by Michael Popok
MeidasTouch
Aug 12, 2023
Michael Popok of Legal AF reports on a new case made by 2 leading right wing Federalist Society law professors that Trump participated in a Rebellion and Insurrection against the US and right now is disqualified under the 14th Amendment from ever holding office again, a position that will no doubt end up being cited by courts and judges up to the Supreme Court going forward as the DOJ and others seek to have Trump ruled disqualified.
Transcript
This is Michael Popok LegalAF. When
Federalist Society right-wing
constitutional Scholars who would vote
Republican and for Donald Trump come out
with a 127 page law review article Law
Journal academic analysis to apply to
Donald Trump the disqualifying provision
of the 14th Amendment for participation
in an Insurrection or Rebellion you're
in a load of hurt if you're Donald Trump
and that's just what's happened let me
make this clear this isn't left-wing
Progressive Democrats uh constitutional
Scholars from the other side of the
aisle or the Spectrum creating an
analysis or scholarship to argue that
Donald Trump participated in a rebellion
and Insurrection related to John 6 and
clinging to power and the and the
stopping of the peaceful transfer these
are two of the most leading
Scholars Federalist Society Scholars out
there who who entire their entire focus
is on the 14th Amendment and the
disqualifying provision that was
implemented around the time of the Civil
War to stop people who were part of the
Civil War and were part of the Rebellion
against Lincoln and the Republic to ever
serve in office again including that
holding the highest job in the land the
president United States you lose that
part of the right wing judicial
constitutional uh Scholars and you've
lost it all and now we've got two of
them William Baude & Michael Stokes Paulsen who
have joined together in 126 page law
review article to be published in the
University of Pennsylvania Law Journal
one of the leading law journals in which
they argue that not only does the 14th
Amendment vehicle 3 apply to the
president or former president of the
United States but there is no doubt in
their mind under the original
interpretation the originalism
interpretation of the U.S Constitution
Donald Trump is an insurrectionist and a
person who participated in rebellion and
therefore should never serve office
again this I assure you will lead to
people in court challenging Donald Trump
now citing the study that the
scholarship of these two rightist of
right-wing Federalist Society
constitutional law professors writing
emphatically without any hesitation
without any equivocation that Donald
Trump should be disqualified it will be
cited in in court filings in briefs
filed by parties perhaps by the
Department of Justice and it will be
cited in rulings that are made all the
way after the U.S Supreme Court and
these are not just two crackpots these
are people who are Yale law graduates
who served one of them Michael Stokes
Paulson was a Justice Roberts law clerk
at one point in his career before he
became a constitutional scholar and and
the right-wing MAGA on the U.S Supreme
Court they drink from the same water
bowl the same trough as these two
constitutional law professors because
they all believe in what's called
originalism or original intent that they
believe that if you look close enough
and hard enough at the text of the
constitution in the context of what the
founding fathers and the framers of the
Constitution meant back in 1780s and
1790s about that document you can you
can then apply it to the and use the
original intent today in 2023 and Beyond
that's called originalism they don't
believe that it's a living breathing
document the way I do they believe you
got to go back and make it really
brittle and you gotta only believe what
people wearing powdered wigs believed
back in the 1780s in Philadelphia
okay put that aside for a minute what
I'm trying to tell you is these two
constitutional Scholars that would
normally line up in favor of Donald
Trump are arguing the exact opposite I'm
going to read to you
the abstract right the abstract that's
out there which is kind of the summary
of what their analysis is what their
rationale is and then I'm going to read
the last 10 or not the whole thing but
the focus of it the kernel of it the nut
of it in the last 10 pages this law
review article is called The Sweep and
force of section three by Professor
William body and Michael Stokes Paulson
now let's start with now that I've got
your attention let's start with
um what we call the abstract which will
sort of give you what this whole thing
is about the abstract says that this
article will ultimately argue right that
there has been mistaken prior
constitutional scholarship in the area
and that they make a number of
fundamental findings that the 14th
amendment was not repealed these are
these are arguments that were raised by
a guy named Tillman when uh Morrison
cawthorne and Marjorie Taylor green
tried to avoid being disqualified from
running for office and people challenged
them so it's sort of known as the
Tillman argument and they attacked the
Tillman argument and say it's it's hot
it's hogwash uh my term and instead they
say these are the fundamental read that
they make with their background
experience in Powerhouse intellect of
what the originalism intent of the
Constitution was in this provision that
one article 14 the four sorry the 14th
Amendment article 3 was not later
Changed by an act of Congress in which
for a very short window they let former
Civil War participants on the wrong side
come back to office and reconcile in
terms of reconstruction of the United
States that the amnesty act an act of
Congress does not in the rock paper
scissor world of constitutional law
defeat the existence of the 14th
Amendment if Congress wanted to do that
they'd have to go through the process of
amending the Constitution and they never
did second major point in the article is
that the provision the 14th Amendment
article 3 is in their few self-executing
meaning there doesn't have to be another
act of Congress Congress has already
spoken and said if you're an
insurrectionist or person who
participated in a rebellion and you're
running for an elected office Senate
house president you hold those offices
you're out forevermore permanent
disqualifier and and there's no other
act of Congress there's no other hearing
that has to be made there's no
impeachment like process all we have to
do according to these two law professors
is go right to federal court or state
court and and have those judges review
14 Amendment against the actions and
find that the person participated in
this case Donald Trump at an
Insurrection or Rebellion and then the
last thing the last major mind-blowing
uh uh
um conclusion
is that Donald Trump in their view
Federalists right wing originalists
right people that normally would back
Donald Trump in their view Donald Trump
disqualified himself participated in a
rebellion participated in an
Insurrection because he attempted to
overthrow the 2020 election that is the
Paradigm that is their scholarship they
then spent 126 Pages going through each
point and refuting any other point
before I read from this mind blower that
again I want to remind everyone is not
just idle scholarship
it's not just you know how many Angels
or Devils dance on the head of a pin or
you know how much fuzz do I have in my
navel this is this is the this body of
work this scholarship gets used it'll be
cited in briefs filed by people
challenging Donald Trump
it'll be quoted back by sympathetic or
perhaps not federal uh federal federal
judges maybe all the way up to the U.S
Supreme Court this is important stuff as
a practicing lawyer for 32 years I don't
want you to think it's just going to
collect dust or it's going to be on the
bottom of a bird cage one day it's not
first of all it hasn't even been
published yet we've got a copy of it
kind of an early hot off the process
copy of it but it hasn't yet been
published but it will be cited
you know the the bod Paulson you know uh
uh promotion of this of this analysis
the scholarship on the 14th Amendment is
really important it will outlive them
and it will seep its way into the
jurisprudence related to Donald Trump
now having done all of that and then
reminding readers the two professors
reminded readers that when you read the
Constitution you give it a natural
sensible reading all of these other
readings of language parsing and Hyper
technical analysis and backflips to try
to reverse engineer to get to the point
you want to make should be rejected or
as they like to say you read the text
precisely
naturally sensibly without artifice or
injecting in invention or creativity and
when they say when you do that when the
scales drop from your eyes and you read
the original intent it's about the only
time I'm ever going to agree with an
originalist on the Constitution because
I love the way this came out but having
said that let me now read for you
so we're all clear the parts that are
mind-blowing so that you understand it
and it starts on and we'll post this up
on the Midas touch website so that you
can see the entire thing but in starting
on page 111 Under The Heading the
attempted overthrow of the 2020
presidential election
this is what these two law professors
say we come finally to the Urgent
question of the day how does section 3
apply to the events of 2020 and 2021 or
as they say the efforts by Donald Trump
and others to overthrow the results of
the 2020 presidential election and
install Trump as president for another
term despite his loss to Joe Biden see
how they see what they did there see how
they framed that the professors go on to
say that considering the overall package
of events the dishonest attempts to set
aside valid state election results with
false claims of voter fraud the
attempted subversion of the
Constitutional processes for State
selection of electors for President and
Vice President the efforts to have the
vice president unconstitutionally claim
of power to refuse to count electoral
votes certified and submitted by several
States the efforts of members of
Congress to reject votes lawfully cast
by electors and finally the fomenting
and incitement of a mob that attempted
to forcibly prevent congresses in the
vice president's counting of such lawful
cast votes culminating in a violent and
deadly assault on the Capitol and
Congress and the vice president on John
6 2021 taken together that group of of
events that package of events that in
the view of these two professors is
Insurrection and is rebellion and Donald
Trump participated in it and if you're
just coming into this hot take late and
you think these are a couple of crock
pots they're not
the scholarship of these two gentlemen
is is without parallel in the area of
the of of the 14th Amendment their
Federalist Society card carrying members
they're originalists just like six out
of the nine Supreme Court Justices and
their approach to the interpretation of
the Constitution William baud Professor
William bought a University of Chicago
is the Harry Kelvin Junior professor of
law he's the director of the
Constitutional Institute at the
University he served on Joe Biden's
presidential commission on the Supreme
Court
when you read what he Geeks out on in
his own profile on his own website he
says it's 14th Amendment section one and
section three
um he's a scholar for the center for the
study of constitutional originalism and
his co-writer who he who he joined for
this particular exercise has similar
credentials at the University of Saint
Thomas in Minnesota he's the he is the
distinguished University chair and
Professor he worked in the Department of
Justice in the Criminal Division and the
Appellate Division he's he's a leading
scholar on constitutional interpretation
right
um and and on things related to uh uh
religion in government
okay these are people that normally
normally up until today and the writing
of this article that they've written for
over a year right so yeah they saw the
Gen 6 report right which we have right
here
but they didn't see the indictment until
recently and look how closely they hewed
in their own independent analysis that
everything here constitutes rebellion
and Insurrection to disqualify Donald
Trump without a further act of Congress
under their analysis or to continue from
their Law Journal article and I quote
taken as a whole these actions
represented an effort to prevent the
lawful regular termination of President
Trump's term of office in accordance
with the Constitution they were an
attempt to unlawfully over overturn or
thwart the lawful outcome of a
presidential election and to install
instead the election loser as president
oh I love that phrase let's say it again
to install the election loser as
president and loser in their own writing
was emphasized in italics they
constituted a serious attempt to
overturn the American constitutional
order
does section 3 cover this conduct did
these events constitute Insurrection or
Rebellion within the meeting of the
Constitution these are questions the law
professors ask in their law article and
if so who all might be said to have
engaged in that conduct or given Aid in
Comfort to those who did we will
consider these questions and turn and
then they do for the remaining pages in
the law review article and they conclude
that Donald Trump is an insurrectionist
that he's that he's guilt even if he's
not charged let me make this clear and
he hasn't yet been charged in any of the
indicting documents in any of the
indictments with the actual
um count of seditious conspiracy or
Insurrection or Rebellion he hasn't been
charged but these law these law
professors constitutional professors
Federalist Society professors their
position is he doesn't have to be though
whatever he's charged with the
underlying body of Acts is Insurrection
and rebelling Rebellion which is a
disqualifier under the 14th Amendment
section three plain and simple under
their interpretation simple direct
um elegant
without artifice in reading the language
of it
and or as they like to put it and I'll
leave you on this at least on this part
of the law review article and quoting
from them this brings us to the rubber
hits the road question quoting for the
law review article who all by virtue of
their personal voluntary conduct can be
said to have engaged in Insurrection or
rebellion in connection with the efforts
to overthrow the results of the
presidential election of 2020 and
unlawfully maintained Donald Trump in
office who while perhaps not a direct or
indirect participant gave Aid and
comfort and then they go through
piece by piece and talk about why Donald
Trump should never serve in office again
why that's self-executing under the
um Constitution why it doesn't there's
no more action by Congress meaning we
can don't have to worry about who's got
the majority in the house
or or this is it this is the explosive
application of section three quoting
from the law review article
this is their quote to end it in our
view on the basis of the public record
the law professors write 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 they say the case for
disqualification is strong and that the
evidence is abundant
and they also quote to people like J
Michael luddick who's also on the Mount
Rushmore of the Federalist Society
former federal judge most of the Supreme
Court or its clerks Trace their way back
to having served with Michael luddig
when he was a federal judge
right he's a lion of federalism of the
conservative movement he's a lion of
originalism and how you interpret the
Constitution he's the one that that Mike
Pence went to to ask him at the end can
I follow the president's Direction and
not certify the election for Joe Biden
who was told no you can't do that that
Michael Luttig is also quoted in the
footnotes here in the law review article
so what's the takeaway of all this is it
that some dusty law review article by a
couple out of touch right-wing
Federalist Society guys you'll never see
the light of day has been published no
the takeaway is the weather has now
changed in the room it's not just Jack
Smith independent special counsel
bringing indictments through grand
juries it's independent Scholars on the
far right wing of the spectrum who are
Federalists who are originalists who the
people on the Supreme Court like they
used to clerk for like Chief Justice
John Roberts it will resonate with them
this scholarship it will harmonize with
their own thought process it will help
them interpret the applications to Bar
Donald Trump and whether it's brought by
the Department of Justice or any other
citizen who has standing and we all do
because we all have the right to a fair
count in the election of our vote of our
electoral vote and the underlying
popular vote everyone should have
standing under a general injury Theory
let's say to challenge Donald Trump in
court based on the indictments that have
already been rendered
and we don't have to wait to see if he
if he's also indicted for Insurrection
it's not necessary says these two
constitutional Scholars we're going to
continue to follow it and don't be
surprised whether it's here or it's on
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reporting.
******************************
Conservative Case Emerges to Disqualify Trump for Role on Jan. 6: Two law professors active in the Federalist Society wrote that the original meaning of the 14th Amendment makes Donald Trump ineligible to hold government office.
by Adam Liptak
Reporting from Washington
New York Times
Published Aug. 10, 2023
Updated Aug. 11, 2023
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Former President Donald J. Trump appeared in federal court in Washington after being indicted over his efforts to overturn his defeat in 2020. Credit...Doug Mills/The New York Times
Two prominent conservative law professors have concluded that Donald J. Trump is ineligible to be president under a provision of the Constitution that bars people who have engaged in an insurrection from holding government office. The professors are active members of the Federalist Society, the conservative legal group, and proponents of originalism, the method of interpretation that seeks to determine the Constitution’s original meaning.
The professors — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — studied the question for more than a year and detailed their findings in a long article to be published next year in The University of Pennsylvania Law Review.
“When we started out, neither of us was sure what the answer was,” Professor Baude said. “People were talking about this provision of the Constitution. We thought: ‘We’re constitutional scholars, and this is an important constitutional question. We ought to figure out what’s really going on here.’ And the more we dug into it, the more we realized that we had something to add.”
He summarized the article’s conclusion: “Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.”
A law review article will not, of course, change the reality that Mr. Trump is the Republican front-runner and that voters remain free to assess whether his conduct was blameworthy. But the scope and depth of the article may encourage and undergird lawsuits from other candidates and ordinary voters arguing that the Constitution makes him ineligible for office.
“There are many ways that this could become a lawsuit presenting a vital constitutional issue that potentially the Supreme Court would want to hear and decide,” Professor Paulsen said.
Mr. Trump has already been indicted twice in federal court, in connection with his efforts to overturn the 2020 election and his retention of classified documents. He is also facing charges relating to hush money payments in New York and may soon be indicted in Georgia in a second election case.
Takeaways From Trump’s Indictment in the 2020 Election Inquiry
Four charges for the former president. Former President Donald Trump was charged with four counts in connection with his widespread efforts to overturn the 2020 election. The indictment was filed by the special counsel Jack Smith in Federal District Court in Washington. Here are some key takeaways:
The indictment portrayed an attack on American democracy. Smith framed his case against Trump as one that cuts to a key function of democracy: the peaceful transfer of power. By underscoring this theme, Smith cast his effort as an effort not just to hold Trump accountable but also to defend the very core of democracy.
Trump was placed at the center of the conspiracy charges. Smith put Trump at the heart of three conspiracies that culminated on Jan. 6, 2021, in an attempt to obstruct Congress’s role in ratifying the Electoral College outcome. The special counsel argued that Trump knew that his claims about a stolen election were false, a point that, if proved, could be important to convincing a jury to convict him.
Trump didn’t do it alone. The indictment lists six co-conspirators without naming or indicting them. Based on the descriptions provided, they match the profiles of Trump lawyers and advisers who were willing to argue increasingly outlandish conspiracy and legal theories to keep him in power. It’s unclear whether these co-conspirators will be indicted.
Trump’s political power remains strong. Trump may be on trial in 2024 in three or four separate criminal cases, but so far the indictments appear not to have affected his standing with Republican voters. By a large margin, he remains his party’s front-runner in the presidential primaries.
Those cases could give rise to prison time or other criminal punishment. The provision examined in the new article concerns a different question: whether Mr. Trump is eligible to hold office.
There is, the article said, “abundant evidence” that Mr. Trump engaged in an insurrection, including by setting out to overturn the result of the 2020 presidential election, trying to alter vote counts by fraud and intimidation, encouraging bogus slates of competing electors, pressuring the vice president to violate the Constitution, calling for the march on the Capitol and remaining silent for hours during the attack itself.
“It is unquestionably fair to say that Trump ‘engaged in’ the Jan. 6 insurrection through both his actions and his inaction,” the article said.
Steven G. Calabresi, a law professor at Northwestern and Yale and a founder of the Federalist Society, called the article “a tour de force.”
But James Bopp Jr., who has represented House members whose candidacies were challenged under the provision, said the authors “have adopted a ridiculously broad view” of it, adding that the article’s analysis “is completely anti-historical.”
(Mr. Bopp’s clients have had mixed success in cases brought under the provision. A state judge, assuming that the Jan. 6 attacks were an insurrection and that participating in them barred candidates from office, ruled that Representative Marjorie Taylor Greene, Republican of Georgia, had not taken part in or encouraged the attacks after she took an oath to support the Constitution on Jan 3. A federal appeals court ruled against Representative Madison Cawthorn, Republican of North Carolina, on one of his central arguments, but the case was rendered moot by his loss in the 2022 primary.)
The provision in question is Section 3 of the 14th Amendment. Adopted after the Civil War, it bars those who had taken an oath “to support the Constitution of the United States” from holding office if they then “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
Congress can remove the prohibition, the provision says, but only by a two-thirds vote in each chamber.
The new article examined the historical evidence illuminating the meaning of the provision at great length, using the methods of originalism. It drew on, among other things, contemporaneous dictionary definitions, other provisions of the Constitution using similar language, “the especially strong evidence from 1860s Civil War era political and legal usage of nearly the precise same terms” and the early enforcement of the provision.
The article concluded that essentially all of that evidence pointed in the same direction: “toward a broad understanding of what constitutes insurrection and rebellion and a remarkably, almost extraordinarily, broad understanding of what types of conduct constitute engaging in, assisting, or giving aid or comfort to such movements.”
It added, “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 3 of the 14th Amendment.”
Though the provision was devised to address the aftermath of the Civil War, it was written in general terms and continues to have force, the article said.
Congress granted broad amnesties in 1872 and 1898. But those acts were retrospective, the article said, and did not limit Section 3’s prospective force. (A federal appeals court agreed last year in the case involving Mr. Cawthorn.)
The provision’s language is automatic, the article said, establishing a qualification for holding office no different in principle from the Constitution’s requirement that only people who are at least 35 years old are eligible to be president.
“Section 3’s disqualification rule may and must be followed — applied, honored, obeyed, enforced, carried out — by anyone whose job it is to figure out whether someone is legally qualified to office,” the authors wrote. That includes election administrators, the article said.
Professor Calabresi said those administrators must act. “Trump is ineligible to be on the ballot, and each of the 50 state secretaries of state has an obligation to print ballots without his name on them,” he said, adding that they may be sued for refusing to do so.
(Professor Calabresi has occasionally strayed from conservative orthodoxy, leading to an unusual request from the group he helped found. “I have been asked not to talk to any journalist who identifies me as a co-founder of the Federalist Society, even though it is a historical fact,” he said. I noted the request and ignored it.)
Some of the evidence the article considered overlapped with what was described in the recent indictment of Mr. Trump accusing him of conspiring to subvert the 2020 election. But that case and Section 3 address “completely separate questions,” Professor Baude said.
“The question of should Donald Trump go to jail is entrusted to the criminal process,” he said. “The question of should he be allowed to take the constitutional oath again and be given constitutional power again is not a question given to any jury.”
Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. More about Adam Liptak