TPM Reader CB responds to JS by arguing that case law and precedent about insurrections in one context doesn’t necessarily settle the question of what counts for the purposes of the 14th amendment’s disqualification clause. As I told CB I partly agree but not entirely. I subscribe to an older of who in our system gets to interpret the constitution. Each branch has a right and a duty to interpret the meaning of the constitution. The courts may get the last word. But it’s not the only word.

My perspective as a reader/subscriber with over a decade of strategic impact public interest litigation experience:

I couldn’t disagree more with the reader who said “The question is clear to me: would the President have the authority under the *1807* Insurrection Act to federalize troops in this case?”

Continue reading “A Rejoinder; and Just What Is an Insurrection?” →

Here’s a follow up from TPM Reader JS on law and precedent tied to what constitutes an insurrection. (See their earlier post.) I’m basically where they are on this. I want to be crystal clear with everyone that this will not work as a way to prevent Trump’s election. (See my earlier post.) I’m uncomfortable with where this leads us in policy terms. But that’s not a standard we apply to constitutional text. I’m super uncomfortable about the electoral college text too. But we all agree that doesn’t matter.

I would just add that, sure, it’s bad policy to deny a bunch of voters their choice and that’s generally how we read the law in light of provisions of the very same amendment. But it’s also bad policy to let a few judges’ sense of good policy override the clear, plain meaning of the Constitution. That’s not the rule of law. It’s about as clear as it gets here. He swore an oath when he took office and then he fomented an insurrection. Sure, no one has done a fact finding on that yet, but they will in the trials on this matter, won’t they? It doesn’t have to be res judicata from a criminal trial at all.

Continue reading “Does The Constitution Matter?” →

Trump White House official Peter Navarro found guilty on two counts of contempt of Congress. Sentencing set for Jan. 2024.

As you can see we’re looking closely at the efforts unfolding around the country to bar Donald Trump from appearing on the 2024 ballot because of his role fomenting and leading an insurrection against the United States government. It’s hardly a crazy idea since Trump did plot to overthrow the constitutional order, i.e., the government of the United States and there’s clear language about this in the US constitution. But I’d like to go on the record suggesting people not get too wrapped up in this morsel of anti-Trump activism as a or the thing that’s going to drive the outcome of this election. We are covering it not rooting for it. At the end of the day, this election is going to come down to whether Democrats can sustain an anti-Trump coalition in the electoral college just like they did in 2020. There’s simply no administrative or courtroom shortcut around that necessity. My own view of this whole issue is one of what I would call benign disinterest.

What do I mean by this? Let’s start with the practicalities. The most probable outcome here is that Trump will be removed from the ballot in blue states he had no shot at winning in the first place. (The Supreme Court probably torpedoes that too for reasons we’ll return to in a moment.) In that case, anti-Trump voters will get some emotional satisfaction and Trump supporters will gain a ripe and succulent new grievance. But it won’t change any reality about the outcome of the race.

Continue reading “A Few Thoughts on the 14th Amendment Thing” →

I went into some detail in the latest episode of The Josh Marshall Podcast on my thoughts on efforts to bar Trump from appearing on the 2024 presidential ballot. My general view remains one of well-wishing disinterest. The 2024 election is going to be decided not by eligibility challenges but by results of the election as mediated by the electoral college. But I found this perspective from TPM Reader JS very interesting.

There really is no good legal argument against Trump being disqualified by the 14th Amendment. He’s not eligible under it. But as you argued there’s more to it. I also think the “law” is pretty clear on the platinum coin, but it was the economists who said it wouldn’t actually solve the problem. Here I just think the Supremes will bullshit their way through it, like you said.

By virtue of having been a JAG in a dual state/federal setup like the National Guard makes all of the insurrection stuff something you deal with more routinely. Think sending in the 101st to integrate Little Rock. That was—had to be—an “insurrection” or else it would have been the Arkansas National Guard because of posse comitatus.

Continue reading “Not Even Close” →