Q&A: 18 Doubts About Disqualification
Q&A: 18 Doubts About Disqualification
...also, responses, because it would be a pretty boring Q&A without answers.
I have written quite a few long essays about Donald Trump’s incapacity to run for office again, due to his disqualification under Section Three of the Fourteenth Amendment. This was all well and good when the only people talking about disqualification were massive nerds like meself. However, in the week since the Colorado Supreme Court ruled that Mr. Trump is indeed disqualified by Section Three of the Fourteenth Amendment, a lot of normal people are talking about this, too. They have questions. Here are some short answers. (Well, short for me, anyway.)
I don’t really intend this article as something to share in its entirety with your friends who are skeptical of the case to disqualify Trump. Instead, my goal is to give supporters of the disqualification suit a few short paragraphs addressing each of the most common objections to the suit,1 so that you can talk about the case with your skeptical friends and win them over to our side.
However, if you are a skeptic, you may still find it profitable to find your particular objections in this table of contents and skip ahead to the relevant part:
Did President Donald Trump engage in an insurrection on January 6, 2021?
If it’s so obvious Trump committed insurrection, why hasn’t he been charged, tried, and convicted under 18 USC 2383 (“Insurrection”)?
Even if this legal argument is correct, wouldn’t it be better to beat Trump at the ballot box?
Won’t this set a dangerous precedent that could lead to more disqualifications in other states?
Isn’t this just a political hit job by Democrats on the Republican front-runner?
Shouldn’t a conservative try to avoid radical actions? This has never, ever happened before!
If the President is subject to Section Three, why isn’t the presidency listed in Section Three?
But Section Five of the Fourteenth Amendment says that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” How can a state enforce Section Three when Section Five only empowers Congress to enforce it?
Q1. Did President Donald Trump engage in an insurrection on January 6, 2021?
Yes.
We live in a polarized world where partisan media literally does not report facts that don’t support the narrative. As a result, many people on the Left are unaware that the majority of protestors on January 6 were completely peaceful, that the J6 prosecutions are defined by obvious double standards, and that there were serious problems with the 2020 election—though, thankfully, not decisive ones.
On the other hand, many people on the Right are unaware that, while the majority of protestors on January 6 were peaceful, many others were violent. They have not heard about the members of Vice President Mike Pence’s security detail calling loved ones to say goodbye, weeping because they expected to be dead in a few minutes. They have not been informed that the vast majority of alleged “voter fraud” in the 2020 election were either wildly exaggerated or outright lies—and that Trump himself had known this for weeks. Nor do they realize that Trump gave several clear indications on January 6 that he supported the violence, that he wanted it to continue, and that he was attempting to prolong it in order to use it as leverage.
When you actually lay out the facts, and consider those facts in light of the original public meaning of “insurrection” under the Fourteenth Amendment, it is pretty clear that Donald Trump engaged in insurrection that day. Even if you accept Team Trump’s own, narrow definition of “insurrection,” Trump still engaged in it.
I’ve written a 45-page article about this, which is really only an introduction to the ways in which President Trump betrayed his country that day.
It’s important to begin with this, because almost everything else follows from it. Obviously, if you don’t believe Trump engaged in insurrection, you will regard any attempt to penalize his insurrection as illegitimate and politically motivated, and rightly so! However, since he did engage in insurrection, he falls squarely within the zone of disqualification defined by the Fourteenth Amendment, and Trump’s 2024 campaign can only be saved by a technicality, if it can be saved at all.
Q2. Insurrection is a federal crime (18 USC 2383). Trump has never been convicted of this crime. Can you really remove him from the ballot without a conviction?
Yes.
After the Civil War, a number of people were formally disqualified under the Fourteenth Amendment for having engaged in insurrection. Not a single one of them was convicted of any federal crime, much less the specific crime of insurrection.
In fact, at the time the Fourteenth Amendment passed, almost everyone who had been involved in the Civil War was immune to prosecution for insurrection! The Confederate Army’s terms of surrender, accepted by General Grant, included a general parole for virtually all Confederate troops. This parole was soon extended into a general amnesty and mass pardon by President Andrew Johnson, who was carrying out the wishes of President Lincoln. In the end, even Jefferson Davis and Robert E. Lee, the ringmasters of the great treason, were pardoned and allowed to live out peaceful lives as free American citizens.
Congress was well aware of the vast and ever-expanding circle of pardons when it proposed the Fourteenth Amendment. No one subject to Section Three had been criminally convicted, and, thanks to the amnesties, none of them ever could be.
Nevertheless, even without a criminal conviction, Section Three made them disqualified to hold public office. The vast majority of the people disqualified automatically by Section Three realized that they were disqualified, and didn’t bother trying to run for office in the first place. On the rare occasion that they ran and won an election, Congress rejected them. These proceedings had no judge, no jury, no binding rules of evidence, and few of the rights afforded to the defendant in any courtroom proceeding. Nevertheless, they sufficed for disqualification.
Take a random example: in 1870, North Carolina attempted to elect ex-governor Zebulon Vance to the U.S. Senate. The Senate declared him disqualified for having engaged in insurrection and refused to seat him. North Carolina spent two years trying to get the Senate to reconsider before Vance gave up. Vance had never been convicted of insurrection. Nevertheless, after a brief Congressional hearing, and by a simple majority vote, the Senate judged him an insurrectionist and sent him home.
Donald Trump has already received far more due process in the Colorado disqualification case than Zebulon Vance did.
Q3. How is that in any way fair due process? How can you hold someone accountable under the law without first proving him guilty under the law?
Trump has been proved guilty under the law. In the Colorado case now heading to the Supreme Court, the district court held a five-day bench trial. Both sides were entitled to call witnesses, enter exhibits into evidence, cross-examine the other side, and generally do all the things you’d expect in a trial.
Five days is a pretty long trial. In the same area (Denver), a criminal defendant facing a potential sentence of years or decades in prison, can expect their trial to last only two or three days.2
After the five-day trial, the court issued a detailed, 102-page ruling, where it found that President Trump had indeed engaged in insurrection, based on clear and convincing evidence presented during the trial.3 Trump appealed that ruling to the Colorado Supreme Court, which confirmed it. That’s how this case started.
You can’t remove someone from a ballot without due process of law, but Trump has had due process. He simply lost.
Q4. If it’s so obvious Trump committed insurrection, why hasn’t he been charged, tried, and convicted under 18 USC 2383 (“Insurrection”)?
Honestly, you’d have to ask Merrick Garland, Joe Biden, and special counsel Jack Smith. They’re the only people who can charge Trump (or the other J6 defendants) under 18 USC 2383. Personally, I think they should!
There are a couple obvious reasons why they might not, though:
First, it appears that literally no one in American history has ever been convicted under 18 USC 2383. I’m not even sure anyone’s ever been charged. This leaves certain gray areas in how the law will be implemented in actual practice. Those gray areas might lead a canny prosecutor to pursue conviction under other, better-understood statutes that carry just as much of a prison sentence.
Second, violating 18 USC 2383 is a serious crime. As such, the burden of proof is very high: you have to convince a jury not only that the defendant did the crime, but that there can be no reasonable doubt about it. It’s not enough to be 90% sure; a jury has to be 100% sure. A prosecutor, in turn, usually won’t even bring that case to trial unless he’s 95% sure he can get the jury all the way to 100%. It’s much easier to simply charge Trump (and other J6 conspirators) with different, slightly less serious crimes where the evidence is so totally overwhelming that no jury could resist conviction.4
Q5. So Trump was found to have engaged in insurrection, but it wasn’t proved beyond a reasonable doubt? How can you bar him from public office on so little evidence?
First, the clear-and-convincing evidence standard is not “little evidence.” In most civil proceedings, you can be found liable on the lower “preponderance of the evidence” standard. All the court or jury has to do to meet that standard is decide that it’s more likely than not that you did the thing you’re accused of doing. To meet the higher “clear and convincing” standard, the court must go much further, finding that you are highly likely to have done the thing you’re accused of doing, while still admitting the possibility of a little doubt (but not very much). In Minnesota law, the clear-and-convincing standard protects allegedly abusive parents from having their children taken away by the state; juvenile offenders when the state wants to try them as adults; and mentally unstable sex offenders when the state tries to commit them to secure treatment facilities. Finding clear and convincing evidence that a former president engaged in an insurrection is not something you can do on a lark.
Second, there is a reason why our law has different standards of evidence for different punishments. We are constantly balancing the rights of the accused against the needs of society at large.
When the accused are about to lose core human rights by being sent to prison for months, years, or decades, our system guarantees that they receive the greatest possible protection and the highest standard of evidence, despite the risk to society from a wrongful acquittal, because the cost of a wrongful conviction is so very high. That is the criminal justice system.
On the other hand, when the accused only stands to lose a professional license, or a large sum of money, or a special privilege, we are more solicitous of the needs of society. We may not be able to convict a doctor whose medical malpractice left three patients disabled of knowingly giving them the wrong treatment, so we can’t send him to prison… but it would also be really bad for that doctor to continue practicing medicine, so we use a lower standard of evidence when we try to remove his license. We may not have absolute proof that a specific sexual offender is also a “sexual psychopath,” but we might be pretty darned sure. Since we recognize the extreme danger of allowing such a person to simply leave prison at the end of his sentence to roam the streets, we use a lower standard to decide whether to commit our sexual psychopath to a treatment program.
There are also many situations where whoever loses the case is going to get hurt, and applying a “beyond a reasonable doubt” standard isn’t fair to the interests of the other party. For example, in a child custody case, everyone realizes it would be unfair for the law to automatically award full custody to the mother unless the father proved she was unfit “beyond a reasonable doubt.” The burden of proof should be shared equally between the mother and the father, with no presumption of custody based on gender.
Welcome to the civil justice system.
Indeed, the civil justice system sometimes overlaps a little with the criminal system. Take O.J. Simpson, who definitely murdered his wife, but was famously acquitted because of apparent police failures in handling the case. He was then sued in civil court for wrongful death, under a preponderance of the evidence standard. He lost, and had to pay some $30 million to the survivors of his victims.
In the disqualification cases, Trump is not faced with a prison sentence for his participation in an insurrection. He is not even faced with monetary damages, or the loss of a license to practice law. If he loses this case, he will simply lose the extraordinary privilege of serving the country in public office. This is no grave deprivation of his civil liberties. Every American under the age of thirty-five (including me!), plus every single foreign-born American, is already denied the privilege of serving as President of the United States.
Meanwhile, the interest of the American people in having a qualified person serve as President is very strong. It is so important that our presidents follow their oath to the Constitution, and so dangerous when they engage in insurrection against it, that we actually put it in the Constitution that such people must not be allowed to serve in any office, even as dog-catcher!
In my personal opinion, the balance of interests here is so clearly in favor of the public that I don’t think presidential candidates should be presumed qualified at all. I think every presidential candidate should be presumed disqualified. Candidates should bear the burden of proof of showing that they are qualified before appearing on any ballots. For example, I thought it was a good thing President Obama eventually showed us his birth certificate, and I think every candidate should have to submit his birth certificate on day one!
However, that is not our law. Under our law, depending on jurisdiction, Trump is presumed qualified, and the rest of us bear the burden of proof to show that he isn’t qualified. However, the burden we have to meet is a preponderance of the evidence standard (or, in some cases, by clear and convincing evidence), not proof beyond a reasonable doubt. Ilya Somin explains this more in his recent short article, “Why Section 3 Disqualification Doesn't Require a Prior Criminal Conviction on Charges of Insurrection.”
If you don’t think that’s a fair standard, then I have bad news for you: the entire American civil justice system is built on this standard and always has been.
Q6. So would you be okay with calling George Floyd rioters “insurrectionists” on this same standard of evidence?
Yes! Absolutely!
Not only do I think this same standard applies in the case of the 2020 BLM Riots; I think it’s very clear that several people involved in those riots did engage in insurrection. If any of those people were under a prior oath to support the Constitution, then those people should absolutely be deprived of the right to run for public office under Section Three. I explored this possibility in a prior article.
Yes, there are a lot of hypocrites out there. Ross Douthat is correct that, if the tables were turned and Hillary Clinton had incited a riot over “Russian interference,” many of the people currently invoking the Fourteenth Amendment against Trump would be insisting that Clinton is innocent of insurrection. (Likewise, many of the people insisting Trump can run for president again would be chanting, “Lock her up!”)
However, we can’t allow the existence of hypocrites to prevent us from taking a side. Every side has lots of hypocrites, but there are honest people, too, and they, at least, deserve to have the law upheld.
Q7. Even if this legal argument is correct, wouldn’t it be better to beat Trump at the ballot box?
That’s been done already, in 2020. Remember how that went? Trump refused to accept the results, insisted he had actually not been beaten at the ballot box, convinced many of his followers that American elections are corrupt, and used a mob to try to overthrow the Twelfth Amendment of the United States Constitution. Sure, it was a close election, but why on Earth do you think it would go any better for the country if Trump lost by ten points, or twenty?
Moreover, this is a very costly approach. The only way to “beat Trump at the ballot box,” practically speaking, is to re-elect Joe Biden. In my personal opinion, as bad as Trump would be, a second Biden term would be worse.
Fortunately, our law doesn’t require us to make this choice between disaster and catastrophe. In their wisdom, the framers of the Civil War Amendments made people who do what Trump did ineligible for the presidency. This isn’t a “shortcut” to defeating Trump. It’s the whole point of having legal qualifications in the Constitution at all.
Q8. Shouldn’t we let the voters decide anyway?
Yes, we should, but we must follow the rules set out by the Constitution: for Trump to be made eligible again after an insurrection, voters must elect a two-thirds majority of Congress that supports removing Trump’s disqualification. A simple majority is not enough. Pro-Trump voters must win two-thirds of both houses of Congress.
This is by design: the framers deliberately made it so electing an insurrectionist would require a broad national consensus, and cannot be shoved through by a bare majority. This is the same protection the framers gave us against presidents who might try to take us into bad treaties (like the Paris Climate Agreement): treaties are not ratified by a simple majority, but only by a two-thirds vote of the Senate. In both cases, the supermajority requirement ensures that there is a broad national consensus before the country commits itself to a potentially dangerous course of action.
Of course, people who say “let the voters decide” don’t really want to let the voters decide. They just want Trump to be able to run for president. They are counting on Biden’s well-deserved unpopularity to drive voters to Trump as the only alternative. If we were really going to let the voters decide, we would have a national referendum on the specific question of Trump’s qualifications before the actual presidential election.
Trump would probably lose that referendum. As you and I both know, Trump has never come close to winning the national popular vote, but has only won thanks to the electoral college. Even Mitt Romney won a greater share of the popular vote than Trump ever has. Outside the pearl-clutching chattering classes, a solid majority of Americans appear to agree with the Colorado Supreme Court’s decision. A YouGov poll found 54% of adults approved of removing Trump from the ballot, while only 35% disapprove. An RMG Research poll found 50% approved, while 45% disapproved. These results track pretty closely with literally thousands of polls which consistently show that Donald Trump is one of the most unpopular people in America. (Only Biden himself seems to be doing worse.)
You might object: even if Trump lost the national popular vote, he could still win a disqualification referendum in the electoral college! But now you’re trying to have your cake and eat it, too: you can’t complain that the Fourteenth Amendment is anti-democratic because it denies the majority the power to decide on their president, then turn around and say that it’s perfectly fine for the electoral college to… deny the majority the power to decide on their president!
Now, personally, I do support the electoral college, because we live in a republic, not a democracy. I have no problem with the fact Trump won with a minority of votes in 2016 and still became president. But you, the voter, have to make a choice here: either you’re pro-democracy, in which case Hillary Clinton deserved to win the 2016 election, or you’re pro-republic/anti-democracy like me, in which case Donald Trump is ineligible to win the 2024 election even if he could theoretically beat Joe Biden in a landslide. (Which, incidentally, he can’t.)
I’ve written more about this and other anti-democratic features of the Constitution in, “Disqualification is Anti-Democratic. Good!”
Q9. Won’t these shenanigans just help Trump?
Define “help.”
So far, Trump’s legal problems have generally hurt him among the general electorate. They have “helped” him only by increasing his share of support among the narrow slice of voters who vote in Republican primaries, especially by sucking the oxygen away from normie candidates like DeSantis and Haley.
However, if Trump is (correctly) removed from the primary ballot because he is ineligible, it won’t matter what share of the Republican primary electorate supports him. They won’t be able to actually help him without getting a two-thirds majority of Congress to lift his disqualification.
It is true that, if we follow the Constitution here, Trump’s supporters will have to swallow the bitter pill that their man won’t be president. They may have a lot of anger about the result (especially if their media sources misinform them) and look for ways to lash out about it.
In a constitutional republic, that happens sometimes. Al Gore’s supporters had to swallow an equally bitter pill just a generation ago. However, hurt feelings are not a good reason to disregard the Constitution.
Q10. Section Three of the Fourteenth Amendment was passed to deal with the Confederacy, which had just killed 600,000 Americans in a bloody, horrible civil war. Are you really comparing the J6 riot—where the only person killed was one of the rioters—to an invasion by the Army of Northern Virginia?
Section Three of the Fourteenth Amendment was passed out of righteous outrage that someone who took an oath to protect the Constitution, and then betrayed that oath, might have the cojones to try holding public office under the Constitution ever again. (People took oaths pretty seriously back then.) Their outrage was certainly excited by the massive damage wrought by the Confederate Army, but the text they wrote was general and applied to insurrections of all kinds.
Nineteenth-century Americans had dealt with a lot of much smaller insurrections, and were far more used to the idea than we are today. They or their parents had lived through Shays’ Rebellion, the Whiskey Rebellion, Fries’s Rebellion, Turner’s slave revolt, the Dorr Rebellion, “Bleeding Kansas,” John Brown’s insurrection at Harper’s Ferry, the Mormon War of 1857-58, and a handful of other largely-forgotten insurrections. Americans today tend to think of the Civil War as the only rebellion ever, but that wasn’t how the people who wrote the Fourteenth Amendment saw it, and the text they chose to put into the Constitution clearly reflects that it applies to insurrections of all shapes and sizes.
I don’t think the J6 insurrection closely resembles the Civil War insurrection. I do think that it bears a pretty fair resemblance to the Whiskey Rebellion, the classic example of a small-scale insurrection, and therefore very much falls within the scope of Section Three.
Q11. Won’t this set a dangerous precedent that could lead to more disqualifications in other states?
Bring it on, man. If Texas wants to take Joe Biden off the ballot in Texas, they don’t need to wait for him to participate in an insurrection and then go through the courts to get rid of him. They can just pass a law to take him of the ballot for any reason—or for no reason. Article II says that state legislatures have absolute power to decide how to allocate their electors, including by deciding who goes on the ballot (if they decide to have a ballot at all).
That’s been in the Constitution since day one, long before Section Three was added. It’s how presidential elections were designed to work. If this episode leads to state legislatures taking more of a lead in presidential elections again, terrific. That’s an article I’ve been meaning to write for a while, but events keep overtaking me.
Now, if Texas’s plan is to disqualify Joe Biden specifically for insurrection, I think that’s a much harder case to make. They’ll have to convince a court that Joe Biden encouraged people to take up arms against the laws of our country, and, even in Texas courts, that isn’t going to be easy. President Biden violates the Constitution all the time, almost as a hobby, as have most of our recent presidents—but not every violation of the Constitution is an insurrection. States that want to exercise control over their presidential ballots are better off simply asserting their Article II authority to strike candidates they don’t like off the ballot directly, without trying to squeeze a tetchy insurrection allegation through a court.5
Q12. Isn’t this just a political attack by Democrats against the Republican front-runner?
Democrats are obviously going to join in any political move that looks like it might hurt Republicans. That is a fact of life. (Republicans will do the same in reverse.) We should not instinctively circle the wagons just because some of the attackers are from the other tribe. That makes us look like idiots, just like everyone at Harvard looks like idiots right now.
The sole reason they are keeping Claudine Gay as Harvard president is because many of her critics are right-wingers like Chris Rufo. They should remove Gay, but they’re too proud to admit that Rufo might have a point about anything. Morons! Let’s not do that in reverse.
That said, the prime movers in this case have largely been Republicans. Michael Stokes Paulsen, who wrote the paper that ignited a firestorm, is a shining star of the conservative legal movement and a former minor official in the Bush Administration. J. Michael Luttig, the conservative former judge barnstorming the country against Trump’s eligibility, was defending Trump as recently as the second impeachment trial (where Luttig insisted that Trump could not be convicted after leaving office).
The plaintiffs in the Colorado case suing to have Trump taken off the ballot are all Republicans. Some of the plaintiffs in the Minnesota case were, too. I’m certainly planning to vote in the Republican primary, and I would never in a thousand years vote for any of the potential Democratic candidates for President. According to that YouGov poll from earlier, a quarter of Republicans approve of the Colorado Supreme Court’s decision. We’re clearly a minority of the conservative movement, but we aren’t nothing, either!
Indeed, I think one reason Republicans should be relieved if this effort succeeds is that Trump will have a whole lot of trouble beating Biden if we are stupid enough to re-nominate him6 —and I think it’s imperative to defeat Joe Biden! (That isn’t a legal reason, of course, and shouldn’t change anyone’s opinion of the case.)
Q13. If this isn’t about hurting the frontrunner, why did plaintiffs wait until primary election season was in full swing before filing suits against Trump?
It’s generally illegal to file an election challenge over an election that is still years away. I wrote about this in my explainer on timing and won’t belabor the point, but, essentially, you can’t bring a case to court until it is “ripe,” which means you can’t challenge Trump’s candidacy until he is actually officially a candidate in your state.
In fact, Trump won’t be officially officially a candidate here in Minnesota until the first week of January, but everyone here agreed that, by September, this was certain enough to happen that the Minnesota Disqualification Suit could still be adjudicated.
The challenge was still the earliest election challenge brought in Minnesota in at least the past fourteen years by a very long distance. Most election challenges are filed a few days or weeks before the ballot printing deadline, but this one was filed five months and twenty-two days in advance. I would not be surprised to learn that it was the earliest election challenge in Minnesota history.
So it’s just sort of silly to suggest that these challenges could have been legally filed, say, the week after Trump declared his candidacy way back in November 2022. I don’t know Colorado law, but Minnesota certainly would have tossed it. Since the January 6 Report and some of the key legal research was still being conducted at the time, it’s not even clear that the factual and legal underpinnings of the case were clearly established by that point.7
Q14. How can we have a system where a bunch of random state election officials can throw a former president off the ballot?
First, we don’t have that system. In our system, some state election officials have been empowered by their state legislatures to review qualifications. Many other election officials have not been so empowered. Some states have no one with this power; others have several someones. Where the power exists, it has always been granted by the state legislature. Under Article II, the state legislature has plenary authority to grant (or not grant) this power to state officials.
When Congress decides whether to impeach and convict, Congress exercises discretion. They are choosing to do something they don’t need to do. By contrast, state officials are bound to simply apply the laws of their state. That’s all they’re doing in the Disqualification Cases, because it’s all they’re allowed to do. So, when these officials review qualifications, they are not "throwing Trump off the ballot." They are adjudicating whether or not the Constitution of the United States has thrown Trump off the ballot.
In a larger sense, though, yes, state officials play a big role here. It’s weird to see so many conservatives treating that as some kind of oddity. Every single President is elected by a bunch of “random state officials” who receive their power from the state legislature. We call those officials “the electoral college.” Access to the ballot is something state officials have been regulating for years and years, which is why there are so many third-party candidates who don’t appear on your ballot every cycle.
“Random state officials,” authorized by state law to take action, is exactly how federalism works, exactly how Article II works, exactly what the Constitution expects, and exactly what our conservatism is supposed to conserve.
Q15. Shouldn’t a conservative try to avoid radical actions? This has never, ever happened before!
True. We’ve never before declared a frontrunner presidential candidate ineligible for the presidency and removed him from the ballot.
That’s because we’ve never before had a frontrunner presidential candidate who violated his oath to the Constitution by engaging in insurrection. Trump’s involvement in January 6 was absolutely unprecedented. Even President James Buchanan, who sympathized with the Confederacy and helped fuel the runup to Civil War, never dared to so openly and so immediately join forces with active insurrectionists.
Unprecedented events often have unprecedented consequences.
Conservatives should not try to avoid unprecedented outcomes when the law calls for them. The bedrock of conservatism is that we follow the laws and traditions that were laid down for us. Disqualifying insurrectionists is one of them. We devoutly wish it had not come to this, that the mere threat of disqualification would have been enough to prevent insurrection from happening, but it didn’t, and here we are. We either follow the law now, or we abandon it because we fear the consequences—which would set a far more dangerous precedent.
Conservatives recognized this back in 2016, when we had the unprecedented situation of a leading presidential candidate caught red-handed committing a federal crime. FBI Director James Comey made the outrageous and legally destructive decision to ignore the law in Hillary Clinton’s case, because indicting a leading presidential candidate would also have been unprecedented. Some of the same conservative publications that rightly decried Comey’s perfidy are now recoiling at the idea of applying a different law to Donald Trump, for essentially the same reasons as Comey.8
Q16. If the President is subject to Section Three, why isn’t the presidency listed in Section Three?
I wrote a great deal about this in “An Officer and a Gentleman (and a President),” but here’s a very short (inadequately qualified) answer:
Section Three specifies “Senators,” “Representatives,” and “electors” because the Constitution does not otherwise refer to these persons as “officers” or to their positions as “offices.” (Senators and Representatives are always referred to as “members” instead.) One could potentially argue that these positions are not “officers” and, if they were not explicitly included, they could end up immune to Section Three. There had even been a serious dispute in Congress, in 1799, about whether congressmen were “officers”—and the precedent set at the time was that they aren’t. Section Three dealt with this ambiguity by explicitly including them.
By contrast, the Constitution refers to the presidency as an “office” more than two dozen times, so the President didn’t need to be expressly included any more than the Secretary of Agriculture did.
Q17. But Section Five of the Fourteenth Amendment says that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” How can a state enforce Section Three when Section Five only empowers Congress to enforce it?
States independently enforce provisions of the Constitution all the time. Section Five gives Congress power to add to state regulation. In most cases, it gives Congress power to override or cancel state regulation. It does not say that only Congress has power to enforce the article. It does not mean that only Congress has power to enforce the article.
Take a parallel provision of the Constitution: the Thirteenth Amendment. Section 1 declares slavery abolished. Section 2 says, “Congress shall have power to enforce this article by appropriate legislation,” just like in the Fourteenth Amendment.
Everyone agrees, including the Supreme Court, that Section 1 of the Thirteenth Amendment made slavery illegal immediately, everywhere. It didn’t physically free all the slaves—enforcement of the Thirteenth Amendment required individuals to actually emancipate their slaves, and local sheriffs and so forth to compel emancipation where they did not do so voluntarily, which relied on local law and local courts—but it established a legal rule that slavery was over, everywhere, the moment the amendment was adopted on December 18, 1865. As far as I can tell, Congress never actually passed a specific law emancipating those slaves. Indeed, Congress didn’t pass any law purporting to enforce the Thirteenth Amendment until the Civil Rights Act of 1866, whose provisions were so far removed from the main content of the Thirteenth Amendment that Congress proposed the Fourteenth Amendment in order to shore up its legal foundations! (I dove deep into this for last year’s unrelated article “There’s No Thirteenth Amendment Right to Abortion.” Start with the section on original meaning.)
Take another parallel provision: the Full Faith and Credit Clause, which requires states to give full effect to one another’s “Acts, Records, and judicial Proceedings,” before authorizing Congress to “prescribe the Manner in which [they] shall be proved, and the Effect thereof.”
Congress does, in fact, regulate interstate acts, records, and proceedings all the time. For example, the Parental Kidnapping Prevention Act defines how states are required to treat the child custody rulings of other states’ courts. On the other hand, there are plenty of cases where Congress does not pass specific regulations, and states voluntarily cooperate of their own accord. For example, the Driver License Compact is a voluntary interstate compact where the signatories (essentially) agree on a standard for giving effect to one another’s traffic infractions. Not all states are signatories, and must work out deals on the side. Likewise, states all have their own standards for accepting one another’s driver’s licenses, and those standards don’t always line up. If states weren’t allowed to independently enforce this provision of the Constitution, they wouldn’t be able to do any of this.
Likewise Section Three of the Fourteenth Amendment. If a state law authorizes a state official to evaluate a candidate’s qualifications, and Congress hasn’t passed any legislation specifically precluding that evaluation, there’s no issue with that law—even if it leads a state official to declare a leading presidential candidate not qualified for the office of the Presidency.
This is only a short explanation. I am still working on a much longer essay about the “self-execution” question to address the handful of you sophisticates who both understand and believe the “Section Five” argument.9
UPDATE 9 January: Here it is:
Q18. I’m fine with random state judges disqualifying a 20-year-old from the presidency, because it’s easy to just check his birth certificate, but isn’t disqualification for insurrection way more complicated? Shouldn’t we keep random state judges from making such consequential decisions?
This question forgets a great deal, and assumes a great deal.
It forgets that it took years for the public to gain access to President Obama’s birth certificate.
It assumes that we have a sophisticated and reliable system of public records. We do have a pretty great system of records today. Pretty much everyone has a birth certificate… now.
This question forgets that, back when the Qualifications Clause was first framed, that wasn’t at all the case. Many Americans did not know their birthdays. Ages were not stored in databases. In fact, back in the early republic, more than one unqualified American managed to sneak into high political office without (apparently) anyone noticing! In those days, it was not a simple matter to verify the qualifications of office-holders, yet the requirement was placed in the Constitution anyway, and, to this day, age and residency requirements are routinely litigated in legal election challenges at all levels. There is no guarantee, either, that our current robust system of public records will survive forever—yet the Constitution shall endure.
This question assumes that the candidate makes no attempt to hide or deny his disqualification, even though Mr. Trump has attempted to deny his participation in the January 6 insurrection for years. Suppose a candidate for office produced a falsified birth certificate, and evidence later emerged that the certificate was falsified. If sufficient evidence were alleged, it would be entirely proper for the courts to adjudicate that dispute—even if it took more than ten minutes to check, even if it required, say, a five-day bench trial involving testimony from handwriting experts and elderly retired hospital records personnel. A random state judge would have to enter a judgment.
Finally, this question forgets that random state judges make hugely consequential decisions all the time. It is their job, their fundamental role within our system, to listen to evidence and render fact-based judgments on complex matters. They’re certainly a lot better at it than the voting public, which notoriously swings wildly based on very slight changes in referendum wording and is routinely proved to know next to nothing about the issues of the day.
Still, if this level of federalism scares you, don’t worry: that judgment could then be appealed to higher courts within the state, and, ultimately, to the Supreme Court of the United States.
Subscriber Note: the paywall on my September review of Barbenheimer expired yesterday. As a result, free-list subscribers received that review in their inboxes today. However, since the Barbenheimer review frequently refers to everyone reading it as a paying subscriber, this made a lot of free subscribers very confused. If you were confused but didn’t write in to ask about it… there’s the explanation. This was my first time trying an expiring paywall, so I need to think about how to handle that more clearly next time (if there is a next time; I’m not sold on this expiring-paywall thing).
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Depends if you count jury selection as part of the trial. I don’t, but that paper I linked does. Denver is—or at least was, in 1988, when that paper was written—pretty typical in terms of national trial length.
This was actually a little hinky—probably the most objectionable part of the whole affair, in my view. The Colorado district court found Trump had engaged in insurrection but ruled that he was not subject to disqualification because he was not an “officer of the United States” at the time.
The thing is, if the Colorado district court believed Trump not subject to disqualification in the first place, she really shouldn’t have reached the question of his insurrection at all. The judge should have just ruled “he’s not an officer,” and dismissed the case. Instead, Judge Sarah B. Wallace first ruled on the insurrection stuff and then reached the “officer” stuff, which is an unintuitive and illogical order that nevertheless had the salutary effect (for Judge Wallace) of avoiding any heat for taking Trump off the ballot (since the press reported the district court ruling as a “win” for Trump) while simultaneously giving the state Supreme Court everything it needed to take the case and reverse her. Structuring a judicial opinion in a weird way isn’t illegal, but it was hinky and, as far as I can tell, improper.
UPDATE 9 January 2024: It’s been suggested to me that it would be hinky for a judge to structure an opinion like this on appeal, but that it makes sense in a trial court decision. Judge Wallace had, by this point, already held the trial, so it was to everybody’s benefit if she wrote up all her conclusions, including the ones rendered irrelevant by her decision on the “officers” question… because, if the appeals court reversed, then remanded to her because she hadn’t settled the other issues, she’d have to hold further, duplicative, time-consuming proceedings. Since she had decided all issues, the Colorado Supreme Court didn’t have to remand to her when it reversed her on the “officers” question. It could just issue its final ruling, scoring one for judicial economy.
I have no idea whether this is how it’s supposed to work (as I often say, I don’t know my Civil Procedure from a nolo contendere), but it sounds plausible. I spend almost all my time reading appellate cases, and don’t have a good sense for what procedural differences there are in trial courts. This perspective softens my criticism of Judge Wallace.
I’m not all convinced that Jack Smith has actually charged Trump with crimes where the evidence is so overwhelming no jury could acquit. Personally, I think there’re significant problems with Smith’s indictment. (See? I usually agree with Dan McLaughlin, when he’s not talking specifically about insurrection!)
But I think Smith is very confident in his case, and that is my point here.
I can already hear some of you saying that U.S. Term Limits v. Thornton (1995) forbids this. That was a case where a state passed a law removing candidates from the ballot if they had already served a certain number of terms. The Supreme Court struck it down, 5-4, on the basis that states could not impose qualifications beyond the qualifications expressly prescribed by the Constitution.
However, that case applied to elections to Congress, where Congress itself is the ultimate administrator of the election. This was part of the decision’s core logic. In presidential elections, the states have vastly more power and Congress plays no role.
Moreover, everyone in the U.S. Term Limits majority is gone now. It’s Justice Thomas’s Supreme Court today, and he dissented in U.S. Term Limits, along with all the conservatives, writing:
"the people of the States need not point to any affirmative grant of power in the Constitution in order to prescribe qualifications for their representatives in Congress, or to authorize their elected state legislators to do so."
I would not count on the current Court extending U.S. Term Limits to cover the presidency even if there were any warrant in the Constitution for doing so.
Current polls showing a Trump lead or near-tie don’t account for Trump’s likely impending criminal conviction, and they look a whole lot worse once they do!
It’s not unusual for a major Congressional investigation to take 1-2 years. Look at the Clinton-era investigations into Whitewater, Paula Jones, and Lewinsky. It took a while to clearly establish that Clinton was guilty as sin and deserved impeachment. Our national failure to convict him for it is one of the undervalued reasons why we now are stuck with Trump.
To be fair, Charles C.W. Cooke, also at National Review, took the position that Trump should be left on the ballot because the disqualification case is wrong on the merits, not because of general fear and incredulity about the courts taking this unprecedented step. Several of the editors have at least paid lip service since then to the idea that the central question is what the law requires.
Of course, Cooke and the rest of the NR staff is wrong about what the law requires, but that’s still a much more sensible position than knee-jerk rejection of the case because of its potential consequences. I can have a discussion about the law. I can’t have a discussion with a knee-jerk reaction.
Trying to get it done before Epiphany so I can still give it to you as a Christmas gift, Master Thief!
Your answer to question two is the first truly satisfying answer I have come across for why no criminal conviction is needed. And I follow several scholar/bloggers like Ilya Somin who have been regularly covering this issue as it unfolds.