Advisory Opinions - Incitement of Insurrection

Episode Date: January 11, 2021

In a break from our current news cycle, Advisory Opinions tackles “the more mundane issue of teenage girls complaining” in a discussion about Mahanoy Area School District v. B.L, one of the Supreme Court’s latest cert grants addressing the issue of off-campus student speech. Not to worry, our hosts also dig into the more pressing issues of the day. In an examination of the term “incitement,” David and Sarah ask: Were the president or other individuals guilty—in a criminal sense—of provoking tangible violence at the Capitol last week? Do their words and actions meet the Brandenburg test, which criminalizes inflammatory speech that is both “directed to inciting or producing imminent lawless action,” and “likely to incite or produce such action”? Show Notes: -Mahanoy Area School District v. B.L -Thomas More Law Center v. Becerra -David’s French Press newsletter on Mahanoy Area School District v. B.L -Amendment 14: Section Three -1974 memo on presidential or legislative pardon of the president Learn more about your ad choices. Visit megaphone.fm/adchoices

What's behind the Dairy Farmers of Canada blue cow logo on your favourite dairy products? It's high Canadian standards, which means we meet 42 food safety requirements. We work with animal care experts and work towards a sustainable future. That's dairy farming forward. Embrace something new at Starbucks. Introducing the Ice Lavender Cream Oat Matcha Tea Latte. A creamy drink where smooth matcha meets subtle floral notes. From our airy lavender cream cold foam.

Only this spring, only at Starbucks. Ice Lavender Cream Oat Matcha Tea Latte includes dairy. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. And wow, we've got a ton to cover today. There have been so many new developments since our last podcast. Video evidence that keeps emerging from the riot, the insurrection at the Capitol on January 6th that just gets more chilling by the day. gets more chilling by the day. The body politic is trying to figure out what to do.

The social media bans have extended into the use of web services to shut down, potentially shut down websites like Parlay and Banks to stop processing donations. Rudy Giuliani might get disbarred. My goodness. So we're going to cover a ton of stuff, y'all. We're going to roll through as many things as we can. Was Donald Trump's speech protected speech on the Capitol right before the riot? Or was it incitement? Does the 14th Amendment, Section 3, potentially, could it be used to bar him from future office, even if he is not impeached? Can 14th Amendment Section 3 be used to bar members of Congress from office? Can Donald Trump pardon himself?

tech and social media. But before we're going to get to all that, we're going to kind of go back to sort of as a sanity break. We're going to do something kind of mundane, kind of normal. Sarah, we're going to talk about a couple of interesting cert grants before we get to the end of the republic. How's that sound? It was like the Supreme Court knew that we needed this. And on Friday, dropped all of these great cert grants that just provided this wonderful mental break to dive into some law that does not deal with the existential crisis to the republic, but instead, the more mundane issue of teenage girls complaining. Yes. We had maybe, I don't know, we'll have to research this. Maybe get our crack advisory opinions research team on the question, is this the very first cert grant based on an angry Snapchat screed? I love it because the cert petition itself

had emojis in it because they had to describe her snapchat they had to describe what snapchat was i mean uh let's let's back up a second david tell us about the cheerleader case yeah this you know it's funny rarely do you actually do this but on december 29th i wrote an entire french press newsletter about this cheerleader case and it's called How an Angry Cheerleader Could Help Cancel Cancel Culture. And it's the story of a cheerleader. We only know her as BL by the initials BL because BL is a minor, a high school student at Mahoney Area High School in Pennsylvania. And I'll just read to you a paragraph from the Third Circuit Court of Appeals opinion that very nicely describes her plight.

By the way, this Third Circuit Court of Appeals opinion was just a delight to read from start to finish. Every now and then you can tell that a judge really is into a case and just really leans into the opinion, and this is one of those. BL was frustrated. She had not advanced in cheerleading, was unhappy with her position on a private softball team, and was anxious about upcoming exams. So one Saturday, while hanging out with a friend at a local store, she decided to vent those frustrations. She took a photo of herself and her friend with their middle fingers raised and posted it to their Snapchat story. The snap was visible to about 250 quote-unquote friends,

many of whom were MAHS students and some of whom were cheerleaders, and it was accompanied by a puerile caption, F school, F softball, F cheer, F everything. To that post, BL added a second. Love how me and another student got told we need a year of JV before we make varsity, but that doesn't matter to anyone else. Emoji, emoji, emoji, emoji.

So she's on her own phone. She's not at school. She's at a store. she sends it on a snapchat story and of course you know anything be more teenage girl this is so like just paradigmatic thing that every teenage girl has said some version of i mean 15 years old and you're just rage against the machine. The difference now versus me at 15 versus your wife at 15 is Snapchat. Yeah. I think, you know, so many things are running together.

We talked a bit about this case before. And I related that I was cut from the high school basketball team. And Sarah, oh, Sarah, did I rage. Oh, I raged. I mean, the unfairness, the injustice. To this day, to this day, I don't want to think about it too much because I was angry. I was angry. I was angry. I was so angry that we started a short-lived underground newspaper at school to try to call out the endemic and rampant injustices of the athletic department. But that's... So here's the problem. The vast majority of circuits out there basically say that, yes, as long as there is some nexus between the students off campus speech and school activities, school work, school students, then, yes, the school can reach into that speech, even if it would otherwise be protected by the First Amendment.

But the Third Circuit decided to, quote, forge its own path. Yep. And basically said, no, Tinker, this post-Vietnam case where the student wears the armband to school and that speech was found to be protected, Tinker should sort of, you know, get a little steroid boost here. And off-campus speech, regardless of what it's about, is off-campus. And that's just none of the school's darn business. And so the school filed a cert petition at the Supreme Court. And that is what has been granted.

And, you know, David, I think you are, you know, your newsletter was pretty firmly pro-Tinker, pro-First Amendment, off-campus speech is not the school's business. Is that fair? That's very fair. Yep. Yep. I was all in on Judge Krause's opinion. And there's this one bit of it I'll read that I just loved. I loved.

It says, the heart of the school district's argument is that it has a duty to inculcate the habits and manners of civility in its students. To be sure, BLSnap was crude, rude, and juvenile, just as we might expect of an adolescent. Channeling Sarah right there. But the primary responsibility for teaching civility rests with parents and other members of the community. As arms of the state, public schools might have an interest in teaching civility by example, persuasion, encouragement, but they may not leverage the coercive power with which they've

been entrusted to do so. Otherwise, we'd give school administrators the power to quash student expression deemed crude or offensive, which far too easily metastasizes into the power to censor valuable speech and legitimate criticism. That's, I couldn't have said it better myself. Let me ask you a question that is different. So at my school, cheerleading was like the end all and be all of social status. You ran for cheerleader, like you ran for student government.

Absolutely. And you had a $1,000 campaign finance restriction. $1,000 to run for cheerleader is a lot, by the way. Yeah. And this was back in 1998, you know? 1996, whatever.

People had those like full, laminated, you know, billboard- size things that would hang like outside through weather and whatever the point is getting elected cheerleader was a very very big deal and it wasn't really as you can guess based on merit or really your school spirit for that matter um so wow here's my question to you, David. Cheerleaders, therefore, sort of at my high school were something like student body presidents. They represented the school and the student body. Let's assume that one of these cheerleaders shortly after getting elected is at an off-campus party where there is alcohol being served. And that student, you know, obviously is underage for drinking.

There's pictures of them drinking alcohol, acting drunk and inebriated. Can the school have a policy that says if you are caught with alcohol off-campus, regardless of whether you're arrested for DUI or anything, if we have evidence that you are drinking alcohol off campus, we will remove you from the cheerleading squad. I don't think there's a constitutional problem with that. I think it's just a prudential issue. Because alcohol, drinking alcohol underage

is not a constitutionally protected activity. It's not otherwise protected under law, whereas BL snap is protected by law otherwise. But you would agree that the school has some interest in that. Right. But the difference is that if you're, if we'll just keep going with BL, if BL, our rambunctious rowdy BL has got,

what are the drinks that they consume like water at fraternity parties? White Claws? Yeah, there's White Claws. There's also, what is the punch called? There's like a whatever. I don't know. Like Everclear and Too Late.

Yeah, I'm too old to know what people are consuming like water at fraternities. But let's say White Claws yeah yeah um there is no she has no protected interest in the white claw consumption the school does have an interest in uh ensuring that its um representatives are not criminals and so there would be i do think that there's that's just a different issue okay but and here's where i want to draw the nexus because i agree obviously drinking white claws is not protected by the constitution first amendment speech is but the difference here is balancing the school's interest with that constitutionally protected speech.

And what the Third Circuit was weighing, what Tinker weighs, what the Third Circuit weighs, and what all of those other circuits weigh, is that the school has an interest in this speech as well because of sort of school order and school discipline. So for instance, BL sent this Snapchat. In the school's theory, they're not punishing her for what she said. They're punishing her because it then went through the school like wildfire and caused discipline issues and disruption. And the students, it riled up the mob.

It was people manning the barricades back at the high school and the students, it riled up the mob. It was people manning the barricades back at the high school because of what she said. So again, it's not like she said something mean about cheerleading, we're punishing her. It's this had a school discipline effect and we're punishing her. But the thing that caused the school discipline effect was speech.

And so in that sense, that's why I'm relating it to the alcohol consumption. Because the school does have some interest in maintaining order at the school, even if the thing that causes the disorder was off campus. Now, white law is at the bottom of that interest, because as you said, it's illegal. And speech is at the top of that interest, because it's in the first amendment. But, you know, this is like a silly example, what BL said, but imagine a sort of, um, targeted persistent use of racial epithets to bully and harass a student another student you know that um i mean let's

not use bl because this is not at all what she did uh sarah in this case sarah has a coordinated campaign with several other students on social media that she's sending out to 250 of her friends 250 of her friends to target David, you know, call him names out, private things about his life, spread rumors about him, you know,

say things that are not true. You know, that David was spotted canoodling with a teacher after school. I don't know, like really, really harmful bullying things. The school clearly has some interest because now David is having a lot of trouble even coming to school

and these students are persistently doing it and the school can't discipline them at all under the third circuit's opinion. Well, I mean, if you're talking about targeted harassment, you're getting into legal issues. I harassment, you're getting into legal issues. I mean, you're getting into off-campus legal issues. David may have some recourse, but the school doesn't. Well, and who do we want to have the recourse?

But if I have recourse, that means that local law enforcement might have recourse. I mean, if you're talking about, you've got legal tools at your disposal if you're subject to that kind of targeted harassment campaign. But the one thing I want to circle back to, though, is the school, when the school is, and this is something that's a real issue on student speech cases. When the school is talking about it had an impact at the school, what they mean really is people were pissed. That was the impact. People were mad. In this case, people were mad at BL. Yeah, people were mad at BL.

And the interesting thing to me is if that's the whole impact, even if her snap was at school, I question whether they would have been able to deal with this because when the original Tinker case, people were mad at the students for wearing the black armbands to protest the Vietnam War. They were really pissed. The substantial material disruption to the educational purpose and mission of the school that allows a school to step in is not people were mad at the speech. It's much more, if you look at the case law, it's much more, wait a minute, somebody with a Confederate flag hat. This is, we're triggering the possibility of real violence here. Okay, let me give you another example. Rip from the headlines, so to speak. Sarah and David start off campus a social media, Facebook, Snapchat, all of the above campaign to, you know,

march out of class next Monday. And so every day they post, things are going to get wild. Make sure you're joining us. Leave class. These teachers, you know, F them. This teacher did this random thing. This teacher's mean and gave me bad grades and so we're gonna show our displeasure and we're gonna

like vandalize the school next Monday join us bring graffiti making stuff bring baseball bats and come to school on Monday let's get crazy let's you know do what they did to the capital

but we're gonna do it to the school i don't know like something short of calling for violence but uh but calling for destruction yeah and they're doing this all off campus does the school have to wait and see what happens on monday i would say yeah i would say the school then puts out a statement that says we are aware of social media posts encouraging people to engage in lawless activity at school we're going to have additional police officers present we're going to have every student entering the school is going to be searched any person entering with a potential weapon will be immediately expelled and referred to law enforcement any person who disrupts the operation the school will be

immediately suspended any person engages the school will be immediately suspended. Any person who engages in violence will be immediately expelled. I don't think that one's that hard, honestly. Well, but right now in most of these circuits, they can just go after those students beforehand and discipline them and expel them and sort of nip the thing in the bud so they're not dealing with, you know,

ornery 15 year old insurrection again and sort of this les mis style i'm imagining them at the ramparts do you hear the people sing do you hear the people sing but out of those like you know desks that are like the linoleum top or whatever plastic with the metal that's all one thing that you can't get in and out of comfortably now the social media company can say uh you know, the school could report the post to Facebook. Interesting. Yeah. They could report the post to Twitter. And Facebook, Twitter, Snapchat, they can take action. But again, there's this, when can the government punish you for your speech? And, you know, the primary sphere, the primary operator and the primary

sovereign over the student, if the student is otherwise complying with the law off campus, is the parent or guardian. But anyway, well, we got so much. Yeah. So that case has not been scheduled yet. We'll keep you informed on when it's going to be argued and no doubt we will talk about it again. However, there were a lot of cases that were granted on Friday, but the other set of cases, there were two consolidated cases, one involving Americans for Prosperity and the other one involving the Thomas More Law Center.

And both of these groups want to be able to raise money in California, as in their fundraising lists, hold events, et cetera. But Attorney General Javier Becerra, soon to be the HHS Secretary, basically said that in order to do that, they must turn over all of their major donors' names and addresses. And so both of these groups sued, and the cases were granted, they were consolidated. Again, we don't have a date yet for when this will be argued. But it's a very interesting case that is the follow-on to the NAACP case from 1958, where the state of Alabama kept demanding to get the NAACP out of their state that they wanted the names of everyone affiliated with the NAACP in Alabama. And when the NAACP refused over and over and over and over and over again, David,

the courts in Alabama kept fining the NAACP, holding them in contempt. Even when the Supreme Court initially ruled on the case and just reversed the Alabama court's order and sent it back down, the Alabama Supreme Court claimed that the Supreme Court had relied on a mistaken premise and reinstated the contempt judgment. The Supreme Court reversed again. The case just went up and back and up and back. And it took five years, but finally the Supreme Court heard the case on the merits,

figuring that at this point, the Alabama courts really had ceased to function, frankly, david when it came to the naacp um they had by the way when they asked for their names they said the agents or members of the naacp which sort of tells you everything you need to know about how they thought about that the state's argument was that the NAACP was causing irreparable injury to the property and civil rights of the residents and citizens of the state of Alabama, for which criminal prosecution and civil actions at law afforded no adequate relief. The circuit court at that point agreed to issue an ex parte order. So without the NAACP being able to be there or make any arguments.

Goodness. Restraining the NAACP. This was really bad. So when Justice Harlan issued his opinion, when we talk about bad facts make bad law, this is an example where, and Justice Harlan is not shy about saying this, the courts in Alabama were not functioning properly. The government in Alabama certainly wasn't functioning properly. They were repeatedly ignoring what the Supreme Court was saying and basically just out to get the NAACP. And so Harlan says, look, at some point, and that point is very much, you know, we're way past that point now, the right to associate with one another becomes a due process issue under the 14th Amendment for organizations dedicated to the advancement of beliefs and ideas is inseparable. So this was like the substantive due process argument of sorts. Although to some extent,

I think you could argue this isn't even substantive due process. This is just kind of regular due process. Yeah. So that's in 1958. Fast forward to this California case, these two California cases, and they note that the Registry of Charitable Trusts in California is, quote, understaffed and poorly funded.

It negligently posted nearly 1,800 IRS Form 990 Schedule Bs online, including one listing Planned Parenthood affiliates of California supporters. The district court further found that once the state posts donors' personal information on the internet, it remains public forever and puts donors and their families at risk, subject to harassment, death threats, all the things in between, imminent danger of hate mail, violence, ostracization, and boycotts. Only the most stalwart supporters will give money under such a toxic cloud. Most will reasonably conclude that the risk of association is too great. With the result, the groups who make the most threats will effectively shut down those with whom they disagree. I mean, talk about some cases for our time, David. Yeah. Oh, man. Oh, man. Yeah. So,

I will say on the cheerleader case, I honestly don't know how this is going to come out.. BL's got three votes. Thomas doesn't even think student speech is a thing, so they don't have Thomas's vote. He is Clint Eastwood shaking his fist on the lawn. Yeah, get off my lawn. And so I don't know how that one's coming out. I feel like I know how I want it to come out. I don't know how it will come out. This one, I feel like I know how I want it to come out. I don't know how it will come out. This one, I feel like I know how this sucker's coming out. Yep. It's not going to be close. No, no.

I mean, I think this is a 6-3 minimum, maybe moving more towards 7-2. And I think the atmosphere of our times is only going to make it easier for the court to rule with the prevalence of cancel culture, the incredible fear that people now feel of reprisal for their political engagement. is in your nonprofit giving is only increasing. There is nothing going on in this country right now that should reassure somebody that if their private donor information is released that they won't suffer for their First Amendment protected activities. It's also really relevant

that this is not in the election context. Right. These are nonprofit, non-election functioning groups, and there's no contest over that. And in most circuits, you basically, if it's the election context, yeah, the disclosure requirements kind of trump the associational stuff. But in the non-election requirements, NAACP applies and it's strict scrutiny and the government has to have, you know, strict in theory, fatal in fact. But the Ninth Circuit has basically held that it's all the same, that the same things that apply to the election context should apply in the nonprofit donor context. That's the other reason why this is such an obvious outcome on these cases, because it's's the ninth circuit breaking with all these other circuits so it's not like this is some unknown set of facts or novel legal stuff going on no no most of the country has figured this out

the ninth circuit is doing its own thing and doing it as they point out, incompetently. Yes. Yeah. And so I think this is going to be a very important case. And I just don't think it's going to be a close case. Some important cases are slam dunks. And so I feel like we gotta slam... Not only is it a slam dunk, it's a

Amy Coney Barrett hangs on the rim and taunts the prone opposition kind of slam dunk. It's a Amy Coney Barrett hangs on the rim and taunts the prone opposition kind of slam dunk. So I think that's where we are. All right. So those are some of the fun cert petitions. And that was such a lovely break from what we have to talk about next, David. See yourself buying a home one day? Do future you a favor? Open a Questrade first home savings account and help that future come faster. The FHSA is a tax-free account where all your investment gains are yours to keep and put towards your first home. With Questrade, you can open an FHSA online, no bank appointment needed. It's easy and only takes a few minutes. The sooner you get started,

the more time your down payment has to grow. Open an account today at questrade.com. So let's talk about incitement, Sarah. Let's. So it is now emerging, and look, y'all, I don't know if we need a full-on 9-11 style commission as to what happened on the 6th, in part because we may not know if we need a 9-11 style commission as to what happened on the 6th, in part because we may not know if we need a 9-11 style commission on what happened on the 6th and what happened between the 6th and the 20th. We don't know if this insurrectionary period is over, but I do know we need an absolute, incredibly thorough investigation as to how that protest formed, who was behind the protest, why was there so little

law enforcement? I mean, Sarah, one of the most chilling images to me of the entire thing was this line of Capitol Hill police officers on the Capitol steps. And it probably looked about like 30 officers spread out, one there. It's not, you know, during the BLM protests, we would see police stacked five, 10 deep can encountering these violent rioters. But it was this line of cops, like one deep just hit and a huge swelling, angry crowd, just pushing them back. They never had a chance. So what happened? Why was there so little law enforcement? Why did it take so much time to restore order? We need to look into all of this stuff. But one of the things we need to look into is to whether the President of

the United States or other individuals were guilty in a criminal sense of inciting this event. And there might be First Amendment attorneys right now, and all of a sudden they felt their hair spontaneously combust. Because if there's one thing as a First Amendment attorney that you know is that, wait a minute, incitement, there's never really incitement. The Brandenburg test, it means that you're never guilty of incitement. There's never incitement.

Well, one of the reasons why there's never incitement is because the general rule in the United States of America until much of the summer and on Wednesday is we have social peace. We have social peace. So a lot of these incitement cases, what you have are words that sound angry and inciting,

but no, nothing ever happened. And so that's why we have a lot of case law that says no incitement. But here, let me read you the standard. We've talked about this before on this podcast and never thought we'd be trying to apply it to the president. So inciting speech, what's government may prohibit speech advocating the use of force

or crime if the speech satisfies both elements of the two-part test. One, speech is directed to inciting and producing imminent lawless action, and the speech is likely to produce such action. Now, there have been a couple— So you have to mean it to, and it has to also—basically, you personally have to mean it, and to a reasonable observer, it has to mean it. Right. And what's interesting is it's almost as if what the court has done since Brandenburg is basically say that second prong is likely to incite, functionally almost is actually incited. Um, for example, there's this case called Hess v. Indiana, where, uh, a student activist, anti-war protester says, we're going to take the effing street again. We're going to take the effing street later or again. Um, and the court, you know, the court looked at that case and it did not fall within that narrow narrow limited class of speech that states may punish

and they were not directed to any person or group there's no evidence that they were intended to likely to produce imminent app imminent disorder in other words no eminence like what did that mean later today tomorrow in five years after an election exactly now what's interesting here is you have in on january 6th if you go through the timeline what you see is a series of people getting up in front of an angry crowd that had been organized there was abundant evidence at this point that at least an element of the crowd had been brought there to engage in violence. This is already emerging. So there was abundant evidence that a big portion of that crowd or a portion of that crowd had been brought there to engage in violence.

You had a number of speakers come up. Mo Brooks, for example, from Alabama. Rudy Giuliani, who said trial by combat. The president, who was saying you need to fight. And what was interesting is not only did lawless action happen, I mean, not only was lawless action likely to occur, it happened. And it began to unfold even as the president was speaking. So as the president was speaking, parts of the crowd started to peel off and head down towards the Capitol. And one of the things about it is you can say, yeah, well, you know, if you look at some parts of the speech, if some parts of the speech, he's saying fight and be strong and you're going to lose your country.

And other parts of the speech, he's saying just cheer on these senators and congressmen. You have to look at the whole context. If you're inciting violence, there aren't magic words that can relieve you of liability or can relieve you of criminal risk here. That's one of my issues as I look at it. And I've been talking to another First Amendment attorney, probably one of the foremost defenders of free speech in the United States. And we were

going back and forth and he was saying, I think this meets the Brandenburg. I think this meets Brandenburg. Because not only was it likely to produce lawless action, it did produce it. It did produce it. And it wasn't just sort of the violent assault. It was the effort to overturn the election, which is a civil rights violation all by itself. Thoughts, Sarah? Yeah, I just disagree. You disagree? Okay, keep going. Yeah, so here's the problem. First of all, I do think it's funny that when we talk shorthand legally, they're called fighting words. And so the fact that the president repeatedly used the word fight sort of by definition makes them

fighting words. But if you look at what the president said, for instance, and now we're out here fighting, we're going to have to fight much harder and Mike Pence is going to have to come through for us. We have to go through and you have to get your people to fight. If they don't fight, we have to primary the hell out of the ones that don't fight. Right. So it is clear that when he's using the word fight, for instance, in that last one I just read, he is talking about members of Congress voting for the objections. That's what he considers fighting. When he says, we're out here fighting, that's present tense. And now we're out here fighting. So what they're doing right then, he considers fighting. I think you meet the reasonable

person standard. It was sort of a known crowd that had some violent elements in it for anyone who had bothered to look on social media. As someone said, you didn't need the FBI to do an intel report on this. They were being really honest about their intentions. That saying anything to this crowd could rile them up. But it has to be that person's intention to do so as well. And I don't think you're particularly close on that. I think that speech read by someone else in 2009 sounds exactly like a Tea Party movement speech. And so... Context, context. Context matters. exactly like a tea party movement speech and so context context context matters um i'm interested

legally you know your point of like you know most of the time nothing happens afterwards like we're going to come back and take this street or whatever but they didn't so they arrested the guy but like there's nothing afterwards. But for instance, in the Fourth Amendment context, you pull someone over because you have a reasonable suspicion that they have drugs in their car for a variety of reasons. Whether you find drugs in the car has no bearing, in theory, on whether you had reasonable suspicion. The only question is, when you pulled over the car, did you have enough basis to have reasonable suspicion that they had drugs in their car? Now, what we have in fact, is that when they do find drugs in your car, it does kind of undermine your argument that they didn't have reasonable suspicion. And when they don't find drugs in your car, we really question

whether they had reasonable suspicion in the first place. A little bit here is the same thing, David. In theory, it shouldn't actually matter what the crowd did afterwards. Either you were inciting the crowd, I mean on that first prong, on what you intended. It shouldn't actually matter what happened afterwards. But similar to that Fourth Amendment reasonable suspicion context, it is hard not to factor into your human brain that there was a kilo of cocaine in the trunk when you opened it. And so the fact that after they hear him speak, during them hearing him speak, they're peeling off to the Capitol and two federal officers die. I don't think it should factor in. I don't see how it can't. Yeah, so I think a lot of it depends on

what did the president know and when did he know it. So, which is going to be a very interesting aspect of this investigation. Yeah. Did the president know that there were violent elements in that crowd who were intending to attack? that? They were they were there spoiling for a fight. Did he did he know about this? I think that's the fact that he had given versions of his rally speech hundreds of times throughout the country from 2016 forward. And this hadn't happened. I think also is a factor. forward and this hadn't happened, I think also is a factor.

I also would say that, yeah, and he's also incited violence, arguably, at some of his rallies. More so than this. Yeah. Get that person. Get that reporter. And again, I actually am not saying that was okay. It most certainly was not okay. But when you're talking about the incitement standard, I think it is unfair what I see in sort of mainstream media or left-wing media where they're saying like, oh, cut and dry case. The

second he leaves office at 12.01 on January 20th, we can slap the cuffs on him for incitement. Yeah. I don't think so, guys. I don't. I think he is more, especially as the evidence is emerging, that he made another call to a Georgia election official trying to urge him to find votes for him in Georgia. I'm growing firmer in my conviction

that the president likely violated the law in the Georgia election context. I think in this context, I think it's, I want to know more. I want to know more. That's fair. I am open to more evidence and I can easily change my mind.

But right now, where we sit, I do not think that meets the standard for criminal incitement. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame

preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. 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 a-u-R-A frames.com. Use code ADVISORY at checkout to save.

Terms and conditions apply. All right, David. But what about the 14th Amendment, Section 3? Fascinating stuff. Do you want to take the lead on that, Sarah? I would love to read you the 14th Amendment, Section 3. So remember, this is passed in the aftermath, ratified in the aftermath of the Civil War in 1868. Section 3 reads,

No person shall be a senator or representative in Congress, or elector of the president and vice president, or hold any office, civil or military, under the United States or under any state who, having previously taken an oath as a member of Congress or as an officer of the United States or as a member of any state legislature or as an executive or judicial officer of any state to support the Constitution of the United States shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability. In plain language, David, if you ever took an oath to uphold the Constitution, be it at the state level or at the federal level, you took an oath to uphold the federal Constitution.

And then you engaged in insurrection or rebellion, end quote, against the Constitution or give an aid or comfort to the enemies of the Constitution. You're barred from ever holding office again. Now, lots of people are citing this and saying that the president violated the 14th Amendment, Section 3, that Senators Cruz and Hawley and all of the 100-plus House members violated this because they're the ones who have taken the oath. So this, for instance, would, in general, not apply to the rioters, although if there were state reps in there or something,

it could. And so the question becomes, what of the 14th Amendment, Section 3? And how to enforce it? So that's also a big question. There's like, what? There's no enforcement here. It just says it won't happen.

Just there's a wand and you wave it and then you can't hold office. Yeah, so there's a lot of problems with this. Let's start with the most obvious. This is ratified in 1868. As I mentioned, it is clearly meant to apply to those people who took up arms in the war between the Union and the Confederacy. But that's not what it says. Nope. And that to me is the end of that argument. If they wanted to make it just

about the war that had just happened, that wasn't that hard to do. They chose not to do so. So no, it is not limited to its facts. Right. The next argument is, is there a difference between the president, the senators, and the House members? Or let's add in that there was a state rep, let's say, and the rioters. So someone who had taken an oath of office, but at a state level and was then joined in the march, et cetera. Well, huh, there are some problems. Again, set aside enforcement for a second, David. What does it mean to have engaged in insurrection or rebellion or given aid or comfort to the enemies? Whew.

I think one thing is very clear to me. What Cruz, Hawley, and the 100-plus House members did absolutely does not come close. It's not even in the ballpark of meeting that standard, or else Barbara Boxer and Pramila Jayapal and anyone who had previously voted to object to electoral certification would fall under the 14th Amendment Section 3. That would be wild if we then decided that. So no, I think immediately we can toss out people because they objected to the certification. That was not insurrection. There is a legal way that you can vote to object to the certification. Therefore, it cannot also be

insurrection against the Constitution. Yeah, it was reckless. It was wrong. But it was not. It was not insurrection. It was not insurrection. Right. Like there's a difference between the IRA and Sinn Fein back in Northern Ireland days. But anyway, keep going. Okay, so we've tossed them out. What about the president? I actually think this gets back a little bit to the incitement thing. Could the president have engaged

in insurrection or rebellion but not committed incitement? I think incitement is a lower standard. Do you agree or disagree? I think you could engage in insurrection without having engaged in incitement of any given specific act. In other words, I think the House and the Senate could look at the totality of the Trump effort

to overturn this election and say that he was, uh, he was engaging in insurrection or rebellion. Um, but again, we need to know more about that. We need to know more. Um, I, you know, I'm hearing a lot of dark things, uh, about, but we don't, that are not confirmed. So we just need to know more. But I think the bottom line, Sarah, is this is gonna be, this is that the bottom line, this is gonna be a political question.

And I think you're absolutely right about the members of the House and Senate that to say what they did was insurrection or rebellion, especially given the historical context here, no. And especially given that there was an actual statute in play, no. I don't think that this qualifies. Now, there's a separate constitutional provision that's in the main body of the Constitution. Article 1, Section 5 says that each house of Congress may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two-thirds, expel a member. And so this is a situation where you don't have to establish insurrection, and you can expel members. Yeah, and that's just up to

two-thirds of the Senate. Whatever they say, they can censure you for farting too loudly. Yes, exactly. And I agree with you. If you're going to set the precedent that availing yourself of an objection, well, you know, I mean, Barbara Boxer's not in the Senate anymore, but I don't know if any of the others objectors from- Pramila Jayapal is from 2016. Does she need to be expelled also? So I think you're going down a dangerous road there because

you're going down a dangerous road there because you're going down a dangerous road there because it was in the statute. You could do that. It's in the statute. Now, it's bad faith. They did it in bad faith. But when you're availing yourself of a specific statutory provision, that's very different from evidence of criminal behavior from a president to overturn an election result, which violates a federal civil rights statute. Now, is that criminality? Does that include insurrection? Well, I guess if you're trying to topple the lawfully elected government,

yikes. I mean, we shouldn't, when we get we get hyper technical about a lot of this we we can't miss the forest for the trees here as to what has been going on for the last you know couple of months um but yes yeah the purpose of the law is to be hyper technical we don't um the law isn't like how do you feel about this after three months? You have to find specific evidence that you're bringing forth. So before we leave this, I do want to get to that final example,

the state rep who is in the crowd, my hypothetical state representative. Right. And there was more than, there was a state rep in the crowd, wasn't there? I believe there might've been. But for right now, we'll just make it a hypothetical.

But in my hypothetical, that state rep has gone into the Capitol. They're not milling about the outside. They're in the Capitol with the mob, some of whom commit violence, etc. Congress passed a law that Congress passed a law to say that they must pass a law to disqualify someone

from public office. That would then only require a majority of both houses and the signature of the president or, you know, to override a veto. Like, it would be your regular schoolhouse rock situation. That's interesting because, of course, Democrats will have both

houses of Congress shortly and they will have the presidency. So under that 1898 law, So under that 1898 law, they could pass a law to disqualify that state rep, for instance. There's then, of course, what the punishment would be. There is an 1870 federal law that says that you can be punished by a year in jail and a $1,000 fine for accepting any office after being disqualified under section three. So that's kind of fun. Um, I'm not sure that that's going to deter a lot of people. I mean, a year in jail is legit a thousand dollars, not so much, um, real quick also on that state rep. So there's the, they, that person might have a problem under the 14th Amendment, Section 3. Far more so, I think, than the president or the members of the House or anyone else. A state rep falls squarely in this if they're in the Capitol, and that's a big problem.

There's also felony murder, David. Right. And the classic felony murder goes like this. David and I go in to rob a bank. We are both carrying guns. But as far as I know, our plan is we're never going to fire that gun.

We go in. There's a security officer in the bank. David and I, by the way, agree that we're robbing the bank. That's what we're going there to do. We walk in. The security officer draws his gun on David. David shoots him dead. I can get charged with murder in most states. In fact, I'm not sure that any states have gotten rid of felony murder at this point. It's controversial. But the idea is, yeah, David pulled the trigger, but we agreed to commit a felony together. And it was reasonably foreseeable

that that felony could result in harm, injury, or death. Uh, in this case, like, yeah, it's pretty obvious that there's going to be a security guard in the bank. That guy can pull a gun. Uh, robbing a bank is an inherently dangerous activity. So I can get charged with murder, even though I didn't want to commit murder. Didn't think we were going to commit murder. Like my personal opinion on the likelihood that we were going to kill that officer, that security officer is irrelevant to felony murder. So the mob goes in there and kills an officer with a fire extinguisher, allegedly. Are other people in different parts of the Capitol who are, you know, vandalizing property, pushing officers, et cetera, are they responsible for felony murder, David?

I don't think so. I think that would be sweeping it really very broadly. I think that here's where I think felony murder might apply. I don't know if you saw some of the footage from the riot, but there seemed to be multiple categories of rioters. There seemed to be a small, determined, disciplined, relatively disciplined group that was intent upon breaching the chambers, and apparently they had zip ties, and kidnapping members of Congress or seizing somebody. If one of them, if that group had, for example, breached and kidnapped or executed a member of Congress, I would think that every member of that group, if the evidence showed there was a concerted group effort to kidnap or kill a member of Congress, I would say that every member of that group, if the evidence showed there was a concerted group effort to kidnap or kill a member of Congress, I would say that every one of those people should be liable for felony murder. To say that a mob, that if someone is charging a police line in a hundred yards away, somebody else is charging a police line and in the melee, a police officer dies, is killed. You know, you're talking about, if you're going to apply that, you're talking about

prosecuting hundreds, if not thousands of people for murder. And that's just not going to happen. Not only is it not going to happen, it shouldn't happen. Felony murder by itself is a somewhat controversial doctrine. People have been executed under the felony murder doctrine when they have not killed anybody. And there isn't really evidence they intended to kill anybody. And so I think that that would be, I would only apply felony murder, if you could trace a murder to a specific action of a specific organized group of individuals aimed at that particular victim.

Not if you say, well, you know, they were committing felonies altogether, attacking this police line or storming the Capitol, and one of the other felons of which you have no connection, no common scheme, no common plan, don't even know who he or she is, killed somebody. I think that's a massive stretch,

a massive stretch, and that just doesn't work. Of an agreement from each of the parties to one another. You and I know each other and agreed to rob a bank together. A mob, by definition, does not know each other. Even if you and I go into the mob together, we don't know the person down there who killed the officer. Even if they also sort of agreed that they were part of a mob, there was no meeting of the minds on that front. I agree. Yeah. Okay.

Last thing on this like bucket, let's call it, is the impeachment standard. There's been a lot of discussion over this, David, and I just want to clear up some things that are annoying me. All right. So under the part of the constitution that talks about the uh all right so

under the part of the constitution that talks about the senate it says judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor trust or profit under the united states but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law. Okay. So what this says is that if the Senate convicts someone of impeachment, the only thing they can do to that person is remove them from office and disqualify them to hold any future office. But that party can still be tried in criminal court separately. That's what that second clause means. All right. So here's what the discussion I've seen from reputable people

that the first of all, that the two have to be separate, That removal from office is a separate vote than disqualification to enjoy future office. That removal from office requires two thirds, but the disqualification only requires a majority. Those are the two things I want to talk about really quickly. Right. So the paragraph right above it says the Senate shall have the sole power to try all impeachments, yada, yada, yada. No person shall be convicted without the concurrence of two-thirds of the members present. Okay. Here's the problem, David. I don't think this is a close call. The text is very, very clear. No person shall be convicted without the concurrence of two-thirds of the members present.

The next sentence basically is then discussing post-conviction judgments shall not extend further than removal or disqualification. But in order to have a judgment, you have to have the conviction. Therefore, you have to have the two-thirds for the conviction. Therefore, you have to have the two thirds for the conviction. So you can combine them. You can convict the person and say their punishment is both removal from office and disqualification because it says shall not extend further than to removal from office and disqualification. It actually doesn't even say or. I think there's a harder argument to make

that you can separate the two. There's no argument to make that you must separate the two. Right. But I actually think you can separate the two. I think you could impeach someone and only remove them from office, for instance. I think that'd be weird. Yeah. Yeah. Yeah. No, I agree with you. I agree with you. To me, this is like, imagine if you had a criminal statute that says you'll be punished by not more than five years in prison and a $5,000 fine. And you say, wait a minute, a fine can, you know, can be imposed in a civil proceeding. So therefore, I only have to prove with a preponderance of the evidence, the criminality. Yeah, I agree with you. I think this is two-thirds

vote both ways. Now, I've got a question for you. Okay. I have heard this from very smart folks. I want to know your reaction to this. What if instead of impeaching the president, a majority of the House and a majority of the Senate declare that Article 14, Section 3, I mean, Amendment 14, Section 3 applies to the president, and therefore a majority of the House and Senate can just simply bar him under 14th Amendment? Correct. Then they do not need to use the impeachment standard. And based on that 1898 law, they just need to pass a law disqualifying him from future office. So that would be a simple majority in both the House and the Senate, but with the signature of the president. So it's still a high bar, but it is a different bar. Yeah. They can't remove him from office,

but they can prevent him from holding future office because he had taken an oath to the Constitution. And this is an interesting fallback position to sort of say, you know, day one of Biden, because you're going to have a Democratic House, you're going to have a Democratic Senate. You're probably going to get a pretty a decent number of Republicans who would sign on to this. And just instead of going through impeachment, if impeachment is futile, although it remains to be seen whether it is, pass a law barring the president, barring Donald Trump from future office. And that might be a fallback. That might be a fallback. But it's a very interesting idea that I think would have a lot less immediate, although I have to say, I'm completely unimpressed by the argument of don't impeach him because that will trigger more violence.

That's kind of an argument for impeachment in my mind. Like if the operation of law on this guy will trigger violence, he needs to be impeached. I agree. There are two precedents that people are pointing to. There's sort of two and a half. To say that I am wrong about the two-thirds requirement under the impeachment standard, under the conviction standard in the Senate, to bar someone from holding a future office because

in 1862 and 1913, two judges were convicted by a two-thirds majority, but then a separate vote that was a simple majority disqualified them from holding future office. Look, guys. Yep, I acknowledge Judge Robert Archibald and Judge West Hughes Humphrey. both were convicted by two-thirds, and the Senate decided that they could bar someone from future office by a majority. Just because they did it doesn't make it constitutional. Like, no!

I don't think that senators... What's the rest of that song? There's a whole chorus, David. Yeah, like, don't cite 1862 and 1913 precedent for what our current constitutional interpretation doctrines are today. There is no world in which the US Senate, I think, would read that impeachment standard and not read the text of it. Now, remember, pre, you know, in this era, 100 plus years ago, textualism didn't exist. Originalism didn't exist. Yeah, so regardless of those precedents, I understand they're out there. People citing them need to acknowledge the fact that those precedents are not written in stone.

They are not based on law. Basically, the Senate decided something that they probably did not have the authority to decide. And while a lot of these questions would fall into the political question doctrine, which is this concept that there are some things that are left to the political branches to decide for themselves. For instance, what does high crimes and misdemeanors mean for impeachment? That is clearly left to the House of Representatives to decide for themselves, and then for the Senate to decide whether the House has met that standard in their trial and conviction. No court is going to review that. On the flip side, I very much think that the Constitution says that you

need two-thirds to convict, and then you can do either of those judgments, so to speak, removing from office or barring from future office. If for some reason they decided to only use a simple majority for that, not using that 1898 14th Amendment law, David, but just using the impeachment standard? Yes, that is not a political question. The court could just say that violated the Constitution. Yeah. Well, I do think, well, we'll see. What is your prediction regarding impeachment? Do you think the House impeaches? Yes. Do think that the there will even be a senate trial before when does schumer become majority leader well so david that's an interesting question that we uh didn't say we were going to talk about but

but we can so the senate will be split 50 5050 once those two Georgia members are seated. Georgia has said that while they're moving with all due haste, they may not be seated by Inauguration Day. So first of all, Schumer doesn't become anything until those members are seated. Let's assume that they're seated on January 25th. I'm going to pick a random day. So on January 25th, the Senate becomes 50-50. Yes, the vice president, Kamala Harris, will be the tie-breaking vote, but she is not a voting member of the Senate. So what happens in that point is there

has to be a power-sharing agreement or not, frankly, although I think there will be. This last happened with Trent Lott back in the aughts. Because when you've got a 50-50 vote, that's chairmanships, Senate rules, all sorts of things that need 51 votes of senators. It's not law that they're tie-breaking. And who's going to be on which committees, committee assignments, all these things actually come down to a power-sharing agreement. And back in that era, we can talk about that at some other point down the line when those two Senate members are added and they announce their power sharing agreement and the precedent for that. But I believe it has only happened three times in history. The two previous times were incredibly short lived, but that Trent

Lott example actually lasted for some real amount of time, and so will this. Yeah. So I think the short answer here is McConnell's going to be driving the bus at least through Inauguration Day. And probably for a few days after. Right. say thank you to the House for the resolution and say, well, now we will continue with all deliberate speed and just sort of run out the clock on it. And then when the new administration is sworn in, then the question is, do we keep doing this or do we not? Well, we talked last time about whether you could, if the House impeaches a current officer, can the Senate try a former officer? We talked about the example of Secretary of State Belknap. Yes. Oops.

Sorry, guys. Yeah, it is spelled Belknap, which is how I kept pronouncing it. But we have been reliably informed that it is, in fact, Belknap. The K is silent, our bad. Yes, our bad. I'm glad we got a chance to correct that because honestly, I was stunned at two things. One, the number of emails that I got about people who knew quite a bit about the Belknap, the collision of the USS John F. Kennedy, the aircraft carrier, and the USS Bell-Nap,

the guided missile cruiser, including an email from somebody who was on the JFK when the collision happened. We have the best listeners who've lived the most interesting lives. We really do. We got more messages correcting our pronunciation of Belknap than almost on any other single topic. It was really pretty fascinating. I had no idea that,

A, so many people knew that pronunciation and B, felt so strongly about it. We appreciated it. Okay, David, last topic quite quickly. Can the president pardon himself for all of this mess? So first of all, the constitution is very clear that the presidential pardon does not extend to cases of impeachment. That does not mean that you can't pardon someone for the criminal offense they may have committed that they are also impeached for. Cause remember impeachment doesn't bar someone from then being tried for that later. So imagine impeaching a judge for murder. You can't pardon the impeachment, so you can't prevent him from being removed from office, but you can pardon him from the federal conviction in a criminal court

of murder. Right. Okay. Set that aside because that's not really going to be the problem here. But yeah, so the president can't prevent his own impeachment with a self-pardon. But can he prevent himself from being tried after January 20th for anything and everything? Incitement, tax evasion, I don't know, money laundering, whatever at the federal level. I don't know, money laundering, whatever, at the federal level. Of course, it doesn't apply to the state level. There is this wonderful August 5th, 1974, that date may seem relevant to some, opinion from the Department of Justice, from the Office of Legal Counsel, which is basically the law professors of the Department of Justice. They are also, interestingly, the judges for intra-executive branch disputes. So if the Agriculture Department is mad at the EPA and they both think they have authority over

something, that dispute goes to the Office of Legal Counsel as well. But in this case, they're acting in their law professor capacity, David. And their opinion says, under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself. If under the 25th Amendment, the president declared that he was temporarily unable to perform the duties of the office, the president would become acting president and as such could pardon the president. Thereafter, the president could either resign or resume the duties of his office. Although a general matter, Congress cannot enact amnesty or pardoning legislation because to do so would interfere with the pardoning power vested in the president. It could be argued that a congressional pardon granted to the president would not interfere with the president's pardoning power because that power does not extend to the president himself. That last part is just sort of an interesting anecdote that won't really apply here because nobody thinks Congress is going to try to pardon President Trump. But this is what the Constitution says. The president shall have power to grant reprieves and pardons. And the argument,

aside from the prudential one that they're making in that OLC memo, that you cannot be a judge in your own case, is also that shall have power to grant, that grant is a verb that implies otherdom. You don't grant yourself something. Yeah. I'm granting my own petition. Just to give a good example, you're not a judge in your own case. A federal judge can't file a complaint in his own court. He is granting the petition of others. And so I do think, I mean, that's just plain and ordinary interpretation of language. It's interesting, before, when we've talked about the self-pardon, I have taken the position that it probably won't be tested because if a president pardoned himself, it would be hard

for me to see a future Department of Justice initiating a prosecution. That was pre-insurrection and pre-Georgia call. reveal some of the worst possibilities that are lurking out there, that the DOJ may try to bring charges and then have Trump raise his pardon as a defense, his self-pardon as a defense. And so we may get to this, actually. It might actually happen. The way to circumvent it, though,

would be to have the Georgia, the Fulton County DA go after Trump. At that point, you're not anywhere near, the pardon doesn't apply to state offenses. The difficulty is there, there's sort of a, there is a real prudential question about the ability of, you know, local county DAs to pursue a president of the United States or former president of the United States. But again, if the guy violated the law and he would be prosecuted like anybody, and if he wasn't president, he'd be prosecuted, then it's hard for me to find a good reason not to prosecute the president. Um, so, this is fascinating. And we're about to see, we may well see some constitutional dilemmas unfold that we never thought we would ever see.

Well, David, we covered a lot. Yes, we did. Thursday is around the corner. I have a feeling that many more of these little moles will have popped up for us to whack by Thursday. That is the truth. That is the truth. Oh my goodness. All right. Well, listeners, sorry we didn't get to a culture topic, but man, these times. And I tell you, I'm just praying for our nation right now. We have no idea if the violence that we saw on January 6th is the end. We don't have any idea. We have a lot of indications that it might not be. So I'm praying for our nation and praying for the wisdom of our leaders, including public

and private sector in dealing with this challenge. So on that sobering note, we will see you on Thursday. Imagine yourself in Ottawa, surrounded by thousands of vibrant tulips. Oh. And discovering your new favorite microbrew. Ah. Before cycling along scenic bike paths. Oh. And wandering through a museum in awe.

Ah. Adventure awaits in Ottawa from O to Ah.