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If Jefferson Davis was barred from office, then the conclusion must be that Trump is too.
In 2024, former President Donald Trump will face some of his greatest challenges: criminal court cases, primary opponents, and constitutional challenges to his eligibility to hold the office of president again. The Colorado Supreme Court has pushed that latter piece to the forefront, ruling on December 19, 2023, that Trump cannot appear on Colorado’s 2024 presidential ballot because of his involvement in the January 6, 2021, insurrection.
The reason is the 14th Amendment to the Constitution, ratified in 1868, three years after the Civil War ended. Section 3 of that amendment wrote into the Constitution the principle President Abraham Lincoln set out just three months after the first shots were fired in the Civil War. On July 4, 1861, he spoke to Congress, declaring that “when ballots have fairly, and constitutionally, decided, there can be no successful appeal back to bullets.”
The text of Section 3 of the 14th Amendment states, in full:
“No 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, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
To me as a scholar of constitutional law, each sentence and sentence fragment captures the commitment made by the nation in the wake of the Civil War to govern by constitutional politics. People seeking political and constitutional changes must play by the rules set out in the Constitution. In a democracy, people cannot substitute force, violence, or intimidation for persuasion, coalition building, and voting.
The first words of Section 3 describe various offices that people can only hold if they satisfy the constitutional rules for election or appointment. The Republicans who wrote the amendment repeatedly declared that Section 3 covered all offices established by the Constitution. That included the presidency, a point many participants in framing, ratifying, and implementation debates over constitutional disqualification made explicitly, as documented in the records of debate in the 39th Congress, which wrote and passed the amendment.
Senators, representatives, and presidential electors are spelled out because some doubt existed when the amendment was debated in 1866 as to whether they were officers of the United States, although they were frequently referred to as such in the course of congressional debates.
No one can hold any of the offices enumerated in Section 3 without the power of the ballot. They can only hold office if they are voted into it—or nominated and confirmed by people who have been voted into office. No office mentioned in the first clause of Section 3 may be achieved by force, violence, or intimidation.
The next words in Section 3 describe the oath “to support [the] Constitution” that Article 6 of the Constitution requires all office holders in the United States to take.
The people who wrote Section 3 insisted during congressional debates that anyone who took an oath of office, including the president, were subject to Section 3’s rules. The presidential oath’s wording is slightly different from that of other federal officers, but everyone in the federal government swears to uphold the Constitution before being allowed to take office.
When applied specifically to the events on January 6, 2021, the amendment declares that those who turn to violence when voting goes against them cannot hold office in a democratic nation.
These oaths bind officeholders to follow all the rules in the Constitution. The only legitimate government officers are those who hold their offices under the constitutional rules. Lawmakers must follow the Constitution’s rules for making laws. Officeholders can only recognize laws that were made by following the rules—and they must recognize all such laws as legitimate.
This provision of the amendment ensures that their oaths of office obligate officials to govern by voting rather than violence.
Section 3 then says people can be disqualified from holding office if they “engaged in insurrection or rebellion.” Legal authorities from the American Revolution to the post-Civil War Reconstruction understood an insurrection to have occurred when two or more people resisted a federal law by force or violence for a public, or civic, purpose.
Shay’s Rebellion, the Whiskey Insurrection, Burr’s Rebellion, John Brown’s Raid, and other events were insurrections, even when the goal was not overturning the government.
What these events had in common was that people were trying to prevent the enforcement of laws that were consequences of persuasion, coalition building, and voting. Or they were trying to create new laws by force, violence, and intimidation.
These words in the amendment declare that those who turn to bullets when ballots fail to provide their desired result cannot be trusted as democratic officials. When applied specifically to the events on January 6, 2021, the amendment declares that those who turn to violence when voting goes against them cannot hold office in a democratic nation.
The last sentence of Section 3 announces that forgiveness is possible. It says “Congress may by a vote of two-thirds of each House, remove such disability”—the ineligibility of individuals or categories of people to hold office because of having participated in an insurrection or rebellion.
For instance, Congress might remove the restriction on office-holding based on evidence that the insurrectionist was genuinely contrite. It did so for repentant former Confederate General James Longstreet.
Or Congress might conclude in retrospect that violence was appropriate, such as against particularly unjust laws. Given their powerful anti-slavery commitments and abolitionist roots, I believe that Republicans in the House and Senate in the late 1850s would almost certainly have allowed people who violently resisted the fugitive slave laws to hold office again. This provision of the amendment says that bullets may substitute for ballots and violence for voting only in very unusual circumstances.
Taken as a whole, the structure of Section 3 leads to the conclusion that Donald Trump is one of those past or present government officials who by violating his oath of allegiance to the constitutional rules has forfeited his right to present and future office.
Trump’s supporters say the president is neither an “officer under the United States” nor an “officer of the United States” as specified in Section 3. Therefore, they say, he is exempt from its provisions.
Constitutional democracy is rule by law. Those who have demonstrated their rejection of rule by law may not apply, no matter their popularity.
But in fact, both common sense and history demonstrate that Trump was an officer, an officer of the United States, and an officer under the United States for constitutional purposes. Most people, even lawyers and constitutional scholars like me, do not distinguish between those specific phrases in ordinary discourse. The people who framed and ratified Section 3 saw no distinction. Exhaustive research by Trump supporters has yet to produce a single assertion to the contrary that was made in the immediate aftermath of the Civil War. Yet scholars John Vlahoplus and Gerard Magliocca are daily producing newspaper and other reports asserting that presidents are covered by Section 3.
Significant numbers of Republicans and Democrats in the House and Senate agreed that Donald Trump violated his oath of office immediately before, during, and immediately after the events of January 6, 2021. Most Republican senators who voted against his conviction did so on the grounds that they did not have the power to convict a president who was no longer in office. Most of them did not dispute that Trump participated in an insurrection. A judge in Colorado also found that Trump “engaged in insurrection,” which was the basis for the state’s Supreme Court ruling barring him from the ballot.
Constitutional democracy is rule by law. Those who have demonstrated their rejection of rule by law may not apply, no matter their popularity. Jefferson Davis participated in an insurrection against the United States in 1861. He was not eligible to become president of the U.S. four years later, or to hold any other state or federal office ever again. If Davis was barred from office, then the conclusion must be that Trump is too—as a man who participated in an insurrection against the United States in 2021.
In two core areas of constitutional conflict—gun rights and administrative powers—the court will determine whether its revolutionary doctrines will continue to expand or come to a resolution.
The
first Monday in October, the traditional date for the beginning of the U.S. Supreme Court’s term, is almost here: On Oct. 2, 2023, the court will meet after the summer recess, with the biggest case of the term focused on the limits of individual gun rights.
The other core issue for the coming year is a broad reassessment of the power of the administrative state.
Both issues reflect a court that has announced revolutionary changes in doctrine and must now grapple with how far the new principles will reach.
In a revolutionary period, aggressive litigants will push the boundaries of the new doctrine, attempting to stretch it to their advantage. After a period of uncertainty, a case that defines the limits on the new rule is likely to emerge.
Two years ago, the court began what many consider to be a constitutional revolution.
The new supermajority of six conservative justices rapidly introduced new doctrines across a range of controversies including abortion, guns, religion, and race.
When the court announces a new principle—for example, a limit on the powers of a specific part of government—citizens and lawyers are not sure of the full ramifications of the new rule. How far will it go? What other areas of law will come under the same umbrella?
In a revolutionary period, aggressive litigants will push the boundaries of the new doctrine, attempting to stretch it to their advantage. After a period of uncertainty, a case that defines the limits on the new rule is likely to emerge.
U.S. v. Rahimimay be the limiting case for gun rights, identifying the stopping point of the recent changes in Second Amendment doctrine.
Zackey Rahimi is a convicted drug dealer and violent criminal who also had a restraining order in place after assaulting his girlfriend. The court will decide whether the federal law prohibiting the possession of firearms by someone subject to a domestic violence restraining order violates the Second Amendment.
In the 2022 case of New York Rifle & Pistol v. Bruen, the court announced a new understanding of the Second Amendment. The amendment had long been understood to recognize a limited right to bear arms. Under the Bruen ruling, the amendment instead describes an individual right to carry a gun for self-protection in most places in society, expanding its range to the level of other constitutional rights such as freedom of religion or speech, which apply in public spaces.
Historians have presented evidence that there were widespread laws and practices during the early Republic limiting gun possession by individuals, like Rahimi, who were judged to be dangerous.
However, the court’s conservative justices also tend to argue that constitutional rights are balanced by responsibilities to promote a functional society, a concept known as “ordered liberty.” The practical question is how to know the proper balance between liberty and order. If the right to carry a gun can be regulated but not eradicated, limited but not eliminated, where is the line?
The court’s answer in Bruen is history—a current law does not have to match a specific historical one exactly, but it has to be similar in form and purpose. Whatever gun regulations Americans allowed during the early Republic—the critical period from around the 1780s to around the 1860s at the time of the Civil War—are allowable now, with the exception of any that would violate racial equality under the 14th Amendment.
Justice Clarence Thomas, the author of the Bruen ruling, described it this way: The government must “identify a well-established and representative historical analogue, not a historical twin.” Thomas argued in Bruen that no such historical analogue existed for the limits New York imposed, invalidating the state’s ban on concealed carry permits.
The Rahimi case will provide a critical test of this historical approach to the boundaries of constitutional rights.
Historians have presented evidence that there were widespread laws and practices during the early Republic limiting gun possession by individuals, like Rahimi, who were judged to be dangerous. However, those dangers did not include domestic violence, which was not deemed the same important concern then that it is now.
The court may consider the laws prevalent in the early Republic, which regulated those who “go armed offensively” or “to the fear and terror of any person,” to be analogous to contemporary laws restraining those under a domestic violence restraining order. If so, the ruling will likely uphold Rahimi’s conviction and limit gun rights.
On the other hand, if the court reads those historical standards as more narrow and specific than the contemporary ban on gun possession while under a restraining order, those limits will be struck down.
The founders expected a permanent battle for power between the Congress and the presidency. What they did not anticipate was the expansion of the federal bureaucracy.
With the growth in the number, funding, and power of federal agencies, including the Environmental Protection Agency, the Department of Homeland Security, the Consumer Finance Protection Bureau, and many others, the debate over who controls them and how much power they wield has grown as well.
The court’s conservatives tend to see the actions of federal agencies as violating the constitutional principle of limited government. This view argues that government powers are specific and constrained, not flexible and expansive. They fear that the federal government is likely to use its vast power abusively if it is unconstrained. In this view, the expansion of the administrative state allowed an end-run around the Constitution’s limits on government power.
Perhaps the most far-reaching case could overturn a long-standing precedent known as Chevron deference, which allows agencies to determine the meaning of disputed terms in federal laws.
The constitutional question is whether bureaucrats have broad regulatory powers over economic and social questions, or only elected officials do.
Conservatives tend to think that liberals put the bureaucrats in charge because they don’t have a majority in Congress to pass the same laws.
The liberals tend to think that conservatives are blocking necessary regulations while ignoring the flexible nature of the Constitution’s provisions to adapt to the needs of modern society.
This is a core dispute between the two judicial camps.
In the last few years, the court has emphasized new doctrines limiting the power of federal agencies.
One of those doctrines is the Unitary Executive Theory, which limits the independence of administrative agencies. In this view, if the Constitution envisions executive branch agencies as controlled by voters through the selection and removal of the president, then the president must be able to control the decision-makers within those agencies.
One case before the court this term challenges the constitutionality of the Securities and Exchange Commission, or SEC, which regulates the stock market, on the grounds that the agency operates outside the boundaries set by the Constitution in several ways. One possible violation is that its judges cannot be removed by the president, violating the Unitary Executive Theory.
Another potential constitutional violation is the SEC’s practice of imposing monetary penalties without a finding by a civil jury. The court will decide if this violates the Seventh Amendment’s guarantee of a jury trial.
Another case challenges the constitutionality of the Consumer Finance Protection Bureau on the grounds that the agency’s funding mechanism—through fees charged to the Federal Reserve rather than through normal congressional appropriations—violates how the Constitution allows the government to spend money. If Congress does not control the agency’s budget, this may put the agency outside of the control of the legislative branch that created it.
Perhaps the most far-reaching case could overturn a long-standing precedent known as Chevron deference, which allows agencies to determine the meaning of disputed terms in federal laws. Overruling this precedent would strip power from administrative agencies and reallocate decisions to Congress or to courts.
In these two core areas of constitutional conflict—gun rights and administrative powers—the court will determine this term whether its revolutionary doctrines will continue to expand or come to a resolution.
His ability to campaign may be limited by his legal woes, but his supporters will vote for him anyway.
It’s election season, and the leading candidates for president are barnstorming from state to state on the stump-speech circuit. Or, in the case of former president Donald Trump, to keep court dates.
As they say: priorities.
Trump was indicted last week, along with 18 other defendants, in Fulton County, Georgia. That makes the fourth jurisdiction in which the former president is facing criminal penalties, following the cases in Washington, D.C., where he was charged in federal court with conspiracy to overturn the election (four counts), and in Florida for illegally possessing classified documents (40 counts, including superseding indictments, for obstructing the government’s efforts to get them back), and in New York for paying off an adult film star to cover up an affair (34 counts of falsifying business records).
In Georgia, Trump himself faces 13 counts in the latest indictment, out of 41 total charges that also target 18 co-defendants. Trump’s charges include violating Georgia’s racketeering laws, and several that stem from the conspiracy to submit a false slate of electors to the Electoral College—and which also include the “absolutely perfect phone call” to Georgia Secretary of State Brad Raffensperger, asking him to “find 11,780 votes” to change the outcome of the election.
If four indictments seem excessive, it’s because Donald Trump was excessive in committing crimes in multiple jurisdictions.
Among the flurry of indictments and addenda and superseding indictments, it’s hard to keep track of which ones are important. The answer is that all of them are vitally important. If four indictments seem excessive, it’s because Donald Trump was excessive in committing crimes in multiple jurisdictions.
In the words of another former president, Trump is in deep doo-doo. But that doesn’t mean we can let down our guard.
We need to come to terms with an uncomfortable truth: the fact that Donald Trump will be the Republican nominee for president. His ability to campaign may be limited by his legal woes, but his supporters will vote for him anyway. We’re entering a presidential election phase where the Biden-vs.-Trump rematch is 99% certain, and that 1% hedge has only to do with both candidates being decades older than the average American president.
No viable candidate is going to emerge on the Democratic side to challenge an incumbent president with a largely successful term in office under his belt. First, we have Robert F. Kennedy Jr., a new darling of the right whose dangerous anti-vaccine crusade has been shown to be just the surface of his conspiracy-mongering and transphobia. Second, we have Marianne Williamson, whose “politics of love” nonetheless failed to win over American hearts in 2020, and whose own views on vaccines are likewise suspect, even if they’ve since been eclipsed by those of RFK Jr.
And it’s been obvious from day one that the Republican Party is setting itself up to repeat the 2015 primary race, where Trump picks off, one by one, a large number of third-tier politicians too cowardly to challenge him directly. Just as in 2015, he won’t even need a majority of the Republican vote, because he’s the only candidate who will have more than 20% to begin with.
(The one possible exception to this is former New Jersey Gov. Chris Christie, who has said he’s in the race specifically to try to take Trump down. More power to him if he does, because no one can defeat Trump by ignoring him—he has to be confronted head-on and destroyed. Maybe Christie is the one to do that, but I’m still waiting for evidence.)
In 2023 though, Trump’s already polling well above 50% among Republicans, despite the indictments. That’s because the GOP since 2015 has largely purged itself of its establishment wing, leaving the extremists in control. (Meanwhile, 53% of Americans actually approve of the indictments, and they may be hurting Trump’s overall favorability as the campaign season begins.)
And, while the indictments seem to be fueling a modest dip in Trump’s national polling numbers, the indictments are boosting his polling numbers within the Republican primary. That’s because his followers believe, with all the fervent religiosity of cult members, that the Big Bad Woke Government is persecuting loyal, patriotic Republicans. The charges only feed their persecution complex, which is what feeds the hand-wringing commentators urging us not to prosecute Trump, out of fear of what his supporters will do. As if his supporters haven’t already tried to violently overthrow the government.
Let’s disabuse ourselves of another fantasy. Even if Trump goes to prison because he’s found guilty, or he’s put in jail for contempt by a judge who refuses to tolerate his taunts and threats, he will continue running for president, he will win the GOP nomination, and he could indeed be reelected. There ought to be a law, but there isn’t. The narrowly divided Congress has been unable to do the sensible thing and pass legislation barring him under the 14th Amendment from holding public office, or even just in response to his two impeachments.
I wouldn’t put much stock in the recent “conservative argument for barring Trump” articles either. They’re interesting arguments, and the law professors making the case are perhaps even correct that the 14th Amendment prohibition is automatic, with no Congressional action needed. But most state GOP officials who have the power to boot Trump from the ballot aren’t going to do that without a court order, and this is a party that has increasingly shown its willingness to ignore the law entirely.
This doesn’t mean Trump won’t eventually go to prison. But it’s very unlikely to happen before the next election, given the inevitable appeals and Trump’s expertise in delay tactics and avoiding accountability. After all, he still insists he won the 2020 election. This could go on for a long time.
But there are signs we will see some major results before the election.
Special Prosecutor Jack Smith, who brought both the classified documents case in Florida and the election interference case in Washington, D.C., has indicated he isn’t going to accommodate Trump’s usual tactics and requested January 2 as a date for Trump’s election interference trial. Smith even indicated he’d allow the documents trial to be postponed to accommodate this one.
That’s important for two reasons. One, voters have a right to know if Trump is guilty or not guilty before casting their votes. More importantly, if Trump wins, he can, and will, simply dismiss any federal cases that are still pending. Maybe he’ll even settle the cases with a payout from the government to himself to cover his (likely inflated) legal fees. He may pardon himself if he’s both found guilty and wins the election, because his handpicked, subservient attorney general won’t stop him—and that’s even more of an argument to make sure Trump never again obtains power.
Speaking personally as someone who grew up on the East Coast in the 1970s and ’80s, it was pretty obvious back then that Trump was, at best, a tawdry huckster with a long line of shady deals and business failures to his name, both his own and others’.
Fortunately, U.S. District Court Judge Tanya Chutkan also appears to be resistant to Trumpian antics, granting Smith’s early request to prevent Trump from sharing trial evidence publicly, as he is almost certainly going to do. She’s also issued a warning to Trump, indicating that she will take any necessary measures to stop Trump from intimidating witnesses or tainting the jury pool with his trial-by-tantrum strategy.
In 2016, someone who hadn’t been paying attention might be forgiven for not expecting the rampancy of criminal behavior once Trump ascended to national office. But the mass media can’t be forgiven, since it’s their job to be paying attention. And, speaking personally as someone who grew up on the East Coast in the 1970s and ’80s, it was pretty obvious back then that Trump was, at best, a tawdry huckster with a long line of shady deals and business failures to his name, both his own and others’. He was a regular of the New York Post’s “Page Six” gossip column and grocery store checkout-line magazines. By extension, the “serious” media should have done a better job warning American voters about someone they only knew from highly scripted appearances on The Apprentice.
In 2023, mass media no longer have an excuse, and largely they’ve been fairly good. But they’re still acting as if the Republican nomination isn’t a foregone conclusion. And the possibilities of more Trumpian violence, let alone another January 6-style insurrection, can’t be understated.
The United States is quite imperfect in living up to its ideals, but the general trend has been to get better at it. Allowing someone to escape justice just because he’s a former president, or because we’re afraid of his followers, undermines our commitment to have justice for all.
Fortunately, it appears we aren’t going to allow justice to be denied in this case. Prosecuting (and convicting) Trump won’t change the minds of his loyal base, and it may indeed push some of them over the edge. But it will show that the rest of the nation is willing to live up to its principles.