on the 2024 election is also hard to foresee at this point. 

What can be predicted with great confidence is that this case, whatever its ultimate legal outcome and impact on the election, will further debase our already fractured politics. Given the political and legally problematic nature of the case, a large segment of the American public will never accept Trump’s conviction as legitimate.^[6]Even some of the few remaining Republicans who are not Trump acolytes strongly criticized the prosecution of this case. And if Trump loses in November, the legitimacy of the election will surely be widely challenged based on it.

The pushback figures to be even more severe than what followed the 2020 election. Unlike Trump’s phony stolen election claims then, there will be a plausible basis for such claims this time around. The outrage will surely intensify all the more in the (not unlikely) event that the conviction is overturned after the election.

It’s regrettable that the far more serious federal criminal case against Trump now pending in Washington did not precede this one to trial and verdict.^[7]There are several reasons for this, but  the Justice Department deserves primary blame due to its multi-year delay in initiating the case. A guilty verdict in that case would have been more credible than Trump’s New York conviction and surely would have carried greater weight with the general public, excluding MAGA die-hards.

 

Here’s a thought experiment for those obsessing over the Alito family’s flag-flying practices:

Assume that you are a judge on a court whose credibility and legitimacy are under constant political attack and whose members are accused of bias and partisan hackery at the slightest provocation.

Assume further that you understand the inverted American flag and the “Appeal to Heaven” flag to symbolize support for Trump’s “Stop the Steal” campaign and the January 6 attack on the Capitol—dubious as this assumption is.^[1]It’s far from clear that either the inverted American flag or the Appeal to Heaven flag were then, or are even now, widely known as pro-Trump symbols. Indeed, many commenters expressed surprise at … Continue reading

Given these assumptions, would you publicly display the two flags, thereby giving your critics a silver platter full of grist to use in their efforts to undermine you and your court?

Neither would Justice Alito.

The assertion by the Justice’s critics that the flag displays signaled pro-Trump bias requiring his recusal or even his resignation is illogical and implausible. A far more plausible explanation: Like most people, neither Justice Alito nor his wife^[2]According to the Washington Post, Mrs. Alito has no known history of support for Trump’s stolen election claims or the January 6 riot. associated the inverted flag with Trump at the time. Rather, as the Alitos insist, Mrs. Alito intended it only as a distress signal to a neighbor with whom she was feuding. This bizarre incident is surely not a good look for either Alito, but hardly the basis for an ethics scandal. Like most of us, the Alitos probably did not associate the Appeal to Heaven flag with Trump either. (No doubt most of the public had never heard of this flag.) Thus, there is no reason to think that their purpose in flying it, whatever it may have been, was to show allegiance to him.

The argument that these flag displays give rise to at least the appearance, if not the reality, of bias likewise presumes that the Alitos as well as the public associated the flags with Trump and his bogus election claims at the time the displays occurred. But the evidence for this connection is both thin and obscure. Indeed, there appears to be no evidence that the flags were seen or used in this way by anyone other than a few January 6 rioters and members of some fringe MAGA sects.

Importantly, the media is only now devoting major reporting to the notion that such a connection exists, long after the events in question took place. It’s telling in this regard that the flags did not create a stir at the time they were displayed—particularly so in the case of the inverted flag, which was displayed when the Stop the Steal campaign and the January 6 riot were fresh in the public mind. In fact, we now learn that the Washington Post investigated this episode at the time and determined it to be a nothingburger.^[3]The Post declined to report on the episode, finding no clear indication that it was rooted in politics. If the inverted flag was indeed widely understood at the time as a symbol of support for … Continue reading

 

If the Trump immunity case is decided using textualist and originalist interpretive methods,^[1]See here and here. the answer is straightforward. Nothing in the text of the Constitution or federal statutory law references presidential immunity from criminal prosecution for conduct while in office. Rather, the constitutional language closest on point indicates that there is no such immunity.

The Speech or Debate Clause (Article I, section 6, clause 1) shows that the framers of the Constitution knew how to confer immunity if they wanted to, and they did so explicitly. It provides that senators and representatives–

“shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

No comparable provision applies to the president. Even more to the point, Article I, section 3, clause 7 of the Constitution provides:

“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” (Emphasis supplied)

As even Trump’s lawyers concede, this provision affirms that former presidents can be subject to criminal prosecution.^[2]His lawyers make the ludicrous argument, which nobody seems to buy, that prosecution can occur only if an official has first been impeached and convicted. This provision also undercuts the notion that there is a difference for purposes of criminal prosecution between a president’s official and private acts. The post-impeachment criminal liability it refers to draws no such distinction but applies to all impeachable acts.    

Aside from the absence of textual support, other factors weigh against presidential criminal immunity. Historical context makes it wholly implausible that the framers had the slightest interest in exempting presidents from the criminal law. Having recently won freedom from the British crown, they firmly rejected the concept of the president as akin to a king who would be above the law.

Thankfully, we don’t have much tradition of potential criminal conduct by past presidents. What little there is indicates an understanding that presidents are subject to prosecution for their conduct in office. Former President Nixon accepted a pardon for any criminal liability relating to Watergate. President Clinton negotiated a plea deal to avoid prosecution arising from the Ken Starr investigation. Notably, President Trump’s defense attorneys in his second impeachment trial maintained that the proper remedy for any misconduct on his part was criminal prosecution—a position endorsed by many senators who voted for his acquittal.^[3]The opinion by the D.C. Circuit elaborates on these points.

In a 1982 decision, Nixon v. Fitzgerald, the Supreme Court held that presidents have absolute immunity from civil liability for conduct within the “outer perimeter” of their official duties. However, this 5-4 decision from the pre-textualist era is itself dubious and likewise lacks any foundation in the words of the Constitution. In any event, as the Nixon opinion recognized, different considerations apply to civil versus criminal immunity.

Consistent with the foregoing, lower court trial and appellate judges unanimously rejected Trump’s immunity claims. Nevertheless, the Supreme Court decided to take up the case. Based on the oral argument, it appears likely that the Court’s conservative justices will once again depart from the textualism/originalism they claim to favor and find at least some sort of presidential criminal immunity.

The oral argument featured a hypothetical-laden free for all that focused heavily on the policy pros and cons of presidential criminal immunity but gave scant attention to the Constitution’s text and history. Remarkably, the argument also largely avoided the facts of the Trump case.

Even the policy debate was somewhat bizarre. Conservative justices emphasized how the prospect of criminal liability could inhibit presidents in the performance of their functions. On the flip side, however, deterring unlawful behavior is of course a primary purpose of the criminal law. Some justices also expressed great concern over the potential danger that prosecutors could act in bad faith to go after a former president, but they ignored the massive evidence of Trump’s actual bad faith that underlies the criminal charges against him.

The justices also struggled to find a coherent, workable dividing line between official acts by a president that might be subject to immunity and acts outside the president’s official responsibilities, which most if not all justices seemed to agree would not be immunized. But isn’t criminal malfeasance in office by a president just as bad, indeed probably worse, than non-official criminal misconduct?

As noted at the outset, this is an excellent example of a case in which textualism and originalism provide a clear, legally sound resolution: There is no specific basis in the Constitution’s text and history to exempt presidents from the criminal laws that apply to all other citizens. Unfortunately, the Court may eschew this approach in favor of a muddled decision unmoored from the Constitution’s language.

Textualists and originalists accuse those who favor more free wheeling interpretive methods of “making stuff up.” They are particularly critical of announcing constitutional rights or protections that are nowhere mentioned in its text. Yet, the conservative justices seem poised to do just that in this case. If they do, it would have been better for the Court to stay out of the case altogether.     

 

     

The New York Times recently published a remarkable op-ed by Jesse Wegman captioned “The Crisis in Teaching Constitutional Law.” Wegman observes that Con Law professors traditionally operate under the premise that the Supreme Court is “a legitimate institution of governance,” the justices “care about getting the law right,” and they are more concerned with “upholding fundamental democratic principles” than “imposing a partisan agenda.” He then asserts that this premise “no longer holds today.”

Wegman claims that the Court, “under the pretense of practicing so-called originalism,” issues decisions that “virtually always [align] with the policy priorities of the modern Republican Party.” This, in turn, “has made it impossible for many professors to teach in the familiar way.”

He quotes one distraught Con Law professor who describes his job as “teaching students what the law isn’t.” Another was reduced to tears and felt “depleted.” She couldn’t see how “any of this makes sense” or why she should “respect it.” A third quit, saying that he “couldn’t stand up in front of the class and pretend the students should take the Court’s decisions seriously in terms of legal analysis.”

The arrogance of these professors (and Wegman) is striking. For them, the certainty that they are right and the Court is wrong apparently leaves no room for good faith debate or honest difference of opinion over the merits of its decisions and interpretive methods. Rather, the Court has simply ceased to be a legitimate institution in their eyes and its decisions no longer constitute valid sources of law.

A small group of disgruntled law professors does not make for a “crisis.”^[1]Wegman interviewed fewer than 20 professors. He admits most were politically liberal, as are most Con Law professors in the country. However, their sentiments may be shared by many others in the legal academy and among political and media influencers. The dean of one prominent law school shamefully endorsed the description of Supreme Court justices as “partisan hacks.” Recent years have witnessed relentless attacks from many corners on the legitimacy of the Court and the integrity of the justices. The Court and its members are portrayed as thoroughly politicized, intellectually dishonest, unethical, and wholly at odds with American public opinion.

These caricatures are as baseless as they are extreme. Objective data refute the notion that the Court operates like a conservative monolith producing radical decisions that are out of touch with the American public:

• • The Court’s decisions rarely break down into 6-3 splits between the conservative and liberal justices. There is far more consensus than one would think from media reports. (See here)
  • When there are split decisions, the six conservative justices diverge considerably more among themselves than do the three liberals. The liberals vote far more frequently as a block, particularly in politically charged cases. (See here)
  • Contrary to media assertions, the current Court is less likely than its predecessors to overrule precedents. (See here)
  • More often than not, the Court’s decisions in controversial cases align with public opinion. In fact, the Court is much more in tune with the American public as a whole than are the law professors. (See here and here)
  • No serious ethics violations or corrupt acts have been identified regarding any justice. Tireless media efforts to find them uncovered only some ambiguities and errors regarding financial disclosure reporting. (See here and here)

The accusation that the justices are mere politicians in robes is equally unfounded. Tellingly, former Justice Stephen Breyer, a leading liberal critic of the Court (and a less partisan one), firmly rejects the notion that the justices are political actors. He does not question their integrity or good faith, only their jurisprudence.

What really accounts for the almost visceral contempt the law professors (and others like Wegman) apparently hold for the Court is a change in its dominant judicial philosophy that, while at odds with their own, is perfectly legitimate and even salutary. 

Many of today’s law professors came of age in the heady era starting with the Warren Court and lasting for decades when judge-made law served as an important and reliable instrument for advancing liberal political causes. One law professor told Wegman that the professors who taught his generation “were all Warren court people” who “valorized” it. They regarded its members as “heroes who would save us all.”

The free-wheeling decisions by the justices who dominated the Court in those years consistently aligned with values the law professors share. However, many of those decisions were less than meticulous (to be charitable) when it came to their legal reasoning. They often glossed over statutory and constitutional language. For example, a 1965 decision found a constitutional right to privacy based on “penumbras, formed by emanations from” the Constitution. Another decision resorted to the text of a law in order to resolve ambiguities in its legislative history.

Spearheaded by former Justice Antonin Scalia, the Court in more recent years has shifted its focus to what the relevant law actually says and means. Far from being “pretenses,” textualism and originalism are conceptually sound interpretive methods and well within the mainstream of legal thought.^[2]See here and here. In fact, they have been endorsed in concept by liberal Justices Kagan and Jackson. Of course, it’s fair to critique when and how the Court applies these methods in specific cases. Indeed, the liberal justices frequently accuse their conservative colleagues of invoking them selectively. But properly used, textualism and originalism can provide a much-needed, more objective framework for deciding cases.

No doubt a major gap does exist between what many recent Supreme Court decisions say the law is and what overwhelmingly liberal law professors would prefer the law to be. However, the blame for any resulting teaching “crisis” lies with the law professors, not the Court.

Like anyone else, law professors are certainly free to disagree with the Court’s ideological turn and its embrace of textualism and originalism. However, it is irresponsible and unprofessional to disparage the Court to law students as a rogue institution whose decisions should not be respected. This is also a grave disservice to the students, most of whom will practice in the real world.

Professors who can no longer bring themselves to teach Con Law in a traditional, straightforward way should follow the lead of one of Wegman’s interviewees and find another line of work.

 

 

 

 

 

 

Retired Supreme Court Justice Stephen Breyer is making the media rounds^[1]See here, here, and here. to discuss his new book entitled “Reading the Constitution: Why I Chose Pragmatism, Not Textualism.” As the title suggests, he rejects the Supreme Court’s use of “textualism” as a method of interpreting the law. He also criticizes its use of “originalism” to interpret the Constitution.

Notably, Justice Breyer wants no part of the vitriolic attacks on the Court that have become commonplace on the left—denying its “legitimacy” and dismissing the Justices as ethically challenged “political hacks.” He does not accuse them of acting in bad faith or from partisan political motives. Rather, his criticisms center on differences in jurisprudential philosophy.

The civil tone and substantive nature of Justice Breyer’s critiques are a welcome relief from the unhinged rants aimed at the Court these days. But is he right?

Certainly, the Court’s use of textualism and originalism is subject to legitimate criticism. It has rightly been accused of inconsistency and selectivity in invoking them.^[2]For example, the Court’s recent unanimous decision in Trump v. Anderson contradicts both the text and original meaning of section 3 of the Fourteenth Amendment. Conservative judges differ among themselves on what these concepts entail^[3] See, e.g., here. and how they apply in specific cases.^[4]In Bostock v. Clayton County, conservative Justices disagreed fiercely with each other over the right textualist interpretation of a statute. And as Justice Breyer notes, the Court’s use of history to discern the original meaning of constitutional provisions can be especially dicey.^[5]The Court’s decision in New York State Rifle & Pistol Assn v. Bruen is a much-criticized example.

Finally, these interpretive methodologies are hardly silver bullets. Few cases reaching the Supreme Court involve issues of statutory or constitutional interpretation that can easily be decided based on unambiguous text or readily apparent original meaning. (Of course, this limitation applies to any interpretive method; cases with obvious answers rarely come before the Court.)

Nevertheless, both textualism and originalism are conceptually sound, indeed compelling. Applied consistently and where feasible, both can instill much needed discipline into the business of judging.

Textualism focuses on the actual words of written law (statutory or constitutional). It does so for one obvious and fundamental reason: The language of a statute or constitutional provision embodies what the law is; as such, it provides the best evidence–indeed the only authoritative evidence—of what the law means. It follows that any credible interpretation of the law’s meaning must be anchored in its text.

Contrary to Justice Breyer’s caricature, textualism is far from a simplistic, wooden exercise that fetishizes grammar and punctuation. Interpreting statutory text is a complex, sophisticated task that involves a host of well-established and mainly logical, common-sense principles and presumptions (so-called “canons”).^[6]See here for a description of some of prominent canons. And while textualism centers on the language of the law, it is not confined to the four corners of the document. Other sources may be considered–e.g., context, relationship to other laws, even legislative history–if they are relevant and useful to discerning the meaning of the language.^[7]While some textualists (including former Justice Scalia) distain legislative history, most see a role for it in helping to resolve ambiguities in the text. Non-textualists have been known to do the … Continue reading

Originalism as a means of interpreting the Constitution is closely related to textualism. It holds that the Constitution should be construed in accordance with the meaning of its language as understood at the time it was adopted. The premise is that the meaning of the Constitution cannot change on its own without a corresponding change in its text via formal amendment.^[8]See here for background.

Justice Breyer favors an alternative jurisprudential approach that views the Constitution as a “living” document whose meaning can “evolve” without benefit of formal amendment to better reflect contemporary mores and values. After all, he observes, “half the country wasn’t represented in the political process that led to the document.”

It’s true that the United States and its body politic look much different now from when the Constitution was adopted. Some constitutional provisions may seem anachronistic and undemocratic—e.g., the electoral college, the composition of the Senate. However, they obviously can’t unilaterally evolve to mean something other than what they say.

Even as to less specific provisions, the notion that the Constitution’s meaning can evolve to better reflect contemporary values and mores doesn’t guarantee change for the better; change can also be regressive. Many of today’s political influencers, particularly in academia and elsewhere on the left, increasingly disfavor or at best downplay traditional concepts of freedom of speech, due process, and equal protection. Living constitutionalist judges could conceivably retrench these fundamental rights on the basis that society values them less now than it once did.

In the final analysis, originalism versus living constitutionalism and textualism versus other means of statutory interpretation^[9] See here. may come down to how one sees the role of judges.

Justice Breyer views judges as problem-solvers who should interpret a law (statutory or constitutional) by “consider[ing] a problem from every angle,” as he put it in one interview. This includes assessing the law’s purposes and consequences, and whether it makes sense in relation to contemporary circumstances and values. By contrast, textualists and originalists see the judicial role as more modest–seeking to ascertain and defer to the choices the elected representatives of the people made as set forth in the enacted law. They favor relying on democratic processes to decide by formal amendment when and how the law needs to change.

With due respect to Justice Breyer, I’d submit that textualism and originalism, with all their limitations, are preferable to the alternatives.

 

 

 

Section 3 of the Fourteenth Amendment disqualifies from a wide range of State and federal offices individuals who took an oath to support the Constitution and then “engaged in insurrection or rebellion” against the United States or gave “aid or comfort” to its “enemies.” In Trump v. Anderson, the Supreme Court unanimously reversed a Colorado Supreme Court decision holding that section 3 disqualified Donald Trump from running for president.

What to make of this decision?

Putting aside for the moment its legal merits, there’s much to be said for the outcome. As the opinion observes, allowing individual States to strike federal candidates (particularly presidential candidates) from the ballot under section 3, probably applying different legal and evidentiary standards to determine whether they “engaged in insurrection,” could produce a “patchwork” of results creating chaos in elections. Invoking section 3 to challenge candidates once elected and even serving in office would be still more chaotic.

Disqualifying the odds-on favorite to be the presidential nominee of a major party also would be a tremendous shock to the political system. But the consequences of injecting section 3 into our ever more toxic politics go beyond Trump and the 2024 election. Attempted disqualification would likely become a popular new form of lawfare in many future elections, especially given the “sweeping” scope its leading advocates, such as law professors William Baude and Michael Stokes Paulsen, attribute to the term “insurrection.”

All this would be based on resurrecting an obscure constitutional provision enacted with a specific purpose in mind—barring from office Confederates who waged war against the United States—that was accomplished over a century ago and extending it far beyond its original context. The potential consequences of affirming the Colorado decision were so extreme that even many Trump opponents had qualms about it and hardly anyone expected the Supreme Court to uphold it.

As a practical matter, the Supreme Court’s decision appears to return section 3 to the mists of history with regard to the presidency and every other federal office.^[1] The Court specifically held that States could enforce section 3 against their own officials. All nine Justices agreed that States could not enforce section 3 against federal candidates and officials. To the consternation of four Justices, the other five went further and seemingly concluded that additional congressional legislation would be needed to enable even federal enforcement against federal candidates and officials. Given Congress’s dysfunction and gridlock, it’s extremely unlikely that Congress could enact such legislation.  

While the practical considerations underlying the Court’s decision may be compelling, its legal reasoning is not. The unanimous holding that States cannot enforce section 3 against federal candidates seems wrong on many levels. By its terms, section 3 clearly appears to be self-executing in the sense that disqualification attaches automatically to those it describes:

“No [such] 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.” (Emphasis added)

The final sentence of section 3 reinforces this conclusion by authorizing Congress to “remove” the “disability” that it imposes.  

Section 5 of the Fourteenth Amendment empowers Congress to enforce its many provisions by appropriate legislation. However, it does not explicitly or implicitly preclude State enforcement as well. On the contrary, with exceptions not relevant here States  share both the power and the obligation to enforce the Constitution. Article VI, clause 3 requires State officials to take the same oath as their federal counterparts to support the Constitution.

In fact, States regularly enforce the provisions of the Fourteenth Amendment and many other constitutional provisions including those governing eligibility for federal elective office such as age, citizenship, and residence requirements. Enforcing section 3 obviously differs in complexity but not in kind.

The Court reasons that the Fourteenth Amendment was enacted to enhance federal power at the expense of State authority and, therefore, it would be “incongruous” to read it “as granting to the States the power—silently no less—to disqualify a candidate for federal office.” But by excluding a federal candidate from the ballot based on section 3 a State does not exercise its own power to “disqualify” that candidate; it simply enforces a disqualification already imposed by the federal Constitution.

The Court makes much of the fact that States almost never^[2]Only once, according to the Court. enforced section 3 against federal candidates (as opposed to State candidates) in the early years following ratification of the Fourteenth Amendment. However, the absence of State enforcement likely stemmed from a lack of enthusiasm for this task rather than a perceived lack of authority. (All but one former Confederate State initially refused to ratify the Fourteenth Amendment.) Indeed, congressional enactment of legislation mandating enforcement of section 3 was apparently based on dissatisfaction with State enforcement efforts.  

Finally, as the concurring opinion of Justices Sotomayor et al. points out, the five Justices who concluded that section 3 cannot be enforced even federally without additional congressional legislation offered “next to no support” for this conclusion.

In sum, the Court’s legal conclusions run counter to the Constitution’s text, structure, and logic and are thoroughly unpersuasive. However, there is a more straightforward and legally defensible (“originalist” even) rationale to support the decision’s outcome: The case that Trump “engaged in insurrection” is too weak to trigger disqualification under section 3.

There is widespread agreement that the January 6 attack on the Capitol was disgraceful and Trump’s conduct was despicable. However, whether this rose to the level of an “insurrection” for purposes of section 3 and if so whether Trump “engaged” in it pose difficult legal questions.

Legal definitions of “insurrection” at the time section 3 was enacted and now are arguably broad enough to be made to fit the events of January 6. Baude and Paulsen describe the term “insurrection” as “capacious” and define it as “concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect.”^[3]See page 676 of their previously linked article. However, if insurrection under section 3 sweeps this broadly it would encompass a host of actions that impede governmental functions in some way, such as garden-variety protests that often feature some violence and law-breaking. Baude and Paulsen assure that their definition “requires something more than a mere spontaneous, disorganized ‘riot’” but offer no clear criteria to draw the line.

A very broad interpretation of “engaging in” or inciting insurrection would also implicate free speech rights in many contexts. Moreover, as this case illustrates, the consequences of invoking section 3 are severe, anti-democratic, and potentially very disruptive to our political system. Notably, Congress removed section 3’s disability from all Confederates not long after its enactment.  

The foregoing considerations argue for a more circumspect approach that would construe these terms, at least as used in section 3, with a view toward section 3’s original purpose and context. Section 3 was enacted with a singular focus on the Civil War and Confederates who sought the dissolution of the United States by force of arms. Invoking it should be limited to actions bearing some significant resemblance to this in kind if not in magnitude—e.g., a concerted, violent undertaking that constitutes an attack on the United States itself.

Reprehensible as it was, the January 6 debacle hardly fits this description. It was a raucous, disorderly, loosely (if at all) organized protest that degenerated, apparently largely spontaneously, into a riot in which some (but not most) participants engaged in violence. However, it did not approach, either by design (if indeed it had any) or execution, a serious effort to overthrow the government.^[4]See here and here for more background. On the contrary, it more closely resembled the kind of “spontaneous, disorganized riot” that Baude and Paulsen say falls outside the scope of section 3.

Likewise, treating Trump’s words and actions (reckless as they were) as engaging in or inciting insurrection is a stretch under contemporary First Amendment case law. Doing so could have chilling effects in many other contexts. It’s surely relevant in this regard that federal prosecutors who have been extremely aggressive in pursuing January 6 criminal cases declined to charge Trump or any participant in the January 6 attack with the federal crime of “insurrection” (18 U.S.C. 8323).

The many potentially far-reaching negative consequences and practical complications that section 3 poses, as acknowledged by the Court and discussed previously, further support setting a high bar for its application.

Nevertheless, the Court was clearly determined to avoid the insurrection issues at all cost–probably for understandable if intellectually suspect reasons. For one thing, the issues are messy factually and legally. For another, the Colorado courts developed a substantial record on these issues and it would have been awkward for the Court to summarily reverse them on it.

Perhaps most significant if speculating about the Justices’ motives, the issues of whether January 6 constituted an “insurrection” that Trump “engaged in” are as politically polarizing as they are legally fraught. No doubt the Court would have faced much more internal and external controversy by biting the bullet and addressing these issues than by retreating to the facile approach it adopted. Indeed, a decision based on the insurrection issues probably would have fractured the Court and subjected it to major criticism however it came out.

In the final analysis, one pundit observed of Trump v. Anderson:

“The Republic will not fall because the Court engaged in an unprincipled, pragmatic resolution where its self-interest was severely implicated.  But let’s not kid ourselves that this was originalism.  It was not.”

Fair enough, but there are two downsides. One is that the Court apparently gutted enforcement of section 3 in response to any future event that might bear a closer resemblance to the type of insurrection that prompted its enactment. Hopefully, the chances of such an event are exceptionally remote but who can be confident of that given the depths to which our politics and public discourse have fallen.

The other, more practical downside is that the Court leaves dangling the polarizing question of whether Trump is indeed an oath-breaking insurrectionist who should be constitutionally ineligible for the presidency even if there is no clear means to disqualify him. If Trump wins the election, this question is sure to hang over him and further erode our politics.

Yesterday, a D.C. Circuit Court panel issued a 57-page unanimous decision rejecting Donald Trump’s claims of presidential immunity from criminal prosecution for his actions in trying to overturn the 2020 election. The panel’s comprehensive and detailed decision systematically rejected each of Trump’s arguments, which ranged from dubious to borderline frivolous.

In his effort to delay his criminal prosecution(s) for as long as possible, Trump will undoubtedly appeal. He could either first seek review by the full D.C. Circuit—a step the panel discouraged—or go directly to the Supreme Court. Either way, the case will surely land at the Supreme Court eventually. When it does, the Court should decline to hear it.

The last thing the Supreme Court needs is another politically charged Trump case—and another that would have to be decided on an expedited basis. It already has two Trump-related cases and may get more in addition to this one. Most notably, it will hear argument tomorrow on the case seeking to disqualify Trump from the 2024 presidential ballot under section 3 of the 14^th Amendment. This is a more challenging case legally, and one the Court had no real choice but to accept given the already many and varied administrative and judicial decisions on the issue.

While Trump has a strong political interest in dragging out his criminal cases as long as he can, there is an obvious countervailing public interest in resolving them as soon as possible—ideally months before the 2024 election. However, there is a more basic reason the Supreme Court should decline the immunity case: there is simply no need for the Court to take it up under its usual criteria for review.

The Trump immunity case is, of course, highly politically significant. It also raises issues that are certainly interesting legally and largely unprecedented. (Fortunately, Trump is our first president to have engaged in conduct sufficiently egregious to trigger four separate criminal indictments.) However, the Supreme Court does not exist to weigh in on every publicly important federal legal issue. Rather, its role is to provide consistency and finality in federal statutory and constitutional law when its intervention is needed. Its consistent practice is to be highly selective in the cases it accepts for review.

There is no such compelling need here. The D.C. Circuit’s decision does not conflict with other decisions, as does the Trump disqualification case. Also, the bottom-line outcome of the decision appears clearly correct in its specific context. There may be serious issues regarding presidential immunity from prosecution in some future contexts, but this hardly seems true of Trump’s conduct at issue here. Thus, this case would not be a good vehicle for addressing more nuanced and challenging aspects of the broader subject.

Moreover, the Supreme Court does not set a precedent or endorse a lower court decision or its reasoning by declining to review it. If it denied review here, the Court would remain free to consider presidential immunity issues in a future case in the unfortunate event one arises. Alternatively, it could revisit the issue in this or another Trump case if one resulted in conviction and subsequent appeal based on a more developed record.

The Court wisely rejected Special Counsel Jack Smith’s invitation to decide the Trump immunity case by leapfrogging the D.C. Circuit. It should now likewise reject Trump’s appeal from that decision.

 

It didn’t take long for the issue of whether section 3 of the Fourteenth Amendment disqualifies Donald Trump from the presidency to evolve from a “parlor game for law professors,” as one pundit put it, into all-out lawfare.  Numerous lawsuits have been filed to keep Trump off the 2024 ballot in various states. This effort received a major boost with the Colorado Supreme Court’s 4-3 decision that section 3 does indeed disqualify Trump.

Trump is manifestly unfit to be president and returning him to the White House could pose serious threats to our democracy. Thus, disqualifying him may seem appealing. However, it is not the way to go for legal and other reasons. Trump’s fate should be decided by the electorate, not the courts.

The legal case for disqualification is problematic.

Disqualifying Trump under section 3 entails resurrecting a constitutional provision that has lain largely dormant for over a century and extending it far beyond its original context.^[1]See here for background. In the process, it requires answering yes to all the following subordinate legal and factual issues, each of which is unprecedented (with one exception), ambiguous, and seriously contested:

• • Is the presidency an “office” subject to section 3? It may seem obvious that it is, but some experts argue that it is not for technical reasons. Notably, the lower court in the Colorado case adopted this argument.
  • Is section 3 “self-executing,” so that a candidate can be disqualified “automatically” without additional congressional action or a prior adjudication affording due process? This is the one issue on which there is a precedent; it holds that section 3 is not self-executing.
  • Did the January 6, 2021, attack on the U.S. Capitol rise to the level of an “insurrection or rebellion” within the meaning of section 3?
  • If so, did Trump “engage” in it or give “aid or comfort” to “enemies” of the United States?

Issues three and four are the most equivocal, factually and legally. The Colorado courts relied heavily on the work of the House Select Committee to conclude that the January 6 attack was an “insurrection” within the scope of section 3. However, the Committee’s characterization involves considerable political spin. From a more objective perspective, it’s at least as plausible to view the chilling events of that day as a chaotic protest by an unruly mob that devolved into a riot but fell well short of an insurrection.

While there were some truly bad actors among the January 6 participants, the great majority were unarmed and unorganized. Most roamed the Capitol aimlessly, looking and acting more like jackasses than insurrectionists. They were able to breach the Capitol and delay the election certification not because of any concerted effort on their part but due to appalling law enforcement breakdowns.^[2]These law enforcement failures never received the scrutiny and accountability they deserved. The House Select Committee was specifically charged with investigating them but essentially ignored that … Continue reading Tellingly, not one of the January 6 participants was charged with the federal crime of “rebellion or insurrection.” This despite the fact that federal prosecutors, judges, and juries in the District of Columbia threw the book at them in every way they could.

Even if January 6 were to be regarded as an insurrection, it’s far from clear legally or factually that Trump “engaged” in it. He did not participate in or plot an attack on the Capitol. (Indeed, there’s no evidence of any coherent plot.) It’s questionable whether his exhortations crossed the line from recklessness to incitement of violence under applicable case law. Here again, the approach of prosecutors is telling. Special Counsel Jack Smith has been very aggressive in pursuing Trump but declined to charge him with insurrection or any insurrection-related crime.

One additional fact has been largely ignored but seems highly relevant: Congress is on record acquitting Trump of the charge of “incitement of insurrection” in his second impeachment trial.

Legal and prudential considerations support a narrow reading of section 3.

Disqualification proponents construe the term “insurrection” sweepingly, and the January 6 attack can be made to fit some legal definitions. However, several factors support a narrower definition for purposes of section 3 that sets a high bar for disqualification. Section 3 was enacted with a very specific purpose and meaning in mind. The “insurrection or rebellion” it referenced was the Civil War and those disqualified were Confederates who sought to destroy the United States. Given this original context, it seems reasonable to limit section 3 to actions at least roughly comparable in kind or intent if not magnitude. While January 6 was a disgrace, it doesn’t begin to compare.

Furthermore, section 3 is highly undemocratic. Many have expressed qualms about depriving voters of electoral choices, particularly the shock to our political system that would result from eliminating a candidate as prominent as Trump. The Washington Post editorialized:

“[A]cross multiple aspects of the case and on the insurrection question especially, the law is unclear. In the absence of clarity, a body of unelected officials should be reluctant to prevent the country’s citizens from choosing an elected official to lead them.”

The political shockwaves from disqualifying Trump actually go far beyond him. Section 3 potentially reaches a host of candidates for federal and state office as well as incumbent officials. Injecting a sweeping approach to section 3 into our already polarized politics would breed many lawsuits against many politicians, making our politics even more toxic and chaotic for years to come.

Two final observations:

The Supreme Court will face more heat.

The Colorado decision makes it virtually inevitable that the Supreme Court will have to decide the disqualification issue, probably on an expedited basis. It now has two other Trump-related cases that could affect the 2024 election and it may get more.^[3]See here for background. The Court is already subject to relentless (albeit spurious) attacks on its integrity and “legitimacy” from leftists who dislike its perceived turn to the right. Trump also enthusiastically plays the game of demonizing the courts when they displease him. Thus, the Court will surely face more demagoguery however it decides the Trump-related cases. It can at least minimize this by reaching consensus decisions that cut across ideological lines. Hopefully, the justices will work hard to do so.

Proponents of disqualifying Trump should be careful what they wish for.

One irony in all of this may help explain why the reaction to the Colorado decision from the left has been guarded or even negative:  Chances are that removing Trump from the 2024 presidential ballot would result in the election of his Republican replacement. Trump probably is the weakest general election candidate against President Biden, particularly if he is convicted of a crime. (His lead over Biden in early polling likely signifies only that many consider him the lesser of two evils.) Given his massive personal baggage, Trump’s favorability is confined mainly to his ardent base. If he is disqualified, whoever Republicans pick to replace him should have broader appeal to the general electorate. If the courts strike Trump from the ballot, his apoplectic core supporters would presumably rally behind that nominee out of intense anger and desire for vengeance if nothing else.

 

The increasingly realistic prospect of Donald Trump back in the White House has caused widespread alarm. New York Times writers foresee an authoritarian assault on our democracy that its institutional guardrails might be unable to contain. The Atlantic devoted an entire issue to this possibility. A prominent neocon joined in, warning of a potential Trump “dictatorship.” Others believe such concerns are nonsense or at least greatly  exaggerated. However, many factors, some systemic and some specific to Trump, suggest that a second Trump term could indeed pose an unprecedented threat to our democracy. Consider:

The current state of our democracy is fragile and potentially vulnerable to an autocrat.

The distribution of power in our constitutional system has evolved in ways quite different from what the framers envisioned. Their original concept was that most government authority over the citizenry would continue to reside in and be diffused among the states, with the federal government confined to those powers expressly assigned it by the Constitution. Over time this balance of power has reversed; the federal government now exercises by far the greatest influence over the lives of American citizens.

The allocation of power within the federal government has also shifted dramatically. Congress, originally designed as the primary policymaking branch of the federal government, has abdicated much of its authority to the president and the vast executive branch bureaucracies he controls. Congress struggles to perform even its remaining core constitutional responsibilities. In practice, therefore, the president now holds most federal policymaking authority.

On top of this, our politics are broken. An effective democracy depends upon good faith, constructive interaction between political factions that share a common set of fundamental goals and beliefs although they compete over how best to effectuate them. Today’s politics are dominated by increasingly extreme, polarized factions whose only commonality is mutual contempt and whose agendas are at odds with the more moderate views of most Americans. The results:

• • Almost two-thirds of voters believe the country is on the wrong track.
  • The public has little confidence in any of our governmental institutions.
  • Half of voters decline to identify with either party.
  • Voters likely face a 2024 presidential choice between two wildly unpopular candidates.

The public itself bears much responsibility for this state of affairs. In a democracy, the citizens get the government they deserve. As Benjamin Franklin famously observed, the founders delivered to the people of the United States “a republic if you can keep it.” However, much of the public lacks interest in keeping it, instead tuning out of our democratic processes. Only about 60 to 67 percent of eligible voters voted in recent presidential elections, about 40 percent in mid-term general elections, and about 20 percent in primaries.

Trump clearly fits the mold of an autocrat.

By any objective standard, Trump is unfit to be president. He defied presidential and democratic norms throughout his chaotic first term. He became even more outrageous in the wake of his 2020 election loss, engaging in conduct that was clearly impeachable and perhaps criminal.

Even beyond his fraudulent efforts to overturn the election, Trump’s words and actions consistently demonstrate contempt for the rule of law and the core institutions of our democracy. His rhetoric is becoming ever more extreme and unhinged. Some of this may be hyperbole given his status as a world-class liar and con artist. However, to paraphrase Maya Angelou, when someone repeatedly shows you who they are by word and deed, believe them.

It’s hard to tell exactly what Trump would do in a second term. He is not a militarist or ultranationalist bent on world conquest. Indeed, he’s more of an isolationist who would embolden rather than challenge our foreign rivals. What is clear is that Trump’s only real interest is self-indulgence. Terminating the various federal prosecutions against him would surely be his first priority. He also seems intent on pursuing “vengeance” against his many perceived enemies, whatever that might entail. Beyond this, who knows?

Whatever Trump attempts, he would have plenty of enablers and few constraints in a second term.

Despite his glaring flaws, Trump remains the odds-on favorite among GOP voters. Hardly any Republican leaders and influencers, including his primary opponents, are willing to confront him; shamefully, most still embrace him. Evidently, they are fine with electing a president who scorns our democracy.

If Trump wins in November, these folks will most likely control both houses of Congress. The Senate math already strongly favors a Republican takeover of that body, and a Trump victory probably would boost enough Republicans to maintain or increase their House majority. Few if any Congressional Republicans have the courage or integrity to buck Trump. Thus, the legislative branch would be wholly subservient to him.

Nor would Trump face pushback from within his administration. Many distinguished Republicans and others served in Trump’s first term (often at great cost to their reputations) and provided some check on his worst impulses. His executive branch appointees a second time around would probably consist overwhelmingly of Trump sycophants all too willing to do his bidding without question.

Only the federal courts will stand in Trump’s way.

The one significant guardrail against Trump’s excesses would be the federal judiciary. Thus far, the courts have held up well against Trump. Federal judges and justices, including many appointed by Trump, ruled against some of his worst policies and uniformly rejected his bogus efforts to overturn the 2020 election. There is no objective reason to doubt that they would continue to do their jobs with integrity.

Unfortunately, there may be reason to doubt whether Trump would comply with their decisions. Over recent decades, both political parties have damaged public confidence in the courts and threatened their effectiveness by politicizing the judicial appointments process. Many on the left, displeased with the Supreme Court’s decisions, continue to level baseless attacks on the Court’s legitimacy. Such efforts to undermine the credibility of the courts may come back to bite them if Trump wins. He enthusiastically plays the same game of demonizing the courts when they displease him. He might well defy them during a second term if he thinks he could get away with it.

Critics would be wise to reconsider their relentless attacks on the federal judiciary. In the awful event that Trump returns to the White House, the judiciary will be our primary, and perhaps only, defense against him.

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.

*                  *                  *                  *                  *

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.