Keeping Trump off the Ballot
This question came to me on Mastodon:
Have you seen the Colorado decision on the 14th Amendment case to keep Trump off the ballot there? If so, can you explain why they would hold that the President is not an officer of the government?
The 14th Amendment was drafted and added to the Constitution after the Civil War as one of 3 Amendments designed to end the institution of slavery and guarantee equal rights to all persons.
The 3rd Section of the 14th Amendment was added to prevent officials who left their federal offices to join the Confederacy from returning to office.
Section 3 says this:
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.
The idea was to prevent Confederates from regaining control and taking us backward. It didn’t work, of course. By the end of the nineteenth century, state governments and the federal government were stuffed with Confederate sympathizers thereby giving us racial segregation and denying Black Americans equal protection of the laws.
The reason is this: Section 3 might keep out the insurrectionists, but it couldn’t keep out the insurrectionist sympathizers.
Over the past year or so, groups have been bringing lawsuits in various states to keep Trump off the ballot under Section 3 of the Fourteenth Amendment.
In the Colorado case, the plaintiffs entered the January 6 Congressional Report as evidence showing that Trump incited an insurrection and the court heard testimony from numerous expert witnesses and members of Congress.
Yesterday, the Colorado judge rendered a decision. You can see it here.
The Colorado court first made this finding:
Then the court found this:
Trump, as President, was not an “officer of the United States” under section 3, therefore, the provision doesn’t apply to him.
In finding that Trump was not an “officer of the United States under section 3, the Court said this:
Okay, so what the heck does this mean?
Basically, the Colorado judge punted the issue to the appellate court. Notice that:
- The court’s finding that Trump engaged in an insurrection is a finding of fact.
- The court’s finding that Trump was not an officer of the United States under Section 3 is a question of law.
Here’s why the distinction matters: If an issue that goes to an appellate court is an issue of law, the appellate court reviews de novo, which means that no deference is given to the lower court. With an issue of fact, appellate courts are more deferential to lower courts. As a general rule, appellate courts do not reexamine evidence or question witnesses. Fact-finding is the business of trial courts. Appellate courts generally check for legal errors.
The appellate court can overturn the factual finding that Trump engaged in an insurrection, but it is unlikely and more difficult because of the greater deference to findings of facts.
Come on, Teri, what’s up with that ruling about Trump not being an officer? How is the president not an “officer” of the federal government?
Welcome to the world of constitutional and statutory interpretation.
The first principle of statutory and constitutional interpretation is to look closely at the text. If the text is clear, we go no further. It’s only when the text isn’t clear that we get into other theories of interpretation.
So we look closely at the text. The way to do this right is to try to be objective. That means not approaching with the idea that you want Trump off the ballot. It means asking yourself: “What are the arguments on both sides and which is stronger?”
(I have often suspected judges of starting with the conclusion they want and working backward to justify it, but the right way to do it is to weigh the arguments for and against.)
Here is the list:
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 . . .
Now notice that the requirement of the oath:
. . . 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.
The President takes a special oath. In fact, the oath taken by the President is the only one included in the Constitution.
Question #1: Why wasn’t the president on the list?
Was it an oversight? Did the drafters assume that the president was an officer? If so, why didn’t the drafters assume that members of Congress were officers? Why list members of Congress but not the president?
A simple answer is that, because the section was written to keep people who left their official positions to join the Confederates from returning, it didn’t occur to the people drafting the amendment that a president might resign his office to join a rebellion against his own administration. Drafters of laws are not always able to anticipate all forms that insurrections might take in the future.
I can come up with a few other guesses as well, but nobody knows the answer.
Question #2: Why wasn’t the president’s oath included in the list?
Was this an oversight as well? That doesn’t seem likely, right? Surely people who were amending the Constitution had read the whole thing and knew the president took a special oath.
This is from Randall Eliason (a law prof at Georgetown) from his most recent Substack newsletter:
There actually is some textual support for the argument that “officer” as used in the Constitution is a term of art, and refers to people who are appointed by the president – which obviously would not include the president himself. The judge quoted several other provisions of the Constitution where the language suggests that the President and “officers of the United States” are indeed distinct. The judge said she thought it was a close question and that it wasn’t clear to her why the drafters of the 14th Amendment would have created this loophole (or whether it was even intentional). But she concluded that’s what the language requires.
The Colorado judge found persuasive arguments on both sides and didn’t want to be the one making the call about whether to keep the president off the ballot when the matter of whether the president is an “officer” under the meaning of Section 3 wasn’t clear.
So the Colorado judge punted the issue to the appellate courts.
What will the appellate court do? I don’t know. I can see it going either way.
Misinformation-rage
Not surprisingly, comments on social media responding to the Colorado judge’s decision looked like this:
- So I guess the Fourteenth Amendment is a joke. Rule of law is a joke.
- Judges are obviously scared of Trump.
- It’s another chink in the armor of democracy. The courts refuse to protect it. Congress refuses to protect it. Tuberville is certainly doing his best to ensure that the military won’t protect it. The state courts it now seems just don’t wanna go to the trouble of protecting it.
I poked around and saw that numerous legal pundits were offering passionate critiques of the Colorado judge’s opinion. Judge Luttig and Laurence Tribe, to take two examples, said that the Colorado judge was flat wrong. Headlines looked like this:
NBC Universal
‘Simply incorrect’: Judge Luttig and Tribe react to judge’s decision to reject Trump’s 14th Amendment Challenge
Following the headline was this quotation from Tribe, taken from his appearance on an MSNBC talk show: “The whole rule of law would be shredded if we said that the president is above the law because his oath, because of its wording, exempts him from the most fundamental requirement of law: that when your term is up you leave. It’s only dictators who stay as long.”
(Yes, I’m still on my schtick about MSNBC news talk shows.)
Notice that Tribe mushed together the facts about the insurrection (the judge found that Trump incited an insurrection) with the wording of the 3rd section of the 14th Amendment and then makes the cliche pronouncement that this would put Trump “above the law.” (Technically, this ruling, if not overturned by the appellate courts, would mean that this provision doesn’t apply to a former president.) One of the Internet Memes in the MSNBC-CNN-Left-Leaning-Social Media ecosystem is “Trump is above the law” (even though he constantly loses in court).
Now, consider how boring it would be if someone went on television and offered the critique I offered in the first part of this blog post. It would not make for an emotion-packed show.
Too often, people read the headlines or watch the news show and think, “The judge was wrong!” instead of thinking, “Two legal experts with impressive credentials believe that the judge was wrong.”
You see, offering passionate opinions is what lawyers do. It often looks like this:
The prosecutor says, “Ladies and gentlemen of the jury, the defendant is guilty!” (*shakes fist*)
Later, the defense lawyer will say, “Ladies and gentlemen of the jury, my client is not guilty!” (*shakes fist*)
They can’t both be right, although both can be 100% persuaded that they are right.
(Unless we’re talking about my clients and an appellate court upheld the rulings against them. In that case, the court was definitely wrong.)
Parchment Barriers and the Dangers of Hope
Meanwhile, an interesting thing happened this week with the Trump gag orders in the Manhattan case.
Early on Thursday, Trump’s lawyers filed a petition in the New York Supreme Court’s Appellate Division, claiming the gag orders from Judge Arthur Engoron barring the former president from making public comments about the judge’s staff were unconstitutional in nature. Then, later Thursday, the appellate court temporarily lifted the gag order.
Shortly after I mentioned this interesting fact and offered my thoughts on social media, I received a bunch of comments. Here is a sampling:
No “thoughts” are needed. It’s indefensible! It’s inexcusable! And no other defendant would receive the same treatment proving Trump is above the law.
So is it an open question then whether I’m free to threaten and incite violence against the judge and her staff in my divorce proceedings? Or is this a Trump-specific constitutional question?
This man is immensely tedious. His endless abuse of the entire country needs to end. I truly hope the justice system makes that happen.
A bit later in the day, this person asked me this:
Neal Katyal appeared on The Last Word after Fani Willis announced that the GA case would probably go forward in early 2025. He said he was very disappointed in this decision. Have you addressed it on Mastodon or in your newsletter? I would love to know your thoughts! Thanks!
Let’s start with the question about Fani Willis. The issue Neal Katyal addressed was the suggestion that the Georgia case against Trump and his associates may go past the election.
When Fani Willis filed her indictment against Trump and friends, there was loud cheering and excitement in what we might call the MSNBC-CNN-left-leaning-social media ecosystem. It was an amazing indictment, accusing Trump and his friends of engaging in a widespread conspiracy to overthrow the election in Georgia. It was what people had been clamoring for since June 2021.
My first comment about the Georgia case was to pull this quotation from a Lawfare piece:
My opinion remains the same: Any serious person who looked at her indictment had questions about whether a complex RICO case could come to trial within a year.
What was considered newsworthy (or at least, one viewer’s takeaway from the show) was that Neal Katya was disappointed.
This, from a Daily Beast reporter, pretty much encapsulates the anxiety being spread about the timing of the trials:
CCJ, a Harvard-trained lawyer who spends much of her time on social media trying to tamp down misinformation, replied this way:
David Rothkopf doesn’t understand how investigations work and is assuming that the DOJ made a decision to move slowly instead of a decision to conduct a thorough investigation. He doesn’t understand that the alternative would be to make the decision to bring an indictment in time to go to trial before the election, even though rushing would dramatically increase the chances of a sloppy investigation resulting in an acquittal.
He is also assuming that it is of vital importance that the trials happen before the election. I suggest that if Trump can win the election with 91 criminal indictments, being found guilty in Georgia will not make much difference to his supporters.
I also suggest that Trump going to trial and being found not guilty would present more danger to the republic than the trial not happening until 2025. But each time there is a “delay” people have panic meltdowns even though these investigations are moving quickly compared to investigations into crimes of similar complexity.
I wanted to talk about the interesting issues raised by the gag order, but instead, I found myself thinking about the sources of the anxiety in those comments.
It seems to me that the anxiety has three sources.
- The misinformation-outrage cycle I talked about here. (I assume you read that series. If not, please do.)
- The need for hope or a reason to have faith that Trump will be contained and democracy will survive, and
- Placing hope in parchment barriers.
Parchment Barriers
The phrase “parchment barriers” first appeared in James Madison’s Federalist Paper #48, which you can read here. The Federalist Papers were written by Madison, Alexander Hamilton, and John Jay after the Constitution was drafted but before it was ratified by the states. The purpose was to persuade the people to support the new Constitution.
In Federalist Paper #48, Madison addressed concerns that the three branches of government (he was calling them “departments”) must be entirely separated in order to prevent any one of them from encroaching on the power of the others. Madison explained that the branches must be interconnected so that they can act as checks against each other.
He said this about power in general:
He went on to say that inserting phrases in the Constitution designed to restrain would-be power-grabbers won’t actually restrain a power-grabber. (As an aside, Madison was most worried about Congress usurping power from the other branches.)
Madison doesn’t, in Federalist Paper #48, explain what would restrain power-grabbers who threaten a democratic government, but we can surmise his answer from the reasons he gave for not thinking we needed a Bill of Rights. (Did you know Madison and the other federalists were initially opposed to a Bill of Rights and gave in to pressure from people like George Mason? Yup. It’s true.)
Anyway, one argument Madison and the other federalists put forward against a Bill of Rights was basically this: A Bill of Rights protects the people from a monarch. In a government where power resides in officials elected by the people, no Bill of Rights is necessary because (presumably) the people will not elect those who will grab power and abuse their own voters.
Madison and others were fully aware of the potential for a demagogue to arise and persuade the people to vote for him even though he was obviously a power-grabbing sadist. Madison and his pals assumed that only elite, well-educated landowners like them would be able to vote, and they further assumed that elite well-educated landowners would make the right decisions for everyone and were well-educated enough to spot a lying sadistic demagogue. Madison was a smart guy, but his crystal ball wasn’t very good.
But he did, however, know that parchment barriers would not stop a tyrant.
This brings us to one of the problems facing any democracy: At any given time, enough people can elect officials who promise to dismantle democratic institutions. In other words, a democracy, by its very nature, contains its own “self-destruct” button.
The 3rd Section of the 14th Amendment is a parchment barrier. Fact: If enough people want to vote for Trump in 2024 so that he’d win, keeping him off the ballot in a few states will not solve the problem.
The problem: One of two major American political parties wants Trump back in power and his chances of winning the election are not zero.
The source of the problem, in my view, is the current information disruption, which is causing widespread lies in right-wing media and widespread misinformation in left-wing media, which in turn is leading to paralyzing panic cycles.
There is only one way to stop Trump from coming back to power: Enough people have to vote against him in 2024 so that the Republican Party suffers huge losses.
The Dangers of Hope
Some of the anxiety I see results from a need to have hope that Trump will be defeated, or a need to have confidence that something or someone can derail the danger posed by Trump.
Hannah Arendt, the scholar who taught us all about totalitarianism, believed that hope is dangerous because it prevents people from taking courageous action. (See this piece about Arendt.)
Serving as a poll worker in 2024 takes courage.
The problem with hope is that if people have too much of it, they may not feel the need to put in the work necessary to save democracy. Similarly, the desire for hope leads people to expect others to do the work.
Since 2020, a new and novel theory arose that goes like this: It is up to the Department of Justice to save democracy. We sit back and watch and hope they do it right and feel lots of anxiety if it looks like they are going to bungle it. (This idea, in turn, is based on the idea that criminal prosecutions can save democracy, an idea I debunked here.)
Nope. The burden is on us. The only “hope” I can offer is the fact that Democrats have been winning elections, Biden beat Trump by more than 4 percentage points in 2020, and Trump is more widely hated now.
My suggestion is this: Let’s worry about what matters, like what each of us can do to strengthen democracy.
Oh, and if you are watching a news program offering you the emotional response of a pundit, turn off the TV. How he or she feels does not matter.