Advisory Opinions - Prof. Will Baude on Section 3, Insurrection, and Trump

Episode Date: October 3, 2023

Prof. William Baude joins Sarah and David to explain why he thinks Trump's actions in 2020 might be constitutionally disqualified from running for president again. Show notes: -Prof. Michael McConnell, Responding About the Fourteenth Amendment, "Insurrection," and Trump -The Sweep and Force of Section Three -AO episode about the law article Learn more about your ad choices. Visit megaphone.fm/adchoices

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Ah, do, da-da-dee-da, do-da-do-do. Certain conditions apply. Details at Fizz.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgra. That's David French. And it's the pod we've all been waiting for. That's right. I talked about the 14th Amendment, Section 3 enough that I goaded Professor Will Bode, author of The Sweep and Force of Section 3. I wouldn't say it's

the thing that started it all, but it's definitely the face that launched a thousand ships. Nevertheless, it's the only law review article ever brought up at a Republican presidential debate. For sure. Yeah, that's it's got to be. It's got to be. I mean, Will Bowdoin is a rock star at the University of Chicago already. Students talk about him in hushed tones. I'm hearing and when he walks through the halls, the students part, quiet falls along the hallway. But now that rock star status, I mean, he's

basically Taylor Swift. And I don't know if that makes Michael Polson, Travis Kelsey, his co-author. Certainly. Yeah. This is the biggest deal in appellate Twitter in a long time. So Professor Bode, friend of the pod, thank you for returning. Thank you for having me on. So I have a question real quick as a rock star professor. So when there were rock star professors at law school when I was there, and they always were rolling at least six deep.

So they would have the professor and like five students in a kind of a swarm around them wherever they went. Like what you're over under on your swarm around you? I walk alone. He's Johnny Cash. All right. So here's what I want to do. I want to walk through your law review article just like sort of a table of content style or cert petition brief style just so that people get a flavor of what the rest of it is about. But frankly, we're going to skip to the end for some substance here. So first thing, I want to start by reading for everyone once again, the 14th Amendment, Section 3. So we all know what we're talking about here.

It's taped up at my desk. Is it really? Well, the whole 14th Amendment, Section 3. So we all know what we're talking about here. It's taped up at my desk. Is it really? It is. Well, the whole 14th Amendment is. Like taped, like you printed it out and then you... I printed out a paper copy. It's taped right here. So it's not fancy.

Nobody got you a fancy copy. Okay. Well, I know what he could use for Christmas, everyone. All right. He could read it, but I will nevertheless. Disqualification from holding office. No person shall be a senator or representative in Congress or elector of president and vice president or hold any office, civil or military, under the United States or under any state who, having previously taken an oath as a member of Congress or as an officer of the United States

or as a member of any state legislature or as an executive or judicial officer of any state to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability. All right, I kind of want to do a table of contents version, a cert petition version of the whole top part of your law review article. And then what I really want to get to is the officer of the United States section. But I feel like everyone needs to get the flavor for the rest. So I guess, first of all, that this is still in effect. What is that argument?

So here, the basic point is, this still applies to future insurrections. You know, it's obviously about the Civil War. That's the insurrection or rebellion at the top of the mind. But it's not only about the Civil War. There was an early draft that said the late insurrection, meaning the one that just happened. But it's, you know, it's still there.

It's still ready for use. And it hasn't been repealed. There are some statutes Congress passed using that two-thirds of each House clause towards the end of the Civil War and 1998 that sort of granted amnesty to everybody who was left under the Civil War, but those haven't sunset

it going forward. So if we've had a new insurrection, perhaps in 2021, then this clause is still relevant. It's still there. This to me totally makes sense. It's very textual. Hard to see how people were arguing with that in any real way. But yep, good. Michael McConnell complained that that should not be in our article because it was so obvious. Great. Check, check. You got to go with the building. You got to have the building blocks.

You got to show your work. You never know where people are going to get off the train. So it's important to start at the beginning. It's like a geometric proof. Okay, next up, that it's self-executing. This is like, you know, the next level. The water's getting a little warmer. Explain the self-execution part.

So what this means is this is just a rule, a qualification for who can hold office, like the rule that you have to be a natural born citizen to be president, or you can't be president if you were already president the federal crime of incitement of insurrection, maybe that activates Section 3. And the point is, Section 3 is already activated. It just has a rule. It says, if you did the thing, you can't have the office. Okay. I think there's been some confusion over self-execution.

People think you don't even need a judicial opinion on it or this wouldn't go to court. We can all just sort of look at each other and agree or something like that. Like, I don't think that's what you meant by self-executing. Right. And it's also obviously self-executing does not mean self-enforcing, right? So it's not the case. Section three is not running around like collaring people off of the political scene or like blocking the, you know, editing the ballots. Like it can't do anything by itself. Right. What it means is just anybody whose job it is to enforce the Constitution has this as one of the constitutional rules they're supposed to enforce.

So at the moment. You don't need legislation. You don't need legislation. You don't need a criminal conviction. You just need somebody, a secretary of state or a Minnesota Supreme Court, whoever's in charge of figuring out who could be president to figure out whether or not this clause applies. And that was not random that he picked the Minnesota Supreme Court, but we will come back to that. Okay. Next up is the definition of an insurrection or rebellion. Now the water's getting pretty warm, a little hot, toasty water, hot tub water. warm, a little hot, toasty water, hot tub water. Explain this. Okay, well, I'll just start with,

I think the best working definition of an insurrection is a concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect. And if you like, a rebellion is something like an effort to overturn or displace lawful government authority by unlawful means. We derive those definitions from every possible relevant source for original meaning, from the dictionaries at the time to the contemporaneous usage of the concept of insurrection and rebellion by President Lincoln and Congress and the Supreme Court in the prize cases, Congress's authority to suppress insurrections that have been used in the decades leading up to the 14th Amendment and so on and so forth. But that's sort of, as I put it all together, the working definition of insurrection especially is concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect. So when did Donald Trump do this?

Well, so let's start with whether there was an insurrection. So I think the attack on the Capitol on January 6th, 2021 was an insurrection. It was concerted forceful resistance. That was the used force as a group to stop Congress from engaging in the peaceful transfer of power. This says that he has to engage

in insurrection or rebellion. Or give aid or comfort to the enemies thereof. Of the United States. Wait, sorry. Do you think thereof refers to the people involved in the insurrection or rebellion or enemies thereof, meaning thereof of the United States? Let's do one at a time. All right.

All right. So first of all, I think the best evidence at the time is that inciting an insurrection counted as engaging in an insurrection. Attorney General Stanbury says this explicitly in his opinions about the Reconstruction Act, which constitutes Section 3. That seems to be the dominant view of Congress. So I think the easiest case is just to say incitement to insurrection is a form of engaging in insurrection. However, there is this other phrase, ater comfort. Ater comfort to the enemies thereof

is more confusing, both because who are the enemies and what is the thereof? I think the best way to read it is that enemies thereof just refers back to the people in the earlier sentence who have engaged in insurrection

or rebellion against the same. Like again, the core idea is that the people in the Confederacy, the South, the Confederate soldiers, were engaged in an insurrection, or rebellion against the same. Like, again, the core idea is that the people in the Confederacy, the South, the Confederate soldiers, were engaged in an insurrection or rebellion, and they were the enemies of the United States or of the Constitution of the United States, whichever one you like,

and that you couldn't get them any other comfort. Some people like to parse that into two tracks instead so that there might be insurrections or rebellions that are covered by Section 3, but not enemy-covered, which seems really complicated Section 3, but not enemy covered, which seems really complicated to me. Okay. So in order for this to apply to Donald Trump, you have to believe that he incited January 6th versus, for instance, believing that the fake elector scheme where they

submitted a slate of electors to Congress that was not real, that that was somehow an insurrection or rebellion. I think so, but. So in the article, we take the firm position that January 6th was an insurrection. That's the easy case. We discuss the possibility, without taking a firm position either way, that the entire attempt to overturn the 2020 election was in a sense a rebellion. And then everything sort of associated with that would be covered. It's a little more of a reach, frankly, because the entire scheme, you know, is not forcible. Much of it takes place through lawyers. Much of it takes place through attempts to kind of abuse the lawful means of contesting

an election. It's a little harder to figure out where do you cross the line from Bush versus Gore to coup d'etat. But I think there is an argument that that whole thing is a rebellion, in which case the fake electors, everything involved in that scheme would be participation in a rebellion.

We're going to put a pin in that. Maybe we'll come back to it. I think that's a good explanation of that section. Now, we've got two clauses that list who this all applies to. Yeah. Now, just professor, you're walking into Sarah's carefully laid trap. I do this with the Socratic method. It's only fair for the tables to be turned. if the tables return. All right. So the first part is what offices you can't hold

if you have violated Section 3. So no person shall be a senator or representative in Congress or an elector of president and vice president or hold any office, civil or military, under the United States

or under any state. So just that? Yep. Not much question in my mind that the office of the president is a civil office under the United States. Or military. Oh, see, I think he's the civil, but fine. Okay, whatever.

All right. You agree. The president holds an office under the United States. Correct. We're going to now have all the comments about whether the commander in chief is a military office. That's all that anyone's going to care about in this podcast. And we're not going to spend any time on it because I don't think it is. And you think it is, and that's a whole different thing. We're doing it another time. Okay. So fine. We don't need to talk about that.

After having listed what offices you can hold, it says, who, having previously taken an oath, as a member of Congress or as an officer of the United States. Now, it's going to say, or as a member of any state legislature or as an executive or judicial officer of any state. We don't need to worry about the state people. All we need to care about is you took the oath previously as a member of Congress or as an officer of the United States. And the question is going to be, is the president included in that or as an officer of the United States? And there's a few arguments around that. One is simply that it wouldn't be an afterthought. Like you wouldn't have member of Congress or, you know, that other thing, the presidency. I'm going to undermine my own argument on that. I don't super buy into that

as much because it's article one is Congress, then article two is the presidency. So having it as number two, I don't think offends me in any textualist sense. The catch all might, and I'll let you get to whatever of that you want, just the like, and everyone else. That's a little bit of a elephant in the mouse hole, maybe. But here's the part that I am most keyed up on. Okay. Having previously taken an oath as a member of Congress, that's in the Constitution, or as an officer of the United States. And that's in the Constitution too. There is an oath that officers of the United States take, and it is different from the Article II oath

that the President of the United States takes. So why is it not the case that the, having previously taken an oath as a member of Congress or as an officer of the United States, refers specifically to those parts of the Constitution, and therefore by leaving out the Article 2 separate oath that the President of the United States takes, whether intentionally or accidentally,

from a textualist matter, they left out the President as an officer of the United States. All right, let's just make sure we're on the same page about the oath. Okay. Yep, let's do it. So, you're thinking about Article 6, the Supremacy Clause, which says, the senators and Okay. Yep, let's do it. So, you're thinking about Article 6, the Supremacy Clause, which says, the senators and representatives

before mentioned and the members of the several state legislatures and all executive and judicial officers both of the United States and of the several states shall be bound

by oath or affirmation to support this Constitution. And then Article 2... And it tracks pretty closely to how Section 3 that we're talking about reads. And again, let's just... The senators and representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and the several states, are going to take an oath. So your concern is that the president doesn't take an Article 6 oath to support the Constitution because he takes a separate Article 2 oath? Is that the view?

Correct. All right. Therefore, he is not for these purposes considered an officer of the United States. All right. So let's then bring in Article 2. Article 2, Section 1 says, before he enter on the execution of his office, he shall take the following oath or affirmation. I do solemnly swear or affirm that I will faithfully execute the office of President of the United States and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States. Is that not an oath to support the Constitution, Sarah? Absolutely, it is.

Okay. Well, that's all Article 6 requires. All Article 6 says is any executive officer of the United States has to take an oath to support the Constitution. And the President does. Now, note that Article 6 leaves the exact language of the oath vague for everybody but the Constitution. The president does. Now note that Article 6 leaves the exact language of the oath vague for everybody but the president. Congress, for the sake of proper clause, decides exactly what that one will say. They have a statute on that. And the president's is so important that it's not vague. We specify, right? And we add not just support, but preserve, protect, or defend,

which is probably important. But it still seems like the president's oath is just a specification of an oath to preserve, protect, defend, support the Constitution. Okay, first of all, you definitely say vague with an accent, a Midwestern accent. Guilty. Very Chicago, Minnesota thing going on there. Second, no, no, no.

It's not that I'm arguing over the oath per se. It's that it goes to what the definition of an officer of the United States is. I am goes to what the definition of an officer of the United States is. I am not convinced that the president is an officer of the United States because in so many other parts of the constitution, officer of the United States clearly excludes the president,

a la this distinction, I think, between Article 6 and the Article 2 oath, where officer of the United States is included in Article 6, and then in article two, the president is separated out. All right. So I think,

I think there are some other clauses that are going to be better, better grounds as argument for you. Okay. But here, like imagine, imagine article two didn't mention the president's oath and all we had was article six. You would read this and you'd say,

you know, somebody said, does the president have to take the oath or only everybody else? You would read this and say, obviously the president takes the oath too, right? He's included as a, they list everybody in the government who's supposed to take an oath

to support the constitution. There's no reason to think that the president wouldn't be. So the only question is, should we read article two, the article two oath as kind of like implicitly carving the president out as not one of these people?

Yes, that's my argument, that it carves him out and that the impeachment, the other sections of the Constitution that we're about to talk about make that even more explicit. So the oath might be, the oath just seems like

not the best place for that argument because the two are compatible. Okay, you don't like my oath argument. If he liked it, Sarah, his larvae article would have come out differently. No, I worried about that. I thought you were going to tell me that preserve, protect, and defend are not

the same thing as support. There's some subtle difference. No. I mean, there might be, but no. Not for these purposes. But if you're willing to... Yeah. All right. Okay. What else you got? Let's do the impeachment section.

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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. Thepresidentvicepresidentames.com. Use code advisory at checkout to save. Terms and conditions apply. All right. Article two, section four, the president, vice president and all civil officers of the United States shall be removed from office on impeachment. So it doesn't say the president, vice president and all other officers of the United States. So, again, that looks like a carve out to me where president and vice president are not considered officers of the United States. So again, that looks like a carve out to me where president and vice president are not considered officers of the United States. So now you see why my military aside was not just me wasting time. But if you thought it was debatable whether the president was a civil officer or military officer, if you were worried that the commenters on advisory opinions would one day come in and say, no, no, the commander-in-chief is the highest ranking

military officer in the United States. You might want to specifically call out the president and the vice president who's in a way, like second in line to be that commander-in-chief as included.

And note that they don't include military officers as impeachable, which is important now, you know, in debates about sanctioning the military and control of the military, right? So Congress can't impeach a general. Only the president could do that. You know, I don't like that argument for a variety of reasons, but it's a pretty good argument. I don't like, okay, so you don't

like it as in it doesn't appeal to you aesthetically or you don't like it? I don't like the colors that it uses. No, no, no. I don't like the as in it doesn't appeal to you aesthetically or you don't like it? I don't like the colors that it uses. No, no, no. I don't like the idea of thinking of the president as a military officer either. I like to say, you know, what sets the United States apart is we have civilian control of the military. And so we think of the president as being a civilian, a civil officer. But I take your argument to be just in case this was debatable, not that it settles the debate. Right. And especially, you know, the first president of the United sits being George Washington, you could imagine that really blurring the lines.

David, let's go off on this little aside then, now that Bode has made it more like not a cul-de-sac, but the main highway. Do you think the president is a military officer? I think he, so I think the phrase commander in chief gives him military command of the armed forces. In other words, the phrase commander-in-chief is a military term to its core. And so he is on the chain of command exactly the same way in which a general is. But isn't the Secretary of Defense also? And that's a civil office. of Defense also, and that's a civil office? The Secretary of Defense in some ways only really has the authority, the military authority that is given him by the commander in chief. So, for example, when I was in Iraq, you had rules of engagement and the rules of engagement

sometimes did move up to what was called the National Command Authority. And the National Command Authority was a small group of officials such as the president, the secretary of defense, the vice president of the United States. But the vice president and the secretary of defense, their command authority over operations in the field was really much more specified by regulation than by statute, which is ultimately under control of the commander-in-chief. So the commander-in-chief could delegate to other civilian officials some of his command authority. But as commander-in-chief, it was thoroughly a military concept.

In other words, this, you treat the, you treat the president, you know, you, if the highest ranking general was a four star at that time, you would treat the president as a five star. If the highest ranking was a five star, the president is the six star. So I think that in every way that matters militarily, Apparently, he is a commander. He is a military commander. Now, you know, so that's, but there's another complicator is, which I haven't really looked at. Well, if he's a military commander, is he subject to the Uniform Code of Military Justice, the UCMJ?

Now, that's a really good question. In some ways, I would say, yeah. Yeah, he would be subject to the UCMJ if he, for example, gave orders in violation of UCMJ. He can't, you know, he can't trump the Uniform Code of Military Justice, for example. But as far as being subject to courts martial, I've never even heard a discussion of that. So there's a lot of things where it never really occurred to us that the president could participate in a coup. And so there's a lot of open questions about, you know, sort of their command authority. But when it comes to as a matter of military command authority, he possesses thoroughly military command authority. I think even more as a hybrid, actually, Sarah, than sort of entirely one or the other. Okay. I think Bode has shelved my impeachment clause argument. I'm going to cry uncle on that one. Let's move to advise and consent.

He knows where I'm going next. Okay. All right, advise and consent. This is referring now to Congress's power to advise and consent. He, meaning the president, shall have the power by and with the advice and consent of the Senate to make treaties to blah, blah, blah.

He shall nominate and by and with the advice and consent of the Senate shall appoint ambassadors and other public ministers and consuls, judges of the Supreme Court and all other officers of the United States whose appointments are not herein otherwise provided for and which shall be established by law.

So I think I know what your answer on this one's going to be, but go ahead. Well, I was going to say, who do you think are the other officers of the United States whose appointments are not herein otherwise provided for and which shall be established by law? So, because they've got the other, right, there are some whose appointments are otherwise provided for.

Yeah, I don't. So let's just say, yeah, who do you think those people are? I think the question is whether other here then includes the president or other refers to that other list, meaning the ambassadors were also officers of the United States because they're appointed. The president obviously is not appointed. Right. But so it's, but it says, okay,

so the president has to appoint ambassadors, public ministers and consuls and judges of the Supreme Court. Okay. And then all others are officers of the United States whose appointments are not here

and otherwise provided for and which shall be established by law. So it's like most of the people in the administrative branch. Right? Sure. Yeah.

Or it was supposed to be. And so you're saying the all other officers refers only to those requiring appointment. Well, at a minimum, this seems like even more ambiguous than the impeachment clause, because this one says all other officers whose appointments are not here and otherwise provided for and which shall be established by law. Not just all other offices in the United States, which shall be established by law, but there's some set of other officers whose appointments are not otherwise provided for, or sorry, whose appointments are otherwise provided for, which is why they have to say only the ones whose appointments are not otherwise provided for. So you look through

the Constitution and say, whose appointments are not in the ambassadors, public ministers, and councils and judges of the Supreme Court list, but something in the constitution says where those officers get office. President's one of them. That's the reason they need the whose appointments are not here and otherwise provided for

to make clear that Congress couldn't come in and have some like new rule for appointing the president. Okay. The president shall from time to time give Congress information on the state of the union. He shall receive ambassadors and other public ministers. He shall take care that the laws be faithfully executed and he shall commission all the officers of the United States. That's the best one. Okay. So if the president is an officer of the United States for all purposes,

the president is supposed to commission the president. And the president, as far as I know, has never commissioned himself or the next president, right? Not that I know of. Not that I know of. Yeah, I think somebody did raise the question of, you know, are we actually sure

this didn't happen? How would we know? But let's, you know, that's fair. So one question is what is a commission? Like, when we know? But let's, you know, that's fair. So one question is, what is a commission? Like, when we know from Marbury v. Madison that there's one thing

a commission can be is like this document signed by the president that has to be delivered to your office before you can hold office. I have one on my wall because it turned out.

I was going to say that still happens. Yes. It turns out that for being appointed to the advisory commission on the Supreme Court, you get an actual commission, which I did not know. That's pretty exciting, actually.

That's fun. Oh, interesting. Yeah. And by the way, just as a reminder, tell everyone about that commission just for a second because we spent a lot of time on AO on it and I just loved every nerd minute of it, listening to all seven hours per hearing, et cetera.

You poor soul. This is the commission that President Biden convened in 2021 to decide whether or not to make recommendations or not make recommendations or in some way do something about whether or not they should reform the court in various ways. The Supreme Court. The Supreme Court. People were talking about court packing.

And so one question was, you know, is court packing lawful and or a good idea? But then actually a lot of it was about, you know, why is court packing the only option?

Can we talk about jurisdiction? Can we talk about term limits? It's a great little report. I like the draft report better than the final report, but, you know, again, it's like me saying

I like the book better than the movie, maybe. I don't like either of the reports, but there they are. Okay. So you have a commission. Please continue on the definition of commission. There is a question of should we functionally define commission? Like, is there a sense in

which, of course, the president does get commissioned? Like, what is the commission, but the official formal delivery of the office in a way that, you know, sets up a record that everybody knows about? You might think that taking the oath of office in front of the Supreme Court, in front of the Chief Justice of the Supreme Court and thousands of other people is commissioning. I don't buy it. I just say I'm more of a foremost with these things and I don't think there's like an actual commission involved, but one could ask that question. No, I think it's fair to say that for purposes of the commission clause, the president doesn't seem to have been included as one of the offices in the United States that should be commissioned.

Or we goofed and we actually should have been commissioning the president the whole time and nobody cares. Which would make me sad, but we can't rule that out. Okay, so if we combine the commission clause with then something like my elephant in mouse holes problem. They wouldn't have left this to us sitting here parsing. Well, no, impeachment seems okay. Oh, the civil officers, that was distinguishing between the president because he might be a hybrid military officer and David French isn't quite sure whether the UCMJ could court-martial him. Well, no, no, he can't be court-martialed. The question is, how much is he bound by the UCMJ, which is he cannot order, for example, the commission of war crimes.

Okay, that they could have just specified it, Bode, and they didn't. And by not specifying it, they, whether, again, intentionally or accidentally, they excluded it. All right. So let's do elephants and mouse holes first. Yeah. Why are you willing to concede that the president holds office under the United States? Isn't that mouse hole the same size? Like, so there's these two lists in section

three, right? Office under the United States for what you can't be an officer of the United States for what you can't have been. And so one view, which I understand is the view that both of those are mouse holes and neither of them includes the president. But the idea that like under the five letter mouse hole is just big enough to hold the president, but under the five letter mouse hole is just big enough to hold the president. But of the two letter mouse hole is so small, it can't hold the president. Doesn't totally make sense. The president is a nine letter word. Yeah. So wait, why does the number of letters in the word president? Sarah, it's just math. It's just math. How can you hide a nine-letter word in a two-letter word?

I mean... You tell me why the five-letter word and the two-letter word are different, Sarah. So, look, I'm not totally sure. I just don't want to stake my argument on the under... Because I think there is an argument that Article 2 itself is an office under the United States, but that the president is not an

officer. And I'm not even sure that I buy that argument because I think that it's weird. Unlike my, well, look, Article 1 is Congress. Article 2 is the presidency. So of course you would always mention Congress first. This is weirder here at the top. So of course you would always mention Congress first. This is weirder here at the top. It says no person shall be a senator or representative in Congress. Or, and next up, they don't go to article two or anything that could include article two, elector of president and vice president

or any office under the United States. Like, I think there is a decent elephant and mouse hole argument there. I just don't think it's as strong as the United States. Like, I think there is a decent elephant and mouse hole argument there. I just don't think it's as strong as the next one. But it's not that weird in that senators, representatives and electors are the three people

who it wouldn't be obvious what you'd call them the offices because none of them are in the executive branch. And sometimes we'd use the word office to think of people in the executive branch. But why would you not just say

be a senator or representative in Congress, president or vice president of the United States, or an elector of president and vice president, or hold any other civil, if that's really what they thought. That would have been so much clearer, so much more obvious to draft it that way. I mean, although if what you started with

was the second list, you start by saying, okay, who took an oath for the Constitution of the United States? Copy that out of order. I actually think the whole order here is weird, which is maybe what you're about to get to.

Like, why would you start with the offices you can't hold, but then get to the people who can't hold them? Like, we would start with the people anyway. Yeah. Yeah, although that's, so you can get no person shall be.

So it's more clear that it, that way it parallels the other qualifications. It's like no person shall be president. So, and then if you looked at the list of the things you can't defend list, the oath list, and said, is there anything missing here we need to be sure to include? You might want to add electors. I think electors in some states take an oath to support the Constitution, but not in all states.

Electors is a sort of funny thing. Nowadays, there are even states where electors take an oath to support the party, not the Constitution. True. But don't you think it's weird to include electors like they then didn't think about the president? Like you literally included electors of president and vice president and you didn't list out. Talk about nine letter words.

They wrote the nine letter word for a longer, for a lector of president. So I know that I'll probably get pulled off this podcast right now for citing legislative history. But I actually think it's the best part of your article. So please. It is worth noting that. pulled off this podcast right now for citing legislative history. But it is- I actually think it's the best part of your article. So please. It is worth noting that so

while they're drafting the 14th Amendment, this is before the Senate, right? And Reverdy Johnson looks at this constitution and has a Sarah moment and says, isn't it weird that we're not including the president? Isn't this provision under-inclusive? It's a senator or representative or elector or president, but then it doesn't include the president? Isn't this provision under-inclusive? It's a senator or representative or elector or president,

but then it doesn't include the president. And Senator Morrill says, well, actually, the president is included because it's an office under the United States. And Senator Johnson, this is what's interesting. Senator Johnson says, oh, yeah, I see that. I must have been mistaken. He says, now, you know, it was a forgivable mistake. It's weird to think of the president as being included as office

under the United States, but I see that. You're right. And that's the moment, of course, you know, I realize again, lots of reasons not to always care about legislative history, but that's the moment at which they could have fixed it, right? That's the moment at which somebody is raising this objection on the floor. And the answer is, no, it's included. We're good. And so it does seem, it requires a lot of confidence on our part. I think they were looking at the text. They asked this very question whether it included the thing they wanted to include. They concluded they were good. And we're going to come in and say,

no, you weren't good. You thought your words meant what you thought your words meant, but actually your words had a different secret meaning, unbeknownst to you, that you had to include the president. Now, that's under, not of. So you might then say, okay, I concede under. But at that point, maybe we also ought to wonder how confident we are in this move. You know, they didn't then have a separate Sarah moment about of.

We're still going to hold them to that. I'm just pleased that anyone had Sarah moments back in the day. Your power extends and radiates way back into the past. Can I offer a different sort of framing thought for this? Yes. So part of the question is, do we think of these phrases as unambiguous terms of art? Or do we think that they are phrases that might sometimes mean something slightly different in the context of each sentence? So I think if you were convinced that officer of the United States is an unambiguous term of art that just means in some dictionary,

everybody in the executive branch, but not the president, the vice president. And like everybody knows what it means and it means that everywhere. Then that's a stronger sort of elephants and mousels argument. Whereas if you think when you go through each of the clauses in the original constitution, some of them, like the commission's clause, seem like they can't possibly include the president

and others seem much more ambiguous. Then that maybe colors how we think about it when we get to section three. And so one question, like, so Steve Calabresi, who also has taken this view, having previously not taken this view. Taken your view. He now takes your view. Oh, I thought he, okay, sorry.

Yeah, he switched. I got the order wrong. Yeah. Oh, he's having a Sarah moment. Yeah, he switched. He's having a Sarah moment. Well, a Sarah moment. Yeah, he switched. He's having a Sarah moment. Well, a stronger moment. So he thinks, his view is, officer of the United States is a term of art

that does not include the president or vice president. He says, the framers of the 14th Amendment did not know this. So they used the term of art, believing it include the president, but they were wrong. They committed a Scrivener's error. And he doesn't believe in correcting Scrivener's errors,

even in the constitution. And so despite the original understanding and intent of the 14th Amendment, the original meaning of the 14th Amendment accidentally uses a term of art that excludes the president. I don't know, that may not be a Sarah version, right? I think it's interesting, but no, it is not my moment. And then this is the sort of related, then there's Seth Barrett Tillman and Josh Blackman, who have an even more, their view is that the entire original constitution systematically uses officer of the United States and office under the United States to exclude the president in every provision, including the foreign emoluments clause litigated against President Donald Trump, including the impeachment disqualification clause and a bunch of other clauses. So their view is, again, there's a systematic term of art

in the original constitution that the 14th Amendment then implements. Now, they too lose their nerve on office under. So they say, well, okay, maybe the 14th Amendment doesn't actually implement the term of art for office under, but we're still sure it implements it for officer of.

Well, it's not clear why. And on their view, which again, you'd think would be sensible, office under and officer of are just a match set. Like, strange fact we haven't talked about. Every time the Constitution uses officer, a person, it then uses the preposition of. And every time it uses office, the thing,

it uses the preposition under. So maybe the more natural reading is just there's no difference from the five-letter word and the two-letter word, other than one of them goes with office and one of them goes with officer. Oh, but see, I could see the office of the presidency being different than the person holding a constitutional office. The president and the vice president are constitutional officers. The office of the president is different because that it's the only thing where the office is the whole article also like it is unique in the constitution. I mean, that's the argument around that at least. But here's the thing. I think

that your argument is plausible and interesting and it's why everyone is engaging in it. And I just want to make very clear and underline, I thought your legislative history point, like when I was reading your article, and I was like, maybe I don't know. And I got to that. It like, I think it literally stopped me. I read it over and over and over again, because I think your intellectual heft that you brought to the overall exercise is really important and helpful. That was the heft that you brought to the overall exercise is really important and helpful. That was the one thing you brought to this conversation, though, that was totally new to me and important, I think, because regardless of how you view legislative history, you do need

to grapple with that. Now, I think an easy way to grapple with it, that was two guys. We don't even know if everyone else heard them arguing about it. Or maybe they did and they went to the bathroom and peeing next to each other decided something else differently. Like that's why legislative history is a problem. But nevertheless, like you have to grapple with it somehow in your article.

And I love that about it. And just like you sort of conceded the commission language is a bit of a thorn. I will totally concede that your legislative history point is a thorn for me, David. Can I jump in? Because two things. One, my mind won't stop thinking about the civilian military distinction about the president, like literally, because he's not really subject to court martial. But at the same time, he has absolute military command authority. But here's an interesting question.

What if he orders a war crime commission, the commission of a war crime, and he's out of office? How there's still criminal liability that attaches for that? How is that resolved? So many things. But anyway, there is- Is killing your former chairman of the Joint Chiefs a war crime? Yeah, that would be a war crime.

I was just curious. That would be a war crime. And a crime crime. And also a crime crime. So yeah. So anyway, I think there's probably a lot of people yelling, going, he's definitely civilian. And I get it, the civilian argument. But also you can't...

Anyway, that's going on. But here's the other thing. If I had to boil this down, let me tell you, see if you think this is like the fairest way of saying it. Words officer of the United States have a kind of obvious meaning in plain English, which is, you know, so if you're the chief executive officer, if you're the CEO, the operative word in CEO is, oh, officer, you are an officer of the United States. And then the question is, okay, if the colloquial plain meaning of officer is officer, and the president is the chief executive officer, then there is at one level, it just seems like, why are we arguing about this?

And then the question would seem to me to be, okay, if the word officer just has sort of this plain meaning, the distinct way that the original constitution used the term officer, was that saying that for all matters going forward, that word officer is then to be read in accordance with the very distinct way it's used in very specific circumstances in the original Constitution. Or is that just a quite situation-specific narrowing of the general term, but the general term still survives? Is that a way of framing it? I think so. I think so. I mean, this is

like one of the great challenges of the Constitution is they're trying to do a bunch of complicated legal stuff, right, and what they have to work with are words. And so, yeah, part of the question is like when you see them doing something slightly complicated in the Commission's Clause, like to what extent does that, you know, mark some... Change the colloquial

meaning of the term for all time. Right. And I will say, just to put one more clause on the table, apologies. In Article I, Section 8, there's something called the Necessary and Proper Clause, which gives Congress the power to make all laws that are necessary and proper for carrying into execution its own powers, which is how Congress kind of can do things that are not literally just tax laws in helping set up the IRS and so on. But it also says that Congress can make all laws that are necessary and proper for carrying into execution all other powers vested by this Constitution in the government of the United States or in any department or officer thereof,

which is what's called the horizontal necessary and proper laws. It's what lets Congress give the Supreme Court law cler clerks because there are powers vested by the constitution in the judiciary department and it's what lets the constitution give the president a staff so why the president pardon power is the president's power congress can't regulate the pardon power but congress can give the president a pardon attorney and a bunch of people who work on pardon stuff because that's a law necessary and proper for carrying into execution a power vested by this constitution in an officer of the United States.

Disagree. Disagree with what specifically? The reading of the quote? The officer part is what's, including the president, which Bode knows. You're going to say he's a department. All other powers vested by this constitution in the government of the United States. And so if you go to the beginning of Article 2, Section 1, the executive power shall

be vested in a president of the United States. So in that sense, it undermines David's point too. It's not a chief executive officer that they vested under. The executive power of all of Article 2 shall be vested in a president. And you compare that to Article 1, which people do all the time for totally other conversations. All legislative power herein granted shall be vested in a Congress of the United States. And so you'll notice over and over again, and well, twice in the 14th Amendment, Section 3, but also some of these other clauses that we're talking about, they will specifically say Senator and Member of the House or Congress, because that

legislative power is vested in the Congress of the United States, which shall consist of a Senate and a House of Representatives. In Article 2, the executive power is vested in a president of the United States. That's why it's a constitutional officer. It is not an officer of the United States.

For your Section 3 purposes in the 14th Amendment or in your Article 1, Section 8, horizontal, necessary, improper clause, sir. And do you care? Well, here's one other legislative question. I care about lots of things. Do you care how people around the time of the 14th Amendment described the president?

Like if Andrew Johnson regularly described himself as an officer of the United States or the chief executive officer of the United States. Do I care what Andrew Johnson in his drunken impeached state is calling himself or other people? He is the president at the time. Such as it is. Fine. Yes, I care. I care.

I don't want to, but I do. This is one of the other interesting methodological questions related to David's question is, you know, we read the Constitution as one document, but the amendments are added at different times. And so there is this question

when you get an amendment that's added, you know, when understandings and times have changed somewhat, even though we don't like to think about that, we don't like to admit that can happen.

You know, to what extent is our job to be faithful to the understandings that go with the 14th Amendment? And to what extent is our job to be faithful to the understandings that go with the 14th Amendment? And to what extent is our job to pretend that, like, James Madison's ghost is still in charge of all the amendments? I mean, this comes up a lot in the

incorporation of the Bill of Rights context, where people debate about whether the Second Amendment was an individual right, the scope of free exercise, even though it's clear by the time of the 14th Amendment, those were powerful, important individual rights that are understood much in their modern way. Yeah. I mean, look, the qualified immunity conversation.

Are we looking at 1871? Are we looking at like, it's when are you looking to be an original public meaningist or a textualist? I totally grant you that. Okay. So are you going to tell me what Andrew Johnson said or not? He regularly referred to himself as an officer of the United States. Often it was chief executive officer of the United

States, so you might say that's different. But Mark Graber and Jared Megliocca and John Volopoulos all have, I think somebody's doing a corpus linguistics thing on this too, if you like that. Oh, we were very into corpus linguistics here at

Advisory Opinion. Not necessarily pro it, maybe we are, but we're very into corpus linguistics here at Advisory Opinion. Not necessarily pro it, maybe we are, but we're very into saying it a lot. Yeah. We're corpus linguistic curious, just like I was text history and tradition curious pre-Bruin, and now I'm no longer curious. You know, it's like we're trying to read the Constitution like a statute where a statute often begins with a series of defined terms. It says, for purposes of this statute, officer means this. And you go down the line, and that often begins statutes. And that's often the most important part of the statute is how the terms are defined for all purposes going forward within the statute. But we don't have that in the Constitution. We don't have the list of defined terms

in the Constitution. And so it seems to me that we then default necessarily in the absence of this list of specific defined terms where they may not mean what you think they mean in standard English, that you default to standard English unless there are specific provisions in the Constitution where standard English doesn't apply because we just don't have that carving out of specific terms from standard English

when we're interpreting the Constitution. There's this opinion by Justice John Marshall called McCulloch versus Maryland. You may have heard of it. It's famous for many lines. Heard of it. One of which is exactly this. It says that, you know, one of the things to remember about the Constitution, you must never forget it's a Constitution works bound thing, because it will not admit of the prolixity

of a legal code. So there are ways, you know, if you had a statute, there are things you'd expect, like everything has to be spelled out. The codes are very long and lawyers spell it out. But the Constitution, if it were like that, if it were like a statute, it could scarcely be read or understood by the public, right? It wouldn't be possible to have a public conversation and vote about it if you included every definition of laws for every term. This might be a perfect example of that. Let's talk practicality. And just side note, if you've gotten this far in the podcast

and you're now just thinking, why doesn't Will Bode have his own NPR show? His voice is so good for this. You could just listen to him all day long. You, in fact, do occasionally do a podcast, correct? I do. Divided argument. There we go. So you can get more bode boating all the time for boating or otherwise. Well, and the thing is, his work, his his speech is both NPR ish, but can be menacing as when he

said, I walk alone, which I took as kind of a warning to all law students on campus. Like, I need some room here. Let's talk some practicality here. There are various versions of this percolating around the country, but we're focused on the Minnesota version. Can you just sort of lay out what's happening next here? Practicality is not my specialty. But so as we mentioned earlier, this argument sort of goes through the state election law process, right? The 40th Amendment does not itself contain an election code that says like who can or can't run for office or how you

do ballots or whatever. But states often don't want somebody who's ineligible for office on ballot. And in Minnesota, apparently the way this works, and I spent some time looking into this, Minnesota also happens to be where my co-author, Mike Paulson, lives and has taught law for a very long time. In Minnesota, the Secretary of State has no authority to make eligibility determinations. Their job is just to take, you know,

like whoever the party sends over and put them on the ballot. But Minnesota law says that anybody who believes that somebody has been inappropriately included on the ballot. But Minnesota law says that anybody who believes that somebody has been inappropriately included on the ballot can bring an original jurisdiction action in the Minnesota Supreme Court called an errors or omissions petition.

There's now a pending errors or omissions proceeding in the Minnesota Supreme Court which has agreed to hear oral argument, I think in early November, on the question of whether or not Donald Trump could be on the Minnesota ballot for president. And what's a little odd about that is that this would happen before he's actually been accepted to be on the ballot?

So I think the Minnesota Secretary of State has asked the Minnesota Supreme Court to rule by January, early January, because the hard thing about election law is you can't decide these things too early, or else they're not right. But if you decide them too late, then you screw up the election, have to reprint all the ballots,

and screw up the, screw everything up. But in federal court, you'll apply the Purcell principle, which says courts won't do anything too close to an election. We're too close. It's kind of vague, and set it on vibes. So there is a kind of weird sweet spot

for when it's too late and too early. That, too, is a state law question. But the like when it's too late and too early. That too is a sort of state law question, right? But the idea is we now have a pretty good sense. It's pretty likely that Donald Trump's name is going to be on the ballot unless the Minnesota Supreme Court says it shouldn't be. I would like to know before we print off however many million ballots whether it should. So it's more like a Goldilocks principle. It can't be too hot and it can't be too cold. The porridge has to be just right.

I mean, this is actually how I teach federal courts, right? And this is true of everything. It's like, you want to challenge some new law that you think is unconstitutional. You can't do it too soon. You can't just be like, this law was enacted. I want to challenge it. You have to show some credible threat of enforcement. But you also can't wait until you've been prosecuted and put in jail because then we'll say, oh, sorry, you should file for habeas. And you can't file for habeas anymore because it's VEDFA. And then there's like a whole sort of challenge in federal courts about like, when is the porridge just right?

There's a very practical reason, I think, to reject the Bode-Paulson, not theory, but the practical implication of it, which is that when in doubt, when there's a gray area, we should leave this to political accountability, either at the ballot box or even, you know, in the House and Senate, for instance, at least they're politically accountable.

So fine, elect someone who's 32 years old and have the House and Senate reject them, for instance, but that your version, which would then allow sort of removing someone from the ballot, potentially, now maybe not in this case, but it's hard to see. Look, this could move fast enough where there's no votes that have been cast for Donald Trump and he's removed from the ballot everywhere because of this, you know, it goes to the Minnesota Supreme Court, they hear it in November, they decide it, you know, the next day in November, it goes up an emergency petition to the U.S. Supreme Court. It's possible, it goes to the Minnesota Supreme Court. They hear it in November. They decide it, you know, the next day in November.

It goes up an emergency petition to the U.S. Supreme Court. It's possible. It's unlikely. And so what's more likely is that you've had millions of votes cast for Donald Trump before this is decided. And that then he's disqualified under this theory. And that's not great. All right. Yeah.

So I do think you could do this theory. And that's not great. All right. Yeah. So I do think you could do this quickly. And there are a lot of people calling on the Supreme Court and the Minnesota Supreme Court to just, either way, whatever the answer is, let's just figure this out now.

And of course, figuring this out at the primary stage seems to be a lot healthier than waiting until the general. The same reasons that I think if Republican Party voters,

you know, if Donald Trump died tomorrow, like, the Republican Party would have to find somebody else Donald Trump died tomorrow, like the Republican Party would have to find somebody else. And so it might be healthier to think about that. That said, right,

one of the other options you floated, Sarah, is what people like to call the January 6th solution, right? So the reason January 6th happened on January 6th is that's the day that the votes are counted in the joint session of Congress. If the choices are either deciding this, you know,

relatively early during the primary season before the general or deciding this only after all the votes are cast and we know who won or lost on January 6th, I don't think the latter is a better recipe for civic health. Oh man, that's a recipe for civil war. I mean, look, I don't even think congress has the authority to decide whether somebody is qualified or not i think that congress's power is to count the votes not to judge them but that's ambiguous too uh and the people who wrote the electoral count reform act might

have a different view and then they have to get into what the electoral count reform act is constitutional what it means for a vote to be uh regularly given in the electoral count reform act so i mean look if that's where we have, if that's where we have to go, that's where we have to go, we follow the law. But if you said like, oh, that's the safe, secure, democratic place to resolve this, that doesn't seem right. Okay, what about, this is my other practical argument

against the Bode-Paulson reading, which is, so we've done sort of the specific textual analysis and comparing it to other parts of the Constitution. we've done sort of the specific textual analysis and comparing it to other parts of the Constitution. We've done the elephant in mouse holes argument that they should have or could have delineated it and didn't. And my last one is, ah, they did intentionally leave out president because there was always a different way to disqualify the president from holding office if they engaged in an insurrection or rebellion, the impeachment power. And that's

why they didn't include him. And so, look, the president was impeached for his role after the election, including January 6th. It failed. That was the, it sort of combines all of these, right? That was the political accountability. That was the effort to do the 14th Amendment, Section 3, yada, yada, all the things. It failed. the 14th Amendment, Section 3, yada, yada, all the things, it failed. All right. So first of all, this again gets us into a weird form of like under of trutherism because the impeachment disqualification clause is another under clause. So you do have to, for impeachment disqualification to work, you do have to accept the president as holds office under, if it's not an office of. Maybe we do, but just that, that, that.

I do. Good. Now, a funny thing, it's of course, one of the reasons that that impeachment failed is that a number of members of the Senate were worried that you couldn't impeach the president after he had left office. Then it was too late to impeach the president because he was no longer an officer of the United States. And so you couldn't hold him. This merry-go-round is fun. States. And so you couldn't hold him. This merry-go-round is fun. This was the McConnell argument. The McConnell argument was he is constitutionally ineligible for impeachment

because he is no longer, because the consequence is removal. He's gone from office. Yeah. I think at least if you impeach the president before the clock goes, so since the impeachment came in time, that then you can conclude the trial.

This is the other McConnell argument. Michael McConnell wrote an article about this saying, like, the impeachment's legit. It's more like the statute of limitations in civil litigation. If you get your complaint in under the wire, right, then we can keep doing the case, even though the statute of limitations is run. I think that's the better argument.

But that's ambiguous, too. So it seems awfully wild to have a system where the, it seems more like a constitutional shell game to say, you're supposed to impeach the president and disqualify him from future office. Oh, but if the time runs out and the president's not president anymore, you can't do that. But now the president can become president again because they stopped being president fast enough. That just seems like a wild combo. And perhaps in the end, we're just left with the people of the United States who are supposed to decide this as voters. I guess I'm just kind of imagining Jefferson Davis. It's 1880.

And he's like on a rehabilitation tour. and he's like on a rehabilitation tour and he stands in front of the stage and he says, I am your Democratic nominee for president of the United States. And people go, wait, you're Jefferson Davis. You are the president of the Confederacy.

You're not eligible. Section, you know, 14th Amendment, Section 3. And he goes, read it closely. I am not encompassed in that statute. I mean, in that in that amendment, I think people would fall out of their chairs in shock at the idea that Jefferson Davis could run in 1880 and Congress had just barely missed it. To be clear, he super was though. He was a senator, right? Like he was all the things. So this is an under argument rather than an of argument,

which is just, again, a sign of how. Oh, okay, okay. You're doing it, okay. Yeah, so, but can we just say, let's not forget about Congress here. So another, I mean, everybody agrees, actually, Donald Trump can become president through a democratic mechanism. The question is what the mechanism is. Is it enough for him to get a minority of the popular vote, squeak through with electoral college majority, just like it is for anybody else? Or maybe for him, should we have the slightly higher standard that needs to get a small sliver of Democrats in Congress to first sign off?

to get a small sliver of the Democrats in Congress to first sign off, right? Because Congress can, by a two-thirds vote, remove the disability. It did during the Civil War. It granted amnesty to almost all the Confederates, except Jefferson Davis. And indeed, that was one of the conversations at the time when Congress was debating the amnesty legislation.

And there was some possibility they were going to grant amnesty to everybody. People said, Jeff Davis and Robert E. Lee becoming president? Are you kidding? So Congress carefully crafted the embassy legislation to leave them out. They were like, a lot of people participated,

you know, we accepted their apologies, but not them. The other weird thing is Jefferson Davis and Robert E. Lee at least did kind of apologize. Like they- Our bad, yo. Yeah, now you might say, I'm sorry is inadequate for this level of war, but- I do, I do actually say that. Yeah, I agree. I I'm sorry is inadequate for this level of war. But I do. I do actually say that.

Yeah, I agree. I think it's not crazy for Congress to consider granting amnesty to Donald Trump, given the Democratic states. I think that's not crazy. I mean, there are people who aren't opposed to that. I see why they would do that. I don't think I would do it, but I see why they would do it. I think if I were going to think about doing it, the one condition I might have would be

an apology. Like South Park BP style. We're sorry. We could talk about what form the apology has to take. I have a six-year-old and a three-year-old. And like, you know, there's a lot of technical performance apologies. But I would think like the one thing you might want first

would just be like some acknowledgement that what happened on January 6th was wrong and that the president's party was wrong. Maybe once, maybe once, you know, then we could talk about like civil war style forgiveness, but it doesn't, it's funny to me that like demanding that, demanding at least that is thought to, it's thought to make you an undemocratic, like crazy person. Um, it just seems like a sign of how far we've fallen. How did y'all get the idea to write this article?

And are you surprised with the ubiquity of its fame? Yes. You know, several years ago, Mike and I, you know, I think when people were first talking about Section 3, like in January 2021, and had all these claims about it, and there was talk about impeachment and all that stuff. We were just emailing about it trying to figure out how this worked and then sort of tossed around

and then, you know, learned that Simple didn't think it was self-executing and Simple thought it didn't apply anymore. And so we sort of started thinking, well, we should write, I still have the original draft of our first article,

which calls this a short article making four small points. And then, you know, the more we started working on it, the more there was there. Nobody will ever believe this, but I swear it's true. When we started working on it, it was not obvious, like, how it was going to come out. You know, we started just trying to think,

like, we're law professors. This seems to be a constitutional revision that people don't fully understand. Let's try to figure it out. It took me a while to conclude that the definition of insurrection was as broad as we concluded it was. I sort of thought that, like, it had to be the Civil War to be of insurrection was as broad as we concluded it was. I sort of thought that it had to be the Civil War to be an insurrection at first.

I thought I started reading about the legal term insurrection in a lot of the military history that David probably knows better than I do. So then it just took several years of kind of going back and forth before we realized we had something important to say. I did not anticipate,

we put this on SSRN where you can like download preprints of larger articles, you know, shortly after they're placed. And I did not anticipate this scale of reaction. Until now,

my most downloaded article by a lot is Qualified Immunity Unlawful, which has been downloaded like 6,000 times. And I thought, you know, probably this article will never be as downloaded as Disqualified Immunity Unlawful. Like it doesn't have that same kind of like political viral possibility, but, but, you know, maybe, maybe it'll be, you know, interesting. And I think Adam Liptack saw it very quickly and wrote a little piece

about it. I was like, okay, then we noticed. I did not anticipate it was going to then. What's the number? What's the number? I stopped counting when it went over 100,000. Oh, yeah. I was going to say it shocked me if it was less than 100,000. It's 101,218. Oh, no, 221.

Sarah doesn't know this because she was out, but I was using a lot of WWE analogies during the, like, is that Steve Calabrese's music? And where he's coming in and you think he's going to take one side and he picks up the folding chair and he like bangs his former allies with it, you know. But as soon as I saw this article, I knew it was going to blow up. I mean, I just knew it was going to blow up because I heard Will Bode's music. Like, is that Will Bode's music? He's coming in on the 14th Amendment. I knew this thing was going to blow up. Everybody knew this thing was going to blow up. It's a phenomenal article. And I recommend the pieces, you know, attempting to rebut you.

I recommend them as well. Josh Blackman's, and we should probably put that in the show notes as well. It's an incredibly important debate. And the thing that one thing that grieves me about it is that I do, in fact, think that the porridge is just right to decide it right now. right to decide it right now. And I'm really worried that courts just will say, nah, they'll just nod dog it because we've got this election coming up. I mean, that is what happened to it last time, right? So we alluded to this self-executing issue. And the main reason people now think the amendment is not self-executing is because of a circuit court opinion by Chief Justice Chase riding circuit. It's like no presidential status, but it's there in the federal borders and it's by Chief Justice Chase

where he basically gnaw dogs it. He gets asked here in Virginia, they're just letting insurrectionists hold office and this guy was convicted by a judge who is disqualified under Section 3 and files for habeas. And the question is, do we have to do that? And the district judge says, yep, he's disqualified. I guess I should claim habeas. And the question is, like, do we have to do that? And the district judge says, yep, he's disqualified. I guess I should claim habeas. And Chief Justice Chase rides down and basically says,

and basically says in so many words, like, whoa, if we took the Constitution, if we took Section 3 seriously, what would happen? Like, what would happen to all these people governing in the South?

And I think there is some reason to worry behind the scenes. One of his worries was like, the South just won't stand for it. Like, it's true, this is what it requires, but we're having a hard enough time getting the South to accept the 14th Amendment as it is. We just can't. It's just asking too much to ask the

Constitution seriously. We just gotta give it to the bullies. There's a few theories to apply to that. One is that Chase was applying the bad man stays in jail theory. Because sure, it would have disqualified the judge, but the actual result was to let to that. One is that Chase was applying the bad man stays in jail theory, because sure, it would have disqualified the judge, but the actual result was to let anyone that judge had sentenced or convicted out. So bad man stays in jail theory would have resolved that case in the same way. There is also the anti-Gorsuchian chaos theory, where like, look,

we just don't decide things that result in total chaos where there's not a lot to be done with it because all of a sudden all of these office holders in the South would be just like that day

no longer holding their office or do we retroactively say that anything they did while in that office doesn't count anymore? Total chaos. And that's part of Chase's argument. Although Chase had a

bad man's days in jail theory, a separate theory called the de facto officer doctrine, a well-established centuries old bad man stays in jail theory that says that... That we don't retroactively apply. Yeah. Yeah.

Even if the person shouldn't hold their office, like going forward, you know, right. We just don't worry what happened so far. And what's funny is that that's the ground that the Supreme Court as a whole, apparently privately instructed Chase would be fine. And he goes down and instead delivers the Boulder argument, instead delivers the full-on death blow to Section 3,

and then says, now it's true as an alternative ground, I could go with the de facto officer doctrine, but I don't need to get into that because I've successfully resolved the case on a broader ground. But as I read the number of people who I respect who have a version of this response to this argument, I totally see where it comes from, right?

I totally see where somebody would say, it's just asking too much of the country to expect the Republican party to accept the legitimacy of a section three application. Like it's just, it's just not going to happen. We know it's not going to happen. We're trying to get them to accept the results of the 2024 election, whatever it may be.

Like, don't make it worse by actually like applying the constitution to that election in a way that will disfavor them. Every time I hear that, I hear peace in our time, peace in our time. Can I tell you where I fall at the end of this conversation? Is a little where I started,

but I think I've moved a little, shifted in my chair a bit. So first of all, I would love for this to apply. I don't think anyone who's been listening to this podcast or knows anything I think about anything thinks that I don't want this to apply. I wish lightning strikes would apply. You know what I mean? But if it's going to apply, it needs to be air fricking tight. It really needs to be rock solid. And it's why I wanted to have this conversation because I think conversations like this, articles like this, the articles refuting it, like all of it is going to get us to that

airtight rock solid place where we can all feel comfortable or not at the end of the road that we're going on. Minus like, again, if, if lightning would just do this job for us, I think we'd all, you know, I don't know. I don't want the Secret Service knocking on my door. I don't control Lightning. This problem does not seem to be self-executing, as it were. So I don't think that we should be applying the 14th Amendment Article 3 in close calls, if that makes sense. Yeah, no, I mean, I would like to think we live in a world where airtight legal arguments convince everybody. So where if it is airtight, that'll, you know, cause everybody to say, well, yeah, I don't like it, but I see it. But then I'm in David's camp. Like, if it's an airtight legal argument, we don't then say like, oh, well, but these people

don't like airtight legal arguments and they're bullies. Like that's different. But it's also different than saying it's a close call. So we're applying it against your guy, against the person you want to vote for. And we also need to make damn sure

that we want to apply this in the same breadth and scope and everything else moving forward because it's sure as hell not going to accept it if it's disqualification for thee, but not for me. Yeah, no. apply this in the same breadth and scope and everything else moving forward, because sure as hell not going to accept it if it's disqualification for thee, but not for me. Yeah, no, I mean, look, I would love to think that January 6th is the last insurrection against the United States we'll ever have in this country, but I don't think that's likely. If it is, it's because the United States ended.

Fair enough. You know, that's, I'm glad you brought that up because, you know, one of the things I've been talking to actually a lot of folks about just when I'm out and speaking and everything is, when is everything going to get back to normal? Is sort of the question. And I'm like, if you look at a big sweep of American history, we're in a version of normal. So if you look at, for example, just the whole run up to the Civil War, post-Civil War, election of 1876, compromise that resolves the versions of normal is living in open defiance of the plain meaning of the constitution, much to our detriment. And so, you know, one of the reasons why I think this is such an important argument is that we cannot be living in a new normal that essentially is saying, well, what an insurrection is against the United States

is you got to be wearing gray and riding a horse named Traveler or whatever Lee's horse was before, you know, you're going to be disqualified from office. Do these words have real force and effect to regulate and to modulate the radicalism of dissenting movements in the United States. And so I think it's really important to establish what the normal is going forward. And if the normal is that insurrection or rebellion, we're essentially helpless against it as a matter of law, as a matter of law in our entire defense system is just hunting it and hoping that a demagogue doesn't persuade enough people in swing states to vote for him. Man, the Constitution is more fragile than we thought. Don't forget after 1876 and that election, which William Rehnquist has written a great book about, which is fun and short and everyone should read it because it's a good time, especially right now.

1880, that guy's assassinated within months of taking office. So, you know, days. There are versions of normal in this country that are really bad. We don't want to go back to those. Yeah, people sometimes ask. Actually, I just agreed to go to a symposium on teaching law in a time of change and crisis and sort of like,

how do you teach law in this moment? And my remarks are more or less going to be, you have always been teaching law in a time or change of crisis. You may just not have noticed before. All right, with that, Professor Bode, thank you so, so much for coming on to spend an hour talking about officers of and under and how many letters are in the word president.

This has been a super treat, a treat for all the Nerd AO listeners. And, you know, we're trying to make that more perfect union. These conversations, to me, in a small way, contribute to that. But your Law Review article, in a large way, I think, contribute to it. Contribute to me, too. I do not do a lot of these things about Section 3 because I don't want to just have the same conversations over and over again for things that are already in the article. But once you promised me we could spend time on actually getting into the most detailed textual and structural arguments, I couldn't say no. Did I fulfill my promise?

You did. All right. Thank you. Thank you, professor. David, it feels good to be back. That was a fun conversation. Felt like my first workout, you know, like really back in the saddle. I loved it, Sarah.

And what, you know, you were, you were, because you, I could tell you have been talking about this a lot. You know, you've been doing a lot of these ABC hits and other things like talk, walking through this. So I think that was super valuable to just slow down and go through the quite specific constitutional provisions. Because, number one, to get him to respond to it, which I think was fantastic. And then number two, to show quite frankly how complicated all this is. And complicated is not a synonym,

it was not a justification for necessarily doing nothing, but it's complicated. And so I thought that was a great service to the reader. So thank you for taking him through all of that. Now, the part that we didn't spend really much time at all about was the definition of insurrection or rebellion or the giving aid and comfort to the enemies thereof. Like, obviously, I had him sort of define it and explain where he came out in the table of contents version. But I think that'll be really important if this is decided.

They're not only going to have to decide these officers of and under, but a court is going to have to decide whether Donald Trump incited violence on January 6th, whether the violence on January 6th constitutes an insurrection or rebellion as compared to riots, for instance. compared to riots, for instance. Whether we want to have such a broad definition that could encompass, you know, the Josh Blackman, another friend of the pod, great law professor, who has published an article in response that you've mentioned we put in the show notes. You know, he gives the example of like,

what about the like Puerto Rican independence movement or something like where they're going to have a vote of whether to join the United States or not. It's everyone who votes to become independent somehow participating in insurrection. I don't buy into that necessarily, but there are other civil disobedience movements that you, I don't think, would want to encompass. Now, people mention, for instance, the thing called in Portland where they made their own police-free zone, the CHAZ. Oh, Seattle CHAZ. Yeah, the CHAZ.

CHAZ. Seattle, Portland, you can understand my confusion. Like, is anyone who was in the CHAZ now disqualified from holding office if they had previously taken an oath, for instance? What about the violence in in January of 20, uh, 2017 on inauguration day, um, in DC. I mean,

tons of buildings, uh, you know, windows were broken all in DC, uh, trash cans were set on fire. There were just people running through K street wearing all black, like Antifa style.

Um, hundreds were charged, zero were convicted, but like, what if those, what if someone there had taken an oath? Could they be disqualified? So there's a breadth argument just overall moving forward. There's a specific argument on, did Trump incite it? If he didn't, you know, for instance, what about all of his actions post-election, the fake electors, et cetera, would that be enough? Are they all tied in together? So we didn't get into a ton of that because I don't consider that necessarily a legal argument. That's sort of a fact-based

issue. Yeah. But, you know, I think it's valuable to sort of walk through those things, you know, and to think about the breadth. And I think when you walk through them, you start to say, OK, wait a minute. In fact, there's some pretty good arguments for a pretty broad reading of the the way that, you know, the colonists did in 1776 or the way South Carolina did in 1861 or whatever versus, I mean, heck, the Republican platform in 2016 called for Puerto Rican admission into the union, for example. So there's, you can talk about like big status changes for these territories. And it's been a very viable debate as to whether Puerto Rico should remain a territory, become an independent nation, or become part of the United States. That's been a part of the national debate for a long time. And there are various kinds of ways you can do non-binding resolutions that are not in any

way insurrectionary. But if you talked about, yeah, we're declaring independence. And also, you know, if you put on all black and you tried, you tried even with just a band of 10 people to stop Donald Trump from taking the oath of office in 2017, that's still an insurrection. And it's not clear to me what we've lost as a country. If we say, man, darn it, that person who, you know, lit part of a federal office building on fire is disqualified from office. What a loss.

What a loss. No, no. It's there. There are, you know, one of the most important norms that undergirds the entire democratic experiment of the United States is this notion of peaceful transition of power. It is one of the most precious aspects

of our Republican form of government. And if you've violated that norm, it's not that much of a penalty to say you can't actually run the country. This is not some sort of like drawing and quartering here. This is you just you can't help run the country. I mean, so it just does demonstrate how much the rise of Trump has so distorted. I mean, if you went back to some of Trump's most staunch defenders in 2014 and you painted out the,

and you wrote out the scenario and you'd say, would this be somebody who should be disqualified from office? Some of the most MAGA people you could possibly imagine would say absolutely 100%. Yes, can't even imagine supporting somebody so monstrous.

And then here we are. So yeah, it's a very important conversation. And I just guess it constantly, it's frustrating because you have multiple avenues of legal accountability here for Donald Trump, both constitutional and legal. And there's this shell game that the Trump supporters are playing. They'll go, not this one, but that one. Okay, you do that one. No, not this one either, but that one. And then you do that. And they're all credible,

all plainly spelled out in federal law or the Constitution. But somehow it just never seems to apply to Donald Trump. What a unique figure, Sarah. All right. So the blockbuster week of AO continues because in our next episode, we're going to have Lisa Blatt and Sarah Harris from Williams & Connolly joining us to do a little more Supreme Court term preview, including the results of the long conference, which were pretty exciting. Especially for one household in Virginia. I was with Husband of the Pod when his case was granted. husband of the pod when his case was granted. And I'll just tell you my reaction, which for anyone looking at the calendar, it looks like this case will be argued, you know, January,

February, probably. And I thought, oh, man, that's going to suck for me. I become a SCOTUS widow. With a little baby. Well, he won't be that little anymore. He'll be pretty little. I mean, five months. He's one month now, David. That's unreal. That newborn stage just doesn't last very long, does it? I know.

So he's one month. He's definitely gotten bigger. But the chicken legs, the like newborn chicken legs, it's a good thing we put them in those onesies that cover their legs because their legs are not good looking or like cuddly at all. They, you see why being pregnant is not a comfortable state of being because there's little knobby knees and ankles that are just like stabbing you all day long and like they stay that way. So he's still a little knobby on the bottom half. Yeah,

no, he's precious. He's precious. I did not see, I did not evaluate legs when I saw him, but he's precious. He looks perfect. It's yeah. It was wonderful to meet him. Thank you. All right. So buckle up. There's more exciting guests to come on advisory opinions. What are we, I was going gonna say like 3.0. I don't know. I feel like we're in different chapters of our, we're different Taylor Swift eras. You know what I mean?

This is the next era. We're in the, we've gotten so many new listeners that we are in the I Am Become Death Destroyer of Worlds era of legal podcasts. Oh, and just before we go, and I'll probably bring this up with Lisa as well, but I don't know if you noticed, Ken and Shanmigan, friend of the pod, we did something yesterday that was of note, or sorry, on Sunday. This is not a sentence I ever

thought I would write, but Taylor Swift is about 10 seats down from me at tonight's chief game. I don't think that's a humble brag. That's just a brag, right? That's just a brag. It's him subtly saying, I have incredible seats. Because Taylor ain't up in the nosebleeds. And, you know,

as a Kansas City Chiefs fan, they won. But also, they should be a little embarrassed because, frankly, there were points in that game where it looked like the New York Jets were about to beat them. And that's not good that it's even a question at halftime, really.

Well, yeah, but the Jets just went ahead and Jets-ed the game. So... But the Kansas City Chiefs got the Jets on the board. The first two points that the Jets scored were because Kansas City Chiefs got the Jets on the board. The first two points that the Jets scored were because Kansas City fouled a guy in the end zone, giving the Jets two points as a safety. Like it wasn't even a real safety. It was a face mask safety.

The Jets didn't even score those points. Zach Wilson is out playing Patrick Mahomes right until the point where he just goes ahead and fumbles the snap. And doesn't even like fumble it in sort of the classic way. He sort of bounces it forward straight towards the Chiefs player. This isn't even a conventional fumble. It's a Jets version of a fumble.

And Aaron Rodgers sitting up there in the stadium watching the whole thing. There was like a, what do you call it? The flea flicker thing where you like throw it forward and then flick it back to the quarterback or whatever. And that did not, that resulted in a sack regardless. And they then went to Aaron Rodgers, whose head was in his hands, just like.

So here's a quick question. And I know the podcast is going long. Travis Kelsey, Aaron Rodgers, both of them, mustache, no beard. Is that a new thing now? Not for me. Okay. No, not for me. I will say that the Jets head coach, that's for me.

And what? The whole look? Yeah, the whole look. the whole look. Now for those listening, the Jets head coach has a shaved head, like very smooth look. And you, for those who know husband of the pod, you may notice some aesthetic similarities.

So maybe I just have a type. I don't know. Yeah. Yeah. That's probably it. Do you think that the Taylor Swift, Travis Kelsey thing is real? Yeah. Yeah.

I mean. That's wrong. You are so gullible. She's with the mom. Right? What does that prove? She's at the I'm meeting the mom stage, right? Doesn't that feel a little quick to you, David?

Look, you're talking to a guy who got engaged in six weeks. Oh, fair. That's fair. Yeah. And that turned out to be real. I'm sure people thought it wasn't at the time. Oh, there are people throwing their bodies in front of this. I don't mean that their PR agents got together and were like,

hey, you know, it'd be awesome. You talk to your person. Like, let's see if we can do this. I just mean that, like, they have to know that this is quite mutually beneficial. What I wonder if they've thought out is like, unless they're getting married, this is not going to be mutually beneficial for very long. Like if Travis Kelsey dumps Taylor Swift or hurts her in any way, the mob that will be after him will be unlike any experience he's had on the gridiron. And I don't like I think this has mostly benefited him.

I get the jokes online. Like, I know it didn't put him on the map. I get that. But Taylor Swift fans are now watching football. I don't know that there's a lot of like Travis Kelsey fans who are suddenly like downloading all of Taylor Swift. That song Invisible String is good. Yeah. Yeah.

Purple Haze is my jam now. So I do think this has been a little bit unidirectional, but we'll see. I think that it's genuine and they're in that high on their own supply stage. Oh, that'd be really sweet if that's true. Yeah, that's, I'm an idealist, Sarah. I love young love. 30 something young love. That's where I think they are.

All right. OK, we'll see. We'll see. With that, we've gone way off track, but we needed something after the like seriousness and the nerdery and things that we know about. We know nothing, frankly, about Travis Kelsey and Taylor Swift or really even about. Like we know nothing, frankly, about Travis Kelsey and Taylor Swift or really even football. I know, David, you think you do, but just your fantasy team alone kind of belies that. The league is corrupt and rigged. But yes, I accept that I will accept

an inferior level of football knowledge to other areas of life. No question. Well, congrats to Cannon Shanmugan, friend of the pod, on being next to Taylor Swift, I guess. All right. Talk to you next time. Yeah.