Part 7: The Outrage Machine Strikes Again: The 14th Amendment Trump-Ballot case

I concluded Part III of the Misinformation-Outrage Cycle with this:

People without intellectual humility rarely admit they were wrong. Moreover, the same pundits who spent 18 months misleading the public about Merrick Garland and the DOJ investigation are back on TV offering new opinions that many viewers will accept as facts. They lost no credibility.

The people who demanded accountability faced none for misleading the public.

The show must go on.

The show did, indeed, go on. It wasn’t long before the same pundits launched another misinformation-outrage debacle, this time over the Section 3, Fourteenth Amendment Trump-ballot issue.

My purpose is not to analyze whether the Supreme Court reached the correct decision. (If you want to know what I had to say about the issues a few months ago, see this post.)

My purpose is to show you another example of how the partisan pundits who shape the national conversation mislead and misinform the public and then redirect their anger when they are proven wrong.

Before we get started, a word about what lawyers do.

Sometimes lawyers act as advisors. This requires gaming out possibilities and offering clients a realistic assessment of their chances of succeeding in whatever venture (or lawsuit) the client is considering. What are the (realistic) chances of winning? What happens if we lose?

Lawyers prepare for court or write legal documents. This can require a team of lawyers. Depending on the complexity of the case, research and preparation can take weeks or even months.

(This is what is wrong with legal “hot takes.”)

The best lawyers are able to see all sides of issues. They can see what might go wrong. They can see the weakness in their own arguments.

Lawyers act as advocates. When acting as an advocate, the lawyer presents the client’s case in the strongest possible terms. It looks like this, “Your honor, my client has been wrongly accused!” or “The arguments raised by my opponent are without merit and should be rejected!” The goal is to be forceful without being factually wrong.

Lawyers try to predict what courts will do. Nobody gets it right all the time, but the best lawyers are good at predicting what courts will do. Being able to say, “You stand a good chance of losing if you take this to court” can save a client from financial ruin.

Managing expectations: A good lawyer keeps the client’s expectations realistic.

Competent lawyers never confuse legal facts with legal opinions. “We will win this case,” is a legal opinion. “We just won” is a fact.

In Section II of the Misinformation-Outrage Cycle, I quoted Dannagal Goldthwaite Young, a Professor of Communication and Political Scientist, who explained the qualities needed in what she calls “partisan pundits.”

The phenomenon of the “partisan pundit” is a useful television (especially cable) news routine that embraces the conflict frame while offering emotionally evocative performances of partisan identity. Pundits are talking heads who appear on the news not to “report” news but to talk about the news.

Cable news programs frequently assemble panels of pundits (for example, journalists, experts, and partisan commentators) who argue about the topic, tie that topic to broad themes in the culture war, and typically do so with the “in your face” interpersonal conflict style that increases viewer engagement while also increasing viewers’ hostility toward the other side.

Intellectual humility is the extent to which people are open to the possibility that they might be wrong . . . partisan pundit panels are characterized by performances of intellectual arrogance or “I am not listening because I just want to show I’m right.”

Intellectual arrogance plays well on television, whereas intellectual humility does not. In fact, we rarely see intellectual humility modeled in our mediated political world. When we do, it’s from the occasional appearance of scientists—people trained to never prove things or remove themselves from doubt. They don’t speak in absolutes or forevers. They speak with caveats and conditions and often answer with “Time will tell” and “for now this seems to be the case.”

Intellectual arrogance and the attitude that “I’m not listening” and “I refuse to consider the possibility that I am wrong” would make a person insufferable on a legal team — but it plays well on TV.

First, I will analyze the outrage and distortions that surrounded the treatment of the Fourteenth Amendment Section 3 issue in certain media outlets. Then I will analyze those distortions through the lens of what political science professor Jeffrey M. Berry and sociologist professor Sarah Sobieraj conclude in The Outrage Industry.

Timeline of the Fourteenth Amendment, Section 3 debacle

I have found that assembling a timeline is an effective way of showing what happened, so here we go.

December 29, 2020, and January 19, 2021, Law professor Gerald N. Magliocca wrote a detailed paper entitled Amnesty and Section Three of the Fourteenth Amendment outlining the history of Section 3, how it has been applied, and it might in the future be applied. Then he published a similar piece in Lawfare.

Among other things, he addressed the question of whether Section 3 is self-enforcing (which means that it does not require legislation for it to be enforced):

The answer is probably not. In 1869, Chief Justice Salmon P. Chase issued a circuit opinion holding it was not self-executing. This opinion was not well reasoned, as I explain in my paper on Section 3, and might not be followed by the current Supreme Court. But, then again, the court might come to the same conclusion today.

(Note: Not everything in the Constitution is self-executing. See, see this article by law professor David R. Now)

February 4, 2022: This is from law professor, Brian Kalt, who was interviewed for Politifact, said this about section 3:

“It is unclear what is required to keep someone out of office. Some say that Congress would have to pass legislation declaring the insurrection to be covered under the amendment. Others say that a court could find the facts. Still others say that the last word would go to the House in voting whether or not to seat a winning candidate.“

In the same Politifact piece, Princeton political science professor Keith Whittington observed that Trump was “potentially” among the “likely candidates” who could “reasonably” be kept from office under Section 3:

“I suspect the number of likely candidates who could reasonably be affected by Section 3 is fairly small, though Donald Trump is potentially among them.“

June 6, 2022: Democracy Docket published an explainer on How the 14th Amendment Could Disqualify Trump and His Allies. Among other things, the article asks: “How does Section 3 apply to those who engaged with the Jan. 6 insurrection?” and concludes that, “I mportant legal questions remain unanswered.

December 16, 2022: House Democrats introduced a bill to bar Trump from office under the 14th Amendment. The proposed legislation went into detail about how Trump pushed Pence to refuse to certify the election, failed to do anything to stop the mob, etc. (Obviously the bill was never passed.)

If you click through and read the pieces I cited, you’re likely to conclude that the issues in applying section 3 of the 14th Amendment are complex and good arguments could be made on both sides.

August 19, 2023: Laurence Tribe and Judge Luttig publish a piece in The Atlantic with this headline:

The Constitution Prohibits Trump From Ever Being President Again

The subtitle is this:

The only question is whether American citizens today can uphold that commitment.

September 6, 2023: CREW filed a lawsuit to remove Trump from the ballot in Colorado under section 3 of the 14th Amendment. Here is their press announcement. As you would expect from litigants filing a lawsuit and making a press announcement, what they release is powerful advocacy:

Having disqualified himself from public office by violating Section 3 of the 14th Amendment, Donald Trump must be removed from the ballot. . .

“If the very fabric of our democracy is to hold, we must ensure that the Constitution is enforced and the same people who attacked our democratic system not be put in charge of it,” CREW President Noah Bookbinder said.

So that this section works as a continuation of Section III (about the Garland / DOJ investigation) I will feature many of the same pundits.

Also notice the first comment. After Tribe’s assurance that the evidence is “ironclad,” someone wants to bring the same action in other states.

September 25, 2023: Tribe says, “Watch this case!”

I was told by a former MSNBC viewer that one narrative advanced is that “accountability and justice are just around the corner!” For reasons I have explained elsewhere, the elusive “accountability” will never arrive because the anti-democratic opposition will not disappear. But the promise that soon the foes will be vanquished and the good guys will triumph holds people to their screens. It’s an age-old trick for creating suspense in fiction.

October 2: Nicole Wallace featured a guest who agreed with Judge Luttig:

October 16: Glenn Kirschner says that section 3 of the Fourteenth Amendment is “every bit as vital as the free speech protections.”

Notice one reader’s takeaway.

November 5, 2023: Here Tribe raises the stakes:

November 21: Elie Mystal, in what appears to be a response to Tribe’s question “Will Americans have the courage to keep Trump off the ballot,” says this:

In other words, there is no possibility that the arguments to keep Trump off the ballot are flawed. The only question is whether the courts will have the “courage” to do what is right.

January 3: Pam Keith lists all the people who should “immediately” be disqualified:

Pam Keith then tells her readers that they all engaged in insurrection. (Who needs a judge and jury? Who needs appellate courts! We have lawyers on Twitter and Youtube!)

February 2: Kirschner similarly states that members of Congress he has designated as insurrectionists should not be allowed to exercise their powers as members of Congress:

February 8: Oral arguments at the Supreme Court.

During oral arguments, it was clear to everyone that even the liberal justices (Kagan, Sotomayor, and Jackson) did not believe Trump should be kept off the ballot.

March 4: The Supreme Court handed down its decision. The justices unanimously ruled that section 3 does not keep Trump off the ballot. Four of the justices wrote concurring opinions. A concurring opinion agrees with the majority’s key conclusions but disagrees with the rationale (or something else not key to the central finding).

Part I is a summary of what happened so far in the case.

Part II A offers the history of the section, and why it was added to the Constitution after the Civil War.

Part II B Finds the following:

States may disqualify persons holding or attempting to hold state office. But states have no power to enforce section 3 with respect to federal offices. . .”

After the Civil War (which was, with a few exceptions, the first and only time this section was used until after 2021) the provision was enforced by Congressional Legislation (the Enforcement Act of 1870, which was allowed to expire.)

The section then explains the havoc that might result if individual states had the power to decide that presidential candidates were ineligible for office.

Justice Barrett, in her concurrence, says, “It was not necessary for the majority to address the complicated question of whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.” However, “our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.”

(In other words, she wished the 5 other conservatives had just shut up about whether federal legislation was required so that they could have issued a clean unanimous opinion. She also wished the liberals had been less harsh in their disagreement.)

Sotomayor, Kagan, and Jackson, in their concurrence, think the majority should have stopped with keeping Trump off the ballot and not gotten into the question of how section 3 should be enforced. They quote the Dobbs court saying “If it is not necessary to decide more to dispose of a case than, it is not necessary.” They could have taken this concept from any number of other cases, but for obvious reasons, they chose the Dobbs case.

“In this case,” the three liberal justices wrote, “the Court must decide whether Colorado may keep a Presidential candidate off the ballot on the grounds that he is an oathbreaking insurrectionist and thus disqualified from holding office under Section 3 of the Fourteenth Amendment. Allowing Colorado to do this, we agree, would create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles. That is enough to resolve the case. Yet the majority goes further.”

They accuse the conservatives of “opining” on which federal actions can enforce section 3.

They stress that all 9 agree on this: “To allow Colorado to take a presidential candidate off the ballot under Section 3 would imperil the Framers’ vision of “a Federal Government directly responsible to the people” and then argue that nothing in the text supports the majority’s opinion about how the issue is to be enforced.”

Basically, they wanted to leave open the question of enforcement.

Can this decision be criticized? Of course. Among other things, it is easy to take the side of the 3 liberals and Justice Barrett and say that the others should have just shut up about how to enforce the provision.

Here is a guess: The justices were trying to get to a consensus with all nine, did the usual circulating of drafts and negotiating language, ran out of time because the Colorado primary was Tuesday, and this is where things were left. With a little more time, they might have reached a full consensus.

The drawbacks to bringing a case to the Supreme Court and losing:

You can get bad law that wasn’t there before you brought your case. This is why Thurgood Marshall’s team didn’t rush to the Supreme Court in the 1930s with their arguments about why racial segregation was unconstitutional. They built their case slowly to make sure that they didn’t generate precedence against them. It took longer but they reached their goal. Now we may be stuck with the idea that federal legislation is required.
If you care about partisan politics, you have given Trump lots of airtime to strut around and talk about how his political enemies are so desperate to stop him that they stooped to a ploy that even the three liberal justices rejected. In the eyes of his supporters, this gives credence to his claim that the left is out just out to get him.

I will be blunt: Larry Tribe and Judge Luttig– who said there was no doubt that Colorado had the right to decide whether Trump should be disqualified from office– got their butts kicked by the Supreme Court. Not one of the three liberal justices agreed with them.

Not long after the decision was handed down, I received this in my inbox from The Washington Post (you can read it free through my subscription)

Supreme Court keeps Trump on ballot, rejects Colorado voter challenge

The piece is factual without breathless hype. Readers learn what they need to know:

The justices said the Constitution does not permit a single state to disqualify a presidential candidate from national office. The court warned of disruption and a chaotic state-by-state patchwork if a candidate for nationwide office could be declared ineligible in some states, but not others, based on the same conduct.

While the decision was unanimous, the court’s three liberal justices also wrote separately, saying the conservative majority went too far and decided an issue (that the provision is self-executing) that was not before the court in an attempt to “insulate all alleged insurrectionists from future challenges to their holding office.

How did Larry Tribe respond? He dug in. He said the court should have done exactly what all 9 justices, including the three liberal justices, refused to do. (Including a screenshot of Stephanie Jones)

Notice that Larry Tribe is embracing the qualities of a partisan pundit. He didn’t acknowledge that all three liberal justices found his arguments without merit. Instead, he insisted that they are wrong.

(If you are a practicing lawyer and your client loses big in court, saying “The court was wrong!” will not comfort your client or persuade the client to trust you again.)

(What Stephanie Jones is telling Tribe is that there is no authority that allows the Supreme Court to apply a finding in Colorado to the entire country.)

George Conway tells CNN his view of the opinion:

Judge Luttig tells CNN audiences that the decision was all wrong:

Now notice how non-lawyers and partisan outlets ratchet up the rhetoric even higher.

Political podcaster Keith Olberman responded to the Supreme Court’s ruling by saying:

The Supreme Court has betrayed democracy. Its members including Jackson, Kagan and Sotomayor have proved themselves inept at reading comprehension. And collectively the “court” has shown itself to be corrupt and illegitimate. It must be dissolved.

This post received “10K” likes.”

The New Republic ran this headline:

In order to keep Trump on the Colorado ballot, the Supreme Court effectively rewrote the Fourteenth Amendment and ignored how the rest of the Constitution works.

On March 4, shortly after the decision was announced, “Merrick Garland” was trending on Twitter. I was truly bewildered. What on earth did Merrick Garland have to do with the Colorado ballot case? I grabbed one of the tweets that got a lot of attention:

A favorite tactic in this particular echo chamber: If everyone is furious and maybe some liberals created unnecessary outrage, blame Merrick Garland! (Outside a narrow echo chamber, the idea of blaming the attorney general for everything would sound weirdly unhinged.) Recall from Section II that people who engage in conspiracy thinking are constantly looking for ways to assign blame.

When I suggested that the level of rage on social media was the fault of outrage merchants, one person said this to me:

Comparing the 14th Amendment case to the Dred Scott case is Rush-Limbaugh-level crazy.

Here is a sampling of other responses I received:

Wrong, Teri! I’m not not outraged over the 14th Amendment case. I expected that. I am worried about the delays with the immunity case.

Of course, after oral arguments, everyone knew Trump would win. I found it interesting that this person was already on to the next outrage, so I scrolled back through Larry Tribe’s Twitter feed and found this from a few days earlier:

It looks like while waiting for the decision from the Supreme Court (which had to be somewhat nerve-wracking for Tribe after telling everyone that the case was ironclad) he decided to change the subject and stoke outrage at the Supreme Court and redirect rage and fear to the immunity issue.

Someone on Mastodon, after looking at the Supreme Court decision, asked me how Laurence Tribe will react to having egg on his face. I said, “He will never have egg on his face.” He will just swat away any egg that comes his way and try to make it stick to someone else.

I had several people tell me that the idea that legislation is needed to enforce section 3 of the Fourteenth Amendment is absurd. Here is an example of a person mocking the idea of a non-self-executing provision of the Constitution:

“the constitution is unenforceable without popular support” is amongs the realist of realpolitik i’ve heard in my lifetime. . .

Trying to explain that there are provisions of the Constitution that do not need legislation to be enforced would not solve the underlying problem: He will just fall for the next outage.

This person challenged me:

Why should I believe what you say about the 14th Amendment? Why should I assume that you are right and Tribe and Luttig were wrong?

My point is that Tribe and Luttig are not behaving the way an expert should behave. Instead of trying to educate the public about the law and how it works, they are acting like advocates. People think everything Larry Tribe says is true and he lets them think that.

As a result of Tribe’s time on TV and social media, the public is less educated, not more. I consider that a problem.

A different model: Offering facts and giving people the tools to understand them will not fill hundreds of hours of programming and will not keep people glued to the screen. All those clicks and hundreds of hours of viewing time and ratings would be lost.

For the conclusion: What You Can Expect Going Forward From the Outrage Industry, click here.

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The Misinformation-Outrage Cycle

Part 7: The Outrage Machine Strikes Again: The 14th Amendment Trump-Ballot case

For the conclusion: What You Can Expect Going Forward From the Outrage Industry, click here.