I don’t know how or whether this has any relevance to today’s proceedings and ballot disqualification. But it’s one place where history provides some guidance as to why an amendment is written the way it is. First, I don’t think it makes sense at all that the disqualification clause doesn’t apply to the President. It’s a very over-clever semantic argument that is on par with the logic behind the “independent state legislature” theory: a hyper-literal focus on text without context which has the effect of producing an outcome no one could have intended. But — and this is a significant “but” — it is true that presidents were not what the authors of the language were most concerned about. And that matter of focus may have impacted how they structured the language.
Continue reading “Why Weren’t Presidents Explicitly Included in the 14th?”Aileen Cannon Has Created Another Mess In The MAL Case
A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.
Wait, Wut?
Special Counsel Jack Smith revealed in a new filing last night that there is a federal investigation ongoing into social media threats against a potential witness in the Mar-a-Lago case.
Not much was revealed about the nature of the threats, the witness, or the status of the investigation. The investigation is being handled not by Smith, he said, but by a U.S. attorney’s office. ABC News was the first to report on the new filing.
The reason Smith was forced to reveal the investigation is that U.S. District Judge Aileen Cannon is taking a hard line on what discovery Smith must hand over to Trump and on whether Smith can file sealed and/or redacted documents in the case to protect sensitivities like ongoing investigations.
Cannon ruled partially against Smith on these issues earlier in the week, forcing his hand. Smith’s filing last night alerted Cannon that he’ll be filing a motion today for her to reconsider her earlier rulings, but even to do that he wants to attach more information about the ongoing investigation into witness threats to the motion ex parte and under seal. Trump is opposed to allowing Smith to do that.
Cannon has created a box for Smith and perhaps for herself by taking such a hard line. But it’s consistent with her defense-friendly approach throughout this case. For more on the mess Cannon is making, I defer to Joyce Vance.
Biden Special Counsel Report Is Done
Attorney General Merrick Garland confirmed in a letter to Congress that Special Counsel Robert Hur has completed his report on President Biden’s mishandling of classified documents during his vice presidency. It will be released once the White House counsel’s office has completed a review for anything protected by executive privilege. The White House expects to be done with its review this week.
Happy Disqualification Clause Day!
Supreme Court oral arguments in the Disqualification Clause case out of Colorado are scheduled for 10 a.m. ET.
The TPM team will be covering it in all its dimensions, including this live blog.
Some additional reading as you settle in to listen:
- Timothy Snyder: “Trump disqualified himself from office by taking part in an insurrection and thereby seeking to substitute the rule of fear for the rule of law.”
- The Key Questions: Version I and Version II
- Meet The Lawyers: Version I and Version II
If Not Now, Then When?
I’ve been somewhat ambivalent about the Disqualification Clause, not because I worry it’s anti-democratic or will spark backlash, but because it’s not entirely clear to me how this was intended to work. Ambivalent doesn’t mean against its use here, just curious and open-minded. As a result, I am as interested in the Supreme Court’s rationale as the ultimate outcome.
But what I keep coming back to is this point that Judge Luttig makes so well: If this isn’t a proper application of the Disqualification Clause, then what it is? The worst possible decision by the Supreme Court would be one that renders the Disqualification Clause impotent and inapplicable to any situation.
If Section 3 does not disqualify the former president for this insurrection against the Constitution of the United States, then Section 3 does not disqualify any person at all.
— @judgeluttig (@judgeluttig) February 8, 2024
A Threat Disguised As A Legal Argument
Steve Vladeck and Lee Kovarsky: The bad-faith argument against good-faith accountability for Trump
Senate GOP Won’t Let House GOP Corner The Market On Crazy
Perhaps its a sign the the enfeebled Mitch McConnell (R-KY) doesn’t have the same iron grip on his conference as before. Maybe it’s just another consequence of Trump wrecking the GOP as political party. But whatever the case, Senate Republicans are looking every bit as foolish as their House counterparts, at least this week.
Senate Republicans Wednesday voted en masse against the Ukraine aid-border package they had insisted on. Majority Leader Chuck Schumer (D-NY) started the process of bringing up a standlone foriegn aid package for a vote today, and now some GOP senators are insisting on border amendments. It’s crazymaking, and they can’t be satisfied.
Please Name Names
The Senate GOP craziness has exacted a high price on lead Republican negotiator James Lankford (R-OK):
House GOP Refuses To Yield Crazy To The Senate GOP
They’re so mad, y’all:
So Simple Yet So True
The most elegant way to understand the dysfunction that has reigned in the House for the last 9 months–and will prevail for the foreseeable future–is that no policy or political equilibrium exists that would make Democrats mad enough to make Rs happy.
— Liam Donovan (@LPDonovan) January 13, 2024
Preach, Brother, Preach
Good Read
NYT Mag: How Mark Meadows Became the Least Trusted Man in Washington
2024 Ephemera
- MT-Sen: Speaker Mike Johnson (R-LA) is expected to buck the Senate GOP and endorse Rep. Matt Rosendale (R-MT) over Republican Tim Sheehy in the GOP primary to decide who will challenge Sen. Jon Tester (D-MT).
- WI-Pres: Biden and Trump are tied 49-49 among registered voters in Wisconsin, according to a new Marquette University Law School Poll.
- MI-Pres: Biden White House sends convoy of officials to Michigan to try to placate Muslim and Arab American leaders.
For The Record
Police have determined that the stabbing Sunday of a Palestinian American in Austin was a hate crime.
Eeesh …
TPM’s Kate Riga: Florida Chief Justice Pushes Fetal Personhood At Argument For Abortion Amendment
Iceland Eruption Resumes
A new rift opened on Iceland’s Reykjanes Peninsula this morning, the third eruption in the area in as many months:
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SCOTUS Disqualification Hearing
Our team will be live-blogging today’s SCOTUS Trump ballot disqualification hearing here. The hearing is scheduled to start at 10 AM.
Agent Of Chaos Now Misses Kevin McCarthy
Matt Gaetz, the perpetual chaos agent, is very upset. Congress is not working. The Democrats have the spotlight. But he knows who might be able to fix it: Kevin McCarthy.
Continue reading “Agent Of Chaos Now Misses Kevin McCarthy”Johnson Like Achilles
I wrote earlier that I doubted Speaker Mike Johnson was in any trouble. Because the kind of people who fire GOP Speakers don’t think any of this clown show is a problem. I think this is obvious. But in case you had any doubt, Freedom Caucus dead-ender Clay Higgins tweeted this afternoon that far from being a clownish failure Johnson is more like an Iron Age hero walking right off the pages of Homer. “Mike Johnson is enduring withering attacks from every faction. Iron sharpeneth iron. He’s getting stronger.”
So there you go. Mike Johnson is likely just fine.
Is Mike Johnson Toast After The 72 Hour Herky-Jerky Rake-Stomp Parade?
A number of you asked me last night and this morning if we may be coming to the end of Mike Johnson’s speakership. After yesterday’s two big fails, is he almost done? In any normal universe the combined events of the last 72 hours would likely lead to Johnson resigning if not in disgrace then in some mix of humiliation and … well, resignation. But this isn’t a normal universe. It’s the 2024 House Republican caucus. So I don’t think he’s going anywhere. I’m not sure any of the key people even think there’s a problem.
Continue reading “Is Mike Johnson Toast After The 72 Hour Herky-Jerky Rake-Stomp Parade?”Forest Fires Devastate Chile’s Valparaíso Region
Over the weekend, Chile’s coastal Valparaíso region was hit hard by forest fires, leaving thousands of burnt homes and an uncertain death toll. Over 100 people have been reported dead and hundreds are still missing. Residents and firefighters worked together to battle the flames and clear the wreckage. This is likely the biggest tragedy to hit Chile since the 2010 earthquake that killed hundreds.
People watch the fire spreading from a hillside in Valparaíso, Chile
Residents being evacuated from their homes as wildfire spreads in Viña del Mar, Chile
Vehicles and homes engulfed by flames
Houses burning in Viña del Mar, Chile
Helecopter flies over Quilpué, near Valparaíso Chile
Woman working to put out fires near a home in Quilpué
Arial view of fire moving through the Las Pataguas sector of Viña del Mar
Burnt houses in Los Olivos commune in Viña del Mar, Chile
Man putting out fire in Quilpué
Residents helping firefighters in Valparaíso, Chile
Aftermath of the fire in Villa Independencia
Burnt houses on the hills of Viña del Mar
Aftermath of the forest fire in Viña del Mar, Chile
Firefighters work during the aftermath of a forest fire in Viña del Mar
Woman and baby walking past burnt cars in Quilpué
Burnt homes and cars in Quilpué, near Valparaíso, Chile
People walk past burnt cars in Quilpué
Neighbors work to clean their land and burnt homes after the fire in Villa Independencia
A cat is rescued after forest fires in Villa Independencia
Deliver app workers donate and distribute food to firefighters in Villa Independencia
Deliver app workers donate and distribute food to firefighters in Villa Independencia
Florida Chief Justice Pushes Fetal Personhood At Argument For Abortion Amendment
During Wednesday’s arguments over the language of a proposed ballot initiative to protect abortion rights, Florida Supreme Court Chief Justice Carlos Muñiz kept returning to a well neither side had briefed.
Continue reading “Florida Chief Justice Pushes Fetal Personhood At Argument For Abortion Amendment”More Than 78 ‘Friends’ Of The Supreme Court Offer Advice On The 14th Amendment And Trump’s Eligibility
This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It was originally published at The Conversation.
Members of the U.S. Capitol Police targeted with “brutal violence” on Jan. 6, 2021, 25 historians of the U.S. Civil War and Reconstruction, the San Francisco Taxpayers Association and dozens of other parties have weighed in at the U.S. Supreme Court with their opinions about the case that has the potential to disqualify Donald Trump from the 2024 presidential election.
The justices will hear oral arguments in that case, Trump v. Anderson, on Feb. 8. 2024. The plaintiffs, a group of Colorado voters, claim that under Section 3 of the 14th Amendment to the U.S. Constitution, Trump is not constitutionally qualified to run for president because he “engaged in insurrection or rebellion” against the U.S. Constitution. When the Colorado Supreme Court ruled that Trump could not appear on that state’s ballot, Trump appealed the decision to the U.S. Supreme Court.
While the Supreme Court will ultimately determine Trump’s fate, the numerous parties who have chimed in aim to add context and additional arguments for the justices to consider.
78 amicus briefs
As with many cases before appellate courts, and especially those before the Supreme Court, outside interested parties can file what are called an amicus brief. The filers are referred to as “amicus curiae,” Latin for a “friend of the court.” They are not a party to the case but rather someone or a group who volunteer advice in a case before the court.
The purpose of amicus briefs varies. They can be used to share specialized knowledge with the courts. In their Trump v. Anderson amicus brief, constitutional law scholars Akhil Reed Amar of Yale Law School and Vikram David Amar of University of California, Davis, School of Law write about the history and significance of the first insurrection, which occurred in the 1860s. They describe this as an effort to “prevent the lawful inauguration of duly elected Abraham Lincoln.”
Others file amicus briefs to advance or further an argument. Some may discuss the potential effects of possible decisions. All share a common thread: Amicus briefs are filed to help the court shape the ruling in the case.
In Trump v. Anderson, the amicus filers who support Trump filed 34 briefs. Filers who support Anderson, the plaintiff whose name is on the case, filed 30 briefs. In addition, 14 briefs were filed in support of neither party.
The total of 78 amicus briefs filed is lower than other recent and controversial cases before the Supreme Court. For instance, in Dobbs v. Jackson Women’s Health Organization, the case that ultimately overturned the constitutional guarantee of a right to abortion, there were approximately 140 amicus briefs filed. In a recent affirmative action case, Students for Fair Admissions Inc. v. Harvard, which concluded that universities cannot use race as a consideration in admissions decisions, amici filed approximately 100 briefs.
While the total number of briefs filed in this case is notably lower, it is important to note that the Supreme Court expedited Trump v. Anderson, almost certainly because the presidential campaign is well underway. While normally there is a period of months to file amicus briefs in cases, the court’s expedited timeline directed amicus filers that they had less than four weeks to file their briefs.
Constitutional or unconstitutional?
In his amicus brief, U.S. Sen. Ted Cruz, a Republican from Texas and former presidential candidate himself, argues that the Colorado Supreme Court’s decision to remove Trump from its ballots was an unconstitutional encroachment on Congress’ powers
Former U.S. Appeals Judge J. Michael Luttig was part of a group of amicus filers made up of “former officials who worked in the last six Republican administrations, senior officials in the White House and Department of Justice, and others who support a strong, elected Presidency.” Their brief argues that the Supreme Court is well within its constitutional authority to determine the constitutional qualifications of the presidency, and that “Mr. Trump incited, and therefore engaged in, an armed insurrection against the Constitution’s express and foundational mandates that require the peaceful transfer of executive power to a newly elected President.”
Constitutional law scholars such as Berkeley’s Erwin Chemerinsky and Yale’s Bruce Ackerman argue in their filing that Trump’s rhetoric is not protected by the First Amendment. Thus, they write, the First Amendment should not affect how the court interprets and applies Section 3.
And the National Association for the Advancement of Colored People argues that the court should give consideration to the 14th Amendment’s commitment to equal protection and multiracial democracy because the drafters of the amendment had a “practical concern about how insurrectionists would respect the rights of those whom they did not believe were entitled to rights.”
Unexpected friends
Although legal scholars and politicians frequently file amicus briefs in cases, this case also generated significant interest from nontraditional amici.
An unspecified number of Capitol Police officers who fought against the rioters on Jan. 6, 2021, to protect senators and representatives argue that the First Amendment should not apply because Trump’s speech was “integral to unlawful activity”.
The San Francisco Taxpayers Association’s brief claims that Trump is disqualified because, in addition to engaging in an insurrection, Trump also engaged in a “rebellion against the Constitution, by knowingly disregarding the presidential oath of office.” This rebellion, as they note, is a separate basis for disqualification under Section 3 of the 14th Amendment.
And international scholars who study democracies, political violence and the rule of law write that Trump’s actions following the November 2020 election “are alarmingly similar to activities that have destroyed democracies in other countries.”
Even voters who say they “have a constitutional interest in a ballot” filed amicus briefs in this case. Voters in New Hampshire argue that all Americans have a constitutional right to “a ballot free of such an insurrectionist” as Trump.
‘Great peril’ for the nation
Most of the amicus briefs in this case, however, reiterate the litigants’ core arguments. Trump’s supporters argue that Section 3 does not apply to the office of the president. Even if it did, they assert, Trump’s speech should be protected by the First Amendment. Moreover, they argue that Section 3 requires an act of Congress to enable its enforcement.
Anderson’s supporters who seek Trump’s disqualification argue that Section 3 does apply to the president. They also argue that Trump engaged in an insurrection as evidenced by the violence on Jan. 6, 2021. Further, they argue that Section 3 automatically applies unless Congress acts by removing the disqualification disability.
And both sides argue that the Supreme Court must decide the issue now because any delay will “place the Nation in great peril”.
Whether the Supreme Court relies on any of the amicus briefs is up to the justices’ discretion. But without any doubt, this case is monumental – likely more consequential than Bush v. Gore, which decided the outcome of the 2000 presidential election in George W. Bush’s favor. While the court’s self-imposed deadline to release its decision is the end of June, it is reasonable to expect a decision in this case sooner rather than later.
This article is republished from The Conversation under a Creative Commons license. Read the original article.
Republicans Are Flailing Like Never Before And It’s Amazing To Behold
A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.
The Speaker Has No Clothes
The House GOP under Speaker Mike Johnson is flopping around like a fish in the bottom of the boat.
In a nearly unprecedented failure, Johnson brought articles of impeachment to the House floor and lost. He lost! He didn’t have the votes! He couldn’t do the math!
It was a spectacular and unexpected failure. The impeachment was bogus to begin with. Homeland Security Secretary Alejandro Mayorkas had not committed any high crimes or misdemeanors and hadn’t even been accused of doing so. This was purely a political impeachment, designed to front the border issue for the House GOP and Donald Trump in an election year. So even on its own terms as a political hatchet job, Johnson was unable to get the job done.
House Republicans insist they can bring the impeachment back to the floor later and win because Rep. Steve Scalise (R-LA) would have been the deciding vote last night but was absent for treatment for cancer. We shall see.
As a fitting coda to the day, Johnson brought up an Israel funding bill right after the impeachment vote, and it failed, too.
Not All Heroes Wear Hospital Gowns
Recovering from emergency surgery, Rep. Al Green (D-TX) left his hospital bed to head to the Capitol where he was rolled onto the House floor in a wheelchair to cast the decisive vote against impeaching Homeland Security Secretary Alejandro Mayorkas:
After he arrived on Capitol Hill, Green was taken to the attending physician’s office, where a bed and other preparations awaited him. “I stayed there, until I went upstairs for the vote,” he said.
Following the vote, Green returned to the hospital.
The Key GOP Votes Against Impeachment
The difference makers on the GOP side were:
- Ken Buck (CO)
- Mike Gallagher (WI)
- Tom McClintock (CA)
With such a narrow majority, that’s all it took. (One GOP member later changed their vote to preserve the option to bring the articles of impeachment back up, but that’s a procedural move that doesn’t change the political dynamic.)
How It Played
The coverage was one big ouch for Johnson and the House GOP:
- “an embarrassment for the party”
- “truly one of the most embarrassing days in recent House GOP history”
- “Republicans in Congress suffered a humiliating series of setbacks on Tuesday on critical elements of their agenda, turning the Capitol into a den of dysfunction.”
- “The failed vote was a stunning rebuke of a months-long investigation into Mayorkas that had raised concerns among legal experts and even some Republicans.”
LOLOL
Rep. Marjorie Greene (R-GA) bemoans getting outplayed, out-mathed, out-smarted, and outgunned by House Democrats:
What A Collossal Mess
Meanwhile, things aren’t looking any better in the other GOP imbroglio on the Hill. The Ukraine aid-border bill package that Republicans insisted on for months then immediately abandoned is now in ruins.
Sen. Chuck Schumer (D-NY) is expected to force a Senate vote today on the package, which will fail, in order to get Republicans on the record opposing it. Then he plans to vote on the foriegn aid elements separately. It’s some classic twisting of the knife for maximum political gain, but it was all invited by the Republican double cross, captured nicely by this tweet:
Beep … Beep … Beep …
That’s the sound of the bus that took out Sen. James Lankford (R-OK), the senator tasked with negotiating the Ukraine-border package for Senate Republicans:
Asked jokingly by a reporter how he felt being run over by a metaphorical bus by GOP colleagues opposing his work, Lankford scoffed, “And backed up [over].”
Boom! We May Yet Get A Trump Jan. 6 Trial This Year
The DC Circuit’s immunity decision struck a decisive blow against Trump’s argument that the president is above the law. In doing so, it reaffirmed the basic constitutional order and gave the rule of law a fighting chance.
But timing is still critically important.
If the legal system can’t prosecute Donald Trump for his attempt to steal the last election before the next election takes place, it’s a fundamental failure of the system. As I’ve said before, if the legal system cannot rise up in a timely fashion to defend itself against an existential threat like Trump, then we have foundational problems that go beyond one man or one movement.
The appeals court ruling now provides a fighting chance to try Trump for election subversion before November. We’re not out of the woods yet. A lot will depend on what the Supreme Court does. But the DC Circuit acted quickly enough to open up a path to starting trial somewhere between the late spring and late summer.
The folks at Just Security have mapped out plausible timeframe scenarios:
Music To My Ears
For rule of law aficionados, some of the choicest quotes from the DC Circuit ruling that the president does not enjoy absolute immunity from criminal prosecution:
For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.
Instead of inhibiting the President’s lawful discretionary action, the prospect of federal criminal liability might serve as a structural benefit to deter possible abuses of power and criminal behavior
It would be a striking paradox if the President, who alone is vested with the constitutional duty to “take Care that the Laws be faithfully executed,” were the sole officer capable of defying those laws with impunity.
Former President Trump’s alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government. He allegedly injected himself into a process in which the President has no role — the counting and certifying of the Electoral College votes — thereby undermining constitutionally established procedures and the will of the Congress.
We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results. Nor can we sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count.
At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches. Presidential immunity against federal indictment would mean that, as to the President, the Congress could not legislate, the Executive could not prosecute and the Judiciary could not review. We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter.
More Immunity Coverage …
Can’t get enough? Me either:
- Joyce Vance: He’s Not Immune
- Charlie Savage: Forceful Opinion Repudiates Claim That Trump Can’t Be Charged in Election Case
- Dahlia Lithwick and Mark Joseph Stern: The Supreme Court Knows What It Must Do With Trump’s Immunity Ploy
What A Week For Trump!
If yesterday’s consquential loss on immunity at the DC Circuit and tomorrow’s Supreme Court oral arguments on the Disqualification Clause aren’t enough, Donald Trump looks ready to take another big hit, this time in the New York civil fraud case that could cost him millions of dollars in penalties and his business empire.
Responding to a NYT report that former Trump Org CFO Allen Weisselberg is poised to plead guilty to committing perjury on the stand in the civil fraud case, the trial judge wants to know from the parties WTF is going on and how this should effect the verdict he is preparing. Recall the judge has set a Jan. 31 deadline for his ruling, but that’s been delayed, perhaps in part because of the Weisselberg news.
Among the bad signs for Trump, the trial judge openly pondered in his letter to the parties whether he should deem all of Weisselberg’s testimony unreliable if he did in fact commit perjury. The parties have until 5 p.m. ET today to respond to the judge’s queries.
MUST READ
TPM’s Hunter Walker: The ‘Nuclear’ Election Conspiracy Doc Trump Cited In Court Is A Sign Of Things To Come
Standby For Report From Biden Special Counsel
Special Counsel Robert Hur, who has been investigating Biden’s mishandling of classified documents from his time as vice president, is set to release imminently a report on his findings that is expected to be critical of Biden and his aides but not lead to criminal charges against anyone.
D’oh!
Prosecutors in the case against Sen. Bob Menendez (D-NJ) have revealed in a court filing that they have a confidential source who made recordings during the investigation.
NH Investigates Voter Suppression Calls
New Hampshire’s attorney general has opened a criminal investigation into those robocalls that used a fake Biden voice to urge Democrats not to vote in last month’s primary election – and has identified a Texas telecom company as the source of the calls.
Gobsmacking
If you’re a connoisseur of the absurdist oeuvre of the ratfuckers Jacob Wohl and Jack Burkman, then you’ll want to add a new federal lawsuit against them in Virginia to your collection. It accuses them of defamation, conspiracy, invasion of privacy, tortious interference and racketeering, among other things, in a hare-brained scheme that will gobsmack you. Truly.
Can She Use Her Real Name Again?
Ronna Romney McDaniel, who famously dropped “Romney” from her name in deference to Donald Trump’s antipathy toward her Uncle Mitt, is widely reported to be on her way out as RNC chair.
2024 Ephemera
- Biden wins Nevada Democratic primary.
- Nikki Haley loses to ‘none of these candidates’ in Nevada GOP primary.
- Biden vows to make collapse of border bill a campaign issue.
School Gunman’s Mother Convicted
The mother of the then-15-year-old gunman who killed four people at Oxford High School in Michigan in 2021 has been convicted of four counts of involuntary manslaughter after a two-weel trial and 11 hours of jury deliberations. Her son previously pleaded guilty and was sentenced to life in prison without parole.
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