Very good post; thank you. This clears up some of my own confusion about the meaning of "self-executing". I'm now even more confident than before that the "de facto officer doctrine" is a very good thing.
I'm going to chew on your interpretation of "Griffin's Case" some more. I already thought the prevailing interpretation would have made it bad law, and your interpretation is very enticing.
Also, a few tangential questions about your graphic about 1870 Minnesota: You specify that 18 USC 2383 prosecution doesn't apply to the President. You don't give that exemption about KKK Act 15 prosecution - I'm assuming that has the same exception?
But really, was it established in 1870 that Presidents are immune to federal criminal prosecution? And for that matter, is it established even today that Presidents are immune to state criminal prosecution? If Trump had, while President, lived down to his hypothetical about shooting someone in the State of New York, I don't see a clear legal bar to New York trying him even if they wouldn't have been able to imprison him while he held office?
"You specify that 18 USC 2383 prosecution doesn't apply to the President. You don't give that exemption about KKK Act 15 prosecution - I'm assuming that has the same exception?"
Yes. I'd like to say something like, "Since I'd already mentioned it, I didn't see the need to mention it again," but the truth is I forgot.
"But really, was it established in 1870 that Presidents are immune to federal criminal prosecution?"
Now that you mention it, I do not know! It was just one of those background assumptions I brought into my reading with me -- exactly the kind of unquestioned background assumption that can get one into big trouble when reading old law!
"And for that matter, is it established even today that Presidents are immune to state criminal prosecution?"
I'm afraid that President Grant's alleged arrest took place in the District of Columbia, which's under federal authority! So if it happened, it wouldn't have set any precedent about state law, and would've implied he was subject to federal prosecution. I'm not sure, but I don't think the opposite was established until Clinton's legal troubles in the 1990's?
But either way, kudos to Grant for going along with it, if it in fact happened.
Ah, touche! You must understand that I am extremely sleepy today, for obvious reasons.
Now if you'll excuse me, someone put something in my inbox a couple days ago about Framing the Reconstruction Amendments that I've been looking forward to reading. :)
Thank you for this write-up, incredibly comprehensive and detailed. My first reaction when I heard the 'self-executing' argument was "well obviously?" I had no idea it could get so complex though. I think the comparisons to the thirteenth amendment is a strong, rhetorically
What are your thoughts on the idea that Congress abrogated all Section 3 disabilities in 1872 and 1898? I've seen the argument online a number of times (from both sides), but you haven't mentioned it at all. (I don't think even the Trump team made the argument, so perhaps it's not a very good one, but I don't see why)
Yeah, I'm starting to see this argument a bit more the past couple weeks, so maybe I should put an entry for it into "18 Doubts About Disqualification." It *is* a pretty bad argument, and I don't *think* Team Trump has made it (I haven't read every SCOTUS filing yet).
Very briefly, the 1872 and 1898 amnesty acts, by their own terms, removed the Section Three disqualification from each and every individual who was subject to Section Three disqualification *at that time*. They did not purport to nullify all *future* Section Three disqualifications. Nor could they; the language of Section Three itself is clear about giving Congress power to remove Section Three disqualifications, but not prospectively *immunize* individuals against *ever* being disqualified under Section Three. (Immunizing against disqualification is quite different from removing a disqualification.) Still less could Congress immunize an individual who hasn't even been born yet.
James, thank you for this post, which goes *much* farther into the legal weeds than I would ever want to venture, even as an interested legel nerd.
I'm beginning to think, however, that the legal arguments on both sides, when this case is argued before SCOTUS, are going to be less important than the political aspects of this case. And they could easily go either way.
On the one hand, the institutionalist SCOTUS Justices, including Chief Justice Roberts, will be wary of a repeat of Bush v Gore deciding the outcome of an election, which would impact the Court's reputation and legitimacy (not to mention likely violence).
OTOH, it was clear during the Trump administration that Roberts detested Trump, repeatedly throwing out Trump's Executive Orders, some on flimsy grounds. (Why, for example, would the Trump administration directive revoking the DACA regime, be thrown out on the basis of the Administrative Procedures Act, when the APA was never followed in establishing DACA in the first place?). Roberts and perhaps other Justices (and not just the 3 Democratic Justices) might decide the good of the country requires Trump to be barred from being President again.
Although I continue to believe that the case for disqualifying Trump is stronger than the case against. there is sufficient merit, and sufficient legal uncertainty on both sides, to allow for whichever result the Justices want.
And there may even be a shot that SCOTUS could rule that even if Trump is ruled disqualified, his his name could still be on the ballot, but that he could never take office unless and until Congress acts by that 2/3ds vote to remove the disqualification. The scenario that a Presidential candidate could be elected but "fail to qualify," is foreseen under another obscure Constitutional provision, Section 3 of the 20th Amendment.
As the Chinese curse goes, "May you live in interesting times." 2024 will be very interesting.
It seems to me insurrectionists just can be state legislators from the text of the amendment, I don't think they hold office, especially since they are mentioned separately in the part about people who take oaths. But referring to them as holding office in the provision excepting them in the statute would be weird then.
Akhil Amar's amicus at page 14 makes me think it applies to them anyway, though I'm not sure how you intent and text interact, but it seems the military government excluded legislators.
Very good post; thank you. This clears up some of my own confusion about the meaning of "self-executing". I'm now even more confident than before that the "de facto officer doctrine" is a very good thing.
I'm going to chew on your interpretation of "Griffin's Case" some more. I already thought the prevailing interpretation would have made it bad law, and your interpretation is very enticing.
Also, a few tangential questions about your graphic about 1870 Minnesota: You specify that 18 USC 2383 prosecution doesn't apply to the President. You don't give that exemption about KKK Act 15 prosecution - I'm assuming that has the same exception?
But really, was it established in 1870 that Presidents are immune to federal criminal prosecution? And for that matter, is it established even today that Presidents are immune to state criminal prosecution? If Trump had, while President, lived down to his hypothetical about shooting someone in the State of New York, I don't see a clear legal bar to New York trying him even if they wouldn't have been able to imprison him while he held office?
"You specify that 18 USC 2383 prosecution doesn't apply to the President. You don't give that exemption about KKK Act 15 prosecution - I'm assuming that has the same exception?"
Yes. I'd like to say something like, "Since I'd already mentioned it, I didn't see the need to mention it again," but the truth is I forgot.
"But really, was it established in 1870 that Presidents are immune to federal criminal prosecution?"
Now that you mention it, I do not know! It was just one of those background assumptions I brought into my reading with me -- exactly the kind of unquestioned background assumption that can get one into big trouble when reading old law!
"And for that matter, is it established even today that Presidents are immune to state criminal prosecution?"
The only ways to prosecute a sitting president were federal, so the state question didn't arise on my chart. But... I seem to recall some debate about this during the Trump presidency, and I don't think it's resolved. My vague memory / gut instinct says states could come after a sitting president for crimes, and there was even an incident in the 1870s when President Grant was arrested for speeding (in a carriage) during an illegal street race (and took his punishment like a man), although its veracity is debated: (https://www.newspapers.com/image/330876502/?clipping_id=121285615&fcfToken=eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJmcmVlLXZpZXctaWQiOjMzMDg3NjUwMiwiaWF0IjoxNzA0ODM3NjUxLCJleHAiOjE3MDQ5MjQwNTF9.Bh1sD_-BeN_2Wg3QUwWU504BZ99pJsXXrSZqQ8ouaGo)
Glad you liked the piece!
I'm afraid that President Grant's alleged arrest took place in the District of Columbia, which's under federal authority! So if it happened, it wouldn't have set any precedent about state law, and would've implied he was subject to federal prosecution. I'm not sure, but I don't think the opposite was established until Clinton's legal troubles in the 1990's?
But either way, kudos to Grant for going along with it, if it in fact happened.
Ah, touche! You must understand that I am extremely sleepy today, for obvious reasons.
Now if you'll excuse me, someone put something in my inbox a couple days ago about Framing the Reconstruction Amendments that I've been looking forward to reading. :)
I'm worried our Republic is going to fail, but at least I'll understand why. Thank you for writing all this out.
Thank you for this write-up, incredibly comprehensive and detailed. My first reaction when I heard the 'self-executing' argument was "well obviously?" I had no idea it could get so complex though. I think the comparisons to the thirteenth amendment is a strong, rhetorically
What are your thoughts on the idea that Congress abrogated all Section 3 disabilities in 1872 and 1898? I've seen the argument online a number of times (from both sides), but you haven't mentioned it at all. (I don't think even the Trump team made the argument, so perhaps it's not a very good one, but I don't see why)
Yeah, I'm starting to see this argument a bit more the past couple weeks, so maybe I should put an entry for it into "18 Doubts About Disqualification." It *is* a pretty bad argument, and I don't *think* Team Trump has made it (I haven't read every SCOTUS filing yet).
Very briefly, the 1872 and 1898 amnesty acts, by their own terms, removed the Section Three disqualification from each and every individual who was subject to Section Three disqualification *at that time*. They did not purport to nullify all *future* Section Three disqualifications. Nor could they; the language of Section Three itself is clear about giving Congress power to remove Section Three disqualifications, but not prospectively *immunize* individuals against *ever* being disqualified under Section Three. (Immunizing against disqualification is quite different from removing a disqualification.) Still less could Congress immunize an individual who hasn't even been born yet.
The Baude-Paulsen paper ("The Sweep and Force of Section Three") does a good job with this on pp11-16: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751 .
...holy gosh, I said "very briefly" and then actually gave a brief but thorough answer! I'm not sure that's ever happened before!
James, thank you for this post, which goes *much* farther into the legal weeds than I would ever want to venture, even as an interested legel nerd.
I'm beginning to think, however, that the legal arguments on both sides, when this case is argued before SCOTUS, are going to be less important than the political aspects of this case. And they could easily go either way.
On the one hand, the institutionalist SCOTUS Justices, including Chief Justice Roberts, will be wary of a repeat of Bush v Gore deciding the outcome of an election, which would impact the Court's reputation and legitimacy (not to mention likely violence).
OTOH, it was clear during the Trump administration that Roberts detested Trump, repeatedly throwing out Trump's Executive Orders, some on flimsy grounds. (Why, for example, would the Trump administration directive revoking the DACA regime, be thrown out on the basis of the Administrative Procedures Act, when the APA was never followed in establishing DACA in the first place?). Roberts and perhaps other Justices (and not just the 3 Democratic Justices) might decide the good of the country requires Trump to be barred from being President again.
Although I continue to believe that the case for disqualifying Trump is stronger than the case against. there is sufficient merit, and sufficient legal uncertainty on both sides, to allow for whichever result the Justices want.
And there may even be a shot that SCOTUS could rule that even if Trump is ruled disqualified, his his name could still be on the ballot, but that he could never take office unless and until Congress acts by that 2/3ds vote to remove the disqualification. The scenario that a Presidential candidate could be elected but "fail to qualify," is foreseen under another obscure Constitutional provision, Section 3 of the 20th Amendment.
As the Chinese curse goes, "May you live in interesting times." 2024 will be very interesting.
I think that your link to some quote about self-executing treaty law (under the "admits" in "... everyone admits it." above) is broken.
Hey, thank you! You're quite right!
That was supposed to point to a passage in United States v. Postal (1979) where the judge wrote, "The self-execution question is perhaps one of the most confounding in treaty law." https://casetext.com/case/us-v-postal#f6420413-5855-4345-a151-d87fb42fd663-fn20
Fixed now, thanks to you!
It seems to me insurrectionists just can be state legislators from the text of the amendment, I don't think they hold office, especially since they are mentioned separately in the part about people who take oaths. But referring to them as holding office in the provision excepting them in the statute would be weird then.
This is... a pretty good argument that, for whatever reason, didn't occur to me. I'm not certain it's right, but I certainly need to think about it.
Akhil Amar's amicus at page 14 makes me think it applies to them anyway, though I'm not sure how you intent and text interact, but it seems the military government excluded legislators.
http://www.supremecourt.gov/DocketPDF/23/23-719/295994/20240118094034746_Trump%20v%20Anderson.pdf