A hot bench debates Trump's gag order; courts have varying rationales for keeping Trump on election ballots; Elon Musk's own mouth is a problem for his defamation claims
Not-A-Lawyer here (and definitely Not-A-Constitutional-Scholar) asking whether it means anything that the 14th Amendment specifically mentions Senators and Representatives and even bothers to single out presidential electors and yet doesn't list the President and Vice President. Seems that if you meant to include POTUS, you'd say so? And while I might consider that just common sense, is it relevant for a judge to consider that when forming a decision?
"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."
Yes. That is the core issue. The language seem to distinguish between elective offices (Congress), appointed offices (under the US), and state-appointed offices (electors).
The Colorado judge noted that the drafters went into caucus with language that started out as:
“No person shall be qualified or shall hold the office of President or Vice President of the United States, or 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…”
The caucus stripped out the language that explicitly referenced POTUS and VPOTUS and never spoke of it again. The judge cited this as her strongest point for the drafters' intent.
Thank you, very helpful. The "while he was president" parts of the argument seem to get most of the play in the media, but they're not really relevant if Section 3 doesn't apply to qualifications for a presidential run.
You're quite welcome, this is kind of an obsession of mine. :)
I believe that the drafters, operating in the shadow of Lincoln, understood that the difference between an insurrection and a revolution is a national majority, and opted only to disqualify those offices that Congress already had clear Constitutional authority over - they get to police their own members, they have advise and consent authority over appointed officers, and they can disqualify electors for holding other offices.
It's not simply "an oath to support the Constitution" though.
"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..."
The argument is that the Presidential oath is not included here. An "officer of the United States" is defined in the Appointments Clause as those appointed by the President. So while President or a Member of Congress is also "an office" it is an elected office, not an "Office of the United States."
That is the actual argument, of course. Trump's argument is of lesser quality.
Bravo. I follow the trials and tribulations of Trump and the republicans intermittently, Sometimes it seems like they're deliberately trying to drown out everything else. I enjoy listening to these episodes and reading the comments.
Mistake made by Ken on when you can file in federal court. Has nothing to do with electronic filing. Even in 1970, Fed. R. Civ. P. 77 stated that the Court is "always" open. As a result, in the old days if you dropped your pleading after hours for filing in the Court's drop box before the next business day, the document would be filed stamped the previous day. Obviously, with electronic filing you can literally file 24/7 but, technically, that has always been the federal rule.
Did Judge Sarah Wallace deliberately keep her reasoning on the “officer” part light and lean into the “insurrection” reasoning because she doesn’t care about reversals on the former, but cares about the insurrection part? Is it like putting a crappy graf in your article so your editor will have something they’ll focus on that you don’t care about?
I'd really like to see someone who thinks Trump clearly participated in an insurection propose a test for what it means to participate in an insurection.
I think that's going to be very hard to do that in a sensible way that includes seizing power by asking congress to do something unconstitutional when the violence only plays an indirect roll in the scheme (few people think Trump planned to have the Jan 6th rioters either hold the capital or put a gun to Pence's head and demand he not certify)
To illustrate the difficulty how do you give a test that counts Trump's conduct as insurrection but rules out all of the following:
1) committing bank robbery to bribe Pence to not certify.
2) A politician in a hypothetical world in which Gore had taken the position that the house shouldn't certify Florida's vote who merely encouraged protestors to push their way past police so they could get close enough to the capital to be heard during the debates on the issue -- imagine that in this world Gore had been the challenger and it was clear the current administration was illegally denying D protestors the ability to protest anywhere near congress.
3) Some minor officer violently shoves their way to the front of the line at the post office to mail their crazy suggestion to the VP to not certify which isn't constitutional but they believe to be (as Trump may have).
--
I totally think Trump attempted a coup but it's just that the violence was largely incidental to that plan and that's not an insurrection in the sense that the 14th contemplates.
I would frame it differently. Trump incited an insurrection in order to remain in power. As POTUS, he is legally the personification of a national majority, so he can't technically participate in an insurrection. What he did was an attempted coup - treason.
If you look at the constitutional definition of treason it doesn't seem to qualify.
Morally speaking he absolutely did, and he certainly violated his oath to uphold the constitution but we kinda were relying on the political process for those things.
There was the funniest (I guess) discussion by Floyd's attorneys about tagging, starting with saying "tags begin with &" and demonstrating (perhaps deliberate) unawareness of "how social media even works." There was only one line of questioning by that attorney about threats, but even that appeared to be trying to elicit hearsay evaluation.
They did have comments from the "targets" of the communication. I've been mulling other words than target... victim? attackee? "the person I'm trying to get the flying monkeys to swarm"?
The Chutkan immunity ruling was a fun read. Trump's talking point about not being able to be sued because he's a candidate for the office of president got me thinking about Avenatti. Ken, should Michael Avenatti have "just done it" and run for president after all to keep out of jail? Pfft.
You mentioned on social media that you thought Judge Chutkan might remand Trump into custody in the event that he is found guilty in the D.C. case, even prior to sentencing. I have heard other commenters (including Chris Christie on the Dispatch podcast) state that he believed Trump would remain on bond pending appeal under 18 U.S.C. 3143. Can you explain the standard of proof Trump would have to demonstrate to be released on bond pending appeal (would he have to show substantial question on all counts likely to lead to a term of imprisonment or just one?) and the standard of review by the court of appeals if Judge Chutkan denies a motion for release pending appeal?
This episode reminds me again to say that I would gladly pay extra for more episodes on FA issues and/or abuse of power specifically.
+1
Not-A-Lawyer here (and definitely Not-A-Constitutional-Scholar) asking whether it means anything that the 14th Amendment specifically mentions Senators and Representatives and even bothers to single out presidential electors and yet doesn't list the President and Vice President. Seems that if you meant to include POTUS, you'd say so? And while I might consider that just common sense, is it relevant for a judge to consider that when forming a decision?
"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."
Yes. That is the core issue. The language seem to distinguish between elective offices (Congress), appointed offices (under the US), and state-appointed offices (electors).
The Colorado judge noted that the drafters went into caucus with language that started out as:
“No person shall be qualified or shall hold the office of President or Vice President of the United States, or 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…”
The caucus stripped out the language that explicitly referenced POTUS and VPOTUS and never spoke of it again. The judge cited this as her strongest point for the drafters' intent.
Thank you, very helpful. The "while he was president" parts of the argument seem to get most of the play in the media, but they're not really relevant if Section 3 doesn't apply to qualifications for a presidential run.
You're quite welcome, this is kind of an obsession of mine. :)
I believe that the drafters, operating in the shadow of Lincoln, understood that the difference between an insurrection and a revolution is a national majority, and opted only to disqualify those offices that Congress already had clear Constitutional authority over - they get to police their own members, they have advise and consent authority over appointed officers, and they can disqualify electors for holding other offices.
It's not simply "an oath to support the Constitution" though.
"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..."
The argument is that the Presidential oath is not included here. An "officer of the United States" is defined in the Appointments Clause as those appointed by the President. So while President or a Member of Congress is also "an office" it is an elected office, not an "Office of the United States."
That is the actual argument, of course. Trump's argument is of lesser quality.
Bravo. I follow the trials and tribulations of Trump and the republicans intermittently, Sometimes it seems like they're deliberately trying to drown out everything else. I enjoy listening to these episodes and reading the comments.
Mistake made by Ken on when you can file in federal court. Has nothing to do with electronic filing. Even in 1970, Fed. R. Civ. P. 77 stated that the Court is "always" open. As a result, in the old days if you dropped your pleading after hours for filing in the Court's drop box before the next business day, the document would be filed stamped the previous day. Obviously, with electronic filing you can literally file 24/7 but, technically, that has always been the federal rule.
The ever wonderful Liz Dye nails the Comer-Biden throwdown
https://open.substack.com/pub/aaronrupar/p/james-comer-hunter-biden-public-hearing-fiasco
Did Judge Sarah Wallace deliberately keep her reasoning on the “officer” part light and lean into the “insurrection” reasoning because she doesn’t care about reversals on the former, but cares about the insurrection part? Is it like putting a crappy graf in your article so your editor will have something they’ll focus on that you don’t care about?
I didn't see it as light at all. What I saw was that the appeal never addressed or even acknowledged her reasoning, just pounded the table.
I was speaking to her decision, not the appeal.
Got it! Ken implied she was not devoting as much space to that part of the ruling. Are you saying she said more using fewer words?
Yes. I did not see her decision as being light. She relied on several lines of reasoning that petitioners have continuously ignored.
I'd really like to see someone who thinks Trump clearly participated in an insurection propose a test for what it means to participate in an insurection.
I think that's going to be very hard to do that in a sensible way that includes seizing power by asking congress to do something unconstitutional when the violence only plays an indirect roll in the scheme (few people think Trump planned to have the Jan 6th rioters either hold the capital or put a gun to Pence's head and demand he not certify)
To illustrate the difficulty how do you give a test that counts Trump's conduct as insurrection but rules out all of the following:
1) committing bank robbery to bribe Pence to not certify.
2) A politician in a hypothetical world in which Gore had taken the position that the house shouldn't certify Florida's vote who merely encouraged protestors to push their way past police so they could get close enough to the capital to be heard during the debates on the issue -- imagine that in this world Gore had been the challenger and it was clear the current administration was illegally denying D protestors the ability to protest anywhere near congress.
3) Some minor officer violently shoves their way to the front of the line at the post office to mail their crazy suggestion to the VP to not certify which isn't constitutional but they believe to be (as Trump may have).
--
I totally think Trump attempted a coup but it's just that the violence was largely incidental to that plan and that's not an insurrection in the sense that the 14th contemplates.
Maybe it's a flaw it isn't.
I would frame it differently. Trump incited an insurrection in order to remain in power. As POTUS, he is legally the personification of a national majority, so he can't technically participate in an insurrection. What he did was an attempted coup - treason.
If you look at the constitutional definition of treason it doesn't seem to qualify.
Morally speaking he absolutely did, and he certainly violated his oath to uphold the constitution but we kinda were relying on the political process for those things.
I only became a paying subscriber to officially request that the curse jar sound effect be reinstated.
There was the funniest (I guess) discussion by Floyd's attorneys about tagging, starting with saying "tags begin with &" and demonstrating (perhaps deliberate) unawareness of "how social media even works." There was only one line of questioning by that attorney about threats, but even that appeared to be trying to elicit hearsay evaluation.
They did have comments from the "targets" of the communication. I've been mulling other words than target... victim? attackee? "the person I'm trying to get the flying monkeys to swarm"?
In a moral sense, absolutely. But it's hard to fit his behavior into one of the three categories:
1) Levying war against the us
2) Giving aid and comfort to the enemies of the us
3) Adhering to the enemies of the united statea
The constitution limits treason to.
The Chutkan immunity ruling was a fun read. Trump's talking point about not being able to be sued because he's a candidate for the office of president got me thinking about Avenatti. Ken, should Michael Avenatti have "just done it" and run for president after all to keep out of jail? Pfft.
Ken,
You mentioned on social media that you thought Judge Chutkan might remand Trump into custody in the event that he is found guilty in the D.C. case, even prior to sentencing. I have heard other commenters (including Chris Christie on the Dispatch podcast) state that he believed Trump would remain on bond pending appeal under 18 U.S.C. 3143. Can you explain the standard of proof Trump would have to demonstrate to be released on bond pending appeal (would he have to show substantial question on all counts likely to lead to a term of imprisonment or just one?) and the standard of review by the court of appeals if Judge Chutkan denies a motion for release pending appeal?
Thank you.
Have we lost the ability to download mp3s with the new layout?
No, you can still download the mp3 if you click the ... next to the advance 30 seconds symbol in the player.
Thanks much! I don't know how I missed that.