Three thorny questions from our pod this week with the inimitable (and handsome) John Yoo:
Two principled conservative lawyers have argued that Trump can be automatically struck from any ballot because he violated the 14th Amendment (insurrection clause). How does that work?
Is Donald Trump an insurrectionist? Who gets to decide?
Did Joe Biden commit impeachable acts as President?
It’s not often a law review article becomes the talk of the town, but William Baude and Michael Stokes Paulsen, two conservative originalists have penned just such a piece, The Sweep and the Force of Section Three. In essence, they argue that section three of the Constitution’s 14th Amendment, which bars insurrectionists, rebels, and their abettors from holding public office, is a self-executing clause that automatically precludes Donald Trump from the presidency.
For many, the piece was a head-scratcher, from the mechanics to the actual actors (state secretaries of state? governors?), to the question of insurrection itself. Ask yourself, if it’s up to state officials to simply decide — not based on any legal judgment by any court or by Congress — whether a candidate is an insurrectionist, where does it stop? Is this not a representative democracy? Does not the voter himself choose the candidate and then vote? Who empowered anyone to simply strip candidates the voters have chosen?
Whether Baude and Paulsen are right or wrong — and we muse about that question in the podcast — one thing is clear: the playing field for political warfare is now the Constitution of the United States. Impeachment has become a regular affair; special prosecutors ditto. Fact: the first 222 years of American history only saw two impeachments — Clinton and Johnson. The Trump and now Biden impeachments put us on track toward the third in four years.
Don’t like your member of Congress? Sue him. Don’t like your state House of Representatives? Sue someone. Where does it end? How are the American people to extricate themselves from the maelstrom of suits and countersuits and political lawfare in general?
And has anyone considered the good of the Republic? Sure, those seeking to displace Trump and Biden believe they are the knights in shining armor, saving the people from the scourge of the “fascism” of left and right. Clear the field! But does that solve the underlying divisions in the nation? Does it heal the rift between the parties? We’re pretty certain it doesn't. If you see it differently, let us know.
HIGHLIGHTS
Tell us about the Baude/Paulsen argument that Trump has been automatically disqualified because of the 14th Amendment?
JY: I think their argument is 50% right and 50% wrong. The 50% right part is that this provision in the Constitution in the 14th Amendment is still there. It's still good law. It still applies. There's no limitation of it to the Civil War, which is what its obvious first purpose was. And that means that if you do participate in an insurrection, if you do give aid and comfort, not just participate, if you give aid and comfort to the people who participate in insurrection, you're barred from having any federal office.
The problem is, and this is where I think there're 50% wrong. I'm not sure it applies to the president. And even if it did, I'm not sure that anybody can just carry it out if they feel like it. So here's a hypothetical I put out. Does this mean any election official in any of the thousands of counties in the United States can just grab all the ballots and with a pen scratch out Donald Trump's name? I don't think just because they think he's an insurrectionist.
This is the 50% where I think they're wrong is that it's this free floating mandate for anybody to carry out what they think is the best remedy against an insurrectionist who they've decided as an insurrectionist without any finding by a court or Congress or the president.
But Donald Trump hasn’t been found to be an insurrectionist in any legal proceeding, right?
JY: I think that Congress could remove someone through impeachment and the grounds could be insurrection. And the House did charge Trump with incitement to insurrection. They did charge him. The Senate chose not to convict.
We've got a special counsel named Jack Smith and he's investigating President Trump for January 6th, and he could charge Trump with insurrection. There's two federal criminal laws. There's one called sedition and one's called insurrection. He could charge Trump. In fact, I think he should, if he has the evidence, I think that would be the best thing for the country is if the special counsel were to do so, if he has the evidence. Instead, Jack Smith has charged Trump with a variety of white collar crime laws, which are usually brought against corporate criminals and has clearly not charged Trump with insurrection.
What brought Baude and Paulson to this legal theory?
JY: These are serious scholars, distinguished scholars, both originalists. I like a lot of the work they've done. So their argument is, if you look at the 14th Amendment, it says, "No person shall be a senator or representative or an elector for president or vice president or hold any office under the US, who previously had taken an oath as a member of Congress, officer of the US or member of state legislature or state official to support the Constitution."
So they say anybody who was in one of these classes was in the Senate, was in the Congress or had office, federal office or even a state office and they participate in an insurrection, they can't ever hold office again. I think that's true too.
Where they start to go off is too arguing about President Trump and I'll talk about why it may not even apply to President Trump. But then the argument is who carries out the provision? That's really the heart of the matter. Who gets to decide that someone is an insurrectionist and how do you define what was an insurrection? Was January 6th itself an insurrection? Or was it some kind of riot that however bad it was, didn't really threaten the government of the United States? Who decides that? What standard do they bring there? I think the article, I think they don't think hard enough about what you said, Dany, how do they put this into practice? How do we do it in a pragmatic way that doesn't let just like again, any single county official in the entire country on their own start designating people insurrectionists and scratching their names off ballots.
Their argument is the provision is what we call self-executing. It assumes that you find people who are insurrectionists, anybody in the country can do this to them and then they have to go to court and prove they weren't an insurrectionist. That's their theory.
It's an argument that has a long pedigree, and I'm not saying or associating Baude and Paulson in any way with the people who defended segregation or the people defended slavery. But there were people who argued after Brown versus Board of Education that state officials had the right to interpret the Constitution too, and why should they listen to federal officers or the Supreme Court about what the Constitution means? Because they take their oath to the Constitution and they're going to do what they think the Constitution means no matter what the Supreme Court or President Eisenhower or Congress say. And you had the same argument before going all the way back to the founding Jefferson and Madison thought that if the federal Congress passed an unconstitutional law, maybe state officials could try to block it.
So this is a deeper problem with Paulson and Baude's argument, but it has a long pedigree, which is if any state official can go around and interpret the Constitution at odds with what the federal government thinks, then you're going to have a real problem governing the country because it'll just let any state decide, "Well, we like this federal law. We don't like that federal law." This is the same argument about why can cities decide they want to fight immigration law or help immigration law. It is the same kind of centrifugal forces that could pull the government apart and we wouldn't be able to have a national policy.
Two cases based on the 14th Amendment have been brought against Trump by voters in Colorado and Minnesota. Will that help resolve the question?
JY: This is actually a hard question about how it gets to court. You're quite right, Dany. I've seen there are cases by voters in different states saying, Donald Trump must be removed. So I'm not sure whether those cases are going to work because this is a standing doctrine issue. The court makes it hard for just regular people to say, "I'm suing on behalf of everyone." Usually the court doesn't like those kinds of lawsuits. The easiest way this would come up would be for say, Gavin Newsom to order the Secretary of State of California to say, remove Trump's name from the ballot. Then Trump could sue.
Now, the other interesting thing, this is something people are not talking about at all, is that Biden could do it, I think. Biden could go into these states or the Biden campaign and say, "Why should I be running against an insurrectionist who's barred by the 14th Amendment?" That you could possibly could see. Because candidates usually have the right to sue to have a fair election. And I'm wondering why not put the onus on the Biden administration, as you said, Dany, which has refused to prosecute Trump for insurrection. Is his reelection campaign going to go state by state and demand that Trump be taken off the ballot? I think they could get into court.
We’re talking about lawfare against Trump; but what about the new proceedings against Biden?
JY: Look at impeachment. Has impeachment now been defined down? How can people who are supporting Biden say that what McCarthy is doing is somehow inappropriate when all he is doing is what Nancy Pelosi did in terms of starting off the impeachment investigation without a vote of the House? How can people complain about this special counsel that's being appointed for Hunter Biden after the special counsels that were all appointed for President Trump? So I think you're right, Marc. It's just if you're going to distort the legal system to get Trump, those distortions remain permanent. They're not going to be a ticket for one ride only. Again, I think it's going to undermine our democracy by causing the legal system to be used as a political weapon now, more and more.
Was now the right time to start impeachment proceedings?
JY: Not yet. And this is the difference I think, between starting the impeachment and letting an investigation go forward. You, Dany, and you, Marc and me, we all served in the Senate. We know how to hold an investigation. And we know one of the most important things is don't do things prematurely. You got to build a case. You got to go through the facts. You got to interview the little guys first until you build a case against the larger decision makers. And we also know you can do an investigation, it turns out nothing bad happened, and then you have to move on and make clear you're not accusing people of people things they didn't do.
The impeachment investigation is premature. And in fact, it gives The White House a really good argument to refuse to cooperate because right before the impeachment investigation, there was no doubt, I think, that Congress had appropriate jurisdiction under its oversight there to issue subpoenas and get witnesses to testify. And actually, if you look at it, there weren't really people putting up fights on that. Then Archer, Hunter Biden's close friend and business partner testified willingly. It'll be interesting to see what happens when they call Hunter to testify, which they will. But as we all know, you got to build a case.
The White House can make [a case] — because Trump made the exact same argument in the first impeachment — that they won't cooperate because it's not a real impeachment investigation because the House didn't authorize it. And the speaker doesn't have the right to just say, I launch an impeachment investigation on my own authority. And so that can actually undermine the investigation because now witnesses like Hunter could say, "Yeah, I'm not showing up. This is not a real investigation anymore." And then the Justice Department unfortunately, is the one that pursues people for contempt of Congress for not showing up. What if the Justice Department now says, "Well, we're not going to prosecute anybody who refuses to testify, refuses to hand over documents because there was no vote of the House. So this is not a real impeachment investigation."
Are there any issues with the Biden impeachment case?
JY: I think the investigations so far have been doing a really good job. I wished on the behalf of the country, they weren't finding all this stuff because I wish our president wasn't doing all these things. I mean, it would be great if he was squeaky clean, but he is not. And you're right, the people could say, "Oh, there's no evidence at all that Biden benefited." But the standard before was there's no evidence at all that Biden knew anything. And the standard before that, there was no evidence before that Biden had any involvement. So the goalposts have been changing. But here's where the impeachment issue comes in, and this is actually an interesting constitutional issue. What if all this stuff happens before Biden's President? Does any of it count towards an impeachment?
The constitutional issue that's interesting here is a lot of this stuff we're talking about is about things Biden did either as vice president or when he was a private citizen. How does the impeachment clause reach backwards to cover things he did when he wasn't in office? The impeachment clause is about getting people out of office for committing high crimes and misdemeanor, treason, a bribery, presumably when they're in office.
So what happens?
JY: So here's how I do think it works, and it's interesting, and actually it's very bad for Hunter. So I think the Justice Department prosecutions of Hunter is going to be inversely proportional to the impeachment in this sense. The better deal Hunter gets, the more he gets away with stuff, the more you have a claim that there's been obstruction of justice, the more you have a claim that something funny has gone on with The White House or the Justice Department, the more Hunter gets these especially generous, in fact, unprecedented plea bargains. And so what the Biden administration is going to have to do to prove there's no obstruction of justice is to really hammer Hunter now. They got to hold him up and make an example of him to show that they are not messing around with the administration of justice.
Full transcript here.
SHOWNOTES
14th Amendment
This Amendment was ratified in 1868 during the Reconstruction period. Section 3 deals with the treatment of former state and federal officials who had joined the Confederacy in the Civil War:
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 Sweep and Force of Section Three (William Baude and Michael Paulsen, University of Pennsylvania Law Review, August 14 2023)
The Constitution Prohibits Trump From Ever Being President Again (Michael Luttig and Laurence Tribe, The Atlantic, August 19 2023)
Conservative Case Emerges to Disqualify Trump for Role on Jan. 6 (New York Times, August 10 2023)
Why Twisting The 14th Amendment To Get Trump Won’t Hold Up In Court (John Yoo and Robert Delahunty, The Federalist)
Push to Disqualify Trump via 14th Amendment Ramps Up Despite Opposition from GOP Field (National Review, September 6 2023)
Megyn Kelly show 9/11/23 -- Left’s 14th Amendment Fantasies, Novak’s Big Victory, and 9/11 Memories
I Can’t Keep Trump Off the Ballot (Georgia Secretary of State Brad Raffensperger, Wall Street Journal, September 6 2023)
Lawsuit filed to remove Trump from ballot in CO under 14th Amendment (Citizens for Ethics, September 6 2023)
Trump Faces Second Lawsuit In a Week Challenging His Candidacy Under 14th Amendment (Forbes, September 12 2023)
Fani Willis Is Abusing Georgia’s Terrible RICO Law (Reason, August 16 2023)
2022 Georgia Code Title 16 - Racketeer Influenced and Corrupt Organizations (US Law)
Fulton DA’s comfort with racketeering law could influence Trump probe (AJC, March 15 2021)cluded extortion and murder for hire
The Democrats Are Using Criminal Law to Fight Their Political Battles. It’s Very, Very Dangerous (John Yoo And John Shu, Newsweek, August 17 2023)
Trump Is Top Choice for Nearly 60% of GOP Voters, WSJ Poll Shows (Washington Post, September 2 2023)