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Nearly 100 Trump-Pardoned MAGA Insurrectionists Have Been Charged With Other Crimes: Analysis
Among other things, the pardoned rioters have faced charges related to grand larceny, fraud, child sexual abuse, and plots to assassinate law enforcement officials and politicians.
Jun 04, 2026
On the first day of his second term last year, President Donald Trump delivered a mass pardon to more than 1,500 people who were charged with crimes related to the violent riot at the US Capitol on January 6, 2021.
An analysis published Thursday by Lawfare associate editor Katherine Pompilio finds that at least 97 of these pardoned Trump supporters have been charged with other crimes, including serious alleged offenses such as grand larceny, fraud, and plots to assassinate law enforcement officials and politicians.
The analysis also documents 14 instances of pardoned Capitol rioters being "charged with sex crimes or crimes related to child sexual abuse material (CSAM)," while "at least six" have been charged with domestic violence.
Some of the pardoned rioters have been charged with more minor offenses, including public intoxication, possession of drug paraphernalia, and property damage.
The most notable finding is that at least five of the repeat offenders committed crimes after being freed from prison as a result of Trump's actions, suggesting that his pardon "may have actively facilitated criminal conduct."
The most infamous case involves Andrew Paul Johnson, a Capitol rioter who was freed from prison after receiving the Trump pardon and has since been sentenced to life in prison on charges related to child molestation.
"The criminal conduct for which he was convicted took place both before and after his pardon," the analysis notes.
Other repeat offenders who committed crimes after being freed by Trump were Zachary Alam, who was convicted of felony and grand larceny months after being pardoned, and Ryan Nichols, who was arrest last month for allegedly "threatening a person with a gun in a church parking lot," the analysis finds.
According to a Thursday report from The New York Times, the Lawfare analysis more than doubles the number of documented instances of pardoned rioters who have been charged with crimes beyond January 6-related offenses.
"A previous study of January 6 recidivism found that at least 40 defendants faced other criminal charges, with 12 taking place after Trump's clemency order," reported the Times. "The Lawfare study found 19 criminal cases that occurred after the clemency."
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'Filled With Lies': Trump White House Releases False History of Jan. 6
"It is past time for 25th Amendment remedies," said one critic.
Jan 06, 2026
To commemorate the fifth anniversary of the deadly riots incited by President Donald Trump at the US Capitol Building, the Trump White House on Tuesday unveiled a website loaded with false claims about the events that took place on January 6, 2021.
The official White House January 6 website features multiple falsehoods and distortions about the Trump-incited Capitol riots, including brazenly false claims about the Capitol Police "escalating" tensions with rioters by firing "tear gas, flash bangs, and rubber munitions into crowds of peaceful protesters."
In reality, Trump supporters stormed past police barricades that had been set up at the Capitol and then smashed windows to enter the building and illegally disrupt the certification of the 2020 presidential election, which Trump falsely claimed to have won.
The website also blames former Vice President Mike Pence for refusing to go along with Trump's unconstitutional scheme to unilaterally discard certified election results from key swing states, which would have put the election results in the hands of Republican-controlled state legislatures to falsely certify Trump as the winner.
The Trump White House's revisionist history of the riots falsely claims that rioter Ashli Babbitt was "murdered in cold blood" by Capitol Police, when in reality she was shot while trying to break into into the Speaker's Lobby after being warned multiple times by officers to stand back.
The Capitol rioters garner significant praise from the White House website, which falsely portrays them as peaceful demonstrators who fell victim to the actions of Capitol Police and overly zealous Department of Justice (DOJ) prosecutors.
"On his first day back in office, January 20, 2025, President Trump issued sweeping blanket pardons and commutations for nearly 1,600 patriotic Americans prosecuted for their presence at the Capitol—many mere trespassers or peaceful protesters treated as insurrectionists by a weaponized Biden DOJ," the website says.
The blatantly false claims on the website drew a horrified reaction from many critics, including some journalists who were at the Capitol on that day and witnesses the riots firsthand.
"Never forget that Trump attempted a coup to stay in power after losing reelection, ending with the violent insurrection he incited that left 140 cops injured, five dead," wrote HuffPost White House correspondent SV Dáte on X.
"The White House's new January 6 page is filled with lies, misrepresentation, and reality denial," wrote Bellingcat founder Eliot Higgins on Bluesky. "It's a clear attempt to rewrite history and frame Trump in heroic terms."
Author Mike Rothschild accused the White House of engaging in historical revisionism on par with the government depicted in George Orwell's classic novel 1984, arguing that Trump and his underlings of embracing "an alternate reality so hackneyed and obviously fake that it would make Orwell stick his head in a wood chipper."
Victor Ray, a sociologist at the University of Iowa, raised alarms about what the January 6 White House website says about Trump's mental health.
"This is batshit," he wrote. "The White House is doing alternate reality history. It is past time for 25th Amendment remedies."
Matt Gertz, senior fellow at Media Matters for America, reacted to the section of the website blaming Pence by describing it as an ominous sign that a future coup attempt by Trump to illegally remain in power might actually succeed.
"Trump replaced Pence on the ticket with someone he fully expects would carry out this deranged scheme if he has the opportunity, instead betraying the Constitution," he wrote, referring to Vice President JD Vance, who criticized Pence for fulfilling his constitutional duty and certifying the 2020 election results.
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Trump Is No King—He's More Dangerous Than That
And yet, as he was elected by the people, we need no revolution to overthrow him. What we must do is reclaim democracy for the common good and put back together what the MAGA movement has smashed.
Jul 04, 2025
Donald Trump seems to think he is a king.
On June 14, I joined with citizens across the country to loudly declare “No Kings!
At the same time, Trump is not a king. For while he inherited great wealth, he did not inherit the political power he now wields with such cruelty and contempt for the law.
Trump, alas, is the elected President of the United States.
Well over 77 million citizens voted for him, after experiencing his Covid response, his two impeachments, his civil and criminal convictions, and his failed administration. After all that, those millions of our fellow citizens elected him to the highest office in the country for a second time.
As we celebrate this July 4, it is important to emphasize the ways that Trump’s presidency stands as an affront and a danger to those core values of the Declaration that have long animated democratic struggles...
Trump is indeed much more dangerous than any monarch, precisely because he was elected after a multi-year campaign (kings do not campaign) that consisted of angry rhetoric and violent incitement and very clear promises to do exactly what he is now doing, a campaign that generated substantial popular support and even enthusiasm. There is something paradoxical about this: claiming to represent “We the People,” Trump is laying waste to the foundations of the very constitutional democracy that authorizes his power—much like dictators of the past, including Mussolini and Hitler, did a century ago, and Viktor Orban and Recep Tayyip Erdoğan do today.
The U.S. was not a constitutional democracy in 1776. But it became one, over time, because of the struggles of social movements that regarded the Declaration of Independence as “a charter of liberty” and sought to make real its promise—to secure human rights for all, and a government legitimated by popular consent. A nation, as Lincoln famously put it, “dedicated to the proposition that all men are created equal,” and challenged to sustain “government of the people, by the people, and for the people.”
As we celebrate this July 4, it is important to emphasize the ways that Trump’s presidency stands as an affront and a danger to those core values of the Declaration that have long animated democratic struggles—which makes it all the more galling that he continues to insist that he, along with his recently reinstated “1776 Commission,” is its chief defender.
The rhetoric of popular revolt or revolution is misleading precisely because Trump is a democratically elected president and is neither a king nor a dictator—at least not yet.
On June 14, I nodded approvingly as I heard fellow demonstrators rightly invoke the liberatory rhetoric of the Declaration’s Preamble. But I blanched when this line was loudly repeated as a call to action: “whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.”
I bow to no one in my opposition to Trump, and I truly want to see him gone as soon as possible. Given his administration’s rapid-fire assaults on liberal democracy, I fully appreciate the mobilizational power of those “No Kings” appeals to the rhetoric of popular revolt. And it must be stated: those who embrace this rhetoric do so only rhetorically; it is not anywhere accompanied by incitements to violence or calls to insurrection.
At the same time, the rhetoric of popular revolt or revolution is misleading precisely because Trump is a democratically elected president and is neither a king nor a dictator—at least not yet. Trump is what historians call a “conservative revolutionary.” Seeking to destroy the progressive achievements of past decades, and to restore a mythic lost “greatness,” it is he who seeks to alter or abolish the current political system, and it is we who must prevent him from succeeding, by defending constitutional democracy, whatever its deficiencies.
Recall that the January 6, 2021 insurrection was justified as a second American Revolution. On that morning, MAGA Congresswoman Lauren Boebert ttweeted “Today is 1776.” Congressman Jody Hice followed a few hours later, tweeting “this is our 1776 moment.” The rallying cry was heard. And, led by Proud Boys and Three Percenters cosplaying the Minutemen of Lexington and Concord, the “patriotic” mob descended upon the Capitol, doing their part to prevent “Biden the Usurper” from becoming president. Days later, the Philadelphia Inquirer profiled Jim Sinclair, a 38-year-old home restoration contractor from Bensalem, Pennsylvania, who traveled to Washington to participate in the “Stop the Steal” march. “Freedom!!!!!!!” Sinclair posted on Facebook. “It’s 1776, the American people have ears and eyes,” he declared. “We will not accept this fraudulent election.” Politico reported that online social media traffic among extremists in the lead-up to the insurrection frequently alluded to the precedent of 1776.
This is the rhetoric of civil war. And it attacks the fundamental premise of our constitutional democracy—the legitimacy of political contestation.
Also recall that the highbrow conservative luminaries from Hillsdale College and the Claremont Institute who comprised Trump’s “1776 Commission” and revere “The Founding Fathers” either directly supported this insurrection or gave it intellectual cover. The “Stop the Steal” movement that powered Trump’s 2024 victory frequently invoked the “spirit of ’76.” Claiming to represent a “resistance” to the supposedly “totalitarian Biden regime,” MAGA ideologues were quite amenable to extra-legal action in the service of “regime change,” in the event that “the Democrat Party” succeeded in 2024. If you doubt this, take a look at Claremont Institute Fellow Kevin Slack’s 2023 book War on the American Republic: How Liberalism Became Despotism, which floats the idea of a new—and very much armed—American Revolution. Discussing the book in The American Mind, a MAGA journal, Claremont fellow Glenn Ellmers dispassionately discusses “Revolutionary Necessity,” quoting Jefferson on “prudence” and gently urging caution because “the regime” would love to crush a revolution, and “one should embark on a revolution only when there is a reasonable expectation, and plan for, a better arrangement.” In other words, you need to really be sure you can succeed before you try to overthrow the “despotism” of liberal democracy.
This is the rhetoric of civil war. And it attacks the fundamental premise of our constitutional democracy—the legitimacy of political contestation. Trump won the 2024 election. And so, instead of taking to the streets—as they might have done had Trump lost—MAGA ideologues, armed with their own revolutionary manifesto, Project 2025, have taken control of the Executive Branch of the federal government. And they are using it to wage war on legal institutions, universities, immigrants both documented and undocumented, sexual minorities, and political critics of all kinds.
This July Fourth, we ought to recall heroes and heroines of the past—Elizabeth Cady Stanton, Frederick Douglass, Eugene V. Debs, Martin Luther King, Jr., and others—who led the fight to realize a robustly democratic vision of the Declaration. And then, using the hard-won civil and political liberties still at our disposal, we ought to rededicate ourselves to winning back political power democratically, so that, in the words of Lincoln, “government of, by, and for the people shall not perish from the earth.” For if the MAGA agenda succeeds, we can say goodbye to civil rights, civil liberties, and democracy itself. It would be a cruel irony indeed if future July 4 celebrations were to become celebrations of the MAGA illiberalism that warms Donald Trump’s shriveled heart.
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Trump DOJ Fires Jan. 6 Prosecutors, Top FBI Agents While Threatening Larger Purge
"Trump's outrageous attack on the DOJ and FBI is a clear and present danger to public safety, and a wrecking ball swinging at the rule of law," Rep. Jamie Raskin said.
Feb 01, 2025
The Trump Department of Justice made moves on Friday to fire FBI employees and prosecutors who were involved with the government's cases against U.S. President Donald Trump and the participants in the January 6, 2021 attack on the U.S. Capitol.
First, on Thursday, several senior FBI officials—stationed both at headquarters and in the field—were told to either resign or be fired. Then, at 5 pm Eastern Time on Friday, dozens of DOJ prosecutors who worked on January 6 cases received an email saying they had been fired. Also on Friday, an email sent to FBI employees told them that acting Deputy Attorney General Emil Bove, who previously represented Trump in the cases against him, had requested a list of everyone who had worked on January 6 cases "to determine whether any additional personnel actions are necessary."
"Firing the FBI agents who investigated violent attacks against police officers on January 6 would set a dangerous precedent and make all of us less safe," Stand Up America executive director Christina Harvey said in a statement. "This is a shameless act of political retribution that weakens federal law enforcement and the rule of law."
"This is a massacre meant to chill our efforts to fight crime without fear or favor."
The FBI higher-ups forced out included the agency's six most senior executives as well as more than 20 directors of field offices including Washington, D.C., Miami, Los Angeles, Philadelphia, New Orleans, Seattle, and Las Vegas. The targeted officials had been promoted by former FBI Director Christopher Wray, according to The New York Times. The Washington, D.C. field office worked extensively on Special Counsel Jack Smith's investigations into Trump's mishandling of classified documents and involvement in the January 6 insurrection, as well as the investigations of the rioters themselves, NBC News reported. One source told The Hill that agents who had worked on the cases were physically escorted out of the D.C. field office on Friday.
NBC reported that several of the senior officials had chosen to retire, even though they could have challenged their dismissals as nonpolitical appointees subject to civil service regulations.
Many of the agents received the ultimatum the same day that U.S. President Donald Trump's nominee to head the FBI, Kash Patel, promised in his Senate confirmation hearing that he would not retaliate against any agents who worked on the Trump cases and was not aware of any attempts to do so.
"All FBI employees will be protected against political retribution," Patel told the Senate.
Trump, meanwhile, said on Friday that he was not aware of the firings, but added, "If they fired some people over there, that's a good thing, because they were very bad. They were very corrupt people, very corrupt, and they hurt our country very badly with the weaponization."
Another memo sent by Bove to acting FBI Director Brian J. Driscoll Jr. laid the groundwork for more firings, as Driscoll was asked to submit a list of all agents and employees "assigned at any time to investigations and/or prosecutions" related to January 6, as The New York Times reported. Field offices received a similar request from the FBI's counterterrorism division. Bove also asked for a list of agents who worked on a case against Hamas leadership, though it is not clear why.
One employee told CNN that the January 6 case was the largest case the bureau had ever worked on, observing that "everyone touched that case."
In an email to staff on Friday reported by NBC, Driscoll noted, "We understand that this request encompasses thousands of employees across the country who have supported these investigative efforts," adding, "I am one of those employees."
"This is a massacre meant to chill our efforts to fight crime without fear or favor," another anonymous agent told CNN. "Even for those not fired, it sends the message that the bureau is no longer independent."
The FBI Agents Association, which represents over 14,000 active and former agents, issued a scathing statement on Friday.
"If true, these outrageous actions by acting officials are fundamentally at odds with the law enforcement objectives outlined by President Trump and his support for FBI Agents," the association said. "Dismissing potentially hundreds of agents would severely weaken the bureau's ability to protect the country from national security and criminal threats and will ultimately risk setting up the bureau and its new leadership for failure. These actions also contradict the commitments that Attorney General-nominee Pam Bondi and Director-nominee Kash Patel made during their nomination hearings before the United States Senate."
The group added that Patel had promised association members in a meeting that "agents would be afforded appropriate process and review and not face retribution based solely on the cases to which they were assigned."
Finally on Friday, DOJ prosecutors received an email from Interim U.S. Attorney Ed Martin, telling them they were being fired and including a memo from Bove. The fired prosecutors had been hired to work on the January 6 cases and were made permanent by the Biden administration following the November election. In his memo, Bove suggested the prosecutors had been made permanent in an inappropriate attempt to protect them from being fired.
"I will not tolerate subversive personnel actions by the previous administration at any U.S. Attorney's Office," Bove wrote, as POLITICO reported. "Too much is at stake. In light of the foregoing, the appropriate course is to terminate these employees."
One of the impacted prosecutors told POLITICO that 25 to 30 people were let go.
"This attack on the Justice Department and particularly on the FBI is the beginning of America's first true era of dictatorship."
The latest round of DOJ firings comes days after the Trump administration already fired a dozen lawyers who had helped bring Smith's two cases against Trump. They also come a week after Trump's firing of 12 inspectors general. Trump also pardoned all approximately 1,500 people involved in the January 6 insurrection on his first day in office.
News of the FBI and DOJ firings sparked ire from Democratic lawmakers.
"Trump's outrageous attack on the DOJ and FBI is a clear and present danger to public safety, and a wrecking ball swinging at the rule of law," said Rep. Jamie Raskin (D-Md.), ranking member of the House Committee on the Judiciary, in a statement. "Trump wants to send the message to the police and federal officers that the law doesn't apply to Trump and his enablers. It's also part of his campaign to replace nonpartisan career civil servants with political loyalists and incompetent sycophants. Trump's moves have already left the Justice Department and the FBI rudderless and adrift by ousting their career senior ranks. Now, these unprecedented purges of hundreds of prosecutors, staff, and experienced law enforcement agents will undermine the government's power to protect our country against national security, cyber, and criminal threats."
"The loyal friend of autocrats, kleptocrats, oligarchs, and broligarchs, Trump doesn't care about the requirements of democracy, national security, and public safety," Raskin continued. "His agenda is vengeance and retribution. If allowed to proceed, Trump's purge of our federal law enforcement workforce will expose America to authoritarianism and dictatorship."
Sen. Dick Durbin, (D-Ill.), who serves on the Judiciary Committee, called the firings "a major blow to the FBI and Justice Department's integrity and effectiveness."
"This is a brazen assault on the rule of law that also severely undermines our national security and public safety," Durbin continued. "Unelected Trump lackeys are carrying out widespread political retribution against our nation's career law enforcement officials. President Trump would rather have the FBI and DOJ full of blind admirers and loyalists than experienced law enforcement officers."
Rep. Jim Himes (D-Conn.) also decried the firings and cast doubt on the integrity of Bondi and Patel, whom Trump had tapped to lead the DOJ and FBI respectively.
"Pam Bondi and Kash Patel both committed to protecting the Department of Justice and the FBI from politics and weaponization. If these reports are true, it's clear they misled the Senate," Himes said. "As ranking member of the House Intelligence Committee, I have repeatedly asked the FBI for more information about these reports and will insist on answers."
Fellow Connecticut Democrat Rep. Rosa DeLauro wrote on social media: "Priority #1 for the Trump administration: Protect the lawless and purge those who uphold the law. The firing of FBI agents and federal prosecutors without cause is an assault on the rule of law and law enforcement. It leaves Americans vulnerable and less safe. We will push back."
As Democrats promised action, Harvey of Stand Up America also called on Republican lawmakers to respond.
"This is not about public safety—it's about revenge and control," Harvey said. "Removing experienced law enforcement professionals and replacing them with political loyalists puts all of our safety at risk. If there are any Republican senators left who care about protecting the rule of law and public safety, they should oppose this dangerous purge and reject Kash Patel's nomination as FBI Director."
Progressive political commenter Thom Hartmann urged U.S. citizens to call their representatives.
"Let's just call these mass firings at Justice and the FBI what they are. Donald Trump is a lawless man who is ripping apart the FBI to turn it into a banana republic-style group of enforcing thugs who will only do his will," Hartmann wrote on his Substack Saturday morning. "They will spare his friends and persecute his enemies. We've seen this over and over during the past century in countries all over the world; it's nothing new. It's just that we never expected to see it here in America."
"[Russian President Vladimir] Putin dreamed for most of his life of destroying America; he now has a friend who is doing it for him. This attack on the Justice Department and particularly on the FBI is the beginning of America's first true era of dictatorship. The only question now is how long and how far Democratic and Republican politicians and career government employees will tolerate this, and, when their resistance comes, whether it will be too late. The phone number for Congress is 202-224-3121."
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A Jury of 12 Upheld the Rule of the Law. Don't Hold Your Breath for the Right-Wing Supreme Court
So many thanks to the dozen anonymous everyday people in New York who courageously did what the nation's highest court likely will not.
Jun 05, 2024
Last Thursday, 12 ordinary citizens unanimously convicted Donald Trump of 34 felonies. As many have commented, in doing so they upheld the rule of law—the fundamental principle that no person is above the law and that even a former president may be convicted for violating it.
Later this month, however, the six right-wing Justices on the U.S. Supreme Court may issue a decision in U.S. v Trump that would significantly undermine the rule of law, finding that presidents are either wholly or partially immune from federal prosecution (although it would not overturn the New York State conviction.)
SCOTUS has already slow walked its decision for so long that even if it decides that Trump is not immune from prosecution for inciting the January 6 insurrection, it will probably be too late to try him before the November 2024 election.
In late 2023, trial court Judge Tanya Chutkin denied Trump’s motion to dismiss the charges on Trump’s claim that he’s immune from prosecution. She set a trial date for March 4, 2024. Last December, Special Prosecutor Jack Smith asked SCOTUS to review that decision without waiting for a D.C. Circuit Appeal Court ruling but SCOTUS refused. On February 6, the D.C. Circuit unanimously rejected Trump’s claim and ruled that the trial could move forward unless SCOTUS intervened.
SCOTUS did intervene on February 28, postponing the trial indefinitely and agreeing to decide whether and, if so, to what extent a former president enjoys presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. SCOTUS set oral arguments for nearly two months later on April 24, the very last day of the term to hear oral arguments, virtually ensuring that there would be no decision until late June or early July, effectively giving Trump the delay that he most wanted.
The right-wing Justices hardly asked questions about text or original meaning. Instead, they behaved like they were delegates to a Constitutional convention debating whether or not a President should have some degree of immunity...
The right-wing SCOTUS majority claims to decide cases based on “originalism” or “textualism,” the theory that cases should be decided based on the text of the Constitution as generally understood at the time it was written. But in oral arguments, the right-wing Justices had little to say about text or original meaning. There is no text in the Constitution that mentions or implies presidential immunity from criminal conduct and there’s nothing in the debate about drafting the Constitution that implies that the founders intended to grant king-like immunity to the president. Quite the opposite. The entire purpose and structure of the Constitution is to protect against anyone having power like England's King George III.
So the right-wing Justices hardly asked questions about text or original meaning. Instead, they behaved like they were delegates to a Constitutional convention debating whether or not a President should have some degree of immunity—whether for official or unofficial acts—as a matter of pure policy as if they were writing a new Constitution from scratch.
Justice Samuel Alito (he of the two pro-coup flags over his house) argued “[I]f an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” And where does it say this in the text or original meaning of the Constitution?
Gorsuch claimed that “I’m not concerned about this case so much as future ones.” Kavanaugh agreed stating “…like Justice Gorsuch, I’m not focused on the here and now of this case. I’m very concerned about the future.” This is in complete violation of the text of Article III of the Constitution which limits the power of Federal Courts to reviewing actual “cases and controversies” and bars them from issuing advisory opinions which merely advise on the constitutionality or interpretation of a law.
Apparently the right-wing “Justices” only believe in textualism and originalism when these theories can arguably support their policy views. They’re prepared to toss them out when they don’t back up their political views such as Trump should be immune from prosecution for breaking criminal laws by inciting an insurrection.
It’s possible that SCOTUS will forge a “compromise” opinion that Presidents cannot be prosecuted for “official” acts (like ordering Seal Team 6 to assassinate a political opponent) but only for “unofficial” acts and send the case back to the lower court to determine whether Trump’s insurrectionary acts were “official” or “unofficial.” This will accomplish Trump’s goal of delaying a trial until after the election, if ever.
So many thanks to the 12 anonymous jurors in New York who courageously upheld the rule of law. But be ready for the U.S. Supreme Court to undermine the rule of law and effectively declare that the president of the United States is a king.
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A Fascist Donald Trump and the Lawyer's Dilemma
Trump’s assault on democracy’s essential institutions has always been open and notorious. Examples abound—and they are laced with lies. If you were an attorney committed to defending democracy, could you defend this man?
Jun 04, 2024
“Thus was democracy finally interred…. [I]t was all done quite legally, though accompanied by terror. Parliament turned over its constitutional authority to [the dictator] and thereby committed suicide, though its body lingered on in an embalmed state to the very end…, serving as a sounding board for some of [the dictator’s] thunderous pronunciations, its members hand-picked by the [dictator’s party], for there were no more real elections….” —William L. Shirer, The Rise and Fall of the Third Reich (1959)
In his book, Shirer then quoted historian Alan Bullock, whose observation decades ago frames the lawyer’s dilemma in representing Donald Trump today:
“‘The street gangs… had seized control of the resources of a great modern State, the gutter had come to power….’ But —as Hitler never ceased to boast—‘legally,’—by an overwhelming vote of Parliament. The Germans had no one to blame but themselves.”
The Constitutional Right to Representation
In the United States, anyone charged with a crime is entitled to a defense. But representing someone seeking to undermine the U.S. Constitution by destroying its institutional foundations and the rule of law is an entirely different matter. That’s because every lawyer swears an oath to support the Constitution.
Trump’s assault on democracy’s essential institutions has always been open and notorious. Examples abound—and they are laced with lies.
The Big Lie(s)
More than 60 federal and state courts ruled that Trump lost the 2020 election. But Trump claims falsely that he won. Yielding no ground to facts or reality, he and his allies claim that—unless he wins—every election is “rigged” against him and no one should credit the outcome, including the upcoming contest on November 5, 2024.
Likewise, a jury of Trump’s peers convicted him of 34 felonies. But Trump asserts that the entire civil and criminal justice system is out to get him. As for January 6, he labels the convicted insurrectionists who attacked the U.S. Capitol “patriots” and “martyrs,” and promises to pardon them if he recaptures the White House.
Trump’s congressional sycophants have fallen in line behind him in adopting his false, revisionist history of the insurrection and his assault on the criminal justice system. But as the attack on the U.S. Capitol occurred, Republicans in Congress—including then-Majority Leader Mitch McConnell (R-Ky.)—were clear about what was happening and who was responsible. A week after the riot, McConnell went to the Senate floor and said, “The mob was fed lies. They were provoked by the president and other powerful people.”
After voting to acquit Trump in his second impeachment, McConnell said:
There's no question, none, that President Trump is practically and morally responsible for provoking the events of the day…
The people who stormed this building believed they were acting on the wishes and instructions of their president, and having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories and reckless hyperbole which the defeated president kept shouting into the largest megaphone on planet Earth.
He did not do his job. He didn't take steps so federal law could be faithfully executed and order restored.
No. Instead, according to public reports, he watched television happily—happily—as the chaos unfolded. Even after it was clear to any reasonable observer that Vice President Pence was in serious danger.
Today McConnell supports Trump’s re-election bid.
History Might Not Repeat Itself, But Sometimes It Rhymes
Trump has followed the lead of his most heinous predecessor.
Trump peppers his rants with bigotry, fear, and terror. He refers to immigrants as “vermin” who are “poisoning the blood” of the United States. He says, falsely, that they are criminals from “prisons,” “mental institutions,” and “insane asylums.” Trump warns Americans to resist immigration or “you won’t have a country anymore.”
In Mein Kampf, Hitler wrote that he “was repelled by the conglomeration of races…repelled by this whole mixture of Czechs, Poles, Hungarians, Ruthenians, Serbs, and Croats, and everywhere the eternal mushroom of humanity – Jews and more Jews… [His] hatred grew for the foreign mixture of peoples….” (Shirer, p. 27) And he spoke repeatedly about the need to “increase and preserve the species and the race.” (Shirer, p. 86)
Pledging that, if elected, he will be “dictator for a day,” Trump has vowed publicly to “root out” his political opponents. And he promises to stack the federal government with cronies who will never disagree with him.
Hitler said repeatedly that he would “know neither rest nor peace until the November criminals [who, he falsely claimed, had ‘stabbed Germany in the back’ with the onerous Versailles Treaty of 1918] had been overthrown.” He banished or executed those who crossed him. (Schirer, p. 70)
During his first term in office, Trump stacked his administration and the courts with allies, including a federal judge in Florida who presides—and delays—one of the three remaining criminal cases against him. That judge—and many of his other appointees—were and are manifestly unqualified for their jobs.
Hitler co-opted the judiciary and then established his own special courts. He alone became the law. (Shirer, 268-274)
The Washington Post reported in February 2024:
Just before the former president lost the 2020 election to President Biden, Trump issued an executive order designed to gut civil service job protections for workers across the government. It would have paved the way for the workers to be replaced with others, including political partisans, subject to termination at will—a move the Republican president backed because he felt nonpartisan bureaucrats were hampering many of his policies. Trump has promised to reinstate the directive, which Biden quickly revoked after his inauguration. It created a new federal employment category, Schedule F, that would make federal jobs vulnerable to partisan political whims by weakening guardrails meant to ensure a nonpartisan bureaucracy.
Initial estimates that Trump’s edict would apply to more than 50,000 government employees were far too low.
Hitler populated the government with his lackeys. Before becoming chancellor, he vowed that “when the National Socialist movement is victorious in this struggle, then there will be a National Socialist Court of Justice too. Then the November 1918 revolution will be avenged and heads will roll!” (Shirer, p. 141)
Trump understands the importance of symbols and branding. “MAGA” and related paraphernalia—hats, T-shirts, flags—are no accident.
Hitler likewise understood the power of symbols and used the swastika as a unifying image.
Trump co-opted religious evangelicals, many of whom view him as the divine messenger for their cause.
Hitler exploited his country’s history to gain the support of its religious institutions. Then he assumed control over all of them.
Trump has persuaded many industrial magnates to support him because his policies will favor them economically, including a promise to reverse climate initiatives affecting the major oil companies in return for $1 billion in contributions to his current campaign.
Hitler cultivated industry leaders who supported his rise to power – until it was too late to stop his heinous acts that disserved even them.
Trump understands the power of lies, deception, and disinformation. He rode to the White House on the wings of his “birther” lie about President Barack Obama’s origins.
Hitler rode lies to power too: “[A]t a given sign it unleashes a veritable barrage of lies and slanders against whatever adversary seems most dangerous, until the nerves of the attacked persons break down… This is a tactic based on precise calculation of all human weaknesses, and its result will lead to success with almost mathematical certainty…” (Shirer p. 22-23)
Trump understands the power of fomenting fear and encouraging terror. January 6, 2021 made that abundantly clear.
One hundred years earlier, Hitler had discovered that power, writing: “I achieved an equal understanding of the importance of physical terror toward the individual and the masses… For while in the ranks of their supporters the victory achieved seems a triumph of the justice of their own cause, the defeated adversary in most cases despairs of the success of any further resistance.”
Trump has never won a majority of the popular vote for President.
Hitler topped out at 37 percent before an aging President Paul von Hindenburg gave him the chancellorship.
Trump uses television and social media to outline his views and to reveal—in advance—how he will proceed if he gains control of the government.
Hitler used Mein Kampf as a roadmap of his ambitions and his plans to fulfil them. Trump meets all of the criteria that one of Hitler’s professors listed in describing the future dictator: lacking “self-control and, to say the least, he was considered argumentative, autocratic, self-opinionated, and bad-tempered, and unable to submit to school discipline.”
The Lawyer’s Dilemma
So Adolf Hitler seeks your help in dismantling the foundational institutions of government and undermining popular support for democracy.
He offers you a big retainer and dangles the promise of a media spotlight for his outrageous positions.
Your assignment is simple: Do whatever it takes to help him achieve power—but all of the steps must be lawful. His objective—and yours if you accept—is the destruction of the U.S. Constitution and the demise of the rule of law.
Do you take the case?
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Supreme Court's Trump Ruling Reveals a Deep Weakness in Our Constitutional Democracy
The 9-0 ruling by the Court has empowered MAGA Republicans to continue the lie that their assaults on democracy are done in the name of “election integrity” when we know full well the opposite is true.
Mar 08, 2024
“I just want to find 11,780 votes, which is one more than we have . . . So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.” –President Donald Trump, speaking by phone to Georgia Secretary of State Brad Raffensperger on Saturday, January 2, 2021.
“I think that the question that you have to confront is why a single state should decide who gets to be President of the United States.” – U.S. Supreme Court Justice Elana Kagan to attorney Jason Murray on Thursday, February 8, 2024.
The Supreme Court has now done what pretty much every commentator expected it to do, overturning the Colorado state Supreme Court, and ruling that Donald Trump cannot lawfully be removed by state officials from the ballot of Colorado or any other state.
The ruling, decided by a 9-0 vote, was unanimous. The core rationale for the decision was simple: the Fourteenth Amendment was intended to codify principles of national citizenship over and above “state’s rights” claims advanced by the defeated Confederacy, and to leave it to individual states to enforce the Amendment’s Section III would undermine the very idea of national citizenship.
While I am no expert in constitutional law, there are failures of reasoning in the decision that are apparent even to me...
As the decision states, such a confusing “patchwork,” would “sever the direct link that the Framers found so critical between the National government and the people of the United States as a whole” (p. 12). Separate concurring opinions, by Amy Comey Barrett and by Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, took issue with the ruling decision’s claim that according to Section 5 of the Amendment, only an act of Congress could enforce Section 3 by removing one or more individuals from a ballot. But all nine Justices agreed that, however Section III might theoretically be enforced, it was neither “self-enforcing” in general nor enforceable by individual state decisions. And so Trump must be on the ballot.
As with all SCOTUS decisions, we can expect many experts in constitutional law and U.S. history to take issue with the reasoning behind this case. At the very least, it must be noted that a substantial number of amicus curiae briefs were submitted in support of Trump’s removal, including briefs from major conservative experts, such as retired U.S. Judge J. Michael Luttig, one of many conservatives who actually spearheaded the effort to disqualify Trump from seeking office. The SCOTUS decision apparently thought little of the many powerful arguments advanced in these briefs.
While I am no expert in constitutional law, there are failures of reasoning in the decision that are apparent even to me (if the Amendment is considered to be so scrupulous about disqualification, why does Section 3 explicitly outline the provisions for removing the disability without being equally explicit about the provisions for instating it?). But there surely are “arguments” on either side of this matter, and it was obvious that this Court would never rule against Trump’s “right” to be on the ballot. The real question, always, was how it would explain its decision, and how much dissent the decision would engender. And for me, the most disappointing aspect of the decision was not that a strong conservative majority would support Trump, but that the three liberal Justices would not simply concur, but would squander the opportunity to expose the hypocrisy of Trump’s appeal and, even more important, the underlying frailties of the constitutional system that continue to empower Trump’s assaults on liberal democracy.
That this opportunity would be squandered was clear as soon as Elena Kagan spoke the words in oral argument that are quoted at the very top, words that might well have been spoken for all nine members of the Court, for they are at the heart of the unanimous decision.
Why should a single state decide?
This is an excellent question. But Kagan failed to seriously consider it, by failing to ask a number of essential follow-up questions of the Trump legal team, and then to incorporate these matters into a strong opinion, whether in concurrence or dissent, that called out Trumpism for its attempts to prey on Constitutional weaknesses.
Question 1: Why did Donald Trump work so hard, from November 3, 2020 until January 6, 2021, to pressure one guy—the Secretary of State of a single state, Georgia–to “find” a few thousand votes, in order to claim victory in an election that he lost by seven million popular votes? And why did he exert similar pressure on state officials in a few other “swing states”—Arizona, Wisconsin, Pennsylvania—in the hope of claiming victory by winning the winner-take-all elections in those individual states?
Question 1a: After so relentlessly attempting to change the outcome in a few states, is it not the height of hypocrisy and cynicism for Donald Trump to now argue that no single state, or handful of states, should by right determine a presidential election—especially since this very scenario played out in both George W. Bush’s 2000 victory and Trump’s 2016 victory, both of which hinged on narrow vote margins in a few states and not on winning the national popular vote? Only now this is a problem? Really?
Question 1b: Beyond hypocrisy, back in October 2020, Barton Gellman published a brilliantly prescient piece in The Atlantic entitled “The Election That Could Break America.” This is what he warned:
Close students of election law and procedure are warning that conditions are ripe for a constitutional crisis that would leave the nation without an authoritative result. We have no fail-safe against that calamity. Thus the blinking red lights.
. . . The worst case . . . is not that Trump rejects the election outcome. The worst case is that he uses his power to prevent a decisive outcome against him. If Trump sheds all restraint, and if his Republican allies play the parts he assigns them, he could obstruct the emergence of a legally unambiguous victory for Biden in the Electoral College and then in Congress. He could prevent the formation of consensus about whether there is any outcome at all. He could seize on that uncertainty to hold on to power.
Trump’s state and national legal teams are already laying the groundwork for postelection maneuvers that would circumvent the results of the vote count in battleground states. Ambiguities in the Constitution and logic bombs in the Electoral Count Act make it possible to extend the dispute all the way to Inauguration Day, which would bring the nation to a precipice. The Twentieth Amendment is crystal clear that the president’s term in office “shall end” at noon on January 20, but two men could show up to be sworn in. One of them would arrive with all the tools and power of the presidency already in hand . . . “
Is this not exactly what happened, as documented extensively by the House January 6 Committee, and as determined by the factual ruling of the Colorado Supreme Court? And does this not demonstrate that Trump was intent on exploiting precisely the absence of a national popular vote? And doesn’t this deserve attention at every available opportunity?
Question 2: It is claimed that if a state such as Colorado, or Maine, were to remove Donald Trump from their ballot on Section 3 grounds, this would create a confusing “patchwork,” and would “sever the direct link that the Framers found so critical between the National government and the people of the United States as a whole.” But is not our entire constitutional system a confusing patchwork that severs the direct link between the citizens of the United States and the national government of the United States?
Is this not the very function of the United States Senate, in which Wyoming’s 581,000 citizens have the same national representation as California’s 39 million citizens?
Is not our entire constitutional system a confusing patchwork that severs the direct link between the citizens of the United States and the national government of the United States?
Is this not the very function of the Electoral College itself, which very deliberately elevates the importance of a small group of electors selected in each of the 50 states, and explicitly rejects the principle that a national popular vote should determine who is the President of the United States?
Is this not the very system of election administration established by Article I of the U.S. Constitution, whose Section 4 clearly states: “the times, places, and manner of holding elections, for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by Law make or alter such regulations, except as to the places of chusing Senators?”
Question 3: If both the principle of national citizenship, and “the direct link that the Framers found so critical between the National government and the people of the United States as a whole,” are so important, then why has the Republican Party for decades pursued a deliberate policy of using its control of statehouses to limit the voting rights of large numbers of citizens, by purging rolls, instating challenging voter identification requirements, limiting early or Sunday voting, and using local control of election administration to limit the number of polling places and their hours of operation?
And when the Democrat-controlled House of Representatives in 2021 decisively passed two major pieces of national legislation designed to further nationalize aspects of election administration and voting rights enforcement in order to codify the principle of citizen equality—H.R.1, the For the People Act, and H.R. 4, the John Lewis Voting Rights Advancement Act—why did Republicans work feverishly to demonize, oppose, and obstruct the passage of the legislation, stalling both bills in the Senate and effectively killing them? Senate Republican leader Mitch McConnell went so far as to denounce such legislation on the Senate Floor as “Democrat power-grabbing,” insisting that voting rights enforcement “is not a federal issue” and ought to be left to the states?
Why should states decide how to establish and administer the electoral rules that govern all elections in their state, including federal elections?
Because the Constitution prescribes this, and Republicans have opposed any legislative effort to change it.
What will become of national citizenship if a “patchwork” of state and local rules mediates, limits, and severs the link between American citizens and the U.S. government?
A very good question indeed. But its answer is staring us in the face: democratic citizenship will be eviscerated, and the enemies of constitutional democracy will seize the opportunity to claim electoral victories they did not win, and if successful pursue further means of weaking constitutional democracy.
Here’s another question: what would have happened if the three liberal Justices on the Supreme Court, whatever they thought about the wisdom of the Colorado decision, had taken the full measure of the hypocrisy behind all of those Republicans—on the Trump legal team, in the Congress, and on the Court itself—who have long upheld the “patchwork” system of anti-majoritarian processes that adulterate and diminish meaningful democratic decision-making, but who have now decided, when it suits them, to shed crocodile tears for the integrity of “the American people as a whole” and the right of “the voters” to decide elections?
We will never know.
It is sometimes argued that a great virtue of the Supreme Court’s judicial review is that the process of delivering opinions–including concurrent and dissenting opinions–promotes and elevates democratic deliberation, by making plain for the broad democratic citizenry the crucial opinions in play in important public controversies.
This might sometimes be true. But it was not true this week.
For this week the Supreme Court chose unanimously, via the logic supplied by Elena Kagan, to both promote a fiction about the Constitution and, in so doing, to empower MAGA Republicans to continue the lie that their assaults on democracy are done in the name of “election integrity” and the return of democratic sovereignty to “the people.”
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Today's Dastardly Ruling by the Supreme Court
It was a gift to Trump that bodes terrible times ahead of U.S. democracy.
Mar 04, 2024
Even though Trump clearly engaged in an insurrection and even though the Constitution clearly bars insurrections from holding elected office, the Supreme Court today ruled that Trump will remain on the ballot anyway.
With the Super Tuesday primaries looming tomorrow, all nine justices agreed that states (in this case, Colorado) cannot decide to keep Trump off the ballot under Section 3 of the Fourteenth Amendment – which bars anyone who has sworn an oath to the Constitution and yet participated in an insurrection against the United States from holding office. They agreed that allowing states to make such decisions would lead to a patchwork of ballots, undercutting federal authority.
But this may not be the most troubling aspect of their decision over the long term. The five justices in the majority went further, ruling that Section 3 could only be enforced by Congress. They rested their argument on Section 5 of the Fourteenth Amendment, which provides that Congress shall pass “appropriate legislation” to enforce the Amendment — such as, for example, procedures to identify which individuals should be disqualified under Section 3. And Congress has not done so.
But requiring that Congress first pass such legislation would prevent the federal government’s own Justice Department from bringing a suit alleging that someone should not be allowed on a ballot because they participated in an insurrection.
It would in effect shield any future insurrectionist candidate, whose party controls at least one chamber of commerce and therefore would not enact such legislation.
Justices Sotomayor, Kagan, and Jackson were also rightfully concerned that the majority’s decision could be used to prevent the Justice Department or any aggrieved plaintiff from enforcing other provisions of the Fourteenth Amendment – such as Section 1, which prohibits states from making or enforcing laws that “abridge the privileges or immunities of citizens of the United States” or deprive “any person of life, liberty, or property, without due process of law” or deny them “equal protection of the laws.”
Recall that these Fourteenth Amendment provisions have been bulwarks against states that have discriminated against Black people, against LGBTQ people, and against women. The due process clause of the Fourteenth Amendment was the foundation for Roe v. Wade.
But under the majority’s view of how the Fourteenth Amendment should be enforced, Section 5 might first require Congress to pass “appropriate legislation” to identify which defendants should be prosecuted under Section 1, before the Justice Department or any plaintiff could act against a state that’s abridging peoples’ rights.
States charged with violating the privileges and immunities clause, or denying people due process of law, or denying their citizens the equal protection of the law will almost certainly use today’s ruling in attempts to shield themselves from federal prosecution.
By the way, Clarence Thomas should never have participated in today’s case, given his obvious conflicts of interest. His participation makes the Supreme Court’s recently adopted “ethics” guidelines look like the sham they are.
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Insurrectionist Trump vs. the 14th Amendment
It couldn’t be simpler. President Donald Trump was an officer of the United States who incited and engaged in insurrection and so should be disqualified from ever again holding the office of the presidency.
Feb 13, 2024
When the Civil War ended in 1865, the 76-year-old Constitution needed an upgrading and those leading the country did indeed dramatically transform it with the passage of the 13th, 14th, and 15th Amendments, known collectively as the Reconstruction Era amendments. The 13th (1865) abolished slavery, while the 15th (1870) gave voting rights to newly freed Black men.
However, it was the 14th Amendment, first drafted in 1866 and ratified in 1868, that would prove the most far-reaching and that today sits all too squarely between Donald Trump and his white nationalist and authoritarian dreams. While much attention has been rightfully focused on its “insurrection” clause (Section 3) and whether, thanks to it, Trump should be allowed to hold office, given his role in the January 6th attempted insurrection at the U.S. Capitol, his actions are also at odds with other key provisions of that amendment.
Trump’s Constitutional Indiscretions
It hardly needs to be said that Donald Trump is no constitutional scholar. At this point, though, there can be little doubt that his instincts are distinctly focused on some version of autocratic rule and white male privilege. No surprise then that, in his adult life, including as president, he’s staked out positions and advocated policies that distinctly conflict with the letter of, and the tone of, the 14th Amendment.
From the day Donald Trump took office, he had no intention to “preserve, protect, and defend,” no less “support” the Constitution. Instead, he essentially ran roughshod over much of that document.
Mind you, he’s brazenly violated other parts of the Constitution as well, including the “emoluments” clause of Article 1, Section 6, and the “appropriations” clause of Article 1, Section 9. The foreign emolument section states that, without congressional assent, neither the president nor other office holders can “accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” Yet, as the Democrats on the House Oversight Committee documented, “Trump’s businesses received at least $7.8 million in payments from foreign governments and government-backed entities from 20 countries,” in itself adding up to a set of gifts (or do I mean grifts?) of historic proportions. Moreover, that figure is undoubtedly a significant underestimate of what he actually received. According to reporting by Citizens for Responsibility and Ethics in Washington (CREW), Trump’s businesses took in more than $160 million from international sources during his presidency.
He also got away with violating the constitutional authority given only to Congress to appropriate federal spending by stealing funds from the military to try to build his border wall. To be specific, he diverted $2.5 billion from the military’s construction budget to that wall project of his. In June 2020, a federal appeals court found that the administration had acted illegally. By then, however, the money had been spent and Trump’s tenure would soon come to an end.
Preserving the 14th Amendment
Undoubtedly, however, his determination to put the 14th Amendment in the trashcan of history should draw the most concern. The rights that U.S. citizens cherish — from basic civil and human ones to not being ruled by insurrectionists — are most strongly protected by provisions in that amendment. The struggle to constitutionalize equal rights was one of the most important for the Black community after the Civil War. In November 1865, for example, a “54-foot long petition signed by hundreds of men,” organized by the State Convention of Colored People of South Carolina, was submitted to Congress demanding “equal rights before the law,” “an equal voice,” and “the elective franchise.”
The first line of the 14th Amendment states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Known as the “birthright citizenship” statement, it has almost universally been interpreted to mean that anyone born within the territory of the United States is automatically a full citizen. More than 30 countries have the principle of “jus soli” (of the soil) allowing citizenship with no qualifications to, or restrictions on, those born there, regardless of the status of their parents. Among the countries with no restrictions are Brazil, Canada, Cuba, El Salvador, Guyana, Mexico, Tanzania, Tuvalu, and the United States.
That statement was included in the 14th Amendment specifically to revoke the Supreme Court’s pre-Civil War 1857 Dred Scott v. Sanford decision — one of the most egregious it ever made — denying citizenship and any rights to Black people in the United States. Chief Justice Roger B. Taney infamously wrote that Black people and their descendants “had for more than a century been regarded as beings of an inferior order… they had no rights which the white man was bound to respect.”
In the post-Civil War environment, that ruling clearly had to be corrected and so the 14th Amendment’s congressional authors wrote it in such a way as to include not just newly freed slaves but anyone born in the United States. (The one all-too-ironic and shameful exception was Native Americans who weren’t given legal citizenship until 1924 under the Indian Citizenship Act.)
Donald Trump has long expressed a deep opposition to birthright citizenship. He and much of the far right refer to it derogatorily as “birth tourism” and claim that thousands of women are coming to this country just to have children who would automatically become citizens. There should be no doubt that he and his followers are speaking of immigrants of color from the global South. When elected in 2016, he promptly declared that he would abolish birthright citizenship with an executive order. He was then informed that such an order would never stand up legally and only in January 2020 did he finally propose new rules for the State Department that were meant to stop it from issuing visas to visitors coming to this country supposedly for the purpose of birth tourism. It was notable, by the way, that the nations of Western Europe were excluded from those rules, which in any case were so vague as to be impossible to enforce without breaking laws on privacy. Ultimately, the consensus among scholars is that it would take a constitutional amendment to end what is now a constitutional right.
Yet Trump continues to declare that, should he win the presidency in 2024, one of his priorities will indeed be to abolish birthright citizenship. As he put it last year, “As part of my plan to secure the border, on Day One of my new term in office, I will sign an executive order making clear to federal agencies that under the correct interpretation of the law, going forward, the future children of illegal aliens will not receive automatic U.S. citizenship.” His contention that he has a “correct” interpretation of the law is distinctly in conflict with the history of past challenges to that amendment. Previous Supreme Courts, whether dominated by liberals or conservatives, have upheld birthright citizenship on numerous occasions, starting with the 1898 Wong Kim Ark case. Trump, of course, is betting that his three appointments to the court and at least two other conservative justices will finally break with such precedents.
Section 1 of the 14th Amendment also guarantees “due process” and “equal protection under the laws.” That “due process” clause was specifically meant to stop southern whites who returned to power in the post-Civil War era from passing state laws and enacting other policies that would legally treat newly freed Blacks differently. In the immediate aftermath of the war, however, “Black codes” were indeed enacted by pro-slavery whites in southern legislatures. As a result, Congress felt called upon to pass laws, known as the Enforcement Acts, meant to ensure that the 14th and 15th Amendments would be the law of the land and that the rights of Black people would be protected.
In 1896, equal protection for African Americans and other people of color would nonetheless be nearly trampled to death by the Supreme Court’s ruling in Plessy v. Ferguson. That decision, in fact, would sanction racial segregation thanks to a perverse interpretation of the 14th Amendment under the banner of “separate but equal” (which, of course, actually meant separate and distinctly unequal). Almost 60 years of Jim Crow segregation followed until, in 1955, the Supreme Court’s Brown v. Board of Education ruling reinterpreted the equal protection clause to ensure that “separate” could never be interpreted to mean “equal.”
Trump, however, has demonstrated strikingly little fealty to the principle of due process for all. From his 1989 call for the death penalty for five young Black and Brown men before they even had a trial to his threatening insistence that Hillary Clinton and others of his political opponents be jailed based purely on personal grievances and vendettas, he’s never faintly respected the constitutional rights of others. He’s called for protesters to be beaten at his rallies and mused that Black Lives Matter activists should be shot in the legs at demonstrations.
When it came to foreign policy and immigration policy, his administration (with his fervent backing) separated children from their parents in a fierce crackdown on undocumented aliens, while he demanded a “total and complete shutdown of Muslims entering the U.S.” In addition to the racism and cruelty of such policies, they plainly violated the equal protection clause of the 14th Amendment.
For the Civil Rights Movement and, more broadly, all movements for social justice and human rights in the United States, the equal protection clause has proven decisive. The 1964 Civil Rights Act and the 1965 Voting Rights Act were typically passed on the principle of “equal protection.” It was also the basis for ending bans on interracial marriage (Loving v. Virginia), providing abortion rights to women nationally (Roe v. Wade), and allowing same-sex marriage in every state (Obergefell v. Hodges).
As demonstrated by their rulings to end Roe, as well as affirmative action in university admissions (with the exception of military academies like West Point), Trump-appointed Supreme Court justices simply don’t believe in equal protection. For a candidate and party that brand themselves as proponents of “law-and-order” above all else, it’s clear that a reactionary version of “order” is significantly more important than fairness or the equal application of the rule of law to every citizen.
Insurrectionists Can’t Hold Office
Of course, as even certain conservative legal scholars have noted, Trump played a key role in launching the January 6th insurrection and, under the third section of the 14th Amendment, should be ineligible to run again for president. As that section reads, someone — an officer of state — who violates his or her oath “to support the Constitution of the United States” and who “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” cannot hold office.
Thanks to Trump, millions of Americans now believe that he won an election he distinctly lost. Although he was told by most of his own experts and in dozens of court decisions that he had done so, he didn’t bother to share that information with his followers. Instead, he continued to foster misinformation and deep anger about that election. Without him, that crowd would never have gathered in Washington to “save America” and “stop the steal.” (“Be there, will be wild!” he tweeted to his followers.) Without him, its participants wouldn’t have gone to the Capitol. Without his exhortations that they needed to “fight like hell,” that crowd he was addressing at the Ellipse in Washington on January 6, 2021, might never have become quite so riled up.
Courts in Colorado and Maine have determined that Trump should not be allowed to stay on the ballot because of Section 3 of the 14th Amendment. In about half of the other states, cases have been filed to remove him due to his role in the insurrection (something on which the Supreme Court will seemingly soon rule).
Most telling, when it came to his cavalier disregard for constitutional rule, has been his claim that, since the oath of office he took as president only required him to “preserve, protect, and defend” the Constitution, he wasn’t obliged (as Section 3 demands) to “support the Constitution” on January 6th, a distinction only someone as venal as Trump would have made. But as CREW noted in response to the petition from Trump’s lawyers in the Colorado case, “The Constitution itself, historical context, and common sense, all make clear that the Fourteenth Amendment’s disqualification clause extends to the President and the Presidency.”
Even conservative lawyers J. Michael Luttig, Peter Keisler, Larry Thompson, Stuart Gerson, and Donald Ayer have argued in their amicus brief in the case that “Trump incited the threat and use of violent force as his last opportunity to stop the peaceful transfer of executive power.” They state unequivocally that he “had the intent that the armed mob, at the very least, threaten physical force on January 6, 2021, in response to his speech on the Ellipse.” And to be clear, as legal scholar and civil rights lawyer Sherrilyn Ifill argues in her brilliant amicus brief, Trump’s insurrection was targeted, in part, against the votes of African Americans.
No Understanding of, or Desire to Understand, the Constitution
In July 2016, as he was about to secure the Republican nomination for president, Trump had a closed-door meeting with House Republicans. In responding to a question about Article 1 of the Constitution that addresses the responsibilities, powers, and limits of the president, Trump stated: “I’m for Article I, I’m for Article II, I’m for Article XII.”
There are, in fact, only seven Articles in the U.S. Constitution.
From the day Donald Trump took office, he had no intention to “preserve, protect, and defend,” no less “support” the Constitution. Instead, he essentially ran roughshod over much of that document. And the issue was never simply his ignorance of the Constitution (though that should be taken for granted), but his outright hostility to it. That he has not yet been held accountable for that should be considered a disgrace in this era and will undoubtedly be seen as such by generations to come. Today, as in the years after its passage to defend the rights of the newly freed, the enforcement of the 14th Amendment remains as much a political question as a legal one.
In a sense, it couldn’t be simpler. President Donald Trump was an officer of the United States who incited and engaged in insurrection and so should be disqualified from ever again holding the office of the presidency. However, based on skeptical questioning by both liberal and conservative Supreme Court justices at the February 8th hearing on the case, it appears that the court will likely not allow Colorado or any other state to bar Trump from the ballot. If so, the Trump danger will continue — for now.
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What If Lawless GOP Lawmakers in the House Refuse to Certify the 2024 Election?
This is what it looks like if Trump loses at the ballot box, but Republicans do next time what enough of them refused to do last time.
Feb 02, 2024
I worry that those of us who are dedicated to democracy and therefore committed to playing by the rules are underestimating the willingness of House Republicans to break the rules to elect Trump.
Remember: Most current Republican members of the House, including Speaker Michael Johnson, refused to certify the outcome of the 2020 election. In fact, Johnson helped organize 138 Republican House members to dispute that outcome, despite state certifications and the nearly unanimous rulings from state and federal courts that it was an honest election.
If Johnson and his cronies had so few scruples then, why should we assume they’ll have more scruples in the weeks following November’s elections?
Long before we reach this constitutional crisis, Speaker Johnson and others in the Republican House leadership must pledge to certify the results of the November elections.
What happens if, in the wake of the elections, the House’s election-denying Republicans find that they can retain their majority in the next Congress only by denying certification of Democratic candidates who have won by close margins, and do so?
Then, on January 6, 2025, what if the new Republican majority refuses to certify as president any Electoral College results from states that went for Biden by close margins — thereby ensuring that no candidate receives an Electoral College majority?
Presto! The decision about who’s to be the next president is made on a state-by-state delegation vote — almost surely delivering it to Trump.
Is this scenario really so far-fetched? Two astute Washington veterans conclude in a recent article in The Washington Spectator that it’s not at all far-fetched, because “good faith can no longer be assumed.”
Long before we reach this constitutional crisis, Speaker Johnson and others in the Republican House leadership must pledge to certify the results of the November elections.
They should be asked by the media to make this commitment. If they won’t, Americans need to know — and know why.
It’s worth noting in this regard that Rep. Elise Stefanik, the fourth-ranking Republican in the House, recently refused to commit to certifying the results of next November’s elections, saying “we will see if this is a legal and valid election.”
She then claimed that the 2020 presidential race “was not a fair election” despite multiple legal reviews sought by Trump and his allies confirming that it was.
Why hasn’t this been more widely reported?
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