Advisory Opinions - Coup de Target

Episode Date: August 22, 2023

Can Donald Trump be disqualified from holding public office? Sarah and David host a friendly debate with Michael McConnell, a former circuit judge and current Stanford law professor, over whether Donald Trump “engaged in insurrection or rebellion” or not. Also: -Hunter Biden plea deal update -Removal jurisdiction Show notes- -Prof. Michael McConnell, Responding About the Fourteenth Amendment, "Insurrection," and Trump -The Sweep and Force of Section Three -David's NYT equivalent of a double bird -NYT: Inside the Hunter Biden Plea Deal Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. welcome to advisory opinions i'm sarah isger that's david french we're gonna talk about disqualification on the ballot under the 14th amendment section 3 we've also got a big abortion with a press stone case out of the fifth circuit and some little updates on the Hunter Biden plea deal story and removal to federal court. I know everyone's so into 1442 removal.

I just, I, I feel so badly making you wait for that one, but yep, we're going to start with that 14th amendment discussion that we promised a week ago. I did reach out to professors bode and paulson they basically said they want to let their piece speak for itself it's a lot of speaking because it's 126 pages but we will put it in the show notes for y'all to read it

and luckily um i think that david uh has one position on it. I have another. But we reached out to Professor Michael McConnell, who had published his thoughts on the piece. So he'll join us in a few minutes. Just warning, his internet was not awesome. He is in Utah. So the conversation is maybe not the like heated back and forth that you're used to. But I think it was really helpful to have him on and sort of elucidate the alternative

to the Bode Paulson piece on some parts of this and frankly to the David French piece on some parts of this. So David, overall, and we'll get into some of the details here. The point of this piece, and now this has launched a thousand ships. Everyone else is weighing in on this as well,

which is weird because we actually, there's already been in court cases. Marjor taylor green madison cawthorne um there's actually been some others as well uh but regardless we're having a moment again on the 14th amendment the idea that donald trump this time can be kept off the ballot because he engaged in or gave aid and comfort to the events either on January 6th or leading up to January 6th. I just want your like big picture take. Where are you falling on all of this? What do you find are the strongest arguments and what are the weakest arguments yeah so that's a really good question sarah so i'm going to go from weakest to strongest the weakest argument

is the consequentialist argument that says if we enforce section 14 i mean uh section 3 of 14th amendment then we're going to have this tit for tat or whatever. You're going to have a super red secretary of state trying to disqualify somebody, et cetera, et cetera. I hate that argument so much that I wrote a, what I guess would be the New York times equivalent of like giving it the double bird for my Sunday column. Like, come on. This idea that, well, we can't rise to the occasion of dealing with the consequences and the reality of a one time event in American history.

Like we've never had what we saw on January 6th, that we can't deal with that because these same people who were intent on overturning an election then might wield whatever remaining political power they have in a punitive way. No, that's blackmail. That's blackmail. But wait, can I add some words into your mouth here and see if you agree with them? You mean, if the provision is crystal clear and you would otherwise,

everyone would agree that we keep Donald Trump off the ballot, then the reason not to put him on the ballot is everything you just said. Right. So that's the consequentialist argument is we can't do this because of the, even if it is legally applicable, we need to not do this because the downstream effects. To me, that is not just not persuasive, it's anti-persuasive. that is not just not persuasive, it's anti-persuasive.

And so what is most persuasive to me is just a much more mundane issue of, or what I would say raises the most doubt in my mind. The most serious argument against the application is essentially that whatever Donald Trump did, however bad it was, it doesn't rise to the level of an insurrection or rebellion. And this sort of goes, Sarah, to some of the same stuff that we've talked about now really off and on since January 6th, where we've had some disagreements between the two of us over to what extent is Donald Trump responsible for the actual attack on the Capitol? to what extent is Donald Trump responsible for the actual attack on the Capitol? And that to me is where, yeah, that's the conversation that is most interesting to me is, okay, does he fit within this provision? Were his actions leading up to and on January 6th sufficient to trigger this provision?

Which I think is the really interesting question. The consequentialist argument that says, well, either even if he tripped it, we don't want to do this because of the consequences, or he probably tripped the provision, but the consequentialism should push us back towards saying that he didn't. That's where I have a problem, if that makes sense.

It does. I think that i think that the consequentialist argument is a little different than you're portraying it can i steel man the consequentialist argument for you man it isn't um well the if the law clearly applies we still shouldn't do it because bad things could happen down the road. It is more, if you interpret insurrection and rebellion to be this broad, then it can apply to all sorts of other things downstream that we can't really think about right now or imagine right now. And I think those are slightly different,

which is why I was trying to put words in your mouth that your version is it's very everyone agrees let's just you know stipulate that this was an insurrection rebellion then we shouldn't do it because it could be used for a tit-for-tat i totally agree with that i think the harder question is this is a close call on whether it was an insurrection or a rebellion um We haven't really had to decide that ever since the Civil War. And if we're talking about having an expansive version versus a narrow version, we should think about the consequences of being too expansive. Now, I want to caveat what I just said, the steelmanning version of that with then some of my own thoughts,

which are, yeah, but we should have a definition yeah and i guess for me one of the things is when people say expansive definition i'm thinking how expansive is this definition really well because david you have to break this up a little bit some people are arguing that the insurrection and rebellion that donald trump aided is the people who were committing violence inside the Capitol on January 6th. Some people are arguing that the insurrection or rebellion that he aided was sending in the fake electors or pressuring Mike Pence or, I mean, anything that he's been charged with in the federal case. Yeah, I think those are, I think each of those could have a totally different conversation on whether it is an expansive or a narrow reading and i think that matters which i think some people don't think it matters and i think it does matter you need to define the

insurrection or rebellion um near like narrowly in the sense that i want to know exactly what you're saying he did not just you know the stuff he did after the election trying to steal it january 6th like that's those are just words you're throwing at me i do want a definition of insurrection and i want a definition of rebellion and aid you know like all of those things need definitions moving forward right and that's the thing that i think the the part of the conversation you're going to hear about is this self-executing is this not self-executing the the court resolution of all of this to me was one of the kind of more pointless parts of the conversation because we all know that this would be in this will end up in federal court if you actually try to disqualify trump or if you try to disqualify let's say there was a member of you know there was

a somebody who stormed the capitol on january 6th who had previously taken an oath um i think there might have been a state legislator or two who was in that mexico um uh one of the new mexico dudes i believe was removed from office right and so think, you know, you're going to end up with, you're going to end up with a judicial definition of these terms. And it would not surprise me at all if there was sort of a menu of definitions. So if you've engaged in a criminal scheme to overturn an election in the United States of America. If you have either incited or engaged in acts of violence. Now, the interesting thing about this is the the when what Bowdoin Paulson, I think, do a good job in their in their piece of arguing is this language is actually pretty broad, and they could have said that anyone who's convicted of engaging in an insurrection is disqualified, or anyone who's convicted of engaging in a rebellion is disqualified. They did not do that. They did not say that those who've been criminally convicted of engaging in these kinds of activities are barred.

of engaging in these kinds of activities are barred. And that to me is very interesting. I think the easy way to interpret this is, or an easy way to deal with this is, well, if you've been convicted of the federal analog of one of these words, sort of the federal criminal statute analog of one of these words. So Professor McConnell says,

nobody's been charged with insurrection, but some people are charged with seditious conspiracy and perhaps if you said somebody who'd previously taken an oath who's been convicted of seditious conspiracy could not i do think that's an easy way to narrow but i don't think the text gives you that option i don't think the text gives you the option of saying well but it has to be somebody who's been criminally convicted of one of these, of one of these actions. And that's, that's what makes this text, I think, more difficult to wrangle with. All right, let's go to our conversation with Professor McConnell now, and then we'll come back afterward to discuss a little more of some of the issues we didn't get to that's on my list.

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This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best-selling frame. That's auraframes.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Let's hop straight to our guest, Professor Michael McConnell, Stanford University,

former circuit judge, author of the book, The President Who Would Not Be King, Executive Power Under the Constitution, which feels like an appropriately titled book for today's conversation. Professor, thanks for being here. Thanks for having me all right i want to just walk through the sections of the bode paulson piece on 14th amendment section three and of course we've we're putting this law review article in the show notes the sweep and force of section three uh so basically and again this is going to be pretty short shrift to some of these sections

number one they're arguing that it's still operative um that despite congress for instance passing several statutes since uh the 14th amendment went into effect for instance granting amnesty to uh like limited amnesty then fuller amnesty, etc. That they couldn't, for instance, undo the effect of Section 3 for future insurrections and rebellions. They could only do it for pass. So that was sort of part one. Part two, they argued that it's self-executing, as in Congress did not need to then pass a statute further elucidating their powers under section three and they also say that basically everyone's in charge of enforcing it maybe state judges maybe state secretaries of state who decide who's on the ballot federal judges congress everyone gets a say anyone can

bring um can sort of make their own determination along that line. And they talk about the Griffin case by Chief Justice Samuel Chase, who was then sitting as a circuit court justice. Maybe we'll get to that in a little bit as well. Three, they say that Amendment 14, Section 3 trumps any other constitutional provisions so to the extent you're worried about the first amendment or the ex post facto clause um nope because this comes later basically it uh overrides those if there's a conflict which they also i think

would argue there probably isn't but to the extent there were and then four they talk about the terminology of like the applicability of section three itself what is the historical meaning of insurrection rebellion and who does the plain language apply to who does it apply to in terms of whose what offices are you not allowed to hold who had to take the oath for that to apply to them um and i'm now going to turn it over to you professor because i would like to hear from you what you think is the strongest part of their argument and what you think is the weakest part the parts that you disagree with first i think it's pretty clear that section three is still in effect. I don't really understand why anyone needs to spend many pages of a Law Review article arguing that it's part of the Constitution like any other. The notion that it is self-executing, I think, is either meaningless or silly. Nothing is

self-executing. No other provision of the Constitution is self-executing. Certain people are charged with executing. Now, it's a very difficult legal question to figure out who exactly is in charge of executing Section 3, and it differs according to what kind of office we're talking about. And so if we're talking about state offices, this is going to be a question of state law, and every state is going to have a different answer. And so we would have to be here all day to talk about each of the 50 states. If we're talking about members of Congress, it's pretty clear under the Constitution by the explicit language of Article I, each House is the judge of the qualifications of its own members. And that's the way Section 3 was enforced with respect to members of Congress back when it was still a viable thing after the Civil War. So the House and the Senate would make that a determination, and it's not evident that anyone else would have that

authority. Now, the president is actually the most curious and uncertain of these, because the laws having to do with the manner of choosing electors are left to each state legislature. But presidential candidates are not actually on the ballot. And the way we choose presidents is through nominating procedures. Not every state even has primaries. The parties have a First Amendment constitutional right to nominate whomever they want. And I think it's an uncertain question whether state election officials, so for example, state secretaries of state, would be able to exclude someone from the ballot. And I'd like to remind everyone that state secretaries of state are elected. They're elected on party line, and these are often highly partisan individuals.

And if they do have the authority to do this, it has been done twice in American history, to my knowledge. State officials have excluded a person from the ballot, had to be the same person in two different states. But this is someone who was plainly ineligible. There was no factual question. There was no serious legal dispute. So this was a cut and dried case. And he was eliminated from the ballot. And that was upheld by courts of appeals, by the way, including my former court, then Circuit Judge Neil Gorsuch on the panel. And the theory is that states have the authority to make sure that their ballot is intelligible by making sure that it isn't cluttered up with a lot of people who aren't really legitimate candidates. I don't know whether that rationale would extend to Section 3 or not.

If it does, we still would have the question of what procedures are going to be used. Is every single one of the 50 states going to be making a decision in a different way? And then most importantly, how is this going to get into the courts? My guess, and it's only a guess, no one knows for sure, is that this would go up to the U.S. Supreme Court pretty fast. And so instead of saying everyone has the authority to enforce this, my guess is that nine people are going to have the authority to enforce this in the end. But it certainly isn't self-enforcing. I think there's a very serious problem with the articles, highly expansive. They continually use the word sweeping

definitions of disqualification under Section 3. In fact, the amendment uses a language which is quite limited. There are two pieces of language that are important. One is the language insurrection or rebellion, and the other is the language engage in. And the article waters down the idea of an insurrection to make it include almost any riot or civil unrest that has the effect of delaying or obstructing the enforcement of any law. If that is the definition of insurrection, you know, we have insurrections every year in the United States. Riots are not an unusual event. Think of the riots a few summers ago. Maybe you had federal courthouses that were occupied and so forth.

I do agree that what happened on January 6th was a very serious, historically important and unusual, thankfully unique event. But that is an insurrection or rebellion is far from clear. Note that the Justice Department has brought criminal charges against, you know, several hundred people who participated directly in the events of January 6th, and not a single one of them has been charged with the crime of insurrection, which makes me assume that the Justice Department, which has all the evidence and has every incentive to bring such a claim, has concluded that they can't make a charge of insurrection stick with respect to the events of January 6th. But then perhaps even more serious, the article treats the word engage in, with very broad sweep to include anyone who has supported or assisted in the insurrection. You don't even have to look farther

than the language of section three to see that that cannot be the correct interpretation, because Section 3 provides that people who engage in an insurrection or rebellion are covered, and those who give aid or comfort to the enemies of the United States are covered. Now, enemies of the United States is a reference to war. Giving aid and comfort means to support or assist, and engage in has to mean something more than just to support or assist. Now, they quote some precedent from the Civil War era, but it isn't persuasive because the Civil War was in fact a war, and the people

who assisted the Confederate states were not only engaging in an insurrection, they were also giving aid and comfort to the enemies of the United States in an actual war. But the difference between these verbs has to be intentional. And that means that we need to be careful. Now, overriding all of this is an assumption, at least on my part, and I suspect it will be on the part of the United States Supreme Court, the United States Supreme Court, that a very fundamental aspect of our democratic system of government is that the voters should be able to cast ballots for the candidates of their choice. And we shouldn't have, quote, everyone. We shouldn't have state-level officials and so forth, all these people being able to decide

that, in their opinion, various candidates can't be voted on. Yes, Section 3 exists. Yes, there are going to be some people who are excluded from the ballot. But this is something that we should deal with, with extreme caution. Thank you for that, Professor. One of the questions I have is, if you're looking at riots in general, I think, and our dispatch colleague, Kevin Williamson, had this very pithy phrase in 2021, where he talked about, there's a difference between a coup d'etat and a coup d'etat target. a coup de target. In other words, if you're looting a target that is very, very different from attacking the US Capitol, or even attacking a federal courthouse or a federal building, because maybe you're in Portland and you're engaged in these relentless day-by-day, week-by-week attacks that occurred on federal authority in the state of Portland, I mean the city of Portland, sorry,

that there is a meaningful difference between these two concepts and that the concept of attacking the authority of the federal government is something that is just a category that's fundamentally different. And do we actually weep at the idea that one of the architects of the attack on the U.S. courthouse in Portland may not be eligible to serve in government? Is that something that we should be concerned about? Or is it more relevant to be concerned about this idea that people who engage in attacks against the authority of the federal government um the the actual protection of the constitution is much more contained within enforcing a provision that clearly contemplates having had recent experience with violent rebellion clearly contemplates that this is a an actually punitive measure this is designed to be punitive. And I thought that was an interesting part of the article that, look, this is harsh. This is punitive. It's very strong. So if we are talking about riots and riots that are directly aimed at overthrowing federal authority in any given location in the United States of America, isn't that exactly encompassed by the plain language here?

Well, again, we're all speculating. There's no precedent on this other than the Civil War itself. What seems to me to make sense of the words of Section 3 of the 14th Amendment is that there's a difference between insurrections and riots, that riots are designed either to express anger, which is the most common thing, or also common to put pressure upon the government to make a decision in a particular way.

Whereas an insurrection is actually designed to displace the authority of the government and, you know, overthrow it, basically, the way the Confederate states did. Now, I don't know exactly what the January 6th rioters were doing. And, you know, I don't want to, you know, I'd be open to evidence, you know, one way or another. I'd be open to evidence one way or another, but it seems to me that what they were doing was trying to frighten the members of Congress into deciding the instead of Biden, or at least to delay to give the state legislatures time to recount the votes. That doesn't seem like an insurrection. That seems like a riot. It seems like the bringing of coercive pressure against the government to do something in a particular way. Now, this doesn't mean that this is an excusable act. I fully believe that it's criminal in a variety of ways. But the word insurrection is

a carefully chosen word, and I don't think it applies to every riot. Do you buy into Bode and Paulson's distinction where they talk about, for instance, an insurrection being the attack on fort sumter for instance trying to prevent a federal you know the federal government's action in some way versus a rebellion being voting on articles of succession as in you know a rebellion for instance doesn't have to be violent it could be refusing to certify lawful electors perhaps the insurrection is using violence for instance to prevent the federal government from carrying out its lawful duties and orders i don't even understand what they're trying to say. The Confederate states voted to leave the Union and South Carolina attacked Fort Sumter because Fort Sumter was a federal installation within their state. This was a, I don't see how that could be seen as anything other than an insurrection but a violent attack on the capitol designed to

replace the winner of the election with the loser of the election i guess i'm confused a bit by what you're talking about trying to frighten the legislators as somehow not insurrectionary i mean they actually occupied violently occupied the capital to overturn the result of election without legal foundation it seems to me that that's a about as neatly a definition of a say a coup or an insurrection or rebellion as you could find and david just to clarify your point you're making the point like forget trump being disqualified from the ballot for a second we're just talking about the definition of insurrection so for instance would the definition of insurrection apply to those who violently

were inside the capital that day and then we can exactly move out from there and distinguish aid and comfort and all of that but just on the insurrection definition is the q anon shaman barred by this provision, for example? In your mind, Professor McConnell. I don't believe the QAnon shaman had previously taken an oath of allegiance. Fair, fair. Okay. If he had been a city councilman.

Nobody knows. I don't want to speak with great confidence here. You know, I don't, there are shades of gray, no one knows the right answer. But what I would say is that the rioters were not actually trying to overthrow the government. What they were trying to do is to get Congress to do what they wanted Congress to do. And that leaves Congress, none of them thought that by driving the congressman out and, you know, into the basement and so forth, that they would then be able to run the government. No, what they were trying to do is frighten the congressmen into doing what they wanted, which is very typical of riots. What riots often are trying to do is to frighten

the targets of the riots into doing what they want. I think that's quite different from trying to overthrow the government. Can we broaden then out to a on the rebellion side for instance and not just the people who were in the capitol that day you know the pressuring mike pence not to certify the election or the and again stipulate here for a second with me um having a plan to have unauthorized slates of electors sent in from the states to Congress for the purpose of, again, having the loser of the election certified instead of the winner of the election. What about the definition of rebellion on that side? I'm not sure exactly what you're asking. There were all kinds of stupid, completely baseless legal theories running around, including the idea that the losing

slates of electors would be able to declare themselves the winners. Totally baseless, completely legally meaningless, possibly even criminal. Is it a rebellion? When they meet that way, I just think it's a stunt. I guess I'm missing something in my mind when you say a riot is designed to frighten somebody into doing something that the mob wants them to do. something that you know the mob wants them to do well if that thing you're trying to frighten the congress into doing is literally overturn the results of a lawful election and install the loser how i i guess i'm stumped as to how that is not a rebellion or an insurrection i don't know this i don't feel like I'm understanding this distinction between overturning the government versus trying to frighten Congress into overturning

the government. Well, you may be right. I don't have any high level of confidence in any of this. We don't know. I'm giving what I would guess to be the most commonsensical answer. And it's also against the backdrop of our very fundamental idea that the voters should be able to vote for the candidates of their choice. So I think if it's a close question, the courts are very likely to say, leave people on the ballot if there's a pretty good chance that they belong on the ballot. Now, none of this for me is about Donald Trump. I'd just as soon have Donald Trump disappear from our political scene. I never voted for him.

I have no brief for him at all. As far as I'm concerned, he deserves what he gets. What I'm worried about is that into the future, this is going to be turned into yet another way in which partisans go to court and go to friendly officials to get their political opponents thrown off the ballot based upon any verbal support they may have given to some college riot somewhere, I think it will be a real disservice to the nation to adopt so sweeping, so unlimited, so vague, so nebulous a standard for disqualifying people from the ballot. I think that's the perfect place to end this because I think that does get to the heart of the question.

Professor McConnell, Stanford University, author of The President Who Would Not Be King, Executive Power Under the Constitution. Thank you. Yes, thank you very much professor really appreciate it okay i thought that was really helpful to elucidate some of the insurrection and rebellion points i i have an unpopular take on that i don't actually care that much about that part of the conversation i know it's what everyone else is really focused. I'm sort of willing to stipulate along the lines of what I was saying, as long as we have a definition and I'm fine with the

Bode Paulson definition of insurrection, sort of being the violent attempt to prevent the federal government from carrying out its lawful duties, of insurrection sort of being the violent attempt to prevent the federal government from carrying out its lawful duties a rebellion being an attempt to um whether through violence or not uh you know undermine the federal government's lawful duty so you know the difference between attacking fort sumter to prevent its restocking or taking a vote in a legislator to legislature to secede from the union. That's fine with me as definitions. And I'm pretty good with their giving, you know, participating in giving aider comfort. Again, I'm going to want that all very

specifically laid out of what Donald Trump did did that fits that definition but overall that conversation to me i don't know why not that interesting here's what gets interesting to me david um there is a text problem here so i'm gonna read you the text okay no person shall be and then i'm gonna put the numbers aren't in here but i'm gonna number them for my purposes no person shall be one a senator or representative in congress two an elector of president and vice president. Three, or hold any office, civil or military, under the United States or under any state. Okay. So first of all, this is the offices you can't hold if you've engaged in a rebellion. There's three parts to this, you know, section three thing. So that's part number one. President isn't in there. And so what everyone's reading is that that last part, the or hold any office, civil or military under the United States covers president.

Bowden Paulson's argument on this, and they have several, but I want to start with this one is like, don't be cute like it says hold any office the president of the united states is an office like we don't need to talk much about this yeah but it's weird that they specified senator or representative i can see doing that one first remember at this point the legislature is still the strongest branch it's still article one i mean technically it's still article one now but it's like article 27 in our hearts um but like they specify elector of president or vice president but they don't actually specify holding the office of the presidency okay so that's one then two uh in order to be disqualified you had to actually swear an allegiance to the united

states which i think is actually a very clever part of section three to me i think it is too i like that that's there you have to have betrayed something you've broken your promise that's right so uh you can't hold any of those offices if you have previously taken an oath as one, a member of Congress, two, as an officer of the United States, three, as a member of any state legislature, four, as an executive or judicial officer of any state to support the Constitution. You know, there's all these conversations that statutorily at least officer of the united states does not include the president again boden paulson are arguing don't be cute it says officer like this one actually makes even more sense there is this conversation between two senators so senator reverdy johnson of maryland uh says that the amendment does not go far enough i do not see but that any one of these gentlemen may be elected president or vice president of the

united states and why did you omit to exclude them um and then senator moral of vermont interrupted him and said let me call the senator's attention to the words, or hold any office, civil or military under the United States, to which Senator Johnson promptly and somewhat sheepishly retreated. Perhaps I am wrong as to the exclusion from the presidency. No doubt I am, but I was misled by noticing the special exclusion in the case of senators and representatives. So this is actually my argument, David. And I am agreeing with Bowdoin Paulson that like, I think they did some really good work finding that back and forth. It is meaningful to me. I do take it into account. But it's also two dudes. And if you're sort of remembering the etiquette of the day

the other dude saying perhaps i am wrong is not what that would mean today in my view right he's basically saying i'm not wrong yeah uh that he's noticing the special exclusion and then nobody fixes it so this is why legislative history, I think, is particularly hard. Two guys having a side conversation that then nothing comes of isn't informing, for instance, what everyone believed the meaning of a term was. This is, and we talked about this offline, this is interesting to me because this is the otherwise problem. It is the otherwise problem! Yeah, and for those people who don't remember what we're talking about when we say the otherwise problem. Yeah. And for those people who don't remember what we're talking about, when we say the otherwise problem,

we're talking about the statute preventing conspiracy to obstruct an official proceeding or a statute against actually obstructing official proceeding, that it has two parts. Part number one says you can't do certain things with documents. And then part number two says, and otherwise obstruct. And so the otherwise obstruct is very, very broad, but it's written in such a way that it is

in order, seems subordinate to the original clause, which is, but this is about documents. Whereas if you wanted the broader provision to be the main provision, you should put that first and then say, including. Right. So, but then on the other hand,

if you're saying, well, look, let's just read the words on the page. This is the Bode-Paulson argument. Look, he fits within any officer he fits within he is the chief executive officer so he fits with an executive officer let's not be silly which is sort of the way the dc circuit has revised the otherwise resolved the otherwise dispute which is still probably which is still going to be ultimately in all likelihood resolved by the supreme court say look let's just not get cute the order doesn't matter so much as just the language it's broad but i so i hear you sarah like of the of this let's let's sort of say of the three elements here the consequentialist argument to me i'm just i'm riding into the

sunset flipping that the bird that's not not persuasive the scope of insurrection or rebellion i think as applied to donald trump is very very strong uh in my view. But this is so weird to me that you would specify senator representative and electors and then just sort of someone of the magnitude of the president of the United States is sort of in the, well, anybody else clause. That feels a little weird, although on the plain terms, the Bowdoin paulson come on argument has real resonance but here's where i fall back and i want your your thoughts on this so in order to read it my way the sort of hyper textualist way let's call it to be pejorative about my way um i do think you have to have a like but why would they do that like you sort of

have at least i don't mean you have to prove, but you have to have sort of a mental version of like, okay, but like you have to have some reason. They clearly meant to include quite a few people. Why would they exclude the president? Yeah. And I think my answer to that is, and this might be really unsatisfying. It's unsatisfying to me.

I'll put it that way. What if it just really didn't occur to them that you would ever have a situation where the president of the United States was involved? Because at that point, the whole thing has fallen apart and or this amendment sure as hell isn't going to help. Bingo. And I think that's really, really plausible that it didn't occur to them that they would need to include the president of the United States. But David, let's assume I'm right.

Then what do you do well i think the the reality is in my view i think on balance i'm with the bowden paulson that look if you just read any office if you read executive officer the president's encompassed by that and the reason why the president wasn't singled out is because in the Reconstruction era, in that era, what you're talking about is Confederate officers were wanting to run for Congress. And they were coming into, they were solving the problem in front of them. Exactly. So I look at, for example, Wade Hampton, this is a pull from Civil War eras. He was this super wealthy South Carolinian who was also a Confederate officer. And then he ended up, guess what, Sarah? A U.S. Senator from 1879 to 1891. important because that's following congressional enactments that allowed him to be a U.S. senator.

But that was the issue they were confronting. The issue that was right in front of them was not that Jefferson Davis was going to run for president or that Wade Hampton was going to run for president. The issue in front of them was senators and congressmen. And then they said. And their issue was definitely not that Lincoln was going to now run for something like the other problem here. You run in. So remember, there's the two clauses. So the first one is what offices you can't hold. So, right, that's the Jefferson Davis problem. Is he going to run for president?

But the second problem is who already took the oath, in which case they're definitely not thinking that a president who already took the oath then engages in a rebellion can't be president again like that lincoln's not the issue here yeah but you know jefferson davis had previously taken the oath he was a secretary of war you know he was a senator until 1861. But it probably never crossed their mind that, oh, we're going to have Robert E. Lee is going to run for president, right? And so I think the Occam's Razor resolution here is exactly the one you identified. They were solving the problem directly in front of them

and then added catch-all language because they wanted to make sure they covered their bases and it didn't occur to them that you're going to have a freaking president actually do what donald trump did maybe their thought would be well we're screwed right it's just over at that point so we don't need to include that and that's where i find the colloquy between the two senators also kind of unhelpful because in some ways them not acting on it and not clarifying it fits more within my framework than i think the bode paulson framework they were like yeah this doesn't matter we don't need like that changing the language now and then we're gonna have to explain it to everyone like don't even bother

it's not a real problem i think you're being originalist and they're being textualist the actual text says you know any office and then but your thought is well they weren't thinking about the president well i think mine is like a textualism ambiguity problem because it's the otherwise problem i still think that's a textualist argument that you don't hide elephants in mouse holes, right? The or other office is a mouse hole and they're trying to hide an elephant in it. And so then you have to turn to originalism to say, okay, well, how are we going to resolve this? Did they mean to put the elephant in the mouse hole? Did they not? Can we talk really quick about the Griffin case? Yeah, yeah, yeah, absolutely. Okay. Because this is a big chunk of the Bode-Polson argument. And I just love stuff like this.

I love doing deep dives on weird historical cases that I hadn't heard of before. So in short, Griffin is a black man convicted of firing a gun, basically. And the only grounds on which he can test his conviction is that the judge who oversaw his trial could not be a judge because of 14th Amendment Section 3. He had taken an oath, helped, I think this was South Carolina, right? Basically helped in South Carolina during the Civil War and then just continues being a judge when things go back to normal. And he's like, no,

no, no, no, no, no, no, no, no,

no, no, no, no, no, no, no, no,

no, no, no, no, no, no, no, no,

no, no, no, no, no, no, no, no,

no, no, no, no, no, no, no, no,

no, no, no, no, no, no, no, no,

no, no, no, no, no, no, no, no,

no, no, no, no, no, no, no, no,

no, no, no, no, no, no, no, no,

no, no, no, no, no, no, no, no, circuit uh and he writes bring it back bring it back would be so much fun uh he writes this opinion that boden paulson have to say is so wrong that we don't even have to think about it anymore

because what the circuit court opinion is like nope your conviction stands and this guy is not disqualified from being a judge who's already a judge who already sat on your trial and the reason for that is that there would be total chaos through the south because basically everyone who currently holds an office held it during the civil war and so all the acts that they're taking based on what the date of the ratification of the 14th amendment would then be void and that would be so insane that it can't be what section three means therefore it doesn't mean that and boden paulson's point is like sorry it's like david's consequentialism argument like sorry it would cause some chaos but here in justice

gorsuch land honey badger don't care if you wrote in chaos then maybe you get chaos but also would it cause that much chaos and there's all sorts of other ways to sort of prevent the reading of the chaos but they have this one line in which they talk about um first and foremost what chase got wrong chase's framing of the interpretive question commits a classic blunder swapping in original intent for original meaning and our constitutional system law is made by enacting texts not by searching for the unenacted wishes of lawmakers and whatever evidence chase might have, the consequences of Section 3 were unintended by some of those who voted for it. He had no evidence that those consequences were not entailed by what they voted for. And I feel like that could have been in the Bostock opinion.

Yeah, that's interesting. No, that was a very Gorsuchian statement. Yeah, this whole thing is very Gorsuchian to me, but... Yeah. And now the interesting thing about this is you really are getting into the conflict that occurred in the United States post-Civil War, where you had a lot of people who view... There were the radical Republicans who sort of viewed the Civil War not you had a lot of people who view there were the radical republicans who sort of viewed the civil war not just as a matter of reuniting the union but as a matter of fundamentally purging the legacy of slavery from the united states of america and though you know these were the folks who wanted union troops to stay These are the folks who helped protect the franchise of black citizens.

These were the folks who were, you know, if you're talking about sort of the original 40 acres and a mule with, you know, that shirt, the Sherman declaration that these are folks who would say, I'm going to take from the slave-owning class and give to the enslaved, previously enslaved class, and we're going to remake Southern society. And then there's this other faction that's like, look, slavery's gone. We just need to reunify and move on. And minimal future disruption. Let's put the Civil War back in the rearview mirror. And this was a huge confrontation until you know the election of 1876 and the compromise around that election of 1876

and yes historian listeners i know i'm skipping a lot of stuff and really summarizing a lot of nuance but you know the question really was how much are we going to remake southern society and and that you know the griffin's case is sort of putting a thumb on the scale of come on guys we can't do the full deconfederization of the south we can't do that it's just not possible it's sort of like you know when when u.s british and french troops rolled into germany we did a denazification we can't you know this is of course a long time before that but we can we really have a functioning society if we eliminate the whole previous leader class from it and which was sort of the classic kind of consequentialist pose and look you know i think the verdict of history on on these on this

dispute is about as clear as a verdict of history can possibly be which was the failure the end of reconstruction and the failure to sort of deconfederate the south is a was a giant historic tragedy, just monumental historic tragedy. So I think Bowdoin Paulson, again, with this sort of the double middle fingers in the air to the consequentialist argument, have the better of it. All right, if you're gonna read one part of this Law Review article,

I actually really recommend reading the Griffin part. Not that it's even that relevant to the discussion we're having today about Trump, but because it's really fun and we can't spend more time on it and i'm sad about that i know it's a great article like it really is it's so funny i wrote as i said i wrote about it sunday and really taking on the consequentialist argument not taking on the substantive argument and the number of people emails I got from people saying, well, thanks to you, I'm now reading a law review article. It's kind of funny. And some folks were sending me emails from Southern California saying, I'm reading a law

review article in a tropical storm. Like that's not something I ever thought I would say. Yeah. I mean, just first of all, they use the word bonkers in the Law Review article, which I love. And do I just read that sentence real quick because it's fun. Please. I'd highlighted that actually. So I had to.

So they said, do these statutes, can these statutes grant amnesty to all insurrectionists, past, present and future? No. While the argument is not entirely bonkerskers it does not withstand more serious scrutiny um they also have this very what i will call david frenchian-esque section uh about the griffin case chase was too ready far too ready

to find that following the literal language of the document would produce what Chase considered to be great inconvenience or mischief. Indeed, increased calamities already visited upon the South. Chase emphasized the breadth of Section 3's language. It applied in all the states, not just the former Confederacy. So, question mark. It applied beyond the context of the Civil War, but included aiding enemies in foreign wars. So, question mark. It applied beyond the context of the civil war, but included aiding enemies in foreign wars. So question mark. It would apply in terms to immediately disqualify men for acts done long ago. For example,

in the Mexican war. So question mark. It would apply to all persons in the category and for all time present and future. So question mark. And taken seriously, this broad rule would, as noted, annul all official acts performed by disqualified officers, including judges.

Parentheses, would it? So, yeah, you know, I think that there's a decent chance that Professors Bode and Paulson are listening to this podcast. And, you know, I feel like the bonkers was a very Bodian term. So I'm trying to trigger them to bait them to come on the podcast, David.

So Professor Paulson, if you're going to tell us that you wrote bonkers, you better come on and defend yourself. There's double bonkers in there. There's two bonkers. If you do a control left for bonkers, there's two bonkers, you better come on and defend yourself. There's double bonkers in there. There's two bonkers. If you do a control left for bonkers,

there's two bonkers. So, yeah, this is the way Larvey articles should be written. It's very, very, it's both rigorous

and accessible. Yeah. Okay, David, look, we ran out of time. We have to spend real time on the fifth circuit's mifeprestone case we also have another fifth circuit case that was decided thursday's episode will be fifth circuit day fun little yeah run down there uh but before we go let's do the update on

the hunter biden plea deal stories that have come out and a little removal at the end so david uh written by one betsy woodruff swan in politico she got access to hundreds of documents and emails going back and forth between the two sides over this plea deal it's not helping it is not building confidence so at one point for instance hunter biden's lawyers i was going to say suggest they don't suggest they explicitly say if you pursue these charges we will call the president as a witness for the defense and it will be a constitutional crisis no it wouldn't why do you ask and they don't say this part, but basically because it would be Joe Biden as executive, of course, bringing the case and Joe Biden person,

of course, on the defense side of the case. And they're saying that would be the constitutional crisis. Nope. Anyway, I mean, seriously, no,

no, please. No, no, no. I mean, and it also, though, please. No, no, no. I mean, and it also, though, I think showed that in fact, very much so Department of Justice was driving the train on some of these negotiations. They knew what was in the, this was not incompetence.

It was intentional. That's pretty bad for the Delaware DOJ team led by David Weiss. I don't know how else to say that. And I think I'm very protective of my former institution. Yeah. There's also a Times piece, I think, written off the same set of documents. And one thing that was very clear from the times piece is that the whistleblowers made a big difference so the people who came forward the irs folks who came forward and said wait a minute

like we've been stymied here we've been stymied there we've been stymied here did impact the plea negotiations and so this is one reason guys why we protect whistleblowing this is one reason, guys, why we protect whistleblowing. This is a reason why protecting whistleblowing is absolutely a fundamental part of, you know, a transparent democratic republic. And they had a real impact here. And when you read the Times story, it feels a lot like, and that threat, Sarah, about, oh, it's a constitutional crisis, we swear to Joe Biden. Oh, that's hilariousah about oh it's a constitutional crisis we swear joe biden

oh that's hilarious to me that's a constitutional crisis but the the idea here that um what you had was a defense team that was essentially sort of threatening all kinds of things like hey you know this gun charge is going to go away because of the constant you know because of the constitution and bruin which by the way it actually might depending on how some of these cases shake out about drug use etc and we we talked briefly about a case uh recently decided along those grounds. But consistently, the defense is pitching a fit and seems to be intimidating the prosecution until somebody else pitches a fit, like the IRS agents, and then that intimidates the prosecution. It just feels like the prosecution is sort of blown and tossed by the winds of whoever

is making the most trouble for them. And that's not reassuring, Sarah. No, no, it's not. All right. Can I add a few notes on removal?

Yes, please. There've been more filings by Mark Meadows, lawyer, George Terwilliger. I'm going to call him friend of the pod. That's not really a fair thing to do because he's he's not been on the pod and i don't know that he actually listens to the pod

but nevertheless friend of the pod george terwilliger um his son and i under the expansive definition of friend of the pot that's right his son was at the department of justice with me zach terwilliger and um just my absolute bestie at various points there. And so, you know, he's literally grandfathered in. And there's just some more interesting things to think about with this. So first of all, remember that under this idea that if a state charges someone who was holding a federal office at the time of their actions, and that person can remove the case to federal court. The case, David, not the defendant. And it automatically removes. So right now, the Georgia case is in federal court. It will now be up to a federal judge

to decide whether to remand it back to state court, for instance, but it's in federal court. As in Fannie Willis already lost her whole case out of state court in very short order. And I think that's been lost on a lot of people who are defending her. And this is why you don't bring

just huge sprawling cases because it's a fun headline to say that you have the biggest case or the most charges against the most number of people related to january 6th because you lost your case to federal court again it could be remanded so i wanted to just run through the three sort of factors here that i'm finding interesting one i don't totally understand the equity issues or even legal balancing that the federal judge does with one federal defendant and then let's just stipulate um let's even stipulate that like jeff clark or maybe donald trump fall into maybe that federal defendant category 16 though clearly state defendants and the interest of the state in bringing the

prosecution versus the interest in those three defendants having sort of their federal rights protected. So that's an outstanding question because there's been so, so few of these cases. Fascinatingly, though, David, a very interesting case coming out of the fourth circuit that got mooted out two officers on gw parkway shoot a suspect the department of justice declines to charge them so the state of virginia charges them they remove the case to federal court 1442 what happens well we don't really know because that new person was elected in Virginia and dropped the churches um okay number two all you have to do to sort of show your federal interest is that you were acting under the color of your office sort of thing this to me is actually

a very very low bar and I've seen people say like, well, by definition, you know, when he was doing that, he wasn't acting as chief of staff because chief of staffs don't steal elections. No, no, no, no, no. The question for this prong is only was he doing chief of staff like things or did he hold up the grocery store he went to buy ice cream at right clearly he's doing chief of staff type things meetings yada yada okay but here's the problem with the removal you also you not only have to prove you were acting in sort of the color of your office but also that you have a federal defense and that's why you need to be in federal court to protect your federal interests. This is basically the supremacy clause, the idea that states can't thwart the lawful execution of federal laws through state charges. And that's why this whole case gets removed to federal court in

the first place. He's got to be able to prove that. And the problem is that gets really circular because that is a question of if the thing you did was unlawful under federal law, then you don't have a supremacy clause defense. But the whole question is whether what you did was unlawful. Right. No, so the interesting,

I think that what you're going to end up looking at are what are the allegations? Are the allegations that more akin to you're robbing a bank while chief of staff? Are the allegations more along the lines of you abused your office as chief of staff? And this is a big difference between the Mark Meadows and the Jeff Clark claims.

So Mark Meadows, I think, has the slightly weaker claim that he was acting in the office of chief of staff compared to Jeff Clark, who clearly was acting in the office of chief of staff compared to Jeff Clark, who clearly was acting in his office as acting head of civil rights, oddly enough. But the supremacy clause defense, I think is incredibly weak for Jeff Clark, that what he was doing was protecting a federal interest that the states can't touch. Whereas Mark Meadows supremacy clause defense is a little bit stronger to me. And this is why you get back to number one.

I don't know how a judge is supposed to weigh that if you say, for instance, Jeff Clark's claim sucks, Mark Meadows' claims is good, but the whole case has to rise and fall together. Yeah, it's a mess. It's a mess. And it feels like their inclusion

was not completely thought through. Unless Fannie willis is like whatever bring it on we'll try this in federal court um no there's no evidence that they even knew that there was a 1442 removal clause and based on the number of emails i've gotten from very smart lawyers and even judges when this first came out where they were like this isn't even a thing you can't remove to federal court and then they saw 1442 and they were like this isn't even a thing you can't remove to federal court and then they saw 1442 and they were like well i've never even seen that before right um now why is this a downside for her one no televised trial obviously in federal court

two uh the jury pool might be broader so this would be brought in the northern district of georgia you can draw the jury from jury pool from the whole. So this would be brought in the Northern District of Georgia. You can draw the jury pool from the whole Northern District, but actually you can also just draw it from the division, which would be very similar to just Fulton County anyway. So that may not make much of a difference. But three, she's going to be practicing. It will still be state charges,

but she will be practicing under the federal rules of civil procedure, something that i doubt she is at all familiar with the state rules i think are far more prosecution friendly without i do not know the georgia state rules very well they seem very prosecution friendly the federal rules are not prosecution friendly i would argue um there's you would never do this intentionally well the georgia statutes are prosecution friendly. Definitely. I don't know about the Georgia rules of criminal procedure,

but man, those Georgia state statutes. Whoa. Very prosecution friendly. Very prosecution friendly. All right, David. Well, happy Fifth Circuit Day Eve. We'll do that in a few days um thank you for joining us hope this was an interesting and not too weird or in the weeds conversation about the 14th amendment in section three i'm so into it i'm not sure i'm explaining it very well but i really like

the nerdiness of it but here's the part that i don't like david um adding this together with one of the candidates being on trial next year and then adding this layer of and also you may have a bunch of blue states not even put trump on the ballot i'm increasingly concerned about the next 15 months oh i am so concerned about the next 15 months on multiple fronts, just on multiple fronts. You can see people radicalizing online in a way that is really disturbing. And we're not even in the election season yet. And, you know, Sarah, we had a raid of a house in Utah. A man was killed.

of a house in Utah. A man was killed. We just had a situation in California where the preliminary reports is a woman, a mother of nine, was gunned down by a guy who didn't like that she flew a pride flag outside of her business.

These are preliminary reports. We'll hold open, you know, hold open, you know, final determination on what that was about but the preliminary reports indicate that a fatal shooting started over a dispute over a pride flag

it's dark out there and the fact that a large majority of americans don't like this and they want to see greater reconciliation and compromise um is so far being swamped by the polarized and the hyper polarized extremes who are who are ready they're ready to fight and i'm very worried yeah and i just again like take this to its logical extreme the places in which donald trump will be removed from the ballot are places where the secretary of state in the state itself decides that he can't be on the ballot those will be mostly deep blue states i think or states in which voters bring a court case to remove him from the ballot or states in which candidates bring a court case to remove him from the ballot.

It's, it's a lot of pressure on the judicial system in my view. A lot, a lot. And my God, my goodness, Sarah, if in the days after January 6th, if people had had just a moderate spine to actually impeach,

convict and remove and disqualify him. It's hard for words to express the level of disgust that I have for the people who couldn't bring themselves to convict Donald Trump after January 6th. I i just it's really i and i would love for i would love for listeners to persuade me that the level of disgust that i feel put it in the put it in the comments tell me that i'm wrong but i i just i guess i would caveat like i feel very angry about the republicans who didn't vote to convict but i feel very angry at the democrats namely nancy pelosi who refused to write an article of impeachment that could actually get republican support she chose to make it as expansive as possible so that if you voted to convict on that article of impeachment you were voting basically uh that donald trump was really really bad in the months leading up

to the election and all of that where these people had endorsed him like she didn't she wasn't trying to help get a conviction either so both sides were acting in their purely political interest and not in the interest of the country and not in any way thinking about what was right around the corner oh my gosh it was the most you know you like to say things were predictable this was all predicted predicted. It wasn't just predictable. It was predicted. But yeah, I mean, a functioning body politic would have had, they could have in theory voted out impeachment counts

right after they certified the election. But yeah, it is really infuriating. And here we are. And you sow the wind and you'll reap the whirlwind. Okay, well, good note to end on. And I'll see you in a couple days. Thanks, everyone. Bye.