A Wild 2024 is Coming
How two weeks of wild legal news will dominate headlines this year.
Happy Friday my beautiful babies. We are now far enough into January that I legally cannot wish you a Happy New Year. My vision is for this to be a shorter Jackal that will get you into the three-day weekend, but I also said that last week and it ended up being a ten minute read. Only God can judge me.
I wanted to touch on all the legal stuff that is currently happening to Donald Trump, because I think it’s instructive as we head into an election year. Over the past few weeks we heard about:
Trump’s claims of immunity in Federal Court.
Trump’s fraud trial in New York.
More 14th Amendment stuff.
Let’s tackle each one.
What? We are trying to get Trump’s immunization records?
We’ve covered this a lot on the Jackal, but Trump is currently under indictment by Special Counsel Jack Smith for his actions following the 2020 Election, leading up to January 6th.
Earlier this week Trump’s attorneys made arguments in Federal Court where they essentially stated that those charges would have to be thrown out because anything Trump did after the Election was in his official capacity as President, and he is thus immune from any charges, even as a private citizen.
Trump has already lost this argument once, in front of the presiding judge in that case, Tanya Chutkan. Her decision (which is excellent) tore Trump’s arguments to shreds, but his team appealed and it’s now in front of the D.C. Circuit. Oral arguments were held earlier this week and…things did not go well for Trump. The big takeaway was that Trump’s attorney essentially said that the President could be as lawless as he wanted to be:
Trump attorney D. John Sauer argued that presidential immunity means that a president cannot be prosecuted for any actions that fall under his presidential duties — unless the House first votes to impeach him and the Senate then convicts him.
Judge Florence Y. Pan, an appointee of President Biden, asked Sauer if a president could be criminally prosecuted if he ordered SEAL Team 6 to assassinate a political rival. Such a scenario — ordering the military to do something — would fall under presidential duties. But having a rival murdered would also be a clear violation of the law.
Sauer said the Justice Department could only charge the president for giving such an order if the Senate votes to convict him first. Pan also asked him whether a president could sell pardons or nuclear secrets without being prosecuted. Sauer responded similarly (my emphasis).
I can actually take it a touch darker than Judge Pan: What happens if President Biden orders Seal Team 6 to assassinate a political rival and then orders them to kill all the members of Congress too? He could resign from office and never be prosecuted for it, because he killed all the people who would have been responsible for impeaching him! Or he could just stay in office forever! Truly, this is what the Framers intended when they drew up the Constitution, after having emerged from the King George’s shadow.
Since I cited to The Federalist Papers last week, let’s go back to Hamilton and see what he says in Federalist 77:
[The President is] at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to the forfeiture of life and estate by subsequent prosecution in the common course of law (my emphasis).
It is a nonsensical argument, but that’s part of the story with Trump. He doesn’t really care if he wins or loses; he just wants to try and delay the trial. However, I think the argument itself is a tell.
I am sure that Trump’s primary goal is to delay the trial and he hasn’t spent a lot of time thinking about the Constitutional ramifications of his argument. Trying to get Trump to understand such deep concepts would be like trying to explain gravity to a chicken. But the fact that we are even considering such an argument is a testament to how much Trump has stressed the system.
This is somewhat related to the Colorado case, which I’ll go into more detail about below, but a lot of the dissenting opinions mentioned how quickly the process went to consider Trump’s disqualification. After all, the District Court in Denver only heard testimony for five days, and neither side had discovery or subpoena power! But here’s the thing: The process actually went longer than what Colorado law allows. The decision was supposed to come even faster than it did. Why was the timeline so short? Probably because Colorado legislators did not imagine someone like Trump would (1) engage in insurrection and then (2) try running for President. The Court is usually deciding disqualification claims related to someone’s age or birth status, i.e., things that can be addressed in only a few days.
Trump’s unique criminality forces our system and institutions to come up with new ways to control him. In short, the Framers wrote their rules under the assumption that the person who was elected to be President wouldn’t be a total jerk. Trump is proving them wrong.
Now tell me about how Trump is going to lose all his money.
This is also related to the above, but at Trump’s hearing yesterday during his fraud trial, the presiding judge - Arthur Engoron - asked him if he wanted to testify, and if he would abide by the rules the judge set in place. Without saying yes, Trump launched into a tirade, attacked the judge, and had to be cut off.
The judge even had to tell Trump’s lawyer to “control” his client. I have said this before, but if a regular defendant had acted the way Trump had in his trial, they would have been thrown in jail a long time ago. After considering all the abuse he has had to deal with, Engoron has been remarkably patient with Trump.
But I don’t want to touch on this trial too much because it is super complicated and real estate law is not my area of expertise (that would be bourbons that pair well with Cheez-Itz). I just think the news that we are hearing out of this trial, and Trump’s wild behavior is a preview of what 2024 will be like. To be clear, Trump has trials scheduled in:
We are going to be hearing about a different Trump criminal proceeding every month. As election coverage ramps up, Trump will be in the spotlight more and a lot of the pictures that people see on their TV screens will be of him in a courtroom! Pretty wild.
On the one hand, I am morbidly excited about it, because I think the Jackal shines brightest when it breaks down complex legal issues into bite-sized, digestible nuggets. But it is, again, something we have never seen before with a presidential candidate. I have said this before, but the overwhelming majority of the public does not think Trump’s legal issues will have any real consequences for him. In other words, none of those consequences are baked in. When people start seeing those things happen (and they might see his companies yanked from him in the next couple of months), no one knows how the public is going to react.
One final thing on this case: It has now become a $370 million fraud case, which is getting into the neighborhood of Trump-has-to-sell-some-stuff-to-pay-up. Remember when I complained a few months ago about the headlines saying it was a “$250 million fraud case?” This is why!
Don’t talk about the 14th Amendment again.
Sorry, I just had one final thought. A Jackal reader sent me the Advisory Opinions podcast episode where David French and Sarah Isgur talked about the Colorado Supreme Court decision.
I like Sarah and I like to David all the time in the Jackal. I will say though, one element of Sarah’s argument really seemed weak to me. She highlights Justice Carlos Samour’s dissent, particularly his argument that Section 3 of the 14th Amendment is not self-executing. I previously found Samour’s argument to be unconvincing, because if Section 3 isn’t self-executing, then neither is the rest of the 14th Amendment, and that is incredibly silly. But Sarah was convinced by a portion of Samour’s dissent where he says this:
The majority’s ruling that Section Three self-executes without the need for any federal enforcement legislation is further undermined by Congress’s promulgation of just such legislation. One year after Griffin’s Case was decided, and perhaps in response to it, Congress enacted the Enforcement Act of 1870. The Enforcement Act contained two provisions for the specific purpose of enforcing Section Three. The first provided a quo warranto mechanism whereby a federal district attorney could bring a civil suit in federal court to remove from office a person who was disqualified by Section Three. The second permitted a criminal prosecution for knowingly accepting or holding office in violation of Section Three, and included punishment by imprisonment of not more than a year, a fine of not more than $1,000, or both.
The enforcement purpose behind the Act was evident in the congressional debates held on these very two provisions. Speaking in support of their adoption, Senator Lyman Trumbull, referring to Section Three, stated, “But notwithstanding that constitutional provision we know that hundreds of men are holding office who are disqualified by the Constitution. The Constitution provides no means for enforcing itself, and this is merely a bill to give effect to the fundamental law embraced in the Constitution.” Cong. Globe, 41st Cong., 1st Sess. 626 (1869) (emphasis added). He later reiterated this point as he explained that “[s]ome statute is certainly necessary to enforce the constitutional provision.”
It sounds convincing when you read it. But Samour’s recitation of the Congressional record is entirely selective. When you read the whole of the discussion, it is clear that the members there thought Section 3 was self-executing.
Specifically, Senator Allen Thurman makes statements on the Senate floor about the very legislation that Samour discusses above. He says that the additional fines and criminal penalties being passed by Congress were too severe because Section 3 was already barring people from office. He says this:
Now, sir, upon what principle was it that [Section 3] was adopted? It was not simply to disqualify persons who had engaged in insurrection or rebellion against the United States, because if that had been its purpose it would have been as comprehensive as the rebellion itself; it would have included everybody who had engaged in insurrection or rebellion, whether he had taken an oath to support the Constitution or not. […] It selects certain classes of persons who had taken that oath and who afterward engaged in insurrection. Why, then, is it that these persons are disfranchised? The amendment goes upon the theory […] that those persons had committed willful and corrupt perjury, and therefore ought to be forever disqualified from holding office either under the Federal Government or under the government of a State, by reason of the particular turpitude of their crime, by reason of their being forsworn men.
Thurman says to add to this disqualification by enacting a fine and a penalty is overkill, and he is discussing the actual legislation on the floor. In other words, they are actively saying, “Hey, Section 3 already disqualifies people from serving in office, why do we need to fine them too with this piece of legislation?” The discussion is almost the exact opposite of what Samour implies. Samour then quotes Senator Lyman Trumbull’s response to Thurman and makes a meal of it. Thurman repeatedly implies that Section 3 is self-executing, but then says, “Listen, some of these guys are still trying to take office, so we need to punish them for doing so:”
“This is a mode of punishment to prevent men who are disqualified under the Constitution…” That statement undermines Samour’s whole point, and it continues on as they debate it on the floor. A Senator later says that the Enforcement Act provides a remedy for someone who gets into office by “contravention of the Fourteenth Amendment.” If people are getting into (State) offices, in this case, by ignoring the Fourteenth Amendment, then how is it not self-executing? They say it over and over again in the very Congressional record Samour cites to: If you previously swore an oath to the Constitution and then engaged in insurrection, you are disqualified from office. It never says anything about proving someone guilty of such in a court of law anywhere in the record.
I’m telling you: The more and more I research the counter arguments to Colorado’s decision, the weaker they seem and more I am convinced that we should just bar Trump from the ballot.
That’s all from me this week. I’ll see you all on the 26th.