Can Trump Be Disqualified Under The Insurrection Clause?
INSIDE: Tanya Chutkan ... Ken Chesebro ... Boris Epshteyn
A quick thank you to
for some Morning Memo love in her latest Letter From An American.Oh, Hey There, 14th Amendment
A forthcoming paper by two conservative constitutional scholars is breathing new life into the Insurrection Clause of the 14th Amendment, which is designed to disqualify from office, including the presidency, anyone who violated their oath to the Constitution and “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
A Jan. 6 rioter has already been barred for life from holding public office by the state of New Mexico, but what about Trump?
In their new paper, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas – both of whom are originalists and Federalist Society members – conclude that the Insurrection Clause applies to Trump:
In our view, on the basis of the public record, former President Donald J. Trump is constitutionally disqualified from again being President (or holding any other covered office) because of his role in the attempted overthrow of the 2020 election and the events leading to the January 6 attack.
The authors focus on Trump’s conduct in the run-up to the Jan. 6 attack on the Capitol as well as his shocking dereliction of duty while the attack was ongoing:
This culpable inaction—failing to intervene to stop an insurrection in progress,
declining to act to arrest a violent uprising, despite having both the capacity and
responsibility to intervene—is another crucial part of Trump’s responsibility for the
January 6 insurrection.
As the NYT’s Adam Liptak observes, this is merely a law review article, but it does provide the legal and intellectual framework for any effort to disqualify Trump. Theirs is a withering analysis:
The bottom line is that Donald Trump both “engaged in” “insurrection or rebellion” and gave “aid or comfort” to others engaging in such conduct, within the original meaning of those terms as employed in Section Three of the Fourteenth Amendment. If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution. All who are committed to the Constitution should take note and say so.
I should note that authors don’t limit their analysis to Trump, noting that a host of pro-insurrection officeholders would succumb to the Insurrection Clause’s disqualification standard:
We think that if these constitutional duties are taken seriously, there is a list of candidates and officials who must face judgment under Section Three. Former president Donald Trump is at the top of that list, but he is not the end of it.
I’m deeply interested in this legal angle, so if you see any new developments, please shoot me an email. In general, I agree with those who say the criminal justice system can’t save us from Trump, only defeating him at the ballot box will drive a stake through the heart of his movement. But the Constitution has already spoken on this very issue, and preserving the rule of law doesn’t just mean criminal prosecution. More to come on this.
Big Day In Jan. 6 Case Against Trump
U.S. District Judge Tanya Chutkan will hold her first hearing in the Jan. 6 prosecution of President Trump this morning at 10 a.m. ET.
At issue is a rather routine and unremarkable matter that Trump is trying to turn into A THING. All Special Counsel Jack Smith wants is a protective order before he hands over discovery to Trump. Expect Chutkan to make quick work of that issue.
What will be interesting is the tone she sets, the level of nonsense she’s prepared to tolerate, and whether she engages with any of the out-of-court attacks on the justice system by Trump and his legal team.
Trump Jan. 6 Case Tidbits
Special Counsel Jack Smith is seeking a Jan. 2 trial date for the Jan. 6 case against Trump, meaning it would happen before the Mar-a-Lago and hush money trials. Trump has yet to weigh in. I wouldn’t expect much movement on setting a trial date until a hearing in the case scheduled for late August.
Special Counsel Jack Smith is initiating CIPA procedures in the Jan. 6 case, too. But unlike the Mar-a-Lago prosecution, where classified information is central to the case, Smith says the classified information involved in discovery in the Jan. 6 case is a “small amount” and “minimal.”
The Big Cheese
Two new insightful accounts of Ken Chesebro, who makes a cameo as “Co-conspirator 5” in the Jan. 6 indictment of Trump:
TPM’s Josh Kovensky, who spoke at length with Chesbro last year and to my knowledge remains the only reporter to have done so, reflects on those interviews and the emerging picture of Chesbro’s role.
Jeffrey Toobin, who traveled in the same Larry Tribe-centric circle as Chesbro at Harvard, asks what the heck happened to him.
Trump Delay Watch
Another day, another delay in an arraignment in the Mar-a-Lago case. They’ll try again next week.
Was Merrick Garland’s Approach Correct All Along?
Jay Kuo with a thoughtful and extensive analysis of the Justice Department’s approach to prosecuting Trump for the election overturn conspiracy
It comes down to how Garland and the Justice Department carefully and methodically laid a legal pathway for charges against Trump to land, rather than get thrown out of court or held in doubt till the end, where they might be far more vulnerable on appeal. Let me walk us through my thinking on this. And I’ll try not to sound like an apologist for prosecutorial delay!
Worth a read for the diehards (hi, nice to have you here!)
DC Has No Fucks Left To Give About Trump
WaPo: Trump insults D.C. to get his trial moved. The city rolls its eyes.
Trump’s Cash Crunch
NYT:
New financial reports show that the former president’s various political committees and the super PAC backing him have used roughly 30 cents of every dollar spent so far this year on legal-related costs. The total amounts to more than $27 million in legal fees and other investigation-related bills in the first six months of 2023, according to a New York Times analysis of federal records.
Trump Seems Fine
Maui Death Toll Climbs To 55
It’s the worst urban wildfire calamity since at least the 2018 Camp Fire killed 85 people in Paradise, California.
Not Good. Not Good At All.
The 5th Circuit appellate panel seemed already in the tank for the hare-brained conspiracy theorizing about the Biden administration simply being in touch with social media companies about disinformation.
Taking Them Down One At A Time
White supremacist charged with threatening jurors on Pittsburgh synagogue shooter trial.
Hate To See It
TPM’s Kate Riga: It’s Suddenly Dawning On Republicans That They Have A Major Abortion Problem
‘Like Fatter Tony Soprano’
Trump consigliere Boris Epshteyn has been accused of groping two sisters at a nightclub in Scottsdale called Bottled Blonde.
Police body cam footage captured the women complaining to officers shortly after the incident. Asked to describe Epshteyn, the older sister offered this all-timer: “Fat, ugly, like drooping face. White Ralph Lauren Polo,” she said. “Like fatter Tony Soprano.”
Thanks for reading today’s Morning Memo. If you haven’t yet, I hope you will become a TPM member! You can find the TPM members’ commenting section here.
Yes David, HCR cited & linked to your TPM with the accurate data points on Justice Thomas' conduct. You earned the historian's reference because of your job ✍ well done. Congrats.
Thank you David for another great MM for this Blue Dog woman living in a red fascist state. 1 vote at a time we will win.
I can't applaud the J6 Committee enough for the hard work they all did to wrap up this gift to DOJ, who then
moved quickly to bring in Jack Smith to prosecute Trump and his crime crews,
no matter who they are, or what positions they hold.
Couldn't ask for a better more experienced professional.