Can Trump Be Disqualified Under The Insurrection Clause?

INSIDE: Tanya Chutkan ... Ken Chesebro ... Boris Epshteyn
US President Donald Trump boards Air Force One at Middle Georgia Regional Airport on November 4, 2018 in Macon, Georgia following a "Make America Great Again" campaign rally. (Photo by Nicholas Kamm / AFP) (Ph... US President Donald Trump boards Air Force One at Middle Georgia Regional Airport on November 4, 2018 in Macon, Georgia following a "Make America Great Again" campaign rally. (Photo by Nicholas Kamm / AFP) (Photo credit should read NICHOLAS KAMM/AFP via Getty Images) MORE LESS
Start your day with TPM.
Sign up for the Morning Memo newsletter

A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.

Oh, Hey There, 14th Amendment

A forthcoming paper by two conservative constitutional scholars is breathing new life into the Insurrection Clause of the 14th Amendment, which is designed to disqualify from office, including the presidency, anyone who violated their oath to the Constitution and “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

A Jan. 6 rioter has already been barred for life from holding public office by the state of New Mexico, but what about Trump?

In their new paper, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas – both of whom are originalists and Federalist Society members – conclude that the Insurrection Clause applies to Trump:

In our view, on the basis of the public record, former President Donald J. Trump is constitutionally disqualified from again being President (or holding any other covered office) because of his role in the attempted overthrow of the 2020 election and the events leading to the January 6 attack.

The authors focus on Trump’s conduct in the run-up to the Jan. 6 attack on the Capitol as well as his shocking dereliction of duty while the attack was ongoing:

This culpable inaction—failing to intervene to stop an insurrection in progress,
declining to act to arrest a violent uprising, despite having both the capacity and
responsibility to intervene—is another crucial part of Trump’s responsibility for the
January 6 insurrection.

As the NYT’s Adam Liptak observes, this is merely a law review article, but it does provide the legal and intellectual framework for any effort to disqualify Trump. Theirs is a withering analysis:

The bottom line is that Donald Trump both “engaged in” “insurrection or rebellion” and gave “aid or comfort” to others engaging in such conduct, within the original meaning of those terms as employed in Section Three of the Fourteenth Amendment. If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution. All who are committed to the Constitution should take note and say so.

I should note that authors don’t limit their analysis to Trump, noting that a host of pro-insurrection officeholders would succumb to the Insurrection Clause’s disqualification standard:

We think that if these constitutional duties are taken seriously, there is a list of candidates and officials who must face judgment under Section Three. Former president Donald Trump is at the top of that list, but he is not the end of it.

I’m deeply interested in this legal angle, so if you see any new developments, please shoot me an email. In general, I agree with those who say the criminal justice system can’t save us from Trump, only defeating him at the ballot box will drive a stake through the heart of his movement. But the Constitution has already spoken on this very issue, and preserving the rule of law doesn’t just mean criminal prosecution. More to come on this.

Big Day In Jan. 6 Case Against Trump

U.S. District Judge Tanya Chutkan will hold her first hearing in the Jan. 6 prosecution of President Trump this morning at 10 a.m. ET.

At issue is a rather routine and unremarkable matter that Trump is trying to turn into A THING. All Special Counsel Jack Smith wants is a protective order before he hands over discovery to Trump. Expect Chutkan to make quick work of that issue.

What will be interesting is the tone she sets, the level of nonsense she’s prepared to tolerate, and whether she engages with any of the out-of-court attacks on the justice system by Trump and his legal team.

Trump Jan. 6 Case Tidbits

  • Special Counsel Jack Smith is seeking a Jan. 2 trial date for the Jan. 6 case against Trump, meaning it would happen before the Mar-a-Lago and hush money trials. Trump has yet to weigh in. I wouldn’t expect much movement on setting a trial date until a hearing in the case scheduled for late August.
  • Special Counsel Jack Smith is initiating CIPA procedures in the Jan. 6 case, too. But unlike the Mar-a-Lago prosecution, where classified information is central to the case, Smith says the classified information involved in discovery in the Jan. 6 case is a “small amount” and “minimal.”

The Big Cheese

Two new insightful accounts of Ken Chesebro, who makes a cameo as “Co-conspirator 5” in the Jan. 6 indictment of Trump:

  • TPM’s Josh Kovensky, who spoke at length with Chesbro last year and to my knowledge remains the only reporter to have done so, reflects on those interviews and the emerging picture of Chesbro’s role.
  • Jeffrey Toobin, who traveled in the same Larry Tribe-centric circle as Chesbro at Harvard, asks what the heck happened to him.

Trump Delay Watch

Another day, another delay in an arraignment in the Mar-a-Lago case. They’ll try again next week.

Was Merrick Garland’s Approach Correct All Along?

Jay Kuo with a thoughtful and extensive analysis of the Justice Department’s approach to prosecuting Trump for the election overturn conspiracy:

It comes down to how Garland and the Justice Department carefully and methodically laid a legal pathway for charges against Trump to land, rather than get thrown out of court or held in doubt till the end, where they might be far more vulnerable on appeal. Let me walk us through my thinking on this. And I’ll try not to sound like an apologist for prosecutorial delay!

Worth a read for the diehards (hi, nice to have you here!)

DC Has No Fucks Left To Give About Trump

WaPo: Trump insults D.C. to get his trial moved. The city rolls its eyes.

Trump’s Cash Crunch

NYT:

New financial reports show that the former president’s various political committees and the super PAC backing him have used roughly 30 cents of every dollar spent so far this year on legal-related costs. The total amounts to more than $27 million in legal fees and other investigation-related bills in the first six months of 2023, according to a New York Times analysis of federal records.

Trump Seems Fine

Maui Death Toll Climbs To 55

It’s the worst urban wildfire calamity since at least the 2018 Camp Fire killed 85 people in Paradise, California.

Not Good. Not Good At All.

The 5th Circuit appellate panel seemed already in the tank for the hare-brained conspiracy theorizing about the Biden administration simply being in touch with social media companies about disinformation.

Taking Them Down One At A Time

White supremacist charged with threatening jurors on Pittsburgh synagogue shooter trial.

Hate To See It

TPM’s Kate Riga: It’s Suddenly Dawning On Republicans That They Have A Major Abortion Problem

‘Like Fatter Tony Soprano’

Trump campaign senior advisor Boris Epshteyn leaves Trump Tower in New York on November 14, 2016. US President-elect Donald Trump has vowed to move aggressively on a conservative agenda in filling Supreme Court vacancies, cracking down on immigration and cutting taxes, but also sought to reassure worried Americans they have nothing to fear from his presidency. / AFP / KENA BETANCUR (Photo credit should read KENA BETANCUR/AFP via Getty Images)

Trump consigliere Boris Epshteyn has been accused of groping two sisters at a nightclub in Scottsdale called Bottled Blonde.

Police body cam footage captured the women complaining to officers shortly after the incident. Asked to describe Epshteyn, the older sister offered this all-timer: “Fat, ugly, like drooping face. White Ralph Lauren Polo,” she said. “Like fatter Tony Soprano.”

Like Morning Memo? Let us know!

Latest Morning Memo

Notable Replies

  1. In the twisted labyrinth of this mind-shattering conspiracy, Democrats have plunged into the abyss of their own malevolent desires, mirroring the ruthless tactics of the Chinese government reeducating Uighurs. Drawing inspiration from Saul Alinsky’s playbook, they’ve unleashed the Deep State, an insidious force bent on crushing conservative culture and subjugating the masses.

    Their nefarious objective? To force unsuspecting conservatives into Liberal reeducation camps, where the very essence of our culture will be incinerated. The freedom to bear arms, even to accidentally shoot ourselves, the blessing of children bearing children, erasing God from every corner, arming babies, silencing alternative facts on social media platforms, and safeguarding constitutional rights inspired by Jesus and which Make America Great Again are all on the chopping block.

    But where do these sinister machinations take root? Look to the vast mountains of Alaska, a seemingly innocent backdrop disguising FEMA camps masquerading as the High-Frequency Active Auroral Research Program. Ostensibly for atmospheric study, the facility’s antennas serve a darker purpose: mind control. Who orchestrated these antennas and their true intent? It’s whispered that interdimensional wizards and space vampires, thirsting for control across dimensions, are the architects of this manipulation.

    But their meeting ground is not restricted to remote facilities. Behold the enigmatic Denver International Airport, a hub of darkness where the Illuminati’s secret headquarters lies underground. This ominous nexus fuels the seeding of Chemtrails in the skies, a collaboration between the Illuminati and covert military forces, all orchestrated to serve a hidden purpose. The eerie hum resonating through the air is a symphony of sinister unity, an alliance of malevolent extraterrestrial beings and earthly military power. Their shared goal? To quell conservative resistance lurking like insurgents in the mountains, echoing the eerie narrative of “Red Dawn” and to open our borders to Mexicans that vote Democrat.

    But defiance still flickers in the darkness. Unity becomes the sword against this cosmic conspiracy, fueled by unwavering awareness and resolute strength. Unmask the malevolence, challenge the inexplicable, and stand as an unyielding bulwark against the abyss that seeks to engulf not only our world, but every reality in the multiverse.

  2. Avatar for paulw paulw says:

    When the federalists who helped put you in office (and whom you appointed en masse to the federal courts) have decided to dump you…

    I wonder if he’s going to start targeting them.

  3. Enough said…

    18 U.S. Code § 2383 - Rebellion or insurrection

    Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

    (June 25, 1948, ch. 645, 62 Stat. 808; Pub. L. 103–322, title XXXIII, § 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147.)
    … … … … … … …
    Strange that I find myself in agreement with two guys from the Federalist Society

  4. Avatar for tsp tsp says:

    DC Has No Fucks Left To Give About Trump

    WaPo: Trump insults D.C. to get his trial moved. The city rolls its eyes.

  5. Avatar for danny danny says:

    Was Merrick Garland’s Approach Correct All Along?

    Oh brother. This makes my eyes roll. I can’t make it stop. Ouch. Ouch. Ouch.

    Okay, it stopped.

Continue the discussion at forums.talkingpointsmemo.com

876 more replies

Participants

Avatar for lestatdelc Avatar for austin_dave Avatar for josephebacon Avatar for srfromgr Avatar for littlegirlblue Avatar for clemmers Avatar for steviedee111 Avatar for inversion Avatar for sniffit Avatar for chelsea530 Avatar for ralph_vonholst Avatar for joelopines Avatar for lastroth Avatar for pshah Avatar for thunderclapnewman Avatar for southerndem Avatar for 21zna9 Avatar for tsp Avatar for castor_troy Avatar for tpr Avatar for kelaine Avatar for evave2 Avatar for bcgister Avatar for txlawyer

Continue Discussion
Masthead Masthead
Founder & Editor-in-Chief:
Executive Editor:
Managing Editor:
Associate Editor:
Editor at Large:
General Counsel:
Publisher:
Head of Product:
Director of Technology:
Associate Publisher:
Front End Developer:
Senior Designer: