At The Federalist, John Yoo & Robert Delahunty: Why Twisting The 14th Amendment To Get Trump Won’t Hold Up In Court. From the introduction:
Four indictments of Donald Trump have so far done no more to stop him than two earlier impeachments did. He remains easily the front-runner in the Republican primaries, and in some polls is running equal with President Biden. But now a theory defended by able legal scholars has emerged, arguing that Trump is constitutionally disqualified from serving as president.
Even if Trump secures enough electoral votes to win the presidency next year, legal Professors Michael Paulsen and Will Baude argue, the 14th Amendment to the Constitution would disqualify him from federal office. Former Judge Michael Luttig and Professor Laurence Tribe have enthusiastically seconded the theory. While their theory about the continuing relevance of the Constitution’s insurrection clause strikes us as correct, they err in believing that anyone, down to the lowest county election worker, has the right to strike Trump from the ballot.
And from later on:
[W]as [Trump] even an “insurrectionist”? In their Atlantic piece, Luttig and Tribe find the answer obvious: “We believe that any disinterested observer who witnessed that bloody assault on the temple of our democracy, and anyone who learns about the many failed schemes to bloodlessly overturn the election before that, would have to come to the same conclusion.”
Other considerations also call into question the claim that Trump instigated an “insurrection” in the constitutional sense. If it were clear that Trump engaged in insurrection, the Justice Department should have acted on the Jan. 6 Committee’s referral for prosecution on that charge. Special Counsel Jack Smith should have indicted him for insurrection or seditious conspiracy, which remain federal crimes. If it were obvious that Trump had committed insurrection, Congress should have convicted him in the two weeks between Jan. 6 and Inauguration Day. Instead, the House impeached Trump for indictment to insurrection but the Senate acquitted him.
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If this academic view were correct, it would throw our electoral system into chaos. One of the chief virtues of the Electoral College system is that it decentralizes the selection of the president: State legislatures decide the manner for choosing electors, with each state receiving votes equal to its representation in the House and Senate. States run the elections, which means that hundreds, if not thousands, of city, county, and state officials could execute this unilateral finding of insurrection. A county state election official, for example, could choose to remove Trump’s name from printed ballots or refuse to count any votes in his favor. A state court could order Trump barred from the election. A state governor could refuse to certify any electoral votes in his favor. The decentralization of our electoral system could allow a single official, especially from a battleground state, to sway the outcome of a close race in the 2024 presidential election.
I agree this is a serious practical problem with Section 3 — one its framers likely didn't think carefully about. They had in mind people who were obvious insurrectionists: those who served in the Confederate army or government. But what about someone who claims not to have "engaged in insurrection or rebellion" — how is that to be proved or disproved.
Part of the answer is that the Supreme Court can give a single answer as to the original meaning of "insurrection or rebellion." (I assume this could be decided on a sufficiently expedited basis on the emergency docket.) But what if, even with an agreed definition and an insurrection identified, the target claims not to have participated in it? That's a factual question not suited for Supreme Court resolution, but also (as the post says) not suited for decentralized resolution thousands of times over by thousands of county election boards. I don't understand how Section 3 envisions this being resolved.
UPDATE: At Adam Unikowski's Substack: Is the Supreme Court seriously going to disqualify Trump?I'm giving it a 10% chance. On the factfinding issue:
It seems to me that as to both questions [existence of insurrection and Trump's participation], the outcome of the analysis will turn heavily on the facts, rather than the law. For example: What was the mob on January 6, 2021 actually trying to do? (Is this even a coherent question if different mob members had different intentions, or if mob members’ intentions changed over time?) And: What was Trump’s state of mind on January 6, 2021?
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In my view, if a Section Three case reaches the Supreme Court, there’s a strong chance it will do so in a posture in which the Court will have to assume all facts in favor of the proponents of disqualification.
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It would be … intergalactic if Trump’s eligibility for the Presidency turned on the degree of deference to be granted to the factual findings of some random administrative law judge who spent most of his career deciding worker’s compensation disputes. But it would be equally intergalactic if the Supreme Court conducted de novo factfinding regarding the events of January 6. The Supreme Court would be stuck with a very unappealing factual record.
With this prediction in conclusion:
That is why, in my view, if the Supreme Court rules in Trump’s favor, it is more likely to do so on an antecedent ground, such as the 1872 or 1898 amnesty statutes. That is a much cleaner way to reach that outcome.
(Via How Appealing.)
Posted at 6:04 AM