I: 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:
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.)
II: 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.
I think I am experiencing locally what you are describing nationally. In my neighborhood, a giant blimp hangar built in 1941 caught fire. Initially, the fire department tried to put it out with helicopter water drops. This was ineffective, and the huge structure was unstable and dangerous, so they decided to let it burn. This was a professional decision. The fire appeared to stop after about 2/3s of the building was consumed, but in the days following, it reignited several times. On Nextdoor, local residents had no praise or confidence in the judgment of the fire fighters. In fact, they thought that each flareup was purposeful arson, somehow in league with insidious forces who wanted to develop the site. Some thought that the fire fighters were too lazy or cowardly to fight the fire. No one thought to rely on the expertise of the professionals. It was more satisfying to indulge in conspiracies.
This post reminds me of a psychological theory in DBT (dialectical behavior therapy) in which we find the middle path between heightened emotion and rational thinking and make wise decisions— GOTV. We must use our emotion wisely, to vote, and not be so emotional that we give up. Democracy is worth it. Thank you Teri.
Thank you for your rational explanations. I found you on Mastodon and always look forward to reading your logical summations.
Thank you for writing this post. I do find reading your posts to be calming and to give me hope, but not for the reasons you describe. I see so many people making black-and-white statements about what will happen in the future, making snap judgments, and fueling misinformation. You don’t do that. I make it a practice to not do this myself. This gives me hope that we have any kind of chance to turn around a very dangerous time in our history. Too much hope may breed complacency, but as a psychologist, I can tell you that hopelessness does not light the fire of positive action. I would also bargain that a lot of people who tell you that you give them “hope” are fighting against hopelessness. A Pollyanna is not going to be reading your posts! Thanks again for what you do.
In a way I am glad that the Trump trials are long and drawn out with shocking new revelations coming to light daily. This will keep the public aware and freshly furious in a way that even multiple convictions might not accomplish. IMO heavy turnout will carry the day. If Trump were convicted too early, complacency could set in and people would not be as motivated to vote.
“ At 17 stories tall, 1,000 feet long and 300 feet wide, the hangars are among the largest wooden structures built in the 20th Century.”
Holy cow. And they thought they knew better than the firefighters!?! ♀️
https://www.nytimes.com/2023/11/07/us/fire-blimp-hangar-california.html
I’m so grateful for how you ground me. It is hard to live in a threat cycle everyday. That said, I’m committed to do what it takes to save democracy. I think the first step really is detoxing from pundits. You and HCR are my Info-gurus. Thanks, Teri.
Granted I am looking for that AHA no one is claiming in interpretation. We have learned that the rule of law and the Constitution have glaring holes for debate and that there is more than one legal interpretation in this country for different people. What struck me, that you wrote, was that the people drafting the amendment never considered a president insurrecting against his own government that he swore to protect. They simply didn’t not see him coming and that is why he is succeeding in dodging all these bullets. They missed all those intentional what if’s. And defaulting to the vagaries of scheduling or punting, justice may be averted. Simply because no one wants to be right or wrong in a world where one man couldn’t care less about right or wrong. If the intention is missing in the amendment, why does it qualify for going to the back of the line instead of being put first in the line.Questioning intention does not have to have the perks of timing. Choosing to not choose an answer is also an answer.
Clear summary of a more subtle problem than most people would understand. And I think that’s the driver on a lot of the liberal agida over “why doesn’t somebody DO SOMETHING about Trump”. Most Americans have had the luxury since the end of WW II, and arguably much longer for many, of ignoring politics. The system kept chugging along and domestic life was pretty stable, even while we were out there saving the world from the Red Menace. But the system, specifically the Republican Party, has evolved to a point where a very large chunk of it no longer sees value in representative democracy, and the remainder is unwilling or unable to oppose that. So here we are, we’re seeing a last-ditch attempt by the system to deal with an existential threat to itself, and those same Americans who have ignored it all their lives are terrified it cannot, because they have no idea how it works. They are very uncomfortable with the idea it is up to them, having to deal with the implications of “of the people, by the people, for the people”. May you live in interesting times, indeed.
Your analysis always helps calm me down, Teri! I appreciate you so much!
On another topic: I’ve been following the NY civil trial. And as much as I completely believe Trump is a fraud and a cheat, I’m having trouble understanding why the state stepped in. Why is it not a case of “buyer beware”? I guess the defense saying that the banks were happy to deal with this celebrity client makes sense to me. He probably fooled them, but they were probably happy to be fooled, and why is that the business of the state? Mind you, I’m tremendously happy for Trump getting called out as a fraud and a cheat. But some of his talking points (gasp) make sense to me. (NOT the ones about it all being rigged against him.) Do you have any insight into that?
I used to live not far from the hangar. So much so, a few years ago I did some research on the buildings, found they were built in WW2 but hardly used (FWIW). And so the remarks of your neighbors aren’t surprising to me (I know those people). Their remarks are kind of a litmus test of how much distrust and paranoia these people have bought into. They’re also a projection of the anger these people have within themselves, the firefighters as scapegoats.
“No person shall … hold any office …under the United States … having previously taken an oath … as an officer of the United States to support the Constitution of the United States…”
Saying that the President doesn’t hold office [i.e. is an officer] and that their oath to protect and defend the Constitution doesn’t mean to support it… is absurd in every plain meaning of those words. It’s only not absurd if your goal is to find some reason to avoid disqualifying Trump.
Clearly, the framers just never thought of a rogue President. Nor would they have imagined that their plain words could be so purposely misconstrued and that people would accept such.
I’m against disqualification if insurrection has not been proven, and I thought that’s where all these courts would go. But having said it was proven (!) then needle-dancing the words to obviate even that fact (!) is plain wrong.
Teri, I had read other social media posts about the CO judge’s finding that Trump engaged in insurrection and that her ruling about re Trump on the ballot would be appealed. What I didn’t quite get until I read your article is the distinction between findings of fact and questions of law. So very helpful. Thanks again!
Thank you Terri, for another calm, dispassionate analysis of both the facts and the media’s response to the facts. The effort to keep Donald Trump off the ballot always seemed likely to fail, if for no other reason than that it would require a finding of fact regarding his “having engaged in insurrection or rebellion.” I’m surprised that people are comfortable with a single judge having the power to make that determination, rather than requiring a criminal conviction.
I especially appreciate your observation that “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.”
But I think your understanding of the word “hope” is too limited. What you describe is more accurately a passive optimism, i.e., the expectation that outcomes will be favorable regardless of whatever indications there may be to the contrary.
Hopefulness, on the other hand, is the mindset of activism. Together with faith in the possibility of success, and charity towards our fellow human beings, hope motivates and inspires. You can see one example of hopefulness in the work of a network of ordinary citizen-activists at http://www.FeathersOfHope.net.
“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.”
Yes, it’s what many activists today call ‘hopium’ “The metaphorical subtance that causes people to believe in a false hope…. hopium represents the belief that the situation will someday improve.”
And like opium, it kills action and steals energy. It is as dangerous as the danger that causes it.
You are adding a definition to the word that doesn’t exist in the statute.
I am not saying that the court was correct. I’m saying that it isn’t as simple as people want to think.
Hmm. So the crucial legal questions here are whether the president is an officer of the United States and whether the specific wording of the presidential oath, which differs from all others, is covered by the intention if not the plain text of the 14th Amendment.
It will be interesting to see what the Appellate Court does in this case as it will likely set the precedent for all such challenges as more states tackle the issue.
Thank you! A rational, calm voice like yours is what we need right now! I always learn so much from your blog posts, Teri! I am scared about the Fox disinformation operation (maybe CREW should sue Fox instead of suing to keep tfg off the ballot). I also just read that Meta and YouTube will no longer label 2020 election lies. However, the more scared I get, the more postcards to voters (GOTV) I write!
Great piece, Terri, but I just want to make a comment about this: “David Rothkopf (assumes) 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.”
Yes, a Trump convinction will NOT make any difference to his SUPPORTERS. But it will make a difference to the SWING VOTERS IN THE SWING STATES, and they will decide the election. In the reporting of the New York Times poll of the swing states that show Trump is ahead, what got less attention, as it was buried deep in the crosstabs, was the difference in support for Biden if Trump is convicted and sentenced to prison: AZ – 10, GA – 18, MI – 17, NV – 23, PA – 8, and WI – 12 (https://www.nytimes.com/interactive/2023/11/07/us/elections/times-siena-battlegrounds-registered-voters.html).
So, it IS of vital importance that at least one of the trials happens before the election.
From the legal analysis I’ve read and listened to on podcasts, it looks like the Jan 6th trial, currently scheduled for March 4th, has the best chance of coming to a verdict before the election. Of course, Jack Smith and his team have to to their very best at keeping out that one juror who will hang. Maybe you could write about that.
Thank you Teri for this detailed & incredibly clear explanation of the latest court actions in Trump’s marathon of legal issues.
My concern (fear) isn’t so much that Trump may be re-elected as much as it is towards those who are chomping at the bit to come in after him. I fear far too many Americans have sold their souls to the capitalist oligarchs & our country along with it.
If we don’t get rid of Citizens United & the Electoral College we will be doomed, no doubt whatsoever. This is how we got to where we are & the only way out is to extinguish both.
Another good one Teri.
MSNBC seems to be in a perpetual mode of fear. Yes, Trump is a fascist and would like to kill those who oppose him and, yes, his supporters would gladly do it IF THEY CAN GET AWAY WITH IT. That’s why we oppose him and them, rather than cower in fear, absorbed with wringing our hands. Poll working, driving people to the polls, working for candidates, making calls, using social media, supporting Mark Elias, etc etc. With every indictment Trump has called for his supporters to show up at each courthouse but few have. Perhaps they’ve learned the lessons on Jan 6? And seen consequences meted out? Or, that maybe, for all the mystical powers the clingers and hand wringers think he has, he simply isn’t worth it? Continuous whining and repeating the canard that the Justice system isn’t responding is not only false but debilitating. Your efforts fight this and remind each citizen that they have more to do than cringe, carp and moan.
Thank you for this weeks post. The question of “officer of the United States” is popping up in more than a few of my newsfeeds. Seems that the argument about whether POTUS is an “officer” has been going on for more than a few years. The Colorado Judge apparently feels that the answer to the question is way above her pay grade.
That old cliché quote from May West comes to mind: “Fasten your seat belts, it’s gonna be a bumpy ride”. I’m off to look for Judge Luttig’s take on this latest chapter of Legal Theatre.
To begin with, those polls mean nothing. Moreover, there is a wide gulf between having a trial before the election and convicting Trump before the election.
People are making the ridiculous assumption that a trial will result in a conviction. It might. It might not.
The idea that a conviction will change the election is speculative at best.
Thank you for explaining the Colorado decision. I was one of those who was angry with the judge.
Sagacious analysis; well done. Thank you.
Thank you for this. You are a constant sanity check for me and I always feel less panicked, more informed, and less hopeless after reading your explanations.
Abandon Hope, all ye who enter here…..
I’m not sure I’m courageous but I’m a poll worker in a swing state in 2024.
Bless you!
In fact, this takes courage.
So many of the problems we have with our present situation come from projection. Someone said recently, regarding the hard right, that every accusation is a confession, or something like that. Projection is certainly strong with those people, but it’s something we all need to watch out for.
Thank you for being a good teacher, Teri.
You make law interesting.
I wish we could do something about misinformation/disinformation.
It is really scary.
One of the things I’m most grateful for over the past several years is that I’ve found Teri Kanefield. Not only does she explain what’s going on in a clear and easy-to-understand format, she lays out ways to get involved. I’m now a multi-year poll worker, avid postcard writer, board member of our local League of Women Voters, and — probably most importantly — a regular recommender of Teri’s wise words to everyone I know who expresses anxiety about current events. Teri Kanefield is absolutely a national treasure. Thank you.
Perhaps fear is the one motivation that can save our democracy? I am not saying this is true, but it is exactly what thr=e right-wingers do when they want to motivate people. It is sad, but it seems to be where we are. So many people have tuned out but when you yell “Fire!” in a burning building you get people’s attention. The question is: How many times can you yell before people stop paying attention?
You are courageous and an inspiration.
Thank you 🙂
Is there any indication that (allegedly!) insurrectionist “officers” – congressmen or senators (or anyone in the donor class or the previously-pardoned psyop warriors) are on track for a 2024 trial? Obviously, this would only come after an investigation, evaluation of evidence, an indictment if warranted, etc. But watching the ongoing coup play out in plain sight amongst so many players and roles (and well before and well beyond J6), I just don’t understand the current situation. Doesn’t 14A3 apply to anyone?
Someone tried to keep Marjorie Taylor Greene off the ballot engaging in an insurrection and it failed for lack of evidence.
A person can sympathize with an insurrection without engaging in one.
The chances of there being enough evidence to prove that a member of Congress engaged in an insurrection under the meaning of Section 3 is close to zero. This is precisely the reason Section 3 failed to keep Confederates from coming back into power: The section cannot keep out all the people who sympathized with the Confederacy.
Parchment barriers cannot save democracy.
Thank You – as always – for the broader perspective. This posting reminds of two catchlines and one podcast. First, an olde chestnut apropos the article about H Arendt: “Hope for the best; Prepare for the worst” . . . Next, re: buying in to the burden of marketed outrage: “Why make things difficult, when with a little effort you can make them impossible” . . . Finally, regarding the perils of even the catchiest catchphrase:
https://www.wbur.org/onpoint/2023/02/02/rebroadcast-the-eichmann-tapes-and-the-comforting-myth-of-the-banality-of-evil
The problem right now is exactly this: Outlets and pundits who claim to be pro-democracy are copying Fox’s fear tactics.
Democracy requires an educated population able to assess complex issues. For why copying Fox’s tactics will make things worse, see this series beginning here:
https://terikanefield.com/can-democracy-work-in-america-part-1-there-are-no-yankees-here/
Thanks for the clarity on the the 14th amendment. It was written and enacted into the Constitution to prevent the people who were elected but agreed to participate in a civil war. In 2020 election we rejected DFG we must do it again in 2024. Maybe trump will finally get the idea that we don’t like his idea of democracy. Also I appreciate your explanation as to responsibility of each branch of judicial administration, the trial court looks at the facts of the case and appeals court look at the law.
It sure did seem like they were in on it that day. Grassley didn’t expect Pence to preside for the count. So many text messages exchanged with Meadows indicating knowledge of the plan. The idea that a conspiracy only happened in Georgia is hard to process. The coup is ongoing and it’s been boiled down to a single J6 trial with a single jury.
We’re out there as activists, we’re voting, we’re not putting all our hope in 14A. But the counterpoint to your argument is that an essay like this and a response like “close to zero” pushes the Overton Window further away a willingness to prosecute prominent individuals not named Trump. The J6 Committee also framed J6 as the story of one man. But the ongoing coup is not only his doing. And with a closing Overton Window everyone feels free from justice to keep the coup rolling.
Hi, Vince,
What you need to do is read my Criminal Justice FAQ page. It’s the pinned post on this blog. Then read the 6-part series that I recently did beginning with “There are no Yankees here.” (There will be a bit of overlap.)
What you are doing is expecting the criminal justice system to solve a political problem, and (1) it wasn’t set up to do that and (2) criminal justice systems designed to solve political problems are the hallmark of authocratic regimes.
See if reading those blog posts helps.
Regarding the use of fear and the danger of hope:
Jerry Mander has it correct with his book: Four Arguments for the Elimination of Television. I was fortunate that I was taught his caution about TV by my parents well before he published. If anyone should know the danger it would be a marketing person who was honest about their work. Of note is his observation of the sense of time. The clock of TV vs the clock of nature.
Another book to consider is Why Nations Fail: The Origins of Power, Prosperity and Poverty. The authors develop a thesis that society moves either to inclusiveness or exclusion. They did not specifically note but my impression is that moving from inclusion to exclusion is far easier than from exclusion to inclusion. It appears that in all moves to inclusion come from civil upheaval, that is war. We have never been fully inclusive and the tug between the two is always present.
With that, as I tell my patients: Every word has an emotional response, and every emotional response has a physical response. Life is actually routine, mundane and boring. There really is little need for an emotional response to most of what we live.
I have, though the 6-parter is freshest. I had hoped the disinformation/misinfo discussion would delve into the military grade psyop conducted against Americans (below). And after reading it all, I still don’t understand the apparent view that the framers left us with no real constitutional defense against a coup.
I do understand your point that we should not give ourselves false hope or ride the outrage machine. (And I don’t watch cable news either btw.) But it seems like the greater danger is that coup plotters will continue escalating because (as you’ve articulated) the system is unlikely to hold them accountable. That in turn ***raises the cost of activism because there is a higher probability of political vengeance*** to those (like me) who speak out. The Overton Window can be our friend or our enemy. After reading your essays, I would be more inclined to give up on political activism and be silent due to fear of retribution. If we all give up, we lose our democracy. My point is to consider that Overton impact as well.
Here is a powerful discussion of misinfo/disinfo with receipts – the finest I’ve come across. I’m aware of zero related legal activity, despite the very long duration of the operation. So in sum, my questions remain unanswered despite a lot of reading.
https://daniel-ed-morrison.medium.com/the-whole-history-of-weaponised-unreality-1c2f987bcbed
As always your explanations of the legal principles involved in analyzing the 14th A application to a former prez, as well as the flap about gag orders are rational & lucid. I think the key takeaways are the last two paragraphs of this post:
“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.”
I already avoid “news” programs with hair on fire punditry. And I hereby commit to do more personally than I have ever done to strengthen our democracy. As a parent & grandparent I want to ensure that future generations enjoy the benefits of pride in country and a robust democracy Thanks for the renewed wake-up call!
In arguing on matters of law, I would attempt to make the case that the president is indeed an officer of the United States for the simple reason that the president is the commander in chief. The president is a civilian, but as a decision maker acts as THE officer in charge of the military. I do not know what case law exists to support this, but it seems an obvious avenue to pursue.
I’d like to re-emphasize Teri’s embrace of participating as a poll worker. I did for the first time last year, almost entirely because she suggested it, and I went back and did the work again this year.
The experience has been well worth the effort, and, yes, I will do it in 2024. I’ve found that the election system where I live is well-organized and stringently bi-partisan. I like knowing exactly how the process works, I like seeing the variety of people giving up hours of their days for several weeks a year to support the process, and I don’t mind working alongside a GOP counterpart because it ensures that we both know whether the system is solid.
However, there is a shortage of people willing to do this work. Please look into what is needed in your state to sign up to be a poll worker. 2024 may be the last opportunity to do so.
The term ‘officer’ in ‘officer of the United States’ has nothing to do with being a military officer. Members of the military are not ‘officers of the United States”.
Well stated Richard!
Bottom line, Action is the best remedy to keep fear at bay, while contributing to actually achieving one’s goal – electing Biden.
This is the first year I am volunteering as a poll worker. I am 74 yrs old and want to do anything I can to help keep a demagogue from returning to office. It seems like a small sacrifice for such an important outcome.
“These polls”? Do you mean the NYT poll I cited or all polls? If the latter, I have to qualify your statement. Polls close to election time are strongly indicative. The polls close to the ’22 and ’23 races showed Dems winning, and they did. Agree polls this early out are not indicative.
But I can’t dismiss all polls. A single poll is capturing only a moment in time. Multiple polls by quality pollsters over time show a trend.
I don’t understand what you mean by “a conviction will change the election.” I said a conviction will improve Biden’s standing on election day. Of course, I’m basing that on this one poll. I’ll be looking at future polls that ask that same question.
I’m so appreciative of you imparting your knowledge and calm of the legal situation we find ourselves in these days. I discovered you not long before the Musk takeover. I moved to Mastadon soon after but floundered around in the unfamiliar interface. When I saw that you had joined I immediately followed. Following you allowed me to become more familiar with the app and gain comfort and lots of new friends and follows. Thank you!
FYI, projection is characteristic of malignant narcissism disorder which reveals the individual’s fragile self-esteem. It “is a defense mechanism through which individuals ‘project’ or see their own negative behaviors, emotions, and traits in someone else … a narcissist will do whatever they can to protect their fragile self-esteem and prevent others from uncovering their insecurities” (https://www.choosingtherapy.com/narcissist-projection/#:~:text=Narcissistic%20projection%20is%20a%20defense%20mechanism%20through%20which%20individuals%20%E2%80%9Cproject,conflicts%2C%20imperfections%2C%20and%20shortcomings).
Nextdoor is the worst! My feed is constant people blaming local elected officials for things that they literally can’t control or are trying to do something about but the infrastructure takes time, etc. Like our city commission is made up of wizards purposefully not pressing their magic buttons to solve every problem because of secret deals with evil developers or something. Our public hearings are just now full of delusional, enraged people hyped up on Nextdoor-created fantasies wanting their 5 minutes of speaking fame. It’s so disheartening.
When I read about the planttif couldn’t help, because for some reason I had read the Amendment some time ago, to think precisely the judge might rule that the president was not an officer, it seems to me that judges in USA when there’s the v slight doubt, they default to the strict wording of constitution, even if they personally might think that the drafter might had made an oversight, as they would not want to rock the boat or “correct”‘ the drafters, “if they bungled up, well ain’t fixing it” since constitutional decision have huge impact on the society and your country precedent is usually guides who they will rule in the future….so better leave it to the congress or the ppl at the ballot.
On Madison I honestly think like many educated humanists of his time had wat too much faith on humans being rational, somehow stop thinking this:'”well , educated men wont elect a tyrant” similar to ” Well, monarchs are well educated, so obviously they won’t become tyrants”‘…. Which imo just elitist delusion.
And lastly: sure, impeding Trump to get to the ballot won’t solve the problem of the extremists that want a tyrant, but probably would leave him scrambling to find a replacement that doesn’t have the same pull as Trump increasing the chances of them loosing; might not fix the problem right then but defeating them next and then again might