Mr. Trump Goes to Washington, Specifically to the Supreme Court of the United States
Happy Friday. Today is your yearly reminder that Bill de Blasio viciously murders groundhogs, stuffs them, and then displays them like trophies in his living room. Or, it’s actually time for you to go watch Bill Murray do funny stuff.
The title of this Jackal is a reference to the upcoming oral arguments in Trump v. Anderson, i.e., the disqualification case. Are you ready for a breakdown of complex legal issues peppered with off-color jokes and references to 90s movies? This is where the Jackal shines. Let it rip.
Before we get into this week’s issue, I have to apologize for the absence of a Jackal last week. I actually have one sitting in my drafts, nearing completion. Maybe it will show up later. But with a friend in town I had very little free time, and then we discovered a gas leak in our house last Friday. So, we had no hot water for a little more than two days, with a toddler in the midst of potty training. But, I have a feeling this Jackal will be jumbo-sized to make up for it.
Skip the boring history and tell us what’s going to happen.
Nope. We are doing the boring history first. But let’s start with the very recent history in this case:
To recap all the relevant reading materials:
The original brief from William Baude and Michael Stokes Paulsen is here, and it sounds like their formal article is coming this quarter.
Legal scholars Josh Blackman and Seth Barrett Tillman have their great piece here and have filed a brief in Trump v. Anderson, available here (it goes without saying that both are required reading if you think Trump is disqualified).1
The original article from J. Michael Luttig and legal scholar Laurence Tribe is here.
The Colorado Supreme Court’s decision regarding the matter is here.
There have also been a few new pieces that I haven’t discussed before.
The brothers Amar filed a brief together that is fascinating and incredibly relevant. I thought having both of them together on one piece would destroy the Internet, but it seems to be holding up well.
Steven Calabresi took a page out of my book and thought practically about this entire enterprise: There is no way a Democratic House and Kamala Harris are going to count Donald Trump’s electoral votes on January 6, 2025, so he will not be President. I don’t know if he’s right, but it raised my eyebrows.
There is a full summary of all the briefs filed here (including additional writing by Colorado and others). I also want to say this from the jump: Everyone I link to above is ultra-qualified and is making their arguments in good faith. It speaks to the incredibly persuasive writing of each author that I am constantly pulled back and forth between the two arguments for and against Trump’s disqualification. I would make a pretty decent metronome at this point.
It is for that reason we should appreciate every contribution cited above, as well as this country’s incredible legal history. As Akhil Amar has said many times, America is a country that isn’t founded on blood or nobility, but on words and a primary part of law is lawyers arguing about what words mean. And we have some really great arguments here.
I say a version of this a lot: America is actually a tiny, itty bitty baby country, that can only pay you in bwocks. We are still figuring some stuff out, like whether or not the freaking President is actually an officer of the United States. But the reason we are the world’s oldest liberal democracy is because of our institutions and the respect for the rule of law. For that, we should be thanking all the lawyers arguing about words. It’s cheesy, but reading all the briefs for this case has actually made me really proud to be an American. And it makes me want to yell at Jack Nicholson in a courtroom too.
OK, but seriously, what’s going to happen?
Fine, we can get to predictions right now, but you’re not going to like it. Too long;
didn’t read actually have to get up from the toilet so I can’t read the rest of your dumb post: It is anyone’s guess as to how the Justices are going to come down. Sorry.
I will make one prediction: I think there will be a minor freakout in certain sectors of Conservatism, Inc., about how seriously the Justices take the case at oral argument. We will get pointed questions to both sides, and I would guess at least one conservative Justice makes a comment that could be interpreted as supportive of Colorado’s decision.
If I had to bet (which is the best way to force a prediction out of someone who doesn’t want to give one), I would put money on SCOTUS saying that the 14th Amendment does not bar Trump from the Presidency, and they will use one of the escape hatches available to them. But I think it’s pretty close, with maybe a 60% chance they say Colorado got it wrong and a 40% chance that affirm.
Whoa. 40% is pretty high.
Maybe it’s more like 30%; I honestly don’t know, and reserve the right to change my mind later. But the fact that we are calling the arguments in Trump’s favor “escape hatches” should speak to the strength of the disqualification argument.
To explain why, let’s get back to Section 3 of the 14th Amendment again:
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.
And here is me breaking it down for myself to make it easier:
On basic reading, it seems like Section 3 applies to Trump. The language is pretty clear, and it’s relatively simple. But it’s more complicated below the surface. These are the escape hatches that are available to the Justices:
Trump, as President, is not an officer of the United States.
Section 3 is not self-executing.
January 6th was not an insurrection, and thus Section 3 does not apply.
In my original piece, I go through all of these arguments, and mostly find them iffy. None of them are a bullseye, but any one of them could apply. In fact, one Court has already agreed with Tillman and Blackman that the President is not an “officer” of the United States. While Tillman and Blackman are often persuasive, I think Heilpern and Worley have laid out a detailed history explaining how “officers” were both appointed and elected.4
They found evidence for the President being included as an “officer” very early in U.S. history:
For instance, in his Eighth Annual Address to Congress at the end of 1797, George Washington called for “legislative revision” of “[t]he compensation to the officers of the United States,” particularly “in respect to the most important stations.” Congress responded the following March, raising the salaries of sundry government officials, starting with “the President and Vice President of the United States.”
They found more:
In addition, of the thirteen times the full phrase appears, one—a postal bill specifying which “officers of the United States” should be granted a franking privilege—specifically listed both the President and Vice President as officers of the United States.78 The Postal Act of 1799 stated:
Sec. 17. And be it further enacted, That letters and packets to and from the following officers of the United States, shall be received and conveyed by post, free of postage. Each postmaster . . .; each member of the Senate and House of Representatives of the Congress of the of the United States; the Secretary of the Senate and Clerk of the House of Representatives . . .; the President of the United States; Vice President; the Secretary of the Treasury; Comptroller; Auditor; Register; Treasurer; Commissioner of the Revenue.
My own personal issue with this argument is that it sounds bonkers to a “normal” person, but sometimes the Constitution is like that. Returning Jackal Champion™, Adam Kail, phrased it this way to me: “It’s like saying people on the no-fly list can’t ride in an airplane, but they can pilot one.” Still, the argument did convince one judge, and she is not even close to being Trumpy.
To address whether or not Section 3 is self-executing or if Trump engaged in insurrection, I think the brief by the Brothers Amar is worth citing here. They tell a wild story about an insurrection that inspired Section 3 of the 14th Amendment, and I’m not talking about the Civil War.
Prior to Abraham Lincoln even taking office, James Buchanan’s Secretary of War, John B. Floyd, was plotting ways to keep Lincoln out. To wit, before the counting of Lincoln’s electoral votes, Floyd and his allies wanted to “take possession” of the Capitol and “prevent the inauguration of the President elect.” Does that sound familiar?
Again, this is prior to the shots being fired at Fort Sumter. It is the prequel to the Civil War, and lots of soon-to-be insurrectionists were at the center of it. And when some of these guys tried to take office in Virginia’s State legislature, the guy in charge of Virginia’s reconstruction “acted on his own initiative,” and barred them from office. In other words, he readily believed that Section 3 was self-executing, and applied it. Read the brief, and then listen to (Akhil) Amar’s podcast.
I want to give my own contribution here, even though I am less like courtroom Tom Cruise and more like upset and drunk Tom Cruise before the typical 90s movie twist happens. But when I actually got into the Senate’s floor discussions during the ratification of the Enforcement Act, I saw a ton of language that suggested every Senator believed Section 3 was self-executing.
One Senator calls the disqualification clause a "fundamental rule before which all our legislation and all the legislation of the States must bow and yield," and then even posits that official acts by someone holding office “in contravention” of Section 3 may not even be valid:
To put in terms relevant to this discussion: That would mean that an Executive Order signed by a President Trump in 2025 would not be valid. That is wild. Senator Jacob Howard then says that the 14th Amendment is a fundamental prohibition against someone who engaged in insurrection from holding office. "He is prohibited by the express terms of the article from doing so." It could not be any more clear.
Reading through this history fully and paying attention to the discussions taking place at the time, it seems clear to me that the Senators thought Section 3 was self-executing, but they did not yet have the means to punish people everywhere across the country. And even if we read the language of these Senators in a light most favorable to Trump, it still means that he is disqualified from being President, because he would be taking office “in contravention” of the 14th Amendment.
Do the insurrection thing one more time.
I’ll end with this point. Some legal scholars, like Steve Calabresi, have argued that January 6th and/or Trump’s actions leading up to it were not an insurrection because the violence only took place in one city on one day. Put simply, an insurrection needs to be a bigger party than the Beer Belly Putsch.
The problem here is that Colorado’s District Court determined that Trump engaged in insurrection as a “finding of fact.” In fact (no pun intended), the Court determined that this was “clear and convincing,” which is a higher finding of evidence than, say, “a preponderance,” i.e., a slight majority. It is a big hurdle for Trump’s team to get over.
In legal appeals, findings of fact are presumed to be true unless an appeals court explicitly finds the opposite. This means that if SCOTUS wants to say Section 3 does not apply to Trump because January 6th was not an insurrection or that he did not engage in it, they will have to say that the District Court got it completely wrong and rebut every point.
I do not think a single conservative Justice will take a bite out of that poison apple. But the problem is, if they say nothing about it, they will be confirming that Colorado got that fact right. YOLO.
You can safely assume we will back here discussing the oral argument in this case next week, but that is my little preview.
I don’t have a “should-read,” but a few people sent me this podcast and it was pretty eye-opening.
It looks like Tillman wants fifteen minutes to make an oral argument. That would be pretty cool to hear/read on Twitter.
They use a technique called corpus linguistics, which is pretty fascinating and worth a Google.