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Fourteenth Amendment

John Eastman, Jack Smith, and Amendment 14 Section 3

April 5, 2024
by Peter Feinman

The father of the fake electors had the riot act read to him by the legal system. He was found guilty, that is, a recommendation was made, that the author of the fake electors scheme be stripped of his law license. In a mere 128-pages, the judge ruled that Eastman had violated the rules of professional ethics through his dishonesty in trying to help the Liar in-Chief remain in power after having lost the presidential election. Apparently Eastman thought he was above the law, too.

The “wild theory” theory” that a Vice President could declare Trump the winner was completely bogus. This is a reminder of the taped testimony presented to the House Select Committee of the advice given to Eastman to have an effing great lawyer.

At least in the California court, such sage advice did not prevail. The judge ruled:

In sum, Eastman exhibited gross negligence by making false statements about the 2020 election without conducting any meaningful investigation or verification of the information he was relying upon.

In other words he acted like Rudy Giuliani. Remember how he exclaimed to Rusty Bowers in Arizona that he has  the theory but not the facts? Apparently that wisdom guided Eastman as well. The results were similar. Such conduct is acceptable for a President who is above the law and has immunity but is not acceptable for someone seeking to practice law.

Eastman’s travails are not yet over. He still could be charged by Jack Smith for his role in the January 6 insurrection. In fact, all of the unindicted co-conspirators could be. The initial plan to indict only one person, the ring leader, rather than become caught up with multiple defendants has not worked out so far. With Trump’s Court putting the brakes on the case, who knows if it will be tried or not. Why not take advantage of this opportunity to fill the void by charging John Eastman, Jeffrey Clark, Rudy Giuliani, Roger Stone, Steve Bannon, Mark Meadows, Scott Perry, and all the other people who participated in the planning and execution of January 6?

Arizona is beginning to spread its investigative wings to include some of the Congressional members of Trump’s insurrection army. According to the infamous Georgia phone call, Trump was quite confident about his people in the House doing what needed to be done to aid him in his effort to steal the election.

Ironically, Jenna Ellis another lawyer who did plead guilty has Colorado as her home state. Colorado is the very state which brought the Amendment 14 Section 3 to the attention of the Supreme Court in the first place. Now that Ellis had accepted disciplinary measures from the Colorado bar officials, perhaps the state will consider barring her from running for office as well.

True, she has no plans to run for office, but the application of Amendment 14 Section 3 to her would put all the other accomplices to the insurrection on notice that they will not be able to run for office if found guilty of violating their legal code of ethics or in a criminal case.

JEFFERSON DAVIS PLUS  

There was more to the Confederacy than Jefferson Davis. While he was the most prominent Confederate figure, there were thousands of others who fought for the Confederate cause against the Union. The three briefs by the historians to the Supreme Court tended to focus on Jefferson Davis to the exclusion of the other Confederates. Such tunnel vision was an error. There is more to the January 6 insurrection than just one person.

In the action taken against John Eastman, we are reminded that Trump had numerous allies in his quest to steal the election. Each of them has had to secure their own funding source to help them get away with that action. Some of them have not been able to do so.

What is to be gained now by not prosecuting all the others who helped make insurrection a day of infamy in American history? Essentially, Jack Smith has an open calendar for months before trying the case against the ring leader. The Trump judge will not allow Trump to be tried before the presidential election. And no matter how much of hard-charger Smith is and how determined the January 6 judge is, they cannot overcome the appeal process and the Trump Court.

At least we can be grateful that the legal profession is taking care of its own garbage. It’s time for the courts to do the same.

Senate to Bar Insurrectionists under 14th Amendment Section 3

March 28, 2024
by Peter Feinman

Beware the law of unintended consequences. One only has think of the developments since the Supreme Court nullified Roe v. Wade (The Law of Unintended Consequences: From Abortion to Voter Suppression, December 5, 2021). It is highly unlikely that the Supreme Court anticipated all the political ramifications which have occurred since its decision yet alone the medical conundrums it has raised as doctors wrestle with what is permissible. Certainly the wellbeing of the mother did not factor into the judicial calculations at all.

Now here we are with another momentous decision. The decision that Donald Trump would not be removed from the ballot probably came as a surprise to no one.

Obviously it was a disappointment to the roughly 30 historians who filed amici curiae on behalf of Colorado. Those briefs were reviewed in three previous blogs.

Historians Tackle the 14th Amendment Section 3 and Fail: How Come?

Historians Tackle 14th Amendment Section and Fail (2): Akhil Rees Amar and Vikram David Amar

Historians Tackle 14th Amendment Section 3 and Fail (3 of 3): Jill Lepore, David Blight, Drew Gilpin Faust, and John Fabian Witt

In my previous blogs, I came to the consistent opinion applied to all three briefs. These historians were ignoring the fact that while the Second Civil War was over and had been won by the Union, the Third Civil War continues to be fought. At this point in time, the outcome remains uncertain. Skirmishes are being fought all over the place from the MAGA defeat of a Real Republican in the Ohio Senate primary, to the possible defection of a Real Republican Senator in Alaska, to the resignations of Real Republicans from the House … to say nothing of the ongoing legal battles against voter suppression and going forward.

The Supreme Court Judges are aware of the swirling chaos from the Third Civil War even if it chooses not to use that term. The closest it came in the decision about the application of the 14th Amendment Section 3 now was rendered by Justice Amy Coney Barrett. She revealed the Court’s actual motives in her separate concurrence:

In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.

Put simply, the Court allowed Trump to stay on the ballot in order to avoid an outcome that would raise the “national temperature.”

However the contortions to avoid wading into the current Civil War too deeply, the Court provided opportunities for Congress and/or the states should they desire to pursue them.

MICHAEL LUTTIG AND LAURENCE H. TRIBE

Some of the most prominent legal minds, not professional historians, have succumbed to the same shortfalls in judgment that the historians did. In op-ed posted to The Atlantic “A Requiem for Section 3 of the Fourteenth Amendment” (March 14, 2024), they made their displeasure clear right at the start:

The Supreme Court of the United States did a grave disservice to both the Constitution and nation in Trump v. Anderson.

In a stunning disfigurement of the Fourteenth Amendment, the Court impressed upon it an ahistorical misinterpretation that defies both its plan text and its original meaning.   

Hard to mistake where they stand on the issue.

They mention other ways in which a person can be disqualified from being a candidate without any congressional or legal action such as “age, residence, natural-born citizenship.” But people have little choice about when they are born, where they are born, and to whom they are born. They have quite a lot of choice over whether to instigate, participate in, or condone an insurrection. There is something different about Amendment 14 Section 3.

After some more acrimonious words about the ruling of the Supreme Court, they concluded with the strong pronouncement that:

Our highest court dramatically and dangerously betrayed its obligation to enforce what once was the Constitution’s safety net for American democracy, The Supreme Court has now rendered that safety net a dead letter, effectively rescinding it as if it had never been enacted.   

Not so fast. Let’s look at what the Supreme Court has allowed without necessarily meaning to.

STATES’ RIGHTS

The Court ruled that state courts, like Colorado, did not have the right to apply Amendment 14 Section 3 to the Office of the President, a federal position. That leaves open the question of applying it on the state level.

States may disqualify persons from holding or attempting to hold state office. But states have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the presidency.

After all, despite all the attention the historians gave to Jefferson Davis, based on numbers it was all the people in the Confederate Army who were the numerous people against whom the amendment was applied … and who most often sought a pardoned under the stipulations build into the law.

In theory, therefore, states could ban people from state offices under the Amendment. This means election deniers at the state level running for state positions like Governor, Secretary of States, or legislator could be restrained from running under state law… and current office holders could be removed. I am not suggesting that Colorado or any other state would ban MAGA’s from holding state office or running for state office. I am suggesting that the Supreme Court without meaning to has provided a legal justification for so doing. While I do not foresee any state availing themselves of this power, henceforth there remains the possibility that a state could remove all insurrectionist supporters from office and/or remove them from the ballot.

CONGRESSIONAL RIGHTS

The office of the Presidency is not the only potential office under dispute. Presumably based on the Supreme Court Ruling, the House and the Senate also have the right to apply the 14th Amendment Section 3 within their own chambers. Just as each state could only decide for itself and both chambers need to decide for the presidency, each chamber could decide for itself as to the applicability within its own chamber.

This means the House and the Senate each have the right to decide if someone is in violation of the 14th Amendment Section 3. The Senate could effective immediately and for the 2024 elections establish rules of disqualification. An individual did not need to physically participate in the January 6, 2021, actions but merely to have helped plan them or to have supported not holding people responsible, calling them “hostages,” or to campaign as an election denier. Again, I do not anticipate either House taking this route. I simply state that the Court has given the two chambers the legal means to remove MAGAs from office should either one or both desire to do so.

The true test will come after the presidential election. Right now based on the polls, MAGAs have every right to expected a MAGA victory in the Electoral College, a MAGA victory in the presidential popular vote, a MAGA controlled Senate (unless too many Real Republicans go independent) and a MAGA loss in the House. For months to come, they will be told that if the MAGA candidate is not returned to the White House, then it will be because the election has been rigged. I repeat, FOR MONTHS MAGAS WILL BE TOLD THAT UNLESS THEY WIN, THE ELECTION HAS BEEN RIGGED. So if the MAGA presidential candidate prevails, then all is quiet on the Capitol steps. However if the MAGAs lose, then the Fourteenth Amendment Section 3 will be back in business.

Only time will tell.

Historians Tackle 14th Amendment Section 3 and Fail (3 of 3): Jill Lepore, David Blight, Drew Gilpin Faust, and John Fabian Witt

February 7, 2024
by Peter Feinman

This blog addresses the third of the three historian briefs submitted to the Supreme Court in support of the decision by the Colorado Supreme Court to disqualify Donald Trump from running for President of the United States under Amendment 14 Section 3.

JILL LEPORE

Before turning to the brief itself, Jill Lepore, one of the historians, wrote an article “What Happened When the U.S. Failed to Prosecute an Insurrectionist Ex-President (New Yorker, December 4, 2023, online). The subject is Jefferson Davis, the ex-President of the Confederate States of America. Almost the entire article is about the failed effort to try Davis either for treason or under Section 3.

Amidst that recapitulation she raises some questions about today.

Can Donald Trump get a fair trial? Is trying Trump the best thing for the nation? Is the possibility of an acquittal worth the risk?… But the failure to try him is an affront not only to democracy but to decency…

Several times she expresses her awareness that no what verdict is rendered about half the country would not accept it. In these small digressions scattered throughout the article she has touched upon the core truth of the effort to disqualify Trump – the country is too divided for the issue to be resolved legally. Ultimately one should note it is a political problem and fortunately, not yet, a military one.

AMICI CURIAE: LEPORE, BLIGHT, FAUST, WITT

The reason for the filing of the brief is due to its gravity and “the necessity of grounding any decision in a proper historical understanding of Section Three of the Fourteenth Amendment” (Page 2). To do so requires “establishing the original intent, meaning, and public under understanding of the Disqualification Clause” (Page 2). Here they are using one of the jargon terms favored by the Trump judges on the Supreme Court.

They state the concern in the aftermath of the Civil War was:

That office-holders who had violated their oaths to the Constitution would reassume positions of authority, destabilize state and federal governments, and suppress freedom of speech. The Republican framers of the Amendment believed that anything short of the disqualification of insurrectionists risked surrendering the government to anti-Constitutionalists rebels (Page 2).

Considering the fact that an election-denier is the Speaker of House, this concern should be applied to a wide swath of people and not just to Donald Trump.

According to these historians, the framers “hoped not only to prevent a resurgence of secessionism but also to protect future generations against insurrectionism” (Page 3). Given the actions of Texas on its border with support of 25 governors and the state of Utah ratifying a nullification act, it would seem that banishing one and only one individual from the ballot seems like avoiding the issue. The intention was not that the amendment only would apply to Jefferson Davis and no one else. It was intended to apply to all Confederates including those who had run for the House and Senate.

Much of the remainder of the brief recounts the history leading up to the ratification leading up to the disqualification section. Sometimes they show that the circumstances involving the MAGAs and the Confederates are quite different without saying so. For example:

Northerners undertook to purge Confederate sympathizers from positions of authority both inside and outside of government and, in mass meetings called upon Congress to do the same (Page 6).

No such purge has occurred today. In fact, the exact opposite has occurred. Real Republicans who know the election was not stolen are the ones who have been purged from Congress or chosen to retire. The historians refer to Frederick Douglass who charged that many Confederate sympathizers remained within the federal government (Pages 6-7). In fact that is the exact situation now where the insurrectionists remain in Congress today and do so quite openly.

With this background in mind, the historians move on to the drafting and ratification of Section Three (Pages 15-26).

Lo and behold! Congress discovered continuing hostility in the southern states (Page 15). This realization strengthened the determination of the winning side to prevent representatives from the losing side being elected to office.

Sounds like MAGA.

In testimony before Congress J.W. Alvord of the Freedman’s Bureau was asked about the rebel feeling towards the government of the United States. His reply was:

There is evidently no regret for the rebellion, but rather a defence of it (Page 16).

Sounds like MAGA.

He was then asked about what the Confederates sought to achieve by their readmittance to Congress. He replied:

They seem to suppose that by re-admission they can get political power and obtain again the supremacy which they once had, with the exception of slavery.

Sounds like MAGA.

A tax examiner said:

No. I think they have a stronger aversion and dislike of the Union than when they seceded (Page 17).

Sounds like MAGA.

The initial ratification attempt failed. The Southern states as one might expect, opposed it. This action:

…reflected the emerging ideology of the Lost Cause, a tenet of which was the argument by ex-Confederates that they never had engaged in “rebellion,” should never be considered “rebels,” and had merely exercised legitimate rights of “sovereignty” with secession and war [it was legitimate political discourse] (Page 25).

Sounds like MAGA.

Matters came to a head in March 1867 when over a Presidential veto, Congress passed the Military Reconstruction Act. That Act stipulated that no state could be re-admitted without first ratifying the Fourteenth Amendment (Pages 25-26). In other words, it was the military power of the victorious Union which made the Disqualification section the law of the land.

In the final section, the historians turn to the persistence of Section Three. The story returns to Jefferson Davis and the inability to try him for treason. They call Davis a “cautionary tale” on the danger facing the nation if the leader of an insurrection could run for President (Page 30). They note by 1872, the number of petitioners requesting amnesty under Section 3 at between 15,000 to 16,000 people (Page 31). They also note that ex-Confederates would be elected governor and to other offices across the South (Page 32).

CONCLUSION

These historians have made a very strong case for the applicability of the 14th Amendment Section 3 … only not the one they think they made. They constantly refer to Jefferson Davis and his potential run for President. The implication is that the amendment was designed with someone like Donald Trump in mind.

But they acknowledge the widespread antipathy towards the Union by the defeated Confederates.

They acknowledge that it required the Military Reconstruction Act to implement disqualification in practice.

They acknowledge that thousands of people sought re-instatement from Congress.

As much as they focus on one individual, Jefferson Davis, they actually are making a case why all Confederates were disqualified. The current parallel is that all the MAGA who are election-deniers should be disqualified as well. But they can’t call for such a blanket consolidation because they know the war is not yet over and MAGAs could yet triumph. It is hard to see how this brief would persuade the Supreme Court to remove Donald trump from the ballot.

 

 

Historians Tackle 14th Amendment Section and Fail (2): Akhil Rees Amar and Vikram David Amar

February 5, 2024
by Peter Feinman

Remember when the 14th Amendment Section 3 was all the rage? Everywhere you turned there was one talking head after another discussing this amendment and section and guessing what the Supreme Court would do. In my previous blog (Historians Tackle the 14th Amendment Section 3 and Fail: How Come?), I proposed that the Court would not be swayed by the historians’ brief. The Jefferson Davis/Donald Trump and Confederate/MAGA parallels were inadequate. The primary reason was that the Confederates had lost the war. They knew the disqualification applied to them. By contrast despite the chaos in the House of Representatives, the MAGAs have

Stymied aid to Ukraine
Stymied aid to Israel
Stymied aid to the Palestinians
Stymied aid to Taiwan
Failed to secure the southern border
Impeached a Secretary of Homeland Security.

Plus their leader, the former President of the United States has been fined around $464,000,000 (it increases daily). Meanwhile there are criminal and civil cases in New York, Washington, Georgia, and Florida just chomping at the bit to have their turn. These two developments are a reminder that the fields of battle this time are political and legal and not military.

AMAR AND AMAR

The Amar’s begin their brief with the assertion that this case is “perhaps one of the most important cases in American history” (Page 1). To those who say the removal of “an immensely popular political figure from the ballot is profoundly undemocratic” (Page 1), they counter with:

… what is truly undemocratic is empowering a uniquely dangerous demagogue who already has disobeyed  his solemn Oath and is a genuine threat to recidivate and perhaps end the constitutional republic that now exists (Page 1).

They intend to address this deficiency by focusing on a “key episode, an episode known to virtually all Americans in the 1860s and, alas, forgotten by most Americans today, even the learned” (Page 2).  They call this incident the First Insurrection. It occurred prior to the Second Insurrection aka the Civil War. It occurred prior to the inauguration of Abraham Lincoln as President in March 1861 (and not January 20 as we do today). During this interim period “high-level executive officials in Washington, DC, violated their solemn constitutional oath as apart of concerted plan not just to hand over southern forts to rebels, but also to prevent the lawful inauguration of the duly elected Abraham Lincoln” (Page 3).

As part of their analysis, they counter the key arguments which have been raised against the applicability of Amendment 14 Section 3:

Of course the President is an officer (Pages 17-18)
Of course implementation does not require Congressional action (Pages 21-22)
Of course a person can engage in insurrection with words as well as deeds (Pages 24-25)
Of course an insurrection can begin locally (Pages 25-26).

Their solution is unexpected. They understand the Constitution to provide a fifty-state solution.

JOHN B. FLOYD  

Having disposed of these false arguments, they then turn to the little-known story today of John B. Floyd (Pages 6-17). Back in the 1860s he was well-known. He was called the new Benedict Arnold because of his actions during the First Insurrection before the war broke out. He was a Virginia slaveholder serving as Secretary of War from 1857 to December 29, 1860. At that point, he resigned from office over the refusal of President James Buchanan to abandon Fort Sumter.

According to the Amars, Floyd endeavored to thwart a proper transition of power. [Think of Michael Flynn if he had been in office and even out of office.] That effort involved the transfer of multiple southern forts to the rebels from the time South Carolina formally seceded on December 20 until the firing on Fort Sumter in April 1861. Ultimately that effort failed and the Union prevailed over the Confederacy.

When Ulysses S. Grant became President in 1868, he appointed Brevet Major General Edward Canby in charge of Virginia’s Reconstruction. Canby decided that Section 3 was self-executing. He prevented disqualified candidates from becoming state legislators unless and until they had been amnestied by Congress as provided for the in amendment. The Amars note that “Canby acted on his own initiative” (Page 14). So it was not self-executing!

They neglect to mention that the military power was the basis for the successful application of Section 3. The Union had it, the Confederacy did not. Obviously that is not the condition which prevails to day in Congress. Quite the contrary, a MAGA is Speaker of the House and the majority of the Republicans in the Senate appear to be MAGA is well.

JANUARY 6  

The Amars suggest the insurrection of 2020-2021 “posed an even more egregious invasion of our democracy than the First Insurrection of 1860-61” (Page 14). They cite the flying of the Confederate flag in the Capitol and the disruption of Electoral College vote to illustrate advances the First Insurrection never attained. That happened as a result of what Donald Trump did and did not do “as recounted in the trial court of this case” (Page 15). That clause is a reminder that the Supreme Court is a decider of law and not facts.

They claim that Section 3 had people like John Floyd in mind when it was written. He was an insurrectionist officer. He had violated his oath just as Donald Trump had done. Putting aside their references to “chutzpah” and the “fictional Professor Mousehole” [I did not know one could write that in Supreme Court briefs!], the decision before the Supreme Court is an obvious one.

What the Amars fail to do is to identify who are the President Grant and Brevet Major General Edward Canby today. No Congressional action may be necessary to effectuate Section 3, but obviously, the military might of the winning side in their Second Insurrection was.

RESOLUTIONS  

The interesting part comes to the fore at the end of the brief. Once again the Amars contend that the states have wide discretion as decision makers in establishing the laws for conducting elections in the states independent of the Supreme Court. This argument sounds like a hail-Mary after a late night session in the dorm room. Or if you prefer, to throw everything up against the wall and see what sticks.

They also suggest that Congress could refuse to count electoral votes that it deems improper. For me, this suggestion raises fascinating possibilities. Take for example voter suppression. Suppose Congress (not the Vice President) decides not to count the electors from states where voter suppression actions enabled the MAGA candidate to win. This is not a question of alternate electors or fake electors as was tried in the 2020 election, but the exclusion of Electoral College votes from the count from the states that passed voter suppression rules in response to the stolen election which had never really been stolen.

Imagine if the Democrats who bring a plastic spoon to a gun fight and wonder why they lose identified the states where the Electoral College votes would be disqualified due to voter suppression!