Trump lashes out at Gov. Doug Ducey following certification

Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Fri Aug 04, 2023 9:46 am

Part 4 of 4

1 A Uh-huh, yes, that's fair to say.
2 Q And so I think you referenced a D.C. team.
3 A Uh-huh.
4 Q Is it fair to say that there was a whole D.C. team that handled public affairs
5 on behalf of Burisma?
6 A Yes.
7 Q And that D.C. team was firms like Boies Schiller, Blue Star Group, this
8 lobbyist who was brought in to do the DHS issue. Is that fair?
9 A Fair.
10 Q That's not Joe Biden.
11 A No, that's not -- that's not the D.C. team.
12 Mr. Goldman. You mean Joe Biden is not the D.C. team.
13 Mr. Archer. Right.
15 Q So Congress, particular Republicans in Congress, have been talking about
16 Burisma for a long time.
17 A Uh-huh.
18 Q And so forgive me, but I want to bring up 2020.
19 In 2020, going back a few years, the Senate Committee on Homeland Security and
20 Governmental Affairs and the Senate Finance Committee, which were then under
21 Chairman Johnson and Chairman Grassley, Republican chairmen, conducted an extensive
22 investigation in an effort to show some connection between Hunter Biden's work on
23 behalf of Burisma and then Vice President Biden's role in carrying out official U.S. policy in
24 Ukraine.
25 As part of that investigation, there were 46 subpoenas issued, 50 hours of
transcribed interviews of 1 10 witnesses, reviews of tens of thousands of pages of
2 documents over the course of a year-long investigation.
3 A Uh-huh.
4 Q At the conclusion of that investigation, Senate minority staff issued a report
5 summarizing the findings. And I'd like to read those for you.
6 "Every witness interviewed for this investigation testified that Vice President
7 Biden did not alter United States foreign policy to benefit his son Hunter Biden, and that
8 Hunter Biden's presence on the board of the Ukrainian gas company Burisma had no
9 effect on U.S. foreign policy.
10 "Every witness stated that Hunter Biden and his associates had no role in the
11 formulation of U.S. policy, that Hunter Biden's role did not influence U.S. foreign policy
12 decisions, and that Vice President Biden carried out U.S. foreign policy in the interest of
13 the United States.
14 "The investigation's evidence, set forth in this Minority report, confirms there was
15 no corruption, wrongdoing, or impropriety on the part of" the Vice President."
16 Having read that for you, I have a few questions for you based on your own
17 knowledge and experience.
18 So based on your own knowledge and experience -- your relationship with Hunter
19 Biden, your time on Burisma's board, and the entirety of your knowledge and
20 experience -- do you have any basis to disagree with the conclusion that, quote, "Vice
21 President Biden did not alter U.S. foreign policy to benefit his son Hunter Biden"?
22 A I have no basis to know if he altered. I have no basis to know if he altered
23 policy to benefit his son.
24 Q So you have no knowledge --
25 A I have no knowledge. Sorry.
1 Q -- of him --
2 A Yes, I have no knowledge.
3 Q -- altering U.S. policy to benefit his son.
4 A I have no knowledge.
5 Q You -- do you have any basis to disagree with the conclusion that "Hunter
6 Biden's presence on the board of the Ukrainian gas company Burisma had no effect on
7 U.S. foreign policy"?
8 A Not directly. You mean like making laws? I don't -- I don't think so.
9 Mr. Goldman. Foreign policy.
10 Mr. Archer. No -- no -- no on foreign policy.
12 Q No basis to disagree with that conclusion.
13 A No.
14 Q Do you have any basis to disagree with the conclusion that "Hunter Biden's
15 role did not influence U.S. foreign policy decisions"?
16 A I have -- yeah, I have no basis.
17 Q Do you have any basis to disagree with the conclusion that "Vice President
18 Biden carried out U.S. foreign policy in the interest of the United States"?
19 A I have no basis to judge.
20 Q Or to disagree with that.
21 A Or disagree.
22 Q You have no knowledge -- nothing based on your knowledge or experience
23 contradicts this conclusion.
24 A No.
25 Q Does anything in your knowledge or experience contradict the conclusion
that "there was no corruption, wrongdoing, or 1 impropriety on the part of Vice President
2 Biden"?
3 A I have no basis to know.
4 Q The report also found, quote, "No --"
5 Mr. Goldman. I'm sorry. You have no basis to know or is that a no?
6 Mr. Archer. I have -- I have -- I would have no idea.
7 Mr. Goldman. No basis --
8 Mr. Schwartz. Are you aware of any wrongdoing by Vice President Biden?
9 Mr. Archer. No, I'm not aware of any.
11 Q So based on your knowledge and experience, you have no evidence that
12 would contradict any of these conclusions I just read.
13 A No.
14 Q The report also found, quote, "No evidence that any action of the U.S.
15 Government or any U.S. official was taken to benefit Burisma or Hunter Biden."
16 Do you have any evidence or knowledge that contradicts this conclusion?
17 A No.
18 Q So based on everything you saw, heard, and observed, did you have any
19 knowledge of Joe Biden having any involvement with Burisma?
20 A No -- not direct, no.
21 Q No involvement of Joe --
22 A No.
23 Q -- Biden with Burisma.
24 A No. My only thought is that I think Burisma would have gone out of
25 business if it didn't have the brand attached to it. That's my, like, only honest opinion.
But I 1 have no basis for any -- never heard any conversations --
2 Mr. Goldman. But that's different than Joe Biden's action.
3 Mr. Archer. Right.
4 Mr. Goldman. You're just talking about that Hunter was on the board.
5 Mr. Archer. Right. And I think that's why --
6 Mr. Goldman. And so --
7 Mr. Archer. -- it was able to survive for as long as it did.
8 Mr. Goldman. By -- because of additional capital or --
9 Mr. Archer. Just because of the brand.
10 Mr. Goldman. Well, I don't understand. How does that have an impact?
11 Mr. Archer. Well, the capabilities to navigate D.C. that they were able to, you
12 know, basically be in the news cycle. And I think that preserved them from a, you know,
13 from a longevity standpoint. That's like my honest -- that's like really what I -- that's like
14 how I think holistically.
15 Mr. Goldman. But how would that work?
16 Mr. Archer. Because people would be intimidated to mess with them.
17 Mr. Goldman. In what way?
18 Mr. Archer. Legally.
19 Mr. Goldman. Uh-huh.
20 Mr. Archer. So on this line of questioning, I have no, like, proof. I have no
21 nothing.
22 Mr. Goldman. Let's talk about legally, I think just pivot to that, because you had
23 said earlier that -- I believe the direct quote is that Burisma felt like they had Shokin under
24 control.
25 Mr. Archer. Correct.
1 Mr. Goldman. What did you mean by that?
2 Mr. Archer. That was like -- that was a narrative that was -- that was told to me
3 by various of the D.C. team, that the firing of Shokin was bad for Burisma because he was
4 under control.
5 Mr. Goldman. What did you understand "under control" to mean?
6 Mr. Archer. Meaning that they were going to maybe give a slap on the wrist as
7 opposed to --
8 Mr. Goldman. Okay.
9 Mr. Archer. -- you know, seize all his assets.
10 Mr. Goldman. Because there was a lot of characterizations by the Republicans in
11 the first part about a Ukrainian investigation.
12 Mr. Archer. Uh-huh.
13 Mr. Goldman. But you're not actually aware of any investigation by the
14 prosecutor general in Ukraine into Burisma which is different from the
15 British investigation.
16 Mr. Archer. Right. The British investigation I was aware of. I think in the
17 early stages, like the visa and the British, I was made aware of. And then it kind of
18 my -- I had other responsibilities and I was less informed as we moved forward and Blue
19 Star kind of was more involved.
20 Mr. Goldman. Was taken over on that --
21 Mr. Archer. Yeah.
22 Mr. Goldman. -- on that angle of things.
23 Mr. Archer. I was, like, an FYI at first, and then I became less FYI as time
24 progressed.
25 Mr. Goldman. So was it -- Shokin was ultimately removed from office.
1 Mr. Archer. Right.
2 Mr. Goldman. Was that a bad thing for -- and the Burisma leaders felt like that
3 would be bad for them?
4 Mr. Archer. That was what I was told.
5 Mr. Goldman. Okay. Maybe go to the --
6 Mr. Schwartz. Not by the Burisma leaders.
7 Mr. Archer. Exactly. Not by the Burisma leaders. I was told by the D.C. team.
8 Mr. Goldman. Got it.
10 Q So there was a lot of talk about the December 2015 phone call that you
11 made.
12 A Uh-huh.
13 Q So I want to kind of zoom out and kind of take stock of what was going on at
14 that time.
15 A Sure.
16 Q January 2015 is when Zlochevsky's assets in the U.K. were unfrozen.
17 A Uh-huh.
18 Q Do you remember that?
19 A Yes.
20 Q And it was widely reported that that was because of a lack of cooperation
21 from the Ukrainian prosecutor's office.
22 A Correct.
23 Q And so this goes to this idea that Shokin, who was prosecutor general in
24 2015, was good for Burisma.
25 A Uh-huh.
1 Q Is that fair?
2 Now, Vice President Biden was vocal about his concerns about corruption in the
3 prosecutor general's office in Ukraine during this time period.
4 A Correct.
5 Q And called for the removal of Shokin from office. Is that correct?
6 A Yes. That was very well publicized.
7 Q Okay. And the Senate minority report, which I referenced earlier,
8 described how Vice President's public calls for the Ukrainian Government to remove
9 Shokin as prosecutor general was part of an anticorruption policy of the U.S. Government
10 with broad bipartisan support, as well as support from allies and international institutions
11 like the EU and the International Monetary Fund.
12 Do you agree with that conclusion?
13 A Sorry. Can you repeat that?
14 Q Yeah. The Vice President's public calls for the removal of Shokin was part
15 of this broad bipartisan, international anticorruption effort in Ukraine.
16 A Yes, I believe that was -- that was part of the conversation.
17 Q But it was bad for Burisma. That was the perception at Burisma, because
18 they had Shokin under their control.
19 A No. Burisma never informed me of that. I just was -- that's what was I
20 told, that it was bad for Burisma. But I don't know. I don't know if it was good or bad.
21 Mr. Schwartz. Told by the D.C. team.
22 Mr. Archer. Yeah, by the D.C. team.
23 Mr. Goldman. But you knew that the funds were unfrozen --
24 Mr. Archer. I did know that, yes.
25 Mr. Goldman. -- because of lack of --
1 Mr. Archer. Cooperation.
2 Mr. Goldman. -- cooperation from the Ukrainian prosecutor.
3 Mr. Archer. Yes.
4 Mr. Goldman. So if you heard that from the D.C. team and then you thought
5 about your understanding of what happened with those funds, your own personal
6 knowledge was consistent with what you were hearing --
7 Mr. Archer. Right.
8 Mr. Goldman. -- from the D.C. team.
9 Mr. Archer. Right.
11 Q And the same minority report noted that State Department officials
12 interviewed in this investigation explained that Shokin did not pursue corruption
13 investigations against Burisma's owner, effectively shielding the owner from prosecution,
14 and that removing Shokin made an investigation into Burisma more, not less, likely.
15 It sounds like that's in accordance with --
16 A Uh-huh.
17 Q -- your general understanding of what was going on at the time.
18 A But quickly after, where all of his assets were seized, Zlochevsky, and he had
19 to leave Ukraine.
20 Q But so do you have any basis to believe that Vice President Biden's call for
21 Shokin's removal was driven by anything other than the U.S. Government's anticorruption
22 policy in Ukraine?
23 A Yeah, I have no -- I have no other -- I have no proof or thought that
24 that -- that he fired him for that reason.
25 Q You have no reason to believe otherwise.
1 A I have no reason to believe.
2 Q And so kind of going back to the call in Dubai in December of 2015, you
3 explained that Zlochevsky and Vadym left --
4 A Uh-huh.
5 Q -- to go make a call --
6 A Uh-huh.
7 Q -- that you did not hear. Is that right?
8 A Right.
9 Q And I think you described that you were told that the call was a call to D.C.
10 A Correct.
11 Q But you don't know to who that was.
12 A I do not have -- I do not know.
13 Q You don't know whether it was to the D.C. team that we talked about earlier.
14 A I do not know.
15 Q I also -- okay. I want to ask you now about an FBI Form 1023 --
16 A Uh-huh.
17 Q -- that Chairman Comer and Senator Grassley recently made public, on July
18 20th.
19 A Right.
20 Q Do you -- have you seen that form?
21 A Yeah.
22 Q Is it your understanding that in this form an FBI confidential human source is
23 reporting years after the fact statements supposedly made by executives at Burisma,
24 including Mykola Zlochevsky?
25 A Yes.
1 Q That's what it represents.
2 A Yeah, yeah, absolutely.
3 Q In this form, the FBI confidential human source appears to relate a
4 statement attributed to Mykola Zlochevsky that says, "It costs five to pay one Biden and
5 five to another," the mark "million" in parentheses.
6 Do you remember reading that?
7 A I do. I do.
8 Q Were you ever made aware of Mr. Zlochevsky paying $5 million to two
9 different Bidens?
10 A No, I'm not. I would assume he's probably talking about me and Hunter,
11 but I don't know. But I don't know anything about those five.
12 Q Based on your knowledge, including your work for Burisma's board, your
13 conversations with Hunter Biden, Mykola Zlochevsky, and others at Burisma, does this
14 allegation strike you as credible, meaning the allegation that there were two $5 million
15 payments to two Bidens?
16 A I think it's -- the agent explains it pretty well on the bottom. And it's similar
17 to, you know, Hunter Biden taking credit for his dad's visit. It's like sending a signal.
18 So he's bragging to this guy that they paid, you know, where he probably paid $5
19 million or whatever, $6 million altogether, you know, so that, you know, just to show
20 he's -- well, there's a lot of -- and he explains it. I forget. There's a word in the
21 document.
22 Mr. Schwartz. You're guessing.
23 Are you aware of a $5 million payment --
24 Mr. Archer. No.
25 Mr. Schwartz. -- to one Biden and a $5 million payment to another?
1 Mr. Archer. No.
2 Mr. Schwartz. You ever hear anything about that?
3 Mr. Archer. In that document.
5 Q Other than that document.
6 A The $5 million and the $5 million, I first saw that in the document.
7 Q And so I think the point you're referring to is that in this document the
8 confidential human source says he cannot opine to the veracity of the allegations and
9 notes that it's not unusual for Ukrainian business executives to brag or show off.
10 A Correct.
11 Q Is that consistent with your understanding?
12 A It's consistent of what I was just explaining in both directions.
13 Q If someone were to conclude from this that this is evidence, this Form 1023
14 is evidence that Joe Biden was bribed by Mykola Zlochevsky, would you disagree with
15 that conclusion?
16 A Yeah, I would.
17 Q So in talking about how Zlochevsky and other Ukrainian businessmen brag --
18 A Uh-huh.
19 Q -- exaggerate, tell fibs, is that fair?
20 A Yep, very similar to D.C. operators.
21 Q Similar to D.C. operators.
22 In another sense, you know, is it fair to say that people in D.C. like to give off the
23 impression of access that they don't necessarily actually deliver on?
24 A Yep, correct. And in Ukraine, in Russia they brag about how much -- they
25 brag about bigger bribes than they actually give. So it's pretty kind of similar symbiosis
1 there.
2 Q Now, I want to come back to exhibit 2, which you discussed, and point 18,
3 where it says, "The announcement of my guy's upcoming travels should be characterized
4 as part of our advice and thinking -- but what he will say and do is out of our hands. In
5 other words, it could be a really good thing or it can end up creating too great an
6 expectation. We need to temper expectations regarding that visit."
7 A Yep.
8 Q So to the extent you remember, would this have been a comment about an
9 upcoming trip of Hunter Biden -- of then Vice President Joe Biden to Ukraine?
10 Mr. Schwartz. Again, we can't authenticate the documents. We don't know
11 that it was said.
12 Are you representing that this accurately reflects --
13 I'm asking about Mr. Archer's recollection and whether
14 there -- shortly after April 12th, 2014, there was an upcoming visit of Vice President Joe
15 Biden to Ukraine.
16 Mr. Schwartz. So your question is chronologically whether there was an
17 upcoming visit of Vice President Biden?
18 Yes.
19 Mr. Schwartz. In April 2014?
20 Yes.
21 Mr. Archer. Yeah, this is back to my point from earlier.
23 Q And to your knowledge, did Hunter Biden have any role whatsoever in
24 getting his father, the Vice President, to visit Ukraine?
25 A I have no idea. I have no knowledge.
Q 1 You have no basis to believe that Hunter Biden --
2 A No.
3 Q -- had any role in his --
4 A I have no basis to believe.
5 Q In fact, this statement, if it is actually a statement from Hunter Biden, says,
6 "He will say" -- "What he will say and do is out of our hands."
7 Does it accord with your recollection that Hunter Biden had no ability to influence
8 what his father would do or say on official trips to Ukraine?
9 A Yeah, I have -- I have no -- I have no basis to understand what his father and
10 his conversations were about policy in Ukraine. But, as you can see, that seems pretty
11 familiar, that, you know, he can't influence it but take credit for it.
12 I mean, that was -- it's literally the back and forth between the last exhibit and this
13 exhibit. That's what goes on. People send signals and those signals are basically used
14 as currency. And that's kind of how a lot of D.C. operators and foreign tycoons and
15 businessmen work.
16 Q In other words, it's not that Hunter Biden was influencing U.S. policy. It's
17 that Hunter Biden was falsely giving the Burisma executives the impression that he had
18 any influence over U.S. policy.
19 A I think that's fair.
20 Q And in exhibit 3, there appears to be a quote from Vice President Joe Biden
21 about fighting the cancer of corruption and about the importance of Ukraine reducing its
22 crippling dependence on Russia for supplies of natural gas.
23 A Uh-huh.
24 Q Do you see that?
25 A Yes.
Q And there's a 1 statement here that seems like it comes from you that says,
2 "We need to make sure this ragtag temporary government in the Ukraine understands
3 the value of Burisma to its very existence."
4 Do you understand what that sentiment means?
5 A Yes. I think it was I was a believer in Burisma at the time.
6 Q Meaning that you believed that --
7 A Yeah, I thought we were doing something good. It's all funny in retrospect.
8 Q In terms of working toward Ukraine's energy independence.
9 A Yeah. A fresh company that was doing incredibly well and incredibly
10 efficient in their, like, capacity and hit rate and all that stuff. So it was -- yeah.
11 Q And then above that there's a comment that's attributed to Hunter Biden
12 that says, "You should send to Vadym -- makes it look like we are adding value."
13 A Yep.
14 Q "Makes it look." Does that mean that he's actually adding value or that
15 he's claiming credit for something he has no control over?
16 Mr. Schwartz. Again, are we accepting this as genuine?
17 I'm asking whether --
18 Mr. Goldman. Commonsense interpretation.
19 Mr. Archer. The commonsense interpretation is taking credit where credit is not
20 due.
22 Q In other words, Hunter Biden would take credit for his father's actions, even
23 though he had no role or influence in those actions.
24 A He would take credit for them.
25 Q Despite having no role in them or no influence over them.
1 A Yeah.
2 Q Is that fair?
3 A Yeah, I can't -- I don't know --
4 Q Based on what you knew --
5 A Based on what I knew, yes.
6 Q Did Hunter Biden ever tell you, "I can get my dad to change U.S. policy"?
7 A No.
8 Q Are you aware of Hunter Biden ever asking his dad to change foreign policy?
9 A No.
10 Q Are you ever -- were you ever privy to any conversations between Hunter
11 Biden and Joe Biden in which they discussed how --
12 A No.
13 Q -- Joe Biden would --
14 A No.
15 Q -- take official actions on behalf of Hunter Biden?
16 A No.
17 Q So is it fair to say that Hunter Biden was selling the illusion of access to his
18 father?
19 A Yes.
20 Q So when you talk about selling the brand --
21 A Uh-huh.
22 Q -- it's not about selling access to his father. It's about selling the illusion of
23 access to his father. Is that fair?
24 A Is that fair? I mean, yeah, that is -- I think that's -- that's almost fair.
25 Q Almost fair. Why almost fair?
A Because there -- there is -- 1 there are touch points and contact points that I
2 can't deny that happened, but nothing of material was discussed. But I can't go on
3 record saying that there was -- there was communications.
4 Mr. Goldman. You mean --
5 Mr. Archer. Yeah, yeah.
6 Mr. Goldman. -- hello and --
7 Mr. Archer. Yeah, there were communications.
9 Q By "touch points," you mean Hunter Biden talked to his dad a lot. Is that
10 fair? Is that right?
11 A He talked to him every day.
12 Q He was his son.
13 A Correct.
14 Q Father and son talked all the time.
15 A Uh-huh.
16 Q In 2015, in spring of 2015, Beau Biden died. Is that right?
17 A That's correct.
18 Q Did the frequency of interactions between Hunter Biden and his father
19 increase after Beau Biden's death?
20 A I would say yes.
21 Q Did Joe Biden regularly check in on his son who's admitted he had issues
22 with --
23 A Every day.
24 Q -- drugs and other issues?
25 A Uh-huh.
1 Q Yes?
2 A Yes. Sorry.
3 Q In the context of those conversations, did you ever witness them discussing
4 the substance of Hunter Biden's business?
5 A No.
6 Mr. Goldman. Can we just stop on the Beau point a minute?
7 Mr. Archer. Uh-huh.
8 Mr. Goldman. Did you know Beau?
9 Mr. Archer. I did.
10 Mr. Goldman. Do you recall when he got -- when his health really started
11 deteriorating?
12 Mr. Archer. Yes.
13 Mr. Goldman. What impact did that have on Hunter Biden?
14 Mr. Archer. He was distraught. Definitely a huge impact. And, obviously, you
15 know, it cascaded into -- into a relapse.
16 Mr. Goldman. And --
17 Mr. Archer. Lasted a long time.
18 Mr. Goldman. That -- that last --
19 Mr. Archer. Lasted a long time.
20 Mr. Goldman. Yeah. And so you were still in a business relationship with him
21 during the period when Beau was sick and then after he died, when Hunter relapsed,
22 right?
23 Mr. Archer. Right.
24 Mr. Goldman. And what impact could you see that Beau's death had on then
25 Vice President Biden?
Mr. Arche 1 r. Yeah. I think absolutely devastated, the same, you know, the
2 same -- very similar effect, obviously, about the relapse. But he was, yeah, devastated.
3 Mr. Goldman. So he died -- Beau died in the spring of 2015. Do you remember
4 how long he had been really --
5 Mr. Archer. Sick?
6 Mr. Goldman. -- sick?
7 Mr. Archer. It was -- the deterioration was quick at the end.
8 Mr. Goldman. Yeah.
9 Mr. Archer. So there was obviously always the notion of that he had gotten this
10 diagnosis, but it was -- he was fairly functional. And then it was -- then it was a very
11 quick, like, you know, you could really see it at the end.
12 So I'm thinking about, like, summer of -- so that was out. We were out to, you
13 know, and like the last time I saw Beau was we had ice cream in South Hampton with the
14 kids. And he was, like, on the way out, and it was, yeah, it was really sad.
15 And, obviously, his dad there was and he was extremely -- it was a very, very
16 difficult time for them.
17 Mr. Goldman. Was that right before he passed away --
18 Mr. Archer. Yeah.
19 Mr. Goldman. -- or was that the previous summer?
20 Mr. Archer. It was like -- what month was it? Spring of -- of -- it was like
21 September, like, yeah, like Indian summer. So it was probably -- I can't remember.
22 Mr. Goldman. '14?
23 Mr. Archer. Yeah.
24 Mr. Schwartz. '15, May 30th, 2015.
25 Mr. Archer. '15.
Mr. 1 Goldman. That's when he died, right?
2 Mr. Archer. Yeah.
3 Mr. Goldman. You were saying --
4 Mr. Archer. Yeah, so it was probably September, yeah.
5 Mr. Goldman. And so was -- you obviously were spending a fair amount of time
6 with Hunter. Were the conversations between Hunter and his father primarily centered
7 at that point around Beau's illness and how they were both coping? Is that --
8 Mr. Archer. Yeah. A lot of logistics and, you know, travel for between, you
9 know, his treatments and who was going to be with him that week and a lot of it.
10 Mr. Goldman. And then after just the grief and the sorrow --
11 Mr. Archer. Yeah.
12 Mr. Goldman. -- and checking in? Is that --
13 Mr. Archer. A lot, yeah, and then the checking in.
14 Then I think, yeah, the optempo of the comms, when it was every other day, it
15 became every day from kind of that -- those days forward until it seems like they had a
16 little bit of a hiatus, but I was out of the picture by then.
17 Mr. Goldman. And you -- to your knowledge, you know, none of the times that
18 you would ever overhear Vice President Biden calling Hunter was to -- was with the
19 purpose of discussing business with him.
20 Mr. Archer. It was, yeah, not related to commercial business, politics, that kind
21 of stuff.
2 [2:20 p.m.]
3 Mr. Goldman. Family.
4 Mr. Archer. Family, politics, you know, and geography, fishing, whatever
5 the -- but --
6 Mr. Goldman. But not Hunter's business ventures.
7 Mr. Archer. -- only the practical -- yeah -- the practical stuff that I would hear
8 would be politics-related. Like, I think he -- I think his dad really respects his -- respected
9 or still respects -- you know, his opinion on political things.
10 Mr. Goldman. Unrelated to whatever --
11 Mr. Archer. Yeah.
12 Mr. Goldman. -- business dealings you guys had together.
13 Mr. Archer. Yeah. I don't think there's much -- he doesn't have much expertise
14 in the world of business.
16 Q Joe Biden, that is?
17 A Right.
18 Q I want to come back -- there was a lot of conversation in the Republicans'
19 hours of questioning about these phone calls --
20 A Uh-huh.
21 Q -- around the presence of business partners.
22 A Right.
23 Q I think you've discussed the Dubai call --
24 A Yes.
25 Q -- which you didn't actually --
1 A That one I did not --
2 Q -- hear at all.
3 A Yes.
4 Q There was a call in Paris --
5 A Uh-huh.
6 Q -- and you mentioned a call with Jonathan Li.
7 A Yes.
8 Q During those calls -- let's start with the one in Paris.
9 A Sure.
10 Q -- did Joe Biden -- was Joe Biden calling Hunter Biden? Was Hunter Biden
11 calling Joe Biden?
12 A I believe on the Paris, it was he called Hunter.
13 Q He called Hunter.
14 A Uh-huh.
15 Q One of the regular kind of check-in calls?
16 A Uh-huh.
17 Q You said he'd call him every day.
18 A Yep.
19 Q And Hunter Biden picked up --
20 A Correct.
21 Q -- and put him on speakerphone? Is that correct?
22 A Yes.
23 Q Did Joe Biden know he was on speakerphone?
24 A Yes, I would say he knew. I don't -- I have no basis to know, but he would
25 say -- you know, he'd say, "Hey, say hello to" -- you know, it's great in Paris, the weather's
1 this. And everybody would know. And then that was over.
2 Q So Hunter Biden would tell his dad --
3 A Yeah.
4 Q -- he's in Paris, the weather's great?
5 A Yeah, he never -- there was no ambushing in the sense that, like, Hunter
6 wouldn't just, like, be like, listen, this is my dad.
7 Q And he said, "Say hello to," and he would just say the names of the people
8 there?
9 A I don't recall directly, but, yes, something like that.
10 Q And did you ever have the impression that Joe Biden actually knew who
11 these people were? Or was he just telling -- saying hello, kind of, at Hunter Biden's
12 invitation?
13 A You know, sometimes yes, sometimes no, but generally no.
14 Q Generally he didn't know these people?
15 A Generally it was a very good political, you know, action.
16 Q So he said, "Say hello to Louis" --
17 A Yeah.
18 Q -- and Joe Biden would say, "Hello, Louis," without knowing who Louis was.
19 Is that fair?
20 A Sometimes, yes.
21 Q And on this Paris call -- because let's take them --
22 A Uh-huh.
23 Q -- was there any discussion of Hunter Biden's business in Paris or this
24 business meeting that they were having?
25 A No.
Q The conversation 1 was about the weather --
2 A The weather and niceties, all of it -- any -- as it goes for any of the -- there
3 was never a discussion of cap tables, and that wasn't -- you know, that was not the
4 purpose of the calls.
5 Q But beyond cap tables, there wasn't any conversation of "you need to help
6 me with this business I have with these people," or, "you need to take this action or that
7 action to help these business partners of mine."
8 A Correct.
9 Q That never happened.
10 A That did not happen.
11 Q Jonathan Li --
12 A Yes.
13 Q -- that call, was that an inbound call, an outbound call? To the extent you
14 remember.
15 A Yeah, to the extent I remember, that -- I don't know, but I know there was a
16 "hello." There was, like -- you know, they ended up having coffee, I think, so he
17 might've known him.
18 Q Jonathan --
19 A Jonathan Li and President Biden had coffee. So it might've been, like, after
20 they had coffee, and he was saying hello, so there was, like, some familiarity.
21 Q Where was that, that they had coffee?
22 A They had coffee in Beijing.
23 Q So it was reported that that meeting was kind of just a handshake --
24 A Yeah.
25 Q -- meeting in --
1 A Right.
2 Q -- Beijing --
3 A Yes.
4 Q -- while --
5 A I wasn't there, so I'm not -- I don't -- I just -- I read the reporting and heard
6 from Hunter and Jonathan. So he might've been saying, "Oh, I'm with Jonathan Li again.
7 Remember, you met him in Beijing."
8 Q Although, isn't it fair to say the Vice President probably shakes hands with
9 thousands of people over the course of the Vice Presidency?
10 A That is fair to say.
11 Q So did you have any reason to believe that, on that call, Joe Biden actually
12 knew who Jonathan Li was?
13 A I have no basis.
14 Q And was there any discussion of BHR or Hunter Biden's business with
15 Jonathan Li?
16 A Yeah -- oh, you mean with --
17 Q While Joe Biden was on the phone.
18 A No.
19 Q Was there any -- did you ever witness Hunter Biden asking Joe Biden to do
20 something for -- you know, to help BHR or help out Jonathan Li?
21 A A college recommendation. She didn't get in.
22 Mr. Goldman. For who?
23 Mr. Archer. I think for his daughter, to Georgetown. It didn't work.
25 Q Was it a kind of nonpersonalized letter of recommendation?
A It was a -- I don't -- I actually don't 1 remember it. But I remember the -- I
2 remember he got him to write him a recommendation -- her, the daughter.
3 Q Did he take any official action on behalf of BHR?
4 A No.
5 Q Was he ever asked to take an official action on behalf of BHR?
6 A No.
7 Q So is it fair to say that these conversations that my Republican colleagues
8 asked you about where Hunter Biden had Joe Biden on the phone around business
9 partners, that there was nothing in those conversations beyond the exchange of
10 pleasantries?
11 A That is correct.
12 Q And we talked earlier about, kind of, Hunter Biden liking to project this
13 image, this illusion, of access to his father.
14 A Uh-huh.
15 Q Was this just part of his effort to say, "Hey, I'm Joe Biden's son, and I talk to
16 Joe Biden a lot"?
17 Mr. Schwartz. If you know. I mean, don't speculate about what --
18 Mr. Archer. Right. I don't want to speculate about what he was thinking. But
19 I think it's just, you know, just common sense and, you know, that it's the brand and
20 that's the value and -- yeah. I don't --
22 Q But it was just about --
23 A It was about projecting who he was.
24 Q But, in fact, Hunter Biden -- Joe Biden never helped out Joe Biden's -- sorry.
25 Scratch that.
In fact, Hunter Biden never asked 1 his father to take official actions on behalf of his
2 business partners?
3 A He did not. He did not ask him -- to my knowledge, I never saw him say, do
4 anything for any particular business.
5 Q And you're not aware of Joe Biden ever doing anything to help his son's
6 business partners?
7 A No. I think that the calls were -- that's what it was. They were calls to talk
8 about the weather, and that was signal enough to be powerful.
9 Q So this, again, was about projecting this illusion of access to his father. Is
10 that right?
11 A Correct.
12 Q And then, you know, we talked -- you talked during the Republicans' hours of
13 questioning and during this hour of questioning about Hunter Biden's various business
14 ventures with you.
15 A Uh-huh.
16 Q And I understand that in December 2020 you received a grand jury subpoena
17 as part of the Delaware-led investigation into Hunter Biden, the investigation led by U.S.
18 Attorney David Weiss.
19 Mr. Schwartz. So where are you going with this? Because anything in this time
20 period is out of scope.
21 I just want to establish that Mr. Archer received a grand jury
22 subpoena, participated in an interview, and answered the questions honestly and
23 fulsomely.
24 Mr. Schwartz. He did. He appeared. He answered questions in a voluntary
25 proffer. And then he testified pursuant to an immunity order in the grand jury.
2 Q And at that meeting when you provided testimony, there were people from
3 the Delaware U.S. Attorney's Office --
4 A Uh-huh.
5 Q -- Department of Justice's Tax Division, Department of Justice's National
6 Security Division, the FBI, and the IRS. Is that right?
7 A Correct.
8 Q And you answered all the questions they had for you fulsomely and
9 truthfully. Is that right?
10 A Yes.
11 Mr. Goldman. As you are doing here today?
12 Mr. Archer. Yes.
13 And did the questions they have for you generally cover the same
14 subject areas that we're covering here today?
15 Mr. Schwartz. Don't get into the subject --
16 Mr. Archer. Okay.
17 Mr. Schwartz. -- matter of -- I mean, you can answer that question.
18 Mr. Archer. Yes.
19 Mr. Schwartz. Don't get into the subject matter of your --
20 Mr. Archer. It was, like, a --
21 Mr. Schwartz. -- interviews with law enforcement.
22 Mr. Archer. Yeah. It was, like, a, I would say, 20-percent overlap. There were
23 a lot of other directions.
24 Meaning, they covered more --
25 Mr. Archer. Yeah, it covered more.
-- than 1 what we have covered here?
2 Mr. Archer. It was also 18 hours, I think.
3 Mr. Goldman. How was the temperature?
4 Mr. Archer. It was hot too. It was kind of hot. Not as hot as this room.
5 Mr. Schwartz. It might've felt like it.
6 Mr. Archer. Felt like it, yeah.
7 Let's go off the record. I think we're arriving at the --
8 Mr. Goldman. Let's, yeah, take a quick break.
9 -- end of our first hour.
10 Mr. Archer. Okay.
11 And so we'll take a quick break and then pick back up and finish.
12 Mr. Archer. Yeah.
13 [Recess.]
14 Ready to go back on the record?
15 Mr. Schwartz. Yep.
16 Mr. Archer, before the break, you were asked a question along the lines of, was
17 Hunter Biden selling access to his father or was he selling the appearance of access to his
18 father? Do you recall that question?
19 Mr. Archer. Yes.
20 Mr. Schwartz. My question is, was it that Hunter Biden was creating the
21 appearance of access to his father or that he was creating the appearance of access to
22 Washington, D.C.?
23 Mr. Archer. It was the -- overall, it's the appearance to all of D.C.
24 Mr. Schwartz. And part of his perceived value-add was the ability to navigate
25 Washington --
1 Mr. Archer. Right.
2 Mr. Schwartz. -- and access to various people and --
3 Mr. Archer. He spent a career in D.C., and he carried the Biden name. So I
4 think that's -- that's it.
5 Mr. Goldman. So is the difference that you're trying to draw out here that he
6 actually did have a lot of his own contacts and experience in navigating Washington, D.C.,
7 and so that was actually something that he provided to Burisma?
8 Mr. Archer. Yes.
9 Mr. Goldman. And then, separately --
10 Mr. Archer. He was helpful.
11 Mr. Goldman. And then, separately, he wanted to also give off the illusion of
12 having access to his father as the Vice President?
13 Mr. Schwartz. Well, don't speculate on what someone else wanted unless you
14 two talked about it.
15 Mr. Goldman. Well, I'm just trying to understand why you're making this -- the
16 only reason to make this clarification is because he has his own experience in lobbying
17 and D.C. connections from his own professional experience.
18 Mr. Schwartz. Yeah.
19 Mr. Goldman. But what you said about his relationship and connection and use
20 of his father remains the same, which is that he never asked for anything from his father,
21 never received anything from his father, and his father was not involved in any of these
22 business dealings, nor making policy based on whatever his son's business dealings were.
23 Mr. Schwartz. So, if you separate the prelude to that question from the actual
24 question, I think he'll agree with the question. Try it again.
25 Mr. Goldman. So he was giving the impression that he had --
Mr. Schwartz. It is still 1 true that you are not aware that Hunter Biden ever
2 discussed policy with his father, discussed business with his father, influenced American
3 policy for purposes of his business or otherwise caused the Vice President or asked the
4 Vice President to do anything improper, right?
5 Mr. Archer. That's my understanding.
7 Q So Hunter Biden did help set Burisma up with Boies Schiller, with Blue Star
8 Group, with the DHS lobbyists, with a whole government affairs and lobbying team in D.C.
9 Is --
10 A Correct.
11 Q -- that right?
12 A That is correct.
13 Q That was access that he provided to them to D.C. public affairs and lobbying
14 groups. Is that correct?
15 A That's correct.
16 Mr. Goldman. And that was what he had -- in that statement, you know, that
17 summary of what he was bringing to Burisma, that was included in that explanation,
18 correct?
19 Mr. Archer. Yes. There's a portfolio of access.
21 Q But he did not provide the Burisma executives with actual access to his
22 father. The access to his father was an illusion of access to his father. Is that right?
23 A Right. An illusion of access to his father, other than social -- you know,
24 socials. Because Vadym was at dinner, for instance, so I can't --
25 Mr. Goldman. Right, to say -- when they socially said "hello." Is that what
1 you're referring to?
2 Mr. Archer. They had dinners together, et cetera.
3 So it was -- it was -- like I said from the beginning, there was never -- they
4 didn't -- it's just like when, you know, Jamie Dimon comes in to talk about an IPO. You
5 know, he doesn't know what the pricing's going to be or when the date's going to be.
6 It's just a -- it's a conversation, and that was never part of it.
7 But the actual, tangible assets of the portfolio were, you know, lobbying and a
8 career in D.C.
9 Mr. Goldman. Let me ask you a followup. You've used this Jamie Dimon
10 analogy, and I think you used it during the majority's time of questioning in reference to
11 your description of the brand.
12 Mr. Archer. Uh-huh.
13 Mr. Goldman. Just so I can understand what you mean by that, let's take the
14 Trump family.
15 Mr. Archer. Sure.
16 Mr. Goldman. Would you say that the Trump family has a brand?
17 Mr. Archer. Absolutely.
18 Mr. Goldman. And would you say that Donald Trump, Jr., gets access and --
19 Mr. Schwartz. This is so out of scope. He doesn't know anything about the
20 Trump family.
21 Mr. Goldman. Well, did you play golf with Donald Trump?
22 Mr. Archer. No, I haven't played golf with him.
23 Mr. Goldman. You never did play golf with Donald Trump?
24 Mr. Archer. Oh, I did play behind him. Sorry. Scratch that. I played behind
25 him. And then he came up to me at the clubhouse and talked -- he didn't know who I
1 was, but he didn't like my, like, athletic shorts.
2 Mr. Goldman. It is within the scope. If you're going to bring up Jamie Dimon,
3 then we get to clarify what he means by "the brand."
4 Mr. Archer. That's fine.
5 Mr. Schwartz. You can ask him that without getting into other people that are
6 outside of scope.
7 Mr. Goldman. So -- well, I think you can give a little leeway here, Mr. Schwartz.
8 This is not going into his criminal case or anything that we had nothing to do with
9 negotiating it.
10 But I do think it's important to provide proper context for, when you're talking
11 about the Biden brand, that there's another brand that you just described, which is the
12 Trump brand. And is it your --
13 Mr. Schwartz. You want to start drawing equivalencies between the Biden brand
14 and the Trump brand?
15 Mr. Goldman. I would like for you to let me ask the question, which is: Would
16 you say that Donald Trump's children benefit from their last name being Trump?
17 Mr. Archer. I would speculate to say yes.
18 Mr. Goldman. I'll leave it at that.
20 Q You mentioned, kind of, social dinners. You talked about two dinners at
21 Cafe Milano.
22 A Uh-huh.
23 Q I just wanted to go over those quickly.
24 A Sure.
25 Q The second dinner, the one in 2015, that was a dinner about the World Food
1 Programme? Is that right?
2 A Yes, that was the -- there was an attendee from the World Food Programme.
3 Q And Hunter Biden is on the board of the World Food Program USA or
4 something along those lines?
5 A I think he was along -- in 2015, he was.
6 Q Okay.
7 And The Washington Post reported on that dinner, and their reporting was that it
8 was organized to discuss food security issues in connection with Hunter Biden's role as
9 chairman of World Food Program USA.
10 Does that sound right?
11 A That does.
12 Q Okay.
13 A That's probably where I remember it from.
14 Q And The Washington Post also reported that President Biden made an
15 appearance at this dinner, which is also what you testified to. But the Washington Post
16 reporting was that President Biden only spoke to his longtime friend, Father Alex
17 Karloutsos, a prominent member of the Greek Orthodox Church, at that dinner.
18 Does that coincide with your memory?
19 A No.
20 Q What do you remember?
21 A I remember just a regular dinner where there was a table of conversation
22 and -- you know, talked about the World Food Programme probably. I don't recall, but
23 it wasn't -- it wasn't -- that's not correct reporting.
24 Q Did Hunter Biden or any of his business associates talk about their business
25 together at that dinner?
1 A No.
2 Q Was the conversation just about the World Food Programme and, kind of,
3 general pleasantries?
4 A Again, I don't recall -- I don't -- it was a long time ago. I don't recall the
5 specific conversation. But I would -- you know, like I've said across the board, there was
6 no business-deals specifics discussed ever at any of these things, but it was -- it was a
7 nice, you know, conversation.
8 Q And is that also the case at the first Cafe Milano dinner, that the
9 conversation was not about Hunter Biden's businesses with his various business
10 associates?
11 A Right. It was dinner conversation.
12 Mr. Goldman. And just to be clear, Joe Biden had nothing to do with any of your
13 business ventures with Hunter Biden, right? He was --
14 Mr. Archer. As far as ownership?
15 Mr. Goldman. Yeah, or --
16 Mr. Archer. No.
17 Mr. Goldman. -- investing or anything, to your knowledge.
18 Mr. Archer. Not to my knowledge.
19 Mr. Goldman. And in all this exhibit 1, 260 pages, you didn't see a single wire
20 transfer to Joe Biden, did you?
21 Mr. Archer. I -- no, I have not seen a wire transfer to Joe Biden.
22 Mr. Goldman. Give us 1 second.
23 Mr. Archer. Uh-huh.
24 [Discussion off the record.]
25 Mr. Goldman. Oh, I do have a question for you.
1 Mr. Archer. Sure.
2 Mr. Goldman. We can go back on the record.
3 Because of your experience at the beginning of your career working in Asia, did
4 you have more -- would you say you had more access than the average private-equity
5 businessman, you know, working in the United States to that part of the world?
6 Mr. Archer. Yes.
7 Mr. Goldman. You have greater familiarity?
8 Mr. Archer. Yes.
9 Mr. Goldman. And this private-equity deal with Bohai was used -- it was using
10 some of Chinese investors' money to source deals outside of China?
11 Mr. Archer. That was the original intent, yes. And then there was a -- the
12 original intent was outbound private equity. And then there was a policy shift, and
13 there was a small window of privatizations, so -- the Sonipak Marketing and some other
14 privatizations. And then --
15 Mr. Goldman. Where were those privatizations?
16 Mr. Archer. Those were, like -- those were, like, privatizations of divisions of
17 Chinese companies.
18 Mr. Goldman. In China?
19 Mr. Archer. In China. So there was -- what happened was, the capital controls
20 tightened, so a shift in strategy based on policy from China. So they had --
21 Mr. Goldman. Chinese policy made it more --
22 Mr. Archer. Yeah. And then CFIUS got a lot tighter with the U.S., so it was
23 harder -- you know, so those assets were not able to be purchased. And it just -- and
24 then, again, like every business dealing that Hunter touched, it just turned into -- all just
25 went by the wayside.
Mr. Goldman. What 1 was his involvement with that venture?
2 Mr. Archer. He was on the board initially.
3 Mr. Goldman. Initially.
4 Mr. Archer. Yes. He was on the board initially, and I think it was the -- I
5 corrected ourselves. It was not the Schweizer book, but it was the -- I believe it was the
6 Navy issue was when he resigned from the board.
7 Mr. Goldman. And was that around the same time that Beau's death --
8 Mr. Archer. Yeah.
9 Mr. Goldman. -- and thereafter?
10 Mr. Archer. Yeah.
11 Mr. Goldman. So he was going through his personal issues as well?
12 Mr. Archer. Correct.
13 Mr. Goldman. Okay.
14 But, originally, it was your entree into China? Is that how --
15 Mr. Archer. It was actually Thorn- -- well, it was -- the direct relationship was
16 like, "Oh, this guy's worked in private equity in Asia." And then some -- you know, a
17 mutual partner of Rose- -- it was called Rosemont Solebury Co-Investment
18 Fund -- introduced us to Thornton and said, "Oh, they're thinking about, you know,
19 setting up these private equity funds in China. You've got experience in Asia" -- even
20 though it wasn't in the same country. "Why don't you go over and meet them?"
21 And I actually went, and I met Jonathan Li on the first trip. And then --
22 Mr. Goldman. That was how --
23 Mr. Archer. That was, like, 2008, though. So it was 6 years later that I think we
24 ended up kicking it off.
25 Mr. Goldman. Got it. Okay.
Mr. Archer. 1 Yeah, it actually predated me meeting Hunter.
2 Mr. Goldman. So the Jonathan Li relationship was your relationship.
3 Mr. Archer. Uh-huh.
5 Q And, just to clarify, there are two entities that were discussed in the
6 Republicans' hours of questioning, Rosemont Capital and Rosemont Realty.
7 A Uh-huh.
8 Q Hunter Biden didn't have an ownership stake in any of those -- in either of
9 those?
10 A He did not. Definitely not in Rosemont Capital. There might have been a
11 small -- I just have to check. There might have been a small dividend when Rosemont
12 Realty was sold, but it was a very low, low percentage. It was probably based on
13 whatever capital he had brought to the table, like, raised -- like, raised capital.
14 Mr. Schwartz. Not based on equity.
15 Mr. Archer. Yeah, not based on equity.
17 Q And that capital he raised didn't involve any of the funds from Ms. Baturina?
18 A No. He had no -- no --
19 Mr. Schwartz. No.
20 Mr. Archer. He had no -- no Baturina.
21 Mr. Goldman. Could I clarify the arrangement you had with Burisma through
22 RSB?
23 Mr. Archer. Uh-huh.
24 Mr. Goldman. So, essentially, both you and Hunter Biden had a board contract
25 that, in return for all of your work for the board, you would get paid a million dollars a
1 year. That went into RSB.
2 Mr. Archer. Uh-huh.
3 Mr. Goldman. And then it was split up in three ways -- you, Hunter, and then the
4 Tri Global?
5 Mr. Archer. Tri Global. Yeah.
6 Mr. Goldman. Why was that, with Tri Global?
7 Mr. Archer. Because they were the -- they, like, were the cap intro and
8 basically initially introduced Zlochevsky and the Burisma team --
9 Mr. Goldman. Uh-huh.
10 Mr. Archer. -- you know, early on, and then followed up in that -- you know,
11 followed up in that 2014.
12 And, you know -- so, during my tenure, that was -- and minus any investments or,
13 like, collective expenses that we incurred.
14 Mr. Goldman. Right. But the idea was --
15 Mr. Archer. So the net wasn't necessarily that every month, but theoretically
16 that was, like, what our share was --
17 Mr. Goldman. Got it.
18 Mr. Archer. -- of that piece.
19 Mr. Goldman. And the reason it went through RSB is because you had this third
20 partner involved in -- you know, related to the Burisma board work you were doing?
21 Mr. Archer. I don't think I could say that. The reason it went through RSB was
22 it just happened to be, like, kind of a catchall. Like, you understand I was
23 running -- Rosemont Realty was a 2-, almost 3-billion-dollar fund. I was a general
24 partner. We had 400 employees. Like -- this, though, has gotten more airtime
25 than -- it really wasn't my -- I wasn't doing this --
1 Mr. Goldman. You weren't focused on it.
2 Mr. Archer. -- on a day-to-day --
3 Mr. Goldman. But I guess I'm just -- you then paid Tri Global out of RSB.
4 Mr. Archer. Yes, we did. Yeah. There -- that's all in there. You can find
5 them all.
6 Mr. Goldman. All right.
7 Mr. Archer. It's probably -- it's the different consulting groups and whatever
8 they were.
10 Q So it's fair to say Burisma paid the money into RSB, and then RSB disbursed
11 the relative shares to you, Hunter Biden, and Tri Global?
12 A Yes.
13 All right. I think we're good. Off the record.
14 [Whereupon, at 3:00 p.m., the interview was concluded.]
Certificate of Deponent/Interviewee

I have read the foregoing ____ pages, which contain the correct transcript of the
answers made by me to the questions therein recorded.

Witness Name

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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Fri Aug 04, 2023 10:59 pm

Trump’s Former Top Lawyer DISMANTLES HIS LEGAL DEFENSES in Live Interview
Aug 4, 2023

MeidasTouch host Ben Meiselas reports on how Donald Trump’s former Attorney General Bill Barr gave a live interview where he explained why Trump’s purported defenses are all invalid, inapplicable, and entirely without merit.


I'm Ben Meiselas from the Meidas Touch Network. You know it's bad when your former top attorney eviscerates the defenses that your current lawyers are floating. That's exactly what is happening. Donald Trump's current lawyers, John Lauro, and Todd Blanche, and others, are floating to this media a defense to special counsel Jack Smith's most recent criminal indictment in Washington DC for Trump's criminal conduct relating to the 2020 election, as well as the January 6th insurrection, and these real frivolous defenses that I hear Lauro and other Trump lawyers talking about is, "Oh, Advice of Counsel. It was Donald Trump's lawyer John Eastman who gave him this advice. So if anything, blame John Eastman." And also the other frivolous defense that Trump's lawyers are floating is that, "Oh, it's just a free speech issue. You are going after Donald Trump for his First Amendment rights." Well, Bill Barr, of all people, who is now considered a RINO by MAGA Republicans -- he's not Trump culty enough. Just think about that: Bill Barr, the attorney general in the Trump administration, who covered up all of these crimes for Donald Trump, he's now viewed as a Republican In Name Only, with MAGA Republicans saying, "Oh, we're gonna go RINO hunting." And they call Bill Barr a "slob," and they call Bill Barr a "crook." MAGA Republicans going after Bill Barr! He's yours, MAGA Republicans! Take him! But for MAGA Republicans, he's not corrupt enough.

Well, Bill Barr went on CNN, and again, he eviscerated both of these purported defenses that Donald Trump's lawyers are floating. The first one, as Bill Barr explains, if Donald Trump were to assert Advice of Counsel, Trump would have to take the stand. If he's blaming his lawyer, Trump's current lawyers -- by the way, you're going to get thrown under the bus soon, because MAGA stands for "Make Attorneys Get Attorneys," -- but his current lawyers couldn't call to the witness stand someone who said, "Yeah, Donald Trump told me that he was relying on the advice of his lawyers." He couldn't do that. That would be hearsay. It would be inadmissible. So the only way you can blame your lawyers in a case like this is Trump would have to take the stand, then he would be open to cross-examination by Special Counsel Jack Smith, which Trump is way too cowardly to ever do, and it wouldn't go well.

So first, let's watch Bill Barr, of all people, eviscerate the Advice of Counsel defense by Donald Trump. Play this clip.

[Kaitlan Collins] He's citing John Eastman as this constitutional scholar. But we know in the Indictment, I mean, it says Trump is ignoring your advice, that of other senior Justice Department officials, Pat Cipolloni, the White House counsel, the Director of National Intelligence. I mean, is it a credible defense to say he was just listening to John Eastman?

[Bill Barr] You know, I don't think that dog is going to hunt. As you say, first as the people who had some knowledge of whether or not there was fraud, everyone was telling him that the election was not stolen by fraud. And then as to the issue of what he could do legally at that point, he went through all the lawyers -- you know, he wouldn't listen to all the lawyers in various departments, or the White House, that had those responsibilities, or his campaign. He would search for a lawyer who would give him the advice he wanted. But I'm not even sure you would characterize what Eastman said as advice. I mean, it'd be interesting to see, but I interpret what he was saying essentially was, Well, you know, it's unclear here, and you can make this argument -- I'm not saying the courts would accept it." And so forth. And you act on that at your own hazard. Also, I don't think this defense of Advice of Counsel is going to go forward, because I think the [former] President would have to get on the stand and subject himself to cross-examination in order to raise that, and he'd also have to waive attorney-client privilege.

[Kaitlan Collins] And what would happen if he got on the stand?

[Bill Barr] I think it would not come out very well for him.

[Kaitlan Collins] Do you think it would hurt him?

[Bill Barr] Oh yes. Yes.

[Kaitlan Collins] Why do you think that?

[Bill Barr] Well, because I think he'd be subject to very skilled cross-examination, and I doubt he remembers all the different versions of events he's given over the last few years.

[Ben Meiselas] Next, Bill Barr eviscerates the claim by Donald Trump's lawyers, "Oh, this is just a free speech issue. Donald Trump -- you're just criminalizing speech here. And First Amendment." No. And as Bill Barr points out in this clip, "No, in Paragraph 3 of the Indictment, Special Counsel Jack Smith addresses the issue, and says, 'Look, yes, Donald Trump had a First Amendment right to even lie, and mislead the American people knowingly, about the election results, but, once it becomes a criminal conspiracy to deprive Americans of their vote, when it becomes a criminal conspiracy to obstruct the counting of electoral votes, when it becomes a criminal conspiracy to have votes changed illegally from President Biden, then candidate Biden to Donald Trump, it's not just a matter of Free Speech. You are now engaged in a criminal conspiracy to overthrow elections. And that is a crime. And that is very simple.'" Watch Bill Barr explain that.

[Kaitlan Collins] But, I mean, when you do look at the Indictment, do you think it's something you would have brought?

[Bill Barr] I think, I don't know if I would have approved the Indictment, but in this sense I may have exercised discretion, and not gone forward with the case. I'm also concerned about having this case going on during the election, and diverting people's attention from the issues in the election. I'm also worried about, you know, what the impact is if there are acquittals during the campaign. But, as a legal matter, I don't see a problem with the Indictment. I think that it's not an abuse. The Department of Justice is not acting to weaponize the Department by proceeding against the President for a conspiracy to subvert the electoral process.

[Kaitlan Collins] Which is what Trump's attorneys are saying. And they're also saying that he was just exercising his First Amendment right here. Do you think that's a valid argument in your view?

[Bill Barr] No! I really don't think that's a valid argument, because, you know, as the Indictment says, they're not not attacking his First Amendment right. He can say whatever he wants. He can even lie. He can even tell people that the election was stolen when he knew better. But that does not protect you from entering into a conspiracy. All conspiracies involve speech. And all fraud involves speech. So you know, Free Speech doesn't give you the right to engage in a fraudulent conspiracy.

[Ben Meiselas] And then Bill Barr just takes appropriate jabs at Donald Trump here. Here Bill Barr says, "Ah, Donald Trump playing the victim, this isn't about victimization. Trump brought it upon himself." I find myself agreeing with Bill Barr here?! Play the clip.

[Kaitlan Collins] Do you think this entire Indictment for January 6 could have been avoided? Is this something of his own making?

[Bill Barr] Yeah. You know, I don't think that this is an issue of his victimization. I think he brought this on himself. This is one of the reasons I oppose him for the Republican nomination. Because he has this penchant for engaging in these reckless acts that create these calamitous situations, and then undercut the cause he is supposed to be leading. And this is a perfect example of it.

[Ben Meiselas] Bill Barr says, "By the way, this is only the Tip of the Iceberg." Play the clip.  

[Bill Barr] So now, what I think is important is, the Government has assumed the burden of proving that. The Government in their Indictment takes the position that he had actual knowledge that he had lost the election and the election wasn't stolen through fraud. And they're gonna have to prove that beyond a reasonable doubt.

[Kaitlan Collins] Which is a high bar, of course.

[Bill Barr] It's a high bar. Now that leads me to believe that we're only seeing the tip of the iceberg on this.

[Kaitlan Collins] You think Jack Smith has more?

[Bill Barr] Oh yes. I believe he has a lot more. And that's one of the things that impressed me about the Indictment. It was very spare. And there were a lot of things he could have said in there. And I think there's a lot more to come. And I think they have a lot more evidence as to [former] President Trump's State of Mind.

[Kaitlan Collins] You said you've come around to the idea that you do think he knew that he lost. Why have you come around to that?

[Bill Barr] Number one, comments from people like [Steve] Bannon and [Roger] Stone before the election saying that he was gonna claim it was stolen if he was falling behind on election night. And that was the plan of action. I find those statements very troubling. And then you see that he does that on election night. And then the evidence that has come out since that, you know, the press reports in the Indictment, and his lack of curiosity as to what the actual facts were, just leave me -- that's my personal opinion. That's my personal opinion. And we'll see if the Government can prove it beyond a reasonable doubt.

[Ben Meiselas] Bill Barr not saying here if he's spoken to Special Counsel Jack Smith. Sure sounds like he did! Play the clip.

[Bill Barr] We'll see if the government can prove it beyond a reasonable doubt.

[Kaitlan Collins] You spoke to the January 6 Congressional committee. Have you talked to Jack Smith's investigators?

[Bill Barr] I'm not going to get into that.

[Ben Meiselas] And here Bill Barr criticizes the entire Republican Party in the House of Representatives, saying how these co-conspirators of Donald Trump in the Superseding Indictment, in the other Indictment, the other case brought in the Southern District of Florida by Special Counsel Jack Smith, for Donald Trump's unlawful, willful retention of National Defense information at Mar-A-Lago, Waltine Nauta, and Carlos De Oliveira, Bill Barr says, the same way these sycophants have now got themselves into criminal trouble, same thing with all the House Republicans. They're just like Waltine Nauta and Carlos De Oliveira. Play this clip.

[Bill Barr] And it's also quite typical in this sense, you know, these two individuals, Nauta and Carlos [De Oliveira], are dragged into this thing, their lives turned upside down by Trump, to pursue this caper of his. And he leaves in his wake ruined lives like this. The people who went up to Capitol Hill -- these individuals, many of the people who served him in Government that got sucked into things. And he just leaves all this carnage in his wake.

[Kaitlan Collins] Do you think he cares about that?

[Bill Barr] No! He doesn't care about that. Loyalty is a one-way street for him. And in many ways, you know, I think these two people down in Mar-A-Lago represent many Republicans who feel that they have to man-the-ramparts, and defend this guy no matter what he does, and go along with him. And I think they have to be careful, or they're going to end up as part of the carnage in his wake.

[Ben Meiselas] And folks, again, when I find myself saying, "Bill Barr's got some good points" -- put it this way: It's never a good sign for Donald Trump.

And this case is before a real Law and Order judge, Judge Tanya Chutkan. She's already set a court date, August 28th, where she wants to set the trial. Trump's lawyers tried to do their delay thing, the Magistrate Judge says, "You got five days to submit your brief. DOJ, you got five days to respond. Be ready for a trial date on August 28th."

I'm Ben Meiselas from the Meidas Touch Network.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Sat Aug 05, 2023 9:22 am

Devon Archer Transcript Released - Says Joe Biden Never Discussed Business with Hunter or His Business Partners
Devon Archer testified that Joe Biden never discussed business with Hunter, or any of his business partners, and never received any money or altered US policy in any way.
by Ron Filipkowski
Aug 3, 2023

The transcript has been released from the closed-door deposition of former Hunter Biden business partner Devon Archer before the House Oversight Committee. Not only did it fail to live up to the hype from Jim Jordan and James Comer, it only served to persuasively exonerate Joe Biden of any connections to his son's business dealings.

A copy of the full transcript of this deposition is posted below. I will include the page numbers to this story if you would like to go to the specific part of the transcript to read the sections yourself.

The deposition began with Archer testifying that he could not authenticate any of the emails or documents purported to be from the hard drive on Hunter's laptop. P.23, 90.

Hunter said he had no control over his father's schedule or what he would say about Ukraine during foreign policy statements as VP, but he falsely claimed credit to his business partners in Ukraine for Biden's trip to the country to impress them. P.25.

Archer was shown a document from the laptop showing that when Burisma was under investigation by Ukrainian authorities, an executive asked them to get "DC help." This was a passage House Republicans claimed referenced Joe. However, Archer said what was meant by that was for him them to retain a lobbying firm in DC, which they later did. P.34-35.

There was a phone call referenced on the laptop allegedly between Hunter and Joe where a Burisma executive was present. When asked about it, Archer said the executive told him that was a call, but he had no first hand knowledge if it actually took place and he was not present. P. 36-37.

Archer testified that in the 10 years he knew Hunter, he would speak to his father "every day." Each would call each other. When asked what the conversations were about, he said the weather, fishing, describing the city they were in, the places they went to, etc. He said business was never discussed. P. 39, 52.

He said Hunter put his father on speaker phone during dinners they were having with clients. He said this happened on about 20 occasions over 10 years and business was never discussed, only pleasantries. P. 41.

Archer said once when they were in China meeting with a client Hunter put Joe on speaker phone. Again, no business was discussed. P. 69.

When asked if he ever met Joe Biden, he said he once got a White House tour with his son where he spoke to the VP about his second-grade paper mache project. P. 77.

Archer said at no time did Joe Biden communicate in any way with Burisma board members during their meetings. He said Joe Biden never had any involvement with Burisma in any way. P. 87, 104.

Archer said Burisma executives were constantly pushing Hunter to use his connections in DC to help them out. Hunter told Archer that there really was nothing that he could do, but he wanted to bluff the Burisma executives into thinking he could help them. P. 98-99.

When asked what they did to help Burisma in DC, Hunter said they hired a group of government affairs and lobbying experts in DC. P. 100.

Archer testified that he had no basis to believe that Joe Biden ever altered any US foreign policy to benefit his son or his business partners, and as far as he knows no policy was ever actually changed to their benefit. P. 102-103.

Archer testified that he was not aware of any money that was ever paid to Joe Biden. He said Burisma executives liked to brag and make wild claims that they had access when they didn't and it was just them bluffing to their associates. P. 111-112.

Archer said that Hunter falsely created the impression to Burisma executives that he had influence over this father, which they both knew was a lie. He said that when Joe Biden would make policy statements about the need for Ukraine to achieve energy independence, Hunter would falsely claim credit for it to Burisma executives when in fact he had nothing to do with it. P. 114-115.

Archer summarized this by saying that Hunter was "selling the illusion of access" when in fact he had none except for a father-son relationship. P. 116.

Read the full transcript here:
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Thu Aug 10, 2023 3:08 am

Defendant Trump’s Sweetheart Deal: Former New York prosecutor Karen Friedman Agnifilo urges prosecutors to treat Trump like any other criminal defendant
by Karen Friedman Agnifilo
Aug 6, 2023 ... heart-deal


In the bizarro upside down world that has currently infected the right wing, there is a drumbeat narrative alleging that Hunter Biden has received a sweetheart deal from the Department of Justice, while Donald Trump is being 'persecuted.' However, it is the exact opposite and here is why: defendant Trump is treated differently than other similarly situated defendants and continues to be given pass after pass after pass by prosecutors and judges alike.

As a three-decade former state prosecutor in New York, I have never seen a defendant treated as leniently as defendant Trump. He has a rap sheet with 3 open felony indictments, 78-charges, in 3 separate jurisdictions. He has repeatedly threatened prosecutors, judges, and potential witnesses and has his own 757 jumbo jet at the ready to fly anywhere in the world and can abscond at any time. And the nature of his charges are among the most serious there are — he is accused of stealing our nation’s most sensitive secrets, trying to destroy evidence of his crimes, committing fraud in the oval office, and causing a violent insurrection in order to attempt to steal an election he lost, and our democracy. Imagine if he were Black or Muslim. There is no doubt he would be incarcerated pending trial.

Let’s unpack this together. The most recent example of Trump’s flagrant proverbial middle finger in the face of justice is when, the day after he was arraigned in the blockbuster Democracy stealing indictment, he crossed a bright red line and fake tweeted:



This post on his personal social media platform Truth Social was a clear threat to the prosecutors when it was viewed in context with a photo of Biden, Willis, Bragg, James and Smith – where he labeled them all “the fraud squad.”1 And let’s not forget the post from several months ago where he posted two photos next to one another where he held a baseball bat next to a photo of Bragg’s head and when called on it gave an excuse that not even a toddler would find credible.


Just 10% of Manhattan Residents Voted for Anti-Trump DA in 2021 Election
Anti-Trump Manhattan DA Alvin Bragg won the votes of only 10% of Manhattan residents in New York City's 2021 election cycle.

In both of these instances, he has not only (allegedly)2 committed a crime, but he has also violated his terms of release from custody.3 Defendant Trump’s release conditions are contextually quite lenient in all three of his open cases. I dare anyone to find any other defendant with a rap sheet like his with only these conditions. Trump’s release conditions in the most recent Federal indictment are:

** Trump must not violate federal or state law. (The Magistrate Judge who arraigned Trump even warned him that this is the most important condition.)

** Trump must appear in court as directed and must sign an appearance bond (which essentially means he must sign something that says he promises to appear in court).

** Trump must not communicate with anyone he knows to be a witness except through his lawyers and in the presence of his lawyers.

The Magistrate Judge then spoke directly to defendant Trump at 4:26pm: “You have heard your conditions of release. It is important you comply. You may be held pending trial in this case if you violate conditions of release.” Do you understand? Are you prepared to comply?

The defendant replied, “Yes”

Equally, in the New York State case, Judge Juan Merchan also required that Trump not commit any new crimes and stated that he is to “refrain making comments or engaging in conduct that has the potential to incite violence, create civil unrest, or jeopardize the safety or well-being of any individuals and “do not engage in words or conduct which jeopardizes the rule of law, particularly as it applies to these proceedings in this courtroom.”

Defendant Trump has plainly violated his release conditions.

He has (allegedly) committed several crimes with his thinly veiled threats, and by (allegedly) committing these crimes, he has violated the most important condition of his release - namely that he must not commit any crimes. He has (allegedly) at least committed the crime of Aggravated Harassment in the Second Degree in violation of which reads in pertinent part:

A person is guilty of aggravated harassment in the second degree when:

With intent to harass another person, the actor communicates, by computer or any other electronic means, a threat to cause physical harm to such person, and the actor knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person's physical safety.4

In any other situation, with any other defendant who threatened his prosecutor the day after being arraigned in federal court for inciting a riot and attempting to overthrow our democracy, the prosecutor would march into court, bring the threats to the attention of the judge, and the judge would likely find the defendant in violation of his release conditions and incarcerate him.

But what happened here? Instead, Jack Smith immediately requested a protective order for the discovery in the case, stating that the defendant’s threats, if they contained grand jury transcripts or other discovery, could have a harmful chilling effect on witnesses. The next morning, a Saturday, Judge Chutkan ordered Trump to respond to the proposed protective order in 2 days. Instead of complying with the court’s order, Trump’s legal team filed a motion requesting more time (delay tactic - sound familiar?) and Jack Smith immediately filed an opposition and called out Trump’s attempt to delay saying, “Rather than spend time complying with the Court’s order, the defendant drafted a filing as to why he did not have time to review the 5-page protective order.” Smith also pointed out that this proposed protective order is nearly identical to the one filed in Florida in his Mar a Lago document’s case.5 Judge Chutkan, (all still happening on Saturday) without wasting any time, swiftly and summarily denied defendant’s request for more time.

The special prosecutor and the court are all reacting swiftly and strongly to Trump’s shenanigans; however, one cannot ignore the disparately lenient treatment he is receiving. Even his lowly co-defendant property manager had to post $100,000.00 bond and cannot leave the confines of the Southern District of Florida. Trump can fly anywhere he wants in his plane, has not had to post any bond, and has had no mug shot taken. His threats and taunts are not only crimes, they make a mockery out of our justice system as he openly flouts the rules with almost no consequence. While split screen simultaneously, a Black man in New York City who incited a riot when he tried to give away video games was swiftly arrested, while an orangish-white man who incited a riot while trying to steal our democracy walks free with almost no consequence.

Karen Friedman Agnifilo served as Chief Assistant District Attorney of the Manhattan District Attorney’s Office. She is the co-host of Legal AF podcast on the MeidasTouch Network and a CNN Contributor.



1. His spokespeople have desperately tried to walk this back saying he wasn’t referring to the prosecutors.

2. I say “allegedly” lest risk the wrath of a defamation lawsuit from the Orange Bully in Chief.

3. When any person is arrested they are in custody until a judge releases them from custody. Almost all judges impose “release conditions” on every defendant.

4. This is an abbreviated version of the statute

5. There is also a protective order for the discovery in the New York State indictment.

Karen Friedman Agnifilo
By Karen Friedman Agnifilo
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Sat Aug 12, 2023 8:45 pm

Right Wing Lawyers TURN AGAINST Trump and Make SHOCKING Request
by Michael Popok
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.


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 baud Professor William baud
and Professor Michael Stokes Paulson 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
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
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
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
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
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
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
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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



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
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Part 1 of 8

The Sweep and Force of Section Three
172 U. PA. L. REV. (forthcoming 2024)
by William Baude* & Michael Stokes Paulsen**

* Harry Kalven, Jr. Professor of Law, University of Chicago Law School.
** Distinguished University Chair and Professor of Law, University of St. Thomas Law School. We thank Frank Bowman, Steve Calabresi, Josh Chafetz, John Harrison, Ed Hartnett, Daniel Hemel, Myles Lynch, Gerard Magliocca, Michael McConnell, Derek Muller, Eric Posner, Micah Quigley, Richard Re, Michael Rosin, Stephen Sachs, Greg Sisk, Seth Barrett Tillman, and workshop participants at the University of Chicago Law School and University of St. Thomas Law School for helpful comments on this draft, T.J. Bowman, Nicole Catlin, Connie Gong, Sarah Leitner, James Marmaduke, and Matt Phillips for valuable research assistance, and countless others for background discussions about these issues—though not all of them gave aid or comfort to our conclusions.

Abstract: Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.

First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted over-throw of the 2020 presidential election.


I. Section Three is Legally Operative Today
A. The Generality and Presumptive Perpetuity of Constitutional Language
B. Has Congress Removed the Disability for Everyone for All Time? (And Could It Do So If It Wanted To?)
II. Section Three is Legally Self-Executing
A. Section Three as Automatic Legal Disqualification
B. Who (All) Can (Must) Faithfully Apply and Enforce Section Three?
1. Seeking Office
a. by election
b. by appointment
2. Holding Office
3. Special Situations
C. The Problem of Griffin’s Case
1. Background
2. Chase on Section Three
a. “The argument from inconveniences, great as these”
b. The argument from “the intention of the people”
c. The argument that Section Three should not be read to depart from the “spirit” of prior constitutional law
d. The argument from the Section Five enforcement power
3. Griffin’s Self-Defeating and Highly Irregular Dictum
III. Section Three Supersedes, Qualifies, or Satisfies Prior Constitutional Provisions
A. Bills of Attainder
B. Ex Post Facto Laws
C. Due Process of Law
D. The Ominous Question: Section Three and the First Amendment
IV. Section Three’s Substantive Disqualification is Sweeping
A. Section Three’s Disqualifying Conduct: “Insurrection or Rebellion”; “Engaged In”; “Aid or Comfort” to “Enemies”
1. Working definitions
2. Contemporaneous Dictionary Definitions
3. Intratextualism
4. Contemporaneous Public, Political, Legal Usage
a. President Lincoln
b. Congress
i. The Ironclad Oath
ii. The Second Confiscation Act
c. The Supreme Court’s decision in The Prize Cases
5. Other Extant Statutory Sources and Notorious Examples
a. The Insurrection Acts (and Insurrections Generally)
b. The Congressional Exclusion Debates
6. Legislative History
7. Early Applications of Section Three
B. What Prior Officeholders are Covered? What Future Offices are Barred?
C. The Attempted Overthrow of the 2020 Presidential Election
1. The Question of Coverage: Insurrection and Rebellion
2. The Question of Participation: “Engaged in” and “Aid or Comfort”
a. General Principles Concerning Culpable Participation
b. Section Three Disqualifies Donald Trump from Future Office
c. Beyond Trump


“Section 3 has long since faded into history.”
Eric Foner1

Reports of Section Three’s demise are greatly exaggerated. It turns out that Section Three of the Fourteenth Amendment remains of direct and dramatic relevance today—a vital, fully operative rule of constitutional law with potentially far-reaching contemporary real-world consequences. Section Three remains in legal force, and has a broad substantive sweep.

Here is what it says:

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.2

This section of the Fourteenth Amendment was designed to address a particular historical situation and acute problem arising in the aftermath of the Civil War. States in the South had purported (unconstitutionally)3 to secede from the Union; they had purported to form the (so-called) “Confederate States of America” in rebellion against the authority of the U.S. Constitution; and they had waged a bloody four-year war of rebellion against the United States. Yet even after the rebellion had been defeated, Southern States had audaciously sent to Congress, to serve as U.S. Senators and Representatives, men who had notoriously violated previously sworn oaths to support the U.S. Constitution by subsequently engaging in or supporting secession, rebellion, and civil war against the authority of the United States (to say nothing of those now serving again in their state governments). These men who arrived in Washington included several who had held prominent positions in the rebel Confederacy: “four Confederate generals, four colonels, several Confederate congressmen and members of Confederate state legislatures, and even the vice president of the Confederacy, Alexander Stephens.”4

The Congress that proposed the Fourteenth Amendment rightly regarded the situation as outrageous—not only morally, but practically. If former Confederates held the levers of federal and state government power, effective “reconstruction” of the political order and any hope of extending the full and equal protection of the laws to the newly freed former slaves would be at an end. Section Three of the Fourteenth Amendment responded to that outrage, enacting a sweeping disqualification from state and federal office of those who had, as legislators or officers in the federal or state government prior to the War, sworn required oaths of loyalty to the United States Constitution and subsequently engaged in “insurrection or rebellion” against the U.S. constitutional authority or given “aid or comfort” to persons engaged in such acts of insurrection or rebellion. Only a two-thirds majority vote of both houses of Congress could remove that sweeping disqualification.

Fast-forward a century and a half. The events surrounding efforts to overturn the result of the presidential election of 2020 have sparked renewed scholarly, judicial, and political interest in Section Three of the Fourteenth Amendment.5 The core events are familiar to all—the dishonest attempts to set aside valid state election results with false claims of voter fraud; the attempted subversion of the constitutional processes for States’ selection of electors for President and Vice President; the efforts to have the Vice President unconstitutionally claim a power to refuse to count electoral votes certified and submitted by several States; the efforts of Members of Congress to assert a similar power to reject votes lawfully cast votes by electors; the fomenting and immediate incitement of a mob to attempt to forcibly prevent Congress’s and the Vice President’s counting of such lawfully cast votes—all in an attempt to prevent the defeated incumbent President, Donald Trump, from losing power in accordance with the Constitution.

This was undoubtedly a serious assault on the American constitutional order. Not since the Civil War has there been so serious a threat to the foundations of the American constitutional republic. It takes little imagination to describe the efforts to maintain Trump in office, notwithstanding his defeat, as an attempted political coup d’etat. These actions culminated in the incitement and execution of a violent uprising at the Capitol on January 6, 2021—an “insurrection” aimed at preventing Congress and the incumbent Vice President from performing their constitutional responsibilities to count the votes for President and Vice President in the 2020 election. Several of the people involved in these events—most notably the defeated President, Donald Trump—had previously taken oaths to support the Constitution. If they engaged in or gave aid and comfort to an insurrection against the constitutional government, Section Three would appear to bar them from holding office again.

As legal officials and citizens generally have begun to confront the application of Section Three, they have foundered on the most fundamental questions. How does Section Three’s disqualification apply—does it apply—to those who planned, supported, encouraged, assisted, incited, or otherwise participated in the events surrounding the attempted overturning of the presidential election of 2020? Does Section Three’s century-and-a-half old disqualification, designed for the aftermath of the Civil War, even remain legally operative in the first place? If so, what must be done to enforce Section Three? Does it require implementing legislation or criminal trials (or impeachments) before its disqualification kicks in? How does Section Three interact with the rest of the constitutional order—are its subjects protected by constitutional principles of attainder, anti-retroactivity, due process and free speech? And if Section Three does apply—to what and to whom? What actions count as having “engaged in insurrection or rebellion” against the Constitution of the United States or having “given aid or comfort to the enemies thereof”? Which officials are covered by Section Three’s exclusions?

This article attempts to answer these questions. It makes four key points (or clusters of points):

First. Section Three remains legally operative. It is no less part of the Constitution than the other provisions of the Fourteenth Amendment. It is not a dead letter. The Constitution is a binding, authoritative written text, not a collection of specific historical purposes and intentions. Where the text applies, it applies. Its legal force is not limited to the immediate problem or purpose that prompted its enactment. Section Three is not limited to the circumstances of the Civil War and Reconstruction, even if the meaning of its terms may be illuminated by that experience and history.

Nor has Section Three somehow been “repealed” by Congress’s two major nineteenth-century statutes granting amnesty to those covered by Section Three. This is not because it would be impossible for a constitutional provision to expire by its terms after a period of time, or upon the occurrence of a particular event, or upon action taken by future actors. Article I, Section 9, for example, created a constitutional prohibition of most congressional regulation of the international slave trade for a period of twenty years—but its prohibition then vanished in 1808. Section Three, however, does not work that way. It imposes a general, prospective, rule of disqualification, which Congress may remove by two-thirds vote of both houses only once it has occurred. Section Three is prospective; Congressional amnesty is retrospective.

Second. Section Three is legally self-executing. That is, Section Three’s disqualification is constitutionally automatic whenever its terms are satisfied. Section Three requires no legislation or adjudication to be legally effective. It is enacted by the enactment of the Fourteenth Amendment. Its disqualification, where triggered, just is. It follows that Section Three’s disqualification may and should be followed and carried out by all whose duties are affected by it. In many cases, Section Three will give rise to judiciable controversies in the courts. In others it will be enforceable by state and federal officials. But no prior judicial decision, and no implementing legislation, is required for Section Three to be carried out by officials sworn to uphold the Constitution whose duties present the occasion for applying Section Three’s commands. Section Three is ready for use.

While Section Three’s requirements could be made the subject of enforcement legislation by Congress, under its general power under Section Five of the Fourteenth Amendment “to enforce” the provisions of the amendment, no such legislation is constitutionally required as a prerequisite to Section Three doing what Section Three itself does. Chief Justice Salmon P. Chase’s circuit court opinion to the contrary, In re Griffin,6 is simply wrong on this point—full of sleight of hand, motivated reasoning, and self-defeating maneuvers—as we will explain at length. In re Griffin should be hooted down the pages of history, purged from our constitutional understanding of Section Three.

Third. Section Three supersedes (or satisfies) earlier-enacted constitutional provisions to the extent of any supposed conflict between them. Section Three, at the time it was adopted as part of the Constitution, imposed a disqualification from office based on an individual’s past conduct. Even if imposition of such a disability might otherwise, if done by statute, have been a forbidden Ex Post Facto law or Bill of Attainder, Section Three of the Fourteenth Amendment constitutionally supersedes any prior provision conflicting with its terms.

This principle extends to a more unsettling point. To the extent Section Three’s disqualification for having “engaged in insurrection or rebellion” or giving “aid or comfort” to “the enemies” might turn out to be in tension with the First Amendment’s protection of freedom of speech, Section Three supersedes the First Amendment to the extent of any true conflict. To be sure, the proper construction of Section Three’s terms (“insurrection,” “rebellion,” “aid and comfort,” “enemies”) will leave much speech and advocacy completely free. But in the cases where it does not, the terms of Section Three, not the constructions of the First Amendment, decide where the line is.

This leads to the article’s fourth and final group of points:

Fourth. Section Three’s disqualification is sweeping in its terms. It disqualifies from future officeholding persons who “engaged in”—an expansive and encompassing term connoting many forms of participation in or active support of—a broad swath of activity covered by the terms “insurrection or rebellion” or the giving of “aid or comfort” to “enemies” of the nation or its constitutional order. It applies to a broad swath of civilian, military, and legislative office holders who swore oaths of fidelity to the Constitution, and it disqualifies such persons from holding in the future any of an extraordinarily broad swath of public offices. Taking Section Three seriously, on its own terms, means taking seriously the enormous sweep of the disqualification it creates. And, we will argue, taking Section Three seriously means that its constitutional disqualifications from future state and federal officeholding extend to participants in the attempted overturning of the presidential election of 2020, including former President Donald Trump and others. The substantive terms of Section Three’s prohibition are not themselves difficult or inscrutable (even if there might be questions of application at the outer edges of the text’s meaning). But they are potentially breathtaking in their straightforward consequences.

In what follows, we develop each of these four core points at length.

Section Three remains a valid, prospective, enforceable, self-executing, broad, and relevant part of our Constitution. It falls to us to fulfill our duties to it. These include the duties of legislative bodies, state and federal election officials, executive officers, and perhaps others to take up the Constitution, including Section Three of the Fourteenth Amendment, and wield it faithfully and forcefully against its enemies. Taking Section Three seriously means excluding from present or future office those who sought to subvert lawful government authority under the Constitution in the aftermath of the 2020 election by engaging in or giving aid or comfort to acts of “insurrection or rebellion” against the lawful constitutional order.

I. Section Three is Legally Operative Today

A. The Generality and Presumptive Perpetuity of Constitutional Language

The first step in our argument is an easy one, but perhaps not immediately obvious to everyone: Section Three’s disqualification remains an operative rule of the Constitution. The reason this might not be obvious, at least to the uninitiated, is that Section Three plainly was designed for a specific historical situation—the circumstances of Reconstruction following the end of the Civil War. The implication, in the eyes of some, might be that that historical situation limits the scope of the provision’s operation. We think any such inference badly mistaken. Section Three was prompted by historical circumstances, but that does not in any way detract from its enduring force.

To be sure, Section Three clearly bears the hallmarks of its historical context. It is, for one thing, a radical rule. The sheer sweep of the disqualification from offices that it imposed on former Southern office-holders-turned-rebels was dramatic. Its operation was hugely disruptive of antebellum patterns of elite political leadership, apparently indifferent to inconvenience, and seemingly rather punitive in its consequences. Section Three is harsh. It is categorical. It is insistent. It seems to have been deliberately designed to turn the prior Southern political order upside down. As Eric Foner puts it, “Section 3 aimed to promote a sweeping transformation of Southern public life.”7

In these respects, the disqualification reflects and embodies the distinctive political impulses of the so-called Radical Republican Congress that proposed the Fourteenth Amendment in 1866. If its disqualification had radical policy consequences for the South, so be it.8 It was more important to strip insurrectionists and rebels of governing power completely, to remake Southern political society thoroughly, and to prevent Southern backsliding from the full consequences of Union victory entirely, than to be concerned about such things as seeming harshness, impracticality, or disruptiveness. Section Three is very much a creation and creature of its day.

Yet it is (or should be) basic constitutional law that it is the enduring text of the Constitution that supplies the governing rule, not the ostensible “purpose” or specific historical situation for which the text was written. Constitutional provisions, written into our fundamental law, live beyond the circumstances that prompted their adoption. And many such constitutional provisions are written in broad, or general, terms that obviously extend beyond the specific situation or situations that led to their enactment. Sometimes this is by design: the text’s drafters wrote a general rule, applicable to a broad class of circumstances, as a more general, “neutral,” way of addressing a class of situations of which the specific problem motivating the writing of the text might be just one instance. The thinking might be that if the principle giving rise to the text is a correct one, it should be correct in like circumstances, not just the one situation that provoked the rule’s adoption. And sometimes a text’s breadth and generality might not reflect conscious design: the text’s drafters wrote a general rule that unintentionally went further than the problem they had in mind. Put colloquially, the text sometimes “overshoots” its drafters’ intended purposes. (A text might undershoot the problem its framers had in mind to address, too—or achieve only part of its intended purpose, perhaps because of political compromise.)

The reason does not really matter. It is the rule as drafted and enacted in the written text that counts, whether it goes further than the purposes supposed to have inspired its adoption, or even whether it falls short of fully achieving those purposes. While evidence of intention, usage, purpose, and political context can assist in ascertaining the meaning of the enactment, it is that objective meaning that constitutes the law, not the ostensible purposes or motivations that supposedly lay behind it. This is “originalism,” our system’s basic method for interpreting the Constitution and its amendments.9

Consider, for example, Section One of the same Fourteenth Amendment. As a matter of historical purpose, the specific mischief the framers of Section One had in mind was the enactment of “Black Codes” in Southern States that discriminated against the newly freed former slaves. But the words chosen by the drafters to enact the rule embodied in the text command, in general terms, that no state shall abridge the “privileges or immunities of citizens of the United States” nor deny to any “person” within its jurisdiction the “equal protection of the laws”—rules not cast in racial terms at all, let alone limited to the immediate situation of former enslaved persons. The rules enacted apply to all persons irrespective of race. So it was entirely plausible for lawyers to argue that Section One also barred the same kind of discrimination against women citizens that it barred against black citizens. It doesn’t matter that the draftsmen of the amendment might not have had women “in mind” if women are covered by the meaning of the words they actually wrote and ratified.10 Similarly, it was entirely plausible to argue that Section One went so far as to ban racially segregated schools.11 The answers to each of these questions turn on the objective, original meaning of “privileges or immunities of citizens of the United States” and “equal protection of the laws,” not whether the 1866 Congress and subsequent ratifiers had thought through the possible radical implications of their own work. If the meaning of the Fourteenth Amendment’s terms forbade racially discriminatory classifications of any and all kinds, as a matter of the rules of late1860s language and usage, it doesn’t matter one way or the other whether it was intended or expected that governments could enforce certain types of racial discrimination, like enforced racial segregation. The rule as adopted might overshoot the purposes, expectations, or desires of those who voted for it. But the rule is the rule; the text’s meaning is the text’s meaning.

Thus, if the framers and ratifiers of the Fourteenth Amendment enacted a general rule in Section Three—a disqualification from future officeholding keyed to having taken an oath to the Constitution and subsequently engaging in insurrection or rebellion against the United States—rather than a provision that by its terms applied only to the case of former Civil War secessionists and Confederate officials and officers,12 it is the general rule that matters. That the rule had a particular political purpose behind it as a matter of history might be an aid to correct interpretation of the language supplying that rule. (We will make such an argument below, concerning the meaning, in context, of the phrase “insurrection or rebellion.”)13 But in the end the question is what rule was enacted. If Section Three’s rule fell short somehow, missing some folks its drafters might have meant to ensnare, those persons are not ensnared. The text might (or might not) be thought deficient in this regard—as having failed to fulfill its full purpose. But the text means what it says. Similarly, if the rule supplied by the objective meaning of the text runs right on past the specific historical purpose for which it was enacted and embraces as well other insurrectionists, rebels, and aiders and comforters of enemies, that rule must be given full legal effect as part of the Constitution. The rule’s overbreadth in terms of its perceived purpose, and even its inconvenience as a consequence of such overbreadth, are beside the point.14

Finally, we take it as almost too obvious to require stating that constitutional provisions have indefinite life unless and until repealed or amended by subsequent constitutional enactments. The fact that an unrepealed, unamended provision of law is “old” does not in any way weaken its legal force. The First Amendment is old too, as is the entire original Constitution. But both remain in force. This is true even if the purpose for which a constitutional provision was originally written has ceased to be relevant, or even if the constitutional provision at issue might be thought in today’s society to be something of an anachronism.15 There are, of course, some self-identified living constitutionalists who deny this point—who think that old texts have a legal shelf life and lose their potency over time, as “the interest in sovereignty fades.”16 But in our view, this just shows what is wrong with such living constitutionalism.17 The Constitution is not a spice cabinet.

All of this might seem to belabor the obvious. Few interpreters of Section Three explicitly deny that it continues to govern new insurrections and rebellions.18 But sometimes we wonder if this kind of denial is sneaking in to people’s intuitions—subtly infecting and distorting the actual interpretation of Section Three. So let us start from the right first principles: Section Three remains constitutionally fully in force, as alive as the day it was enacted.

B. Has Congress Removed the Disability for Everyone for All Time? (And Could It Do So If It Wanted To?)

But what about this? The second sentence of Section Three provides that Congress “may by vote of two-thirds of each House, remove such disability.”19 Just as the first sentence’s disqualification is not limited specifically to the Civil War, neither is Congress’s power to grant amnesty. Thus, Congress can, by the requisite vote, remove any disqualification that exists by virtue of the operation of Section Three. But just exactly how far does that power reach? Could Congress, by two-thirds majorities, essentially extinguish the legally operative effect of Section Three entirely, by removing the disability imposed by Section Three generally, prospectively, and universally? Put more vividly: Can Congress, by two-thirds vote of each house, essentially “explode” Section Three—render it inoperative in the future, for all time?

These questions turn out not to be completely hypothetical. In two statutes enacted in the late nineteenth century, Congress might arguably have done this. One statute (from 1872) removed “from all persons whomsoever”—except designated categories of individuals—all “political disabilities imposed” by Section Three.20 Another (from 1898) further removed “the disability imposed by section three of the Fourteenth Amendment to the Constitution of the United States heretofore incurred.”21 And indeed, in a recent case (brought by then-Representative Madison Cawthorn) a federal judge relied on these statutes to conclude that Section Three was now legally dead.22 Is that right? Do these statutes—can these statutes—grant amnesty to all insurrectionists, past, present and future?23

No. While the argument is not entirely bonkers, it does not withstand more serious scrutiny. It is wrong on both statutory and constitutional grounds. Consider the statutes first. Neither one purports to rescind Section Three’s operative rule for all time. They do not pretend to explode the first sentence of the constitutional provision.

Begin with the 1872 act. In 1872, after a period of case-by-case consideration of amnesty requests, Congress, as mentioned above, enacted a general statute removing disqualification from a broad description of persons embraced by Section Three’s prohibition. As Professor Magliocca recounts, the statute reflected a mixture of motives: genuine mercy and magnanimity; the practical consequences of Section Three in the South; the burdens and biases of case-by-case consideration of private bills; the politics of a presidential election year; and the general but regrettable retreat from aggressive Congressional Reconstruction.24 But what is most important is what it says. The statute reads, in full:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each house concurring therein), That all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States.25

The key words are “imposed” and “[hereby] removed.” The words of the 1872 statute are used in the past tense: the statute removed disqualifications imposed by the Fourteenth Amendment—that is, disabilities that had already become legally effective. That is simply the natural reading, and the natural implication, of the language employed.

Indeed, this is almost exactly what the Fourth Circuit recently said in reversing the district court’s decision in the Cawthorn case: Congress in 1872 employed “the past-tense version” of the verb “impose,” thus “indicating its intent to lift only those disabilities that had by then been ‘imposed.’”26 Moreover, the Fourth Circuit continued: “[t]he operative clause’s principal verb—‘removed’—reinforces this conclusion. In the mid-nineteenth century, as today, that word generally connoted taking away something that already exists rather than forestalling something yet to come.”27

By contrast, the district court had faulted Congress for not being more explicit: Congress “could have limited the Act to remove Section 3’s disabilities from ‘persons currently subject to the disabilities’ or ‘persons against whom the disabilities were lodged’ at the time (i.e., the ‘Confederates’) but did not do so.”28 Therefore, the district court concluded, by the “plain language of Section 3 and the 1872 Act, Congress removed all of Section 3’s disabilities from all persons whomsoever who were not explicitly excepted.”29 With all due respect, the district court appears to have been simply hoodwinked by the (for lack of a better word) feel of the “all persons whomsoever” language and completely missed the other language that made clear the statute’s past tense.

What about the 1898 statute? Does it yield a different result? On the cusp of the Spanish-American War, at a moment of seeming national unity and perhaps a desire to put aside old sectional grievances (and, one might add more cynically, at a time of rising Jim Crow sentiment)30—Congress enacted another general disqualification-removal statute. This one removed the disqualification for everybody, without exception. Its language is even more laconic:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the disability imposed by section three of the Fourteenth Amendment to the Constitution of the United States heretofore incurred is hereby removed.31

In one sense, that’s about as categorical, across-the-board a disqualification-removal as one can imagine: the disability imposed by section three is hereby removed. Period. No exceptions. But here it is also even clearer that the 1898 act is backward-looking. Like the 1872 act, the 1898 act uses past-tense language: a disability (already) “imposed” is now being “removed” from its prior legal existence. What’s more, the 1898 says that the Section Three disqualification being removed was one “heretofore incurred.” That is unmistakably backward-looking, past-occurrence language.

What might otherwise—that is, but for the clarity of the “heretofore incurred” language—give the 1898 act the feel of a now-and-ever-shal--t-be removal, eliminating all future Section Three disqualification as well as any and all extant ones, is the Act’s reference to “the disability” imposed by Section Three. This singular reference might be taken to suggest that Section Three’s disqualification was thought a one-time-only, single-shot, Civil War era occurrence.32 If Section Three was good for one rebellion only, then repealing it in the past tense repeals all that there is. But of course, as we have argued, Section Three is not limited to one rebellion only, and so far as we can tell even the Fifty-fifth Congress did not think that it was33 (nor would it matter if they did).

In any event, though these statutes do not even purport to sunset Section Three for the future, they do prompt us to consider the interesting question of Congress’s constitutional power: What if they did purport to sunset Section Three for the future? Is Congress’s constitutional power to remove Section Three’s disqualification general and prospective, letting it remove Section Three’s disqualification once and for all, including for future situations? We think not.

To be clear, we don’t think there’s anything inherently unthinkable or absurd about the idea of an “exploding” or otherwise defeasible constitutional provision. Legal drafters might sometimes want to provide for an expiration event or expiration date, even in an enduring Constitution. Article I’s Slave Importation Clause, protecting the international slave trade, exploded after twenty years.34 So too the initial allocation of representatives to states is written in to the text of the Constitution, even though it was then exploded by the subsequent census.35 Other provisions of the Constitution set baseline rules that Congress has power to modify. Article I, section 4 does that with respect to state legislative power over congressional elections: “Congress may at any time by Law make or alter such Regulations.”36 Article III, section 2 does that with respect to the Supreme Court’s appellate jurisdiction, setting a default rule subject to “such Exceptions, and under such Regulations as the Congress shall make.”37 The Twentieth Amendment, in Section 2, sets a default date of Congress’s annual meeting.38

There’s no reason why the framers of the Fourteenth Amendment could not have similarly drafted Section Three to provide for the provision’s own extinction after a supermajority vote of Congress.39 But that is simply not what Section Three says. The second sentence of Section Three is not a grant of power to explode, or amend, the content of the rule stated in the first sentence. It is a grant of power to remove the consequences of the rule’s operation.

To see this, break down Section Three into its component parts: Section Three has two sentences. The first one describes at length the disqualification for those who have taken a covered oath and engaged in insurrection or related conduct. Of course, those two things must actually have happened for the rule of Section Three’s first sentence to be triggered—for a disqualification to have come into legal effect.

The second sentence (the “But” sentence) then gives Congress the power to “remove such disability.” (“But Congress may by a vote of two-thirds of each House, remove such disability.”) The “But” sentence explicitly cross-references the first. Thus, the most natural reading of the two sentences in relation to each other is that the second sentence confers an exceptions power that only comes into existence when the conditions specified in the first sentence have occurred. And to belabor the point a moment further, the word “Remove” means (and meant at the time, according to 1864 dictionaries) to displace or take away something that already exists.40 This confirms that Congress’s removal power therefore only comes into being when a legal disqualification has vested by virtue of the operation of Section Three’s first sentence.

Section Three’s first sentence is written as a general and prospective rule, not limited to the specific instance of the Civil War. Section Three’s second sentence is written as a continuing power to grant relief from disabilities already imposed by the operation of the first sentence. The power to remove an extant legal disability is not a power to rescind the legal rule that creates that disability. Thus, not only has Congress never purported to sunset Section Three, it lacks the power to do so by Section Three’s own terms.

* * *

All of this is, we submit, basic. But it is also foundational. Section Three remains legally operative as part of the U.S. Constitution. Its rule of disqualification is general, not limited to the Civil War era. It states a rule of law embodied in the written constitutional text as permanent fundamental law. It possesses prospective force and applies to new situations: wherever the rule applies, the rule applies. And while Congress comprehensively relieved insurrectionists of the disability of disqualifications incurred prior to 1898, it did not (and could not) erase Section Three from the Constitution. Section Three remains in force.

Is anything more required, then, before this provision of the Constitution can (and must) be given effect by U.S. political actors whose powers and duties are such as to call for application of Section Three as a rule of law? Put somewhat differently: Is Section Three a self-executing rule of constitutional law, complete in itself? Or does Section Three require implementing legislation by Congress or some other further legal or administrative action before it has legal force? We take up that question next.

II. Section Three is Legally Self-Executing

Our second point is colossally important—a major sticking point for some. But it is a point we think should be obvious: Section Three is self-executing. That is, its disqualifications from office are constitutionally automatic whenever its conditions for disqualification are met. Nothing more needs to be done in order for Section Three’s prohibitions to be legally effective. Section Three requires no implementing legislation by Congress. Its commands are enacted into law by the enactment of the Fourteenth Amendment. Where Section Three’s legal rule of constitutional disqualification is satisfied, an affected prospective officeholder is disqualified. Automatically. Legally.

In the years immediately after the Fourteenth Amendment was adopted this seemingly obvious reading of Section Three was deemed inconvenient, rejected in the highest quarters, and has since faded from view. We thus give the point considerable attention here. Our analysis here is organized in three steps. First, we take Section Three itself, and explain why it has direct legal effect. Second, we discuss how this legal effect can and must be recognized by all persons and institutions who have the occasion to apply it in the performance of their duties—election officials, state and federal administrators, legislatures, courts. Third, we consider at some length the leading counterargument to our view: the 1869 opinion written by Chief Justice Salmon P. Chase as a circuit court judge in Griffin’s Case. Even if the result in that case is defensible—which is far from clear, and raises grave separation of powers problems of its own—its argument against self-execution is so wrong as to prove our case. Section Three is legally self-executing as operative constitutional law.

A. Section Three as Automatic Legal Disqualification

Before we consider Section Three itself, consider the Constitution as a whole. Though too many constitutional law teachers and casebooks begin their study of the Constitution with questions of judicial review, and cases like Marbury,41 in doing so they put the cart before the horse. The horse is the Constitution, which is itself the “supreme law of the land.”42 Our system is one of constitutional supremacy, not judicial supremacy or legislative supremacy. As a general matter, this means that it is the Constitution which states the law, and it is the job of government officials to apply it, not the other way around.

This general truth is no less true of Section Three. Section Three’s language is language of automatic legal effect: “No person shall be” directly enacts the officeholding bar it describes where its rule is satisfied. It lays down a rule by saying what shall be.43 It does not grant a power to Congress (or any other body) to enact or effectuate a rule of disqualification. It enacts the rule itself. Section Three directly adopts a constitutional rule of disqualification from office.

This should be no surprise, as the same thing is true of the Constitution’s other rules of disqualification from office. A person who has not attained to the age of thirty-five is not qualified to be President of the United States. This disqualification is automatic. The Constitution’s rule is self-executing. “No person . . . shall be eligible” to be President who does not satisfy the age requirement.44 The disqualification requires no further legislation or other action, by anybody, to be operative. The disqualification simply is. So too for Article II’s citizenship and length-of-residency eligibility prerequisites for the office of President. And so too for the constitutional qualifications—age, citizenship, state inhabitancy—for members of the House and Senate: “No Person shall be” a Representative who does not meet Article I, section 2’s requirements.45 “No Person shall be” a U.S. Senator who does not meet Article I, section 3’s requirements.46 These restrictions on eligibility are legally binding simply by virtue of their presence in the Constitution.

The language of Section Three of the Fourteenth Amendment parallels, even duplicates, the language used in these other provisions to express other constitutional disqualifications from officeholding.47 None of these disqualifications requires any further legal action or legislation to be operative. Where a constitutional legal disqualification exists, it simply exists. It is a binding rule of constitutional law.

Again, this kind of binding rule should be no surprise. The Thirteenth Amendment’s ban on slavery, enacted a few years earlier, works the same way. Immediately upon adoption of the amendment, slavery was legally extinguished as a matter of constitutional law. “Neither slavery not involuntary servitude . . . shall exist …,” the Thirteenth Amendment provides.48 The institution of slavery was immediately, legally, constitutionally gone.49 The Thirteenth Amendment contains a separate section granting Congress the power to enforce the prohibition of slavery.50 But that enforcement power scarcely means that the ban on slavery contained in Section One was inoperative unless and until Congress passed legislation making it operative. Such a position would be ridiculous. The power to enforce adds to the substantive prohibition—it is not a subtraction from or suspension of it.

And of course, the same is true elsewhere in the Fourteenth Amendment too. We take it as obvious that Section One is self-executing. Section One of the Fourteenth Amendment, like Section Three states directly operative rules of constitutional law: “No state shall,” in Section One, and “No person shall” in Section Three.51 Both of these provisions are subject to additional enforcement legislation by Congress under Section Five. Yet it is common ground that Section One is self-executing. Nobody thinks (for example) that the prohibitions of Section One are inoperative unless and until Congress enacts legislation pursuant to its Section Five legislative power to bring them to life.

In each instance, Congress certainly can enact legislation “to enforce” the Thirteenth and Fourteenth Amendments’ commands, pursuant to their grants of legislative power.52 Doing so can unlock additional procedural mechanisms, additional deference by courts to Congress’s view of the law, and so on. The Civil Rights Act of 1866, the Ku Klux Klan Act of 1871 and more were designed to enforce Section One of the Thirteenth and Section One of the Fourteenth Amendment. But, to repeat, the existence of an enforcement power does not mean that the Amendment’s specific legal commands lack any independent, self-executing force.53

So too, Congress in fact enacted implementing legislation in 1870 to enforce Section Three, authorizing quo warranto civil suits brought by the United States to remove state officials unconstitutionally holding office in violation of Section Three and imposing criminal penalties for knowing violations of Section Three.54 But Congress’s choice to trigger additional procedural mechanisms and federal jurisdiction for Section Three cases does not mean that there was no constitutional prohibition before Congress acted.55 Congress enforced Section Three’s prohibition. Congress was not the one to give it legal effect. Section Three was effective law all along.

Section Three is also noticeably different from other constitutional provisions that deal with misbehavior—provisions that are not self-executing in the same way. Article III, for instance, describes the offense of treason:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.56

Note the contrast. The Treason Clause defines an offense (“Treason . . . shall consist”) but it does not itself convict anybody of treason. Section Three, by contrast, enacts its own disqualification (“No person shall be”). It acts on persons, not offenses. This is driven home by the Treason Clause’s specific procedures and powers: “[C]onvict[ions] of treason” require two witnesses or a public confession; and “Congress shall have power to declare the punishment of treason.” Section Three of the Fourteenth Amendment, by contrast, is offense, conviction, and punishment all rolled in to one.

Similarly, the Constitution’s impeachment provisions say that those who are impeached “shall be removed from Office.”57 But the Constitution does not itself impeach anybody. Instead, it specifies that somebody else—the House and Senate—must do the impeaching.58 Again, Section Three’s contrast is glaring. The framers of Section Three had the treason clause and impeachment clauses at hand and chose a noticeably different path.59 Section Three does not call for treason trials or the impeachment of secessionists. It directly imposes an across-the-board disqualification and involves Congress only if Congress wishes to end it.

Section Three’s constitutional disqualification, where applicable, just is. It stands on its own as a constitutional rule of law, having come into legal force “as Part of this Constitution,” along with the rest of the Fourteenth Amendment, “when ratified” as a constitutional amendment.60 It immediately became “supreme Law of the Land.” 61 Its rule took immediate effect. Section Three is, in that sense, legally self-executing.

Is there any serious textual argument to the contrary? We will address Chief Justice Chase’s conclusion in Griffin’s Case in a moment. But we suspect that resistance to this point often comes instead from some misdirected intuitions. One is the problem of supposed difficulty. It seems easy, perhaps, to apply the constitutional qualifications of age and citizenship.62 It is pretty obvious what these are and obvious what they demand that we do. But who exactly is disqualified by Section Three is, at least to initial appearances, a more difficult, complicated, and fact-specific question. It is a more difficult question of law because we must plumb the meanings of “insurrection” and “rebellion” and so on—and these meanings are not quite as self-evident as “thirty-five years of age” (at least until this article is widely read and accepted). And it is more difficult in practice, because even once we know what the terms of Section Three mean, we must know what exactly every prior-oath-sworn official did.

Not all participation in insurrection or rebellion is open and notorious. More difficult it may be, to interpret and apply the disqualification of Section Three than the disqualifications of age, citizenship, and residency. But the fact of difficulty is a non sequitur. The fact that it might be hard for us to know today what a legal rule means (or how it applies) does not mean that it is not the legal rule.63 The Constitution says what it says and we must try to apply it as best we can. To start by asking what is easy for us, and then to assume that the Constitution must mean something that makes our lives easy, is as fallacious as drawing the curve before gathering the data points.64

Resistance might also come from the problem of enforcement. The Constitution is generally self-executing law, but still, somebody has to enforce it. Somebody has to read it, understand it, and ensure that our practices conform to its commands. (Many somebodies, actually, as we discuss shortly.) This is true, but again it is a nonsequitur. It is true that government officials must enforce the Constitution, and who does this and how they do it are important questions, maybe the central questions of constitutional law. But the meaning of the Constitution comes first. Officials must enforce the Constitution because it is law; it is wrong to think that it only becomes law if they decide to enforce it. Section Three has legal force already.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Sat Aug 12, 2023 11:29 pm

Part 2 of 8

B. Who (All) Can (Must) Faithfully Apply and Enforce Section Three?

As we just said, even though Section Three is a self-executing, immediately applicable constitutional legal rule, someone needs to do the actual applying of that rule to particular situations where its application is called for. Section Three’s constitutional disqualification exists of its own force as an abstract matter. But someone needs to bring that legal rule to bear in a concrete situation as a practical matter.

Who has the power and duty to do this? We think the answer is: anybody who possesses legal authority (under relevant state or federal law) to decide whether somebody is eligible for office. This might mean different political or judicial actors, depending on the office involved, and depending on the relevant state or federal law. But in principle: Section Three’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, just as with any of the Constitution’s other qualifications.

These actors might include (for example): state election officials; other state executive or administrative officials; state legislatures and governors; the two houses of Congress; the President and subordinate executive branch officers; state and federal judges deciding cases where such legal rules apply; even electors for the offices of president and vice president. We will discuss in detail some of these examples presently. But two points are important to keep clear at the outset: First, all of these bodies or entities may possess, within their sphere, the power and duty to apply Section Three as governing law. Second, their authority to do so exists as a function of the powers they otherwise possess. No action is necessary to “activate” Section Three as a prerequisite to its application as law by bodies or persons whose responsibilities call for its application. The Constitution’s qualification and disqualification rules exist and possess legal force in their own right, which is what makes them applicable and enforceable by a variety of officials in a variety of contexts.

Consider some illustrations:

1. Seeking Office

a. by election

Anybody who seeks office will at some point need to show that they are entitled to hold that office. At every point that this occurs, Section Three governs. So, for instance, state or local election boards, and state Secretaries of State, may possess state-law authority to make at least initial determinations as to eligibility of candidates for elected office in that state or representing that state in Congress (as authorized by Article I, section 4 of the Constitution)—and, thus, whether or not such candidates shall be placed on a primary or general election ballot.65 Those state bodies or officers are obliged, often by oath—sometimes by oath mandated by the U.S. Constitution—to act consistently with the requirements of the Constitution in the discharge of their duties.66 Accordingly, such state actors can and must apply Section Three’s disqualification in carrying out their state-law responsibilities—just as they possess the authority and duty to comply with and enforce the Constitution’s other qualification-for-office requirements.67

For an example of how this process is supposed to work, consider how the state of Georgia entertained a Section Three challenge to the qualifications of Representative Marjorie Taylor Greene under Georgia law. A state administrative law judge took evidence about Representative Greene’s involvement in the events of January 6, 2021.68 The judge proceeded under the theory that if January 6 was a constitutional “insurrection,” and if Representative Greene had been part of it, she would be barred from office.69 But it concluded that the challengers had failed to meet their burden of proof under state law: “In short, even assuming, arguendo, that the Invasion was an insurrection, Challengers presented no persuasive evidence Rep. Greene took any action—direct physical efforts, contribution of personal services or capital, issuance of directives or marching orders, transmissions of intelligence, or even statements of encouragement—in furtherance thereof on or after January 3, 2021.”70 Secretary of State Brad Raffensberger issued a final decision ratifying the hearing officer’s proposed findings that day.71

Such determinations about ballot eligibility may also be subject to further judicial review. In state courts, these procedures will of course depend on what review is available under state law. Similarly, federal courts might well possess jurisdiction, subject to the usual federal jurisdiction doctrines (such as standing, ripeness, mootness, and abstention), to decide cases of candidate eligibility. Continuing the example, Representative Greene did file a federal lawsuit attempting to enjoin the then-pending state proceedings (mentioned above), and the district court concluded that the case was justiciable and that Younger abstention did not apply, but that Greene’s claims failed on the merits.72 While Greene’s appeal to the Eleventh Circuit was pending, she prevailed in the state proceedings, so the case was dismissed as moot.73 The details, of course, will vary from case to case. But where any of these tribunals has jurisdiction they too obviously have the power and duty to apply Section Three as the supreme law of the land.

This is not to say that states must provide any particular procedure for bringing a challenge to ballot eligibility qualification or grant a cause of action to particular private individuals to bring such challenges. For instance, in a recent suit seeking to disqualify Arizona Representative Mark Finchem and U.S. Representatives Paul Gosar and Andy Biggs from the 2022 primary ballot, the Arizona Supreme Court concluded that state law did not provide a private cause of action for a disqualification challenge.74 In principle, that could well be right. Whether to provide a cause of action in such cases is largely a question of state law. Section Three slots in to existing powers and procedures without mandating or micromanaging them.

That said, the Arizona Supreme Court’s muddied reasoning in the Finchem-Gosar-Biggs case necessitates a few clarifying points. First, state law can enforce Section Three, and the Fourteenth Amendment does not place any particular presumption against doing so. Unfortunately, the Arizona Supreme Court suggested otherwise, writing that “Section 5 of the Fourteenth Amendment appears to expressly delegate to Congress the authority to devise the method to enforce the Disqualification Clause . . . which suggests that A.R.S. 16351(B) does not provide a private right of action to invoke the Disqualification Clause against the Candidates.”75 This inference is mistaken—Congress’s power to enforce federal law, including constitutional law, is not exclusive of the states, and states regularly enforce federal law including constitutional law in their own courts.76

Second, in some circumstances state law not only can but must enforce Section Three. Under the rule of Testa v. Katt,77 where a state does open its courts to a cause of action, it must apply federal law evenhandedly to that cause of action. As the unanimous Court put it: “[T]he Constitution and the laws passed pursuant to it are the supreme laws of the land, binding alike upon states, courts, and the people, ‘anything in the Constitution or Laws of any State to the contrary notwithstanding.”78 And thus “the policy of the federal Act is the prevailing policy in every state.”79 A state cannot treat federal obligations the way it can treat foreign ones.

The Arizona Supreme Court’s decision unfortunately can be read to suggest otherwise. The court cryptically wrote that the state “statute’s scope is limited to challenges based upon ‘qualifications . . . as prescribed by law,’ and does not include the Disqualification Clause, a legal proscription from holding office.”80 If the court meant to distinguish federal constitutional qualifications from state statutes, it seems to have violated Testa. If the court meant that Section Three’s disqualification is not a “qualification,” that seems nonsensical. And if it meant something else, it is hard to figure out what.

In any event, the real question is what procedure is available for determining whether a candidate is qualified to office. That is basically a question of state law, and the correct procedures will likely vary from state to state. But the courts owe state law a full and fair reading, not one slanted by reticence to acknowledge the life in Section Three.

b. by appointment

Now let us turn to appointments. Just as with elected office, anybody who must decide whether an appointee is qualified must comply with Section Three. Traditionally this includes at a minimum whoever nominated the officer.81 Thus governors, presidents, and other nominating authorities can and should—indeed, constitutionally must—decline to nominate and appoint to state or federal offices persons who are constitutionally disqualified by Section Three. And likewise, where nominating authority is subject to additional confirmation—by a state senate, the U.S. Senate, or any other body—that body presumably can and should, constitutionally must, decline to consent to the appointment of such constitutionally disqualified nominees.82

In other words, the election and appointment systems, from top to bottom, frequently make decisions about a candidate’s eligibility for office. All of those decisions are legally bound by Section Three of the Fourteenth Amendment; and all persons making such decisions are correspondingly bound to faithfully interpret, enforce, and apply Section Three.

2. Holding Office

What about those who already hold office—either because Section Three was not attended to before they gained office, or because their disqualifying conduct happened later?83

Once again, the answer turns in part on what procedures are available under other law. State officials can be subject to a variety of remedies for unlawfully holding office. They might (or might not) be subject to removal, as a matter of state law, by a private suit quo warranto, by the authority of another executive or judicial officer or administrative board, or perhaps even by the state legislature exercising powers of impeachment or recall. In addition, it is possible that the salaries of such rightfully-disqualified officials—and the legal eligibility of such persons for those salaries—might be subject to the authority and determination of some other state official.

We submit that all such officials—administrators, executives, legislatures—possessing legal authority concerning such matters likewise possess the authority (and duty) to interpret, apply, and enforce Section Three’s disqualification in the course of exercising that legal authority. And once again: if such determinations are judicially reviewable under state law, the courts likewise possess the authority and duty to interpret, apply, and enforce Section Three.84

For an example of how this process is supposed to work consider how the state of New Mexico removed commissioner Couy Griffin from state office.85 Griffin was an elected commissioner for Otero County, New Mexico, who promoted, assisted, and ultimately joined in the January 6 insurrection against the Capitol. A group of New Mexico citizens filed a quo warranto action against Griffin under New Mexico law, seeking his removal from office. The New Mexico district court took evidence, received legal arguments, and then concluded that Griffin was disqualified under Section Three. More precisely, and quite correctly, it held that Griffin had been disqualified since the day of the January 6 insurrection, and ordered his immediate ejection from office, and permanently enjoined him from seeking or holding any other covered position.86

As a matter of state procedure, the court concluded that the New Mexico quo warranto statute was a remedy for ejecting unlawful office holders.87 It also concluded that quo warranto could be sought by any citizen of New Mexico, without any further showing of injury, because the New Mexico courts are not bound by the same “standing” limitations as the federal courts are. As a matter of federal law, the court had no trouble concluding that the events of January 6. 2021 were a constitutional “insurrection.” And it had no trouble concluding that Griffin had engaged in that insurrection, both by “voluntarily aid[ing] the insurrectionists’ cause by helping to mobilize and incite” the crowd, and by joining in the invasion of the Capitol itself, even though Griffin himself did not commit a violent act.88 The New Mexico county court correctly recognized both its power and its duty to interpret and apply Section Three of the Fourteenth Amendment.

The same general principle applies to the situations of those who hold federal office. Again, anyone who possesses legal power to decide whether such a person can and should hold (or continue to hold) the office in question must apply Section Three’s disqualification in doing so.89 Here, the specific federal constitutional rules for tenure and removal present some interesting complications, which we address shortly.

But in general: wherever anyone possesses the constitutional authority or duty to remove others from office for legal reasons, they can and should remove those barred by Section Three. Presidents—and subordinate executive officers acting at the president’s direction—should remove from office executive officers, civil and military, who are constitutionally disqualified by Section Three. Likewise, the House of Representatives should impeach, and the Senate convict and thereby remove from office, civil executive officers who become constitutionally disqualified by Section Three.90

Finally and additionally, what happens if all of the above fails? Somebody disqualified by Section Three is given office and nobody removes that person from office. What then? Here too there will often still be additional procedures to enforce Section Three. These procedures mirror those available to enforce the Appointments Clause and other constitutional law of appointments. A litigant can move to disqualify a judge whose appointment is improper.91 A regulated entity can challenge the actions of an executive official who holds office improperly.92 Those who cannot constitutionally hold office cannot constitutionally exercise government power, so the subjects of that power can challenge their acts as ultra vires. While there may be some limits to the available relief in some kinds of suits under the “de facto officer doctrine,” (more on which shortly), in many cases the courts will be called on to decide if an action is ultra vires. Section Three governs those cases.

3. Special Situations

A few federal constitutional offices raise special cases, where the Constitution itself speaks to official tenure or qualifications.

First consider Congress. Each house of Congress has two specific powers with respect to its own membership in which Section Three might come into play. First, each house has power to “Judge of the Elections, Returns, and Qualifications” of “its own Members.”93 Since one of those qualifications is non-disqualification under Section Three, each house can and must judge whether Section Three forbids the seating of a member. This judgment is conclusive, and it operates as a crucial constitutional backstop for each house. No state or group of voters can force upon the House or Senate a Member it judges to be constitutionally disqualified. Indeed, even federal courts could not properly do so. While the Supreme Court has held, in Powell v. McCormack,94 that Congress cannot create new “Qualifications” and that the federal courts have the power to stop it from doing so, neither Powell nor first principles allow a federal court to second-guess each house’s judgment about whether the existing, constitutional, qualifications have been satisfied. 95

Some have argued that each house’s judging power also preempts other early stages of the election process. The argument is that states and state election law have no power to exclude a candidate for Congress because they are constitutionally ineligible to office—that instead the state must allow the voters to send up the ineligible candidate, so as not to prejudge the possibility that the House or Senate will find them eligible.96 With respect, we do not agree with this argument. As a logical matter, each house’s right to judge whether an elected candidate can hold office does not give it the power to force states to elect that candidate (or allow them to be elected) in the first place. And as a textual matter, state legislatures have the power to regulate the “manner” of elections, which includes ballot eligibility.97 In our view, the better interpretation is that Section Three can be relevant to both the state’s power to regulate the manner of elections and each house’s power to judge the results of those elections.

The second relevant power each house possesses with respect to its own Members concerns Members already sitting in Congress. Each house also has power to “determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”98 So in addition to the initial power to exclude under Section Three, each house could potentially proceed through the expulsion power instead, by two-thirds vote.99 As with the power to exclude, the power to expel, where exercised within the scope of the power conferred exclusively on each house, is committed to that house’s discretion.

Federal judges hold their offices during “good Behaviour.”100 What if a sitting federal judge or even a Supreme Court justice has engaged in insurrection or rebellion or given aid or comfort to the nation’s enemies?101 As a matter of substance this is easy. Whether regarded as simply a violation of the Article III tenure condition of “good Behaviour” or as satisfying the impeachment standard of “high Crimes and Misdemeanors,”102 conduct meeting Section Three’s standard disqualifies a federal judge from office.

As a matter of procedure the question is trickier. The conventional wisdom is that Article III allows good behavior to be judged only through the procedure of impeachment by Congress. An alternative view, with some support in the history, is that Congress could provide other procedures for adjudicating misbehavior (as for instance in the 1791 Crimes Act, which purported to require the immediate removal of any federal official convicted of bribery or other crimes).103 Whichever is the answer, the procedures and criteria for judging judges can and must apply Section Three.

Finally, what about the top of the ticket? What if the President or a presidential candidate (or likewise for Vice President) is constitutionally disqualified?104 Who has the power and duty to enforce Section Three’s legal prohibition? Again, the answer depends on whether the supposedly disqualified individual is seeking election to office or already holds it. In the case of a candidate, state election officials and state election law will frequently judge that candidate’s ballot eligibility, applying Section Three as described above, and subject to the usual avenues of judicial review. That eligibility question can be a part of a state’s Article II election for electors just as much as any other state election.105 Put simply: a state secretary of state (for example) might well possess state-law authority to determine candidate eligibility for federal elective offices—President and Vice President, U.S. Representatives, U.S. Senators—selected directly or indirectly via state elections; and among those relevant eligibility criteria is whether a candidate is disqualified from the office he or she seeks by Section Three of the Fourteenth Amendment.

Additionally, presidential electors have the power (and therefore perhaps the responsibility as well) to enforce Section Three.106 In perhaps half the states, the question is more complicated, because state laws purport to bind the electors in various ways to vote for their party’s candidate rather than making their own determination, and the Supreme Court has recently upheld such laws.107 But even working within that paradigm, states and their legislatures have their own duties to uphold the Constitution. That means they have a responsibility to arrange that their electors do not elect a constitutionally disqualified candidate, which should be reflected in their laws.

If the voter and presidential electors do select a disqualified candidate for the Presidency, we do not believe that Congress (or the Vice President) have the power to reject that candidate when the votes are counted in joint session. Whatever the extent of Congress’s and the Vice President’s authority to count the electoral votes, or determine the authenticity of submitted votes—i.e., was this the act of the electors of the state?—we do not believe that they have the authority to evaluate the decisions or actors of the electors themselves.108 So if a properly selected elector submits a vote for a constitutionally disqualified individual it should still be counted.

Still, once those votes are counted, a disqualified candidate does not become president, even if he has the most votes. This is made explicit by the (self-executing) command of Section Three of the Twentieth Amendment, which sets the constitutional terms of a President’s term. It states that at “the time fixed for the beginning of [the President’s] term,” “if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.”109 The language thus specifically confirms the possibility of a failure to qualify, and specifies the consequences of that failure. If the President-elect is covered by Section Three, he cannot become President—unless Congress chooses (by supermajority votes) to remove Section Three’s disability.

Once the President has taken office, the Constitution provides two paths for involuntary removal from office: impeachment for “high Crimes and Misdemeanors” and removal for being “unable to discharge the powers and duties of his office” under the procedure of the Twenty-fifth Amendment. We think it likely that Section Three would apply to both procedures. The impeachment route is straightforward. As we have discussed, an insurrection against the United States is a paradigm example of a high crime or misdemeanor. It also seems to us possible that a President who is, by operation of the Constitution, legally disqualified from holding his office might be said to be “unable to discharge the powers and duties of his office” within the meaning of the Twenty-fifth Amendment. To be sure, this is doubtless not the paradigm case that the authors of the Twenty-fifth Amendment had in mind. Moreover, “unable” as employed in the Twenty-fifth Amendment would appear, linguistically and structurally, akin to “inability” as used in Article II, Section 1, paragraph 6—the provision that the Twenty-fifth Amendment amends in this respect. (Paragraph 5 of Article II addresses questions of eligibility; and paragraph 6 separately addresses questions of inability.) But regardless of intention, the natural import of the words of the Twenty-fifth Amendment is that they broadly include all reasons why a president might be “unable” to perform his or her duties. And it is the meaning of the words enacted, not the subjective intentions or expectations of those who drafted them, that is what makes our constitutional law. The procedures of the Twenty-fifth Amendment are complicated and convoluted, to be sure. But where they are employed, there is a good argument that a president’s disqualification from office under Section Three is one of the grounds on which he or she might be judged “unable” to continue in that role.

* * *

Tying together all of these different procedures and possibilities: consider briefly (and not-so-hypothetically) a violent insurrection on the seat of government, by a mob joined or given aid and comfort by various government officials, from a state representative or commissioner to a U.S. Senator to the President himself.110 From the moment of their participation in the insurrection, those officials would be legally ineligible to hold their offices, thanks to Section Three of the Fourteenth Amendment. How this would play out practically might vary across them. As the state official returned home, he would immediately be subject to state law procedures such as a quo warranto suit.111 He might be removed by such a suit,112 or might well choose to resign instead.113 The Senator might choose to brazen it out, counting on the difficulty in getting together a two-thirds vote to expel him. But if he sought reelection the Senate could and should exclude him by a mere majority vote. As for the hypothetical President, by right he ought to be immediately subject to impeachment and conviction by Congress, and perhaps also a Twenty-fifth Amendment declaration by the Vice President and supported by the cabinet. Even if those things did not happen, if he sought reelection, state election officials around the country would be bound by Section Three in deciding whether to put him on the ballot, even in the primary.

And of course, some of these matters would no doubt promptly find their way into the courts as well. Continuing the example of the presidential candidate, if state officials excluded him from ballot eligibility, he would likely be able to sue in state or federal court to challenge state officials’ determination of ineligibility. And if he was not excluded by state officials, voters (at least in some states) might possess the legal right to challenge his eligibility. Either way, such a challenge would present a classic legal case or controversy. It is not difficult to imagine such suit being resolved by courts. Indeed, given the magnitude of the question and its consequences, it is not difficult to imagine such an important case making its way quickly to the U.S. Supreme Court. It would then become the province and duty of the Court to determine and apply the meaning of Section Three.

Section Three thus functions as a sort of constitutional immune system, mobilizing every official charged with constitutional application to keep those who have fundamentally betrayed the constitutional order from keeping or reassuming power.

C. The Problem of Griffin’s Case

A small problem with our view that Section Three is self-executing and immediately operative is that the Chief Justice of the United States said the opposite, almost immediately after the Fourteenth Amendment was adopted. This was the opinion in Griffin’s Case by Chief Justice Salmon P. Chase, sitting as Circuit Justice in 1869, in one of the first cases to interpret any part of the Amendment. In Griffin’s Case, Chief Justice Chase concluded that Section Three is inoperative unless and until Congress passes implementing legislation to carry it into effect.114 This precedent continues to cast a shadow over Section Three today.115

But there is a simple response to this small problem. Griffin’s Case is just wrong. It is possible—possible—that its result is correct on an alternate ground, under the so-called de facto officer doctrine, which we will discuss. But Chase’s legal reasoning that the Fourteenth Amendment is not self-executing is unsustainable. Indeed, the more one pulls at his opinion, the more it unravels. We examine it in some detail.116

1. Background

Caesar Griffin, a black man, was charged in a Virginia state court with the crime of shooting with the intent to kill. Griffin was tried, convicted, and sentenced to prison. He made no claim that the statute under which he was tried was unconstitutional; nor that he had been subjected to discrimination because of his race; nor that the composition of the jury was improper. As Chase put it: Griffin made “no allegation that the trial was not fairly conducted, or that any discrimination was made against him, either in indictment, trial, or sentence, on account of his color.”117 Nor did Griffin allege that the presiding judge—Judge Hugh W. Sheffey—“did not conduct the trial with fairness and uprightness.”118 Griffin raised just one challenge to the validity of his conviction: that Judge Sheffey (or, one might say, so-called Judge Sheffey)119 was legally disqualified by Section Three of the Fourteenth Amendment from serving.

The facts relevant to Judge Sheffey were not disputed either. He had taken the oath: Before the Civil War, Hugh Sheffey had been a member of the Virginia state legislature, as far back as 1849. And he had “engaged in” rebellion: After Virginia purported to secede from the Union, Sheffey continued to serve as a member of Virginia’s secessionist legislature. In that role, in 1862, he “voted for measures to sustain the so-called Confederate States in their war against the United States.”120 Thus “it is admitted,” wrote Chase, that Judge Sheffey “was one of the persons to whom the prohibition to hold office pronounced by the amendment applied.”121

Griffin had petitioned the U.S. district judge, Judge John Underwood, for a writ of habeas corpus challenging the lawfulness of his custody, which Judge Underwood granted.122 The sheriff appealed to the circuit court, which was held by Chase as circuit justice.123

2. Chase on Section Three

Chase reversed. Here is how he framed the problem: Everybody agreed that Sheffey had been lawfully appointed as a state judge in February 1866, while Virginia was controlled by military reconstruction and the Fourteenth Amendment did not exist.124 The question was whether ratification of Section Three kicked him out. As Chase put it: “whether upon a sound construction of the amendment, it must be regarded as operating directly, without any intermediate proceeding whatever, upon all persons within the category of prohibition, and as depriving them at once, and absolutely, of all official authority and power.”125

Chase said no, rejecting this as a “literal construction” 126 of Section Three. There is a lot going on in this opinion. Chase included a number of makeweight arguments and asides on topics such as the legal history of West Virginia.127 But his core argument was that surely Section Three cannot mean what it says: It would have bad consequences, can’t possibly have been intended by the ratifiers, and would violate the spirit of the Constitution. As we will explain, these arguments are bad ones. Chase then supplemented them with a shocking claim of a secret Supreme Court ruling in favor of an alternative approach—which was both generally improper, but also further impeached Chase’s interpretation of Section Three. All in all, Griffin’s Case is a case study in how not to go about the enterprise of faithful constitutional interpretation.

a. “The argument from inconveniences, great as these”
The core of Chase’s argument was that if Section Three were an immediately operative, self-executing constitutional rule of disqualification, it would have inconvenient consequences in the Reconstruction South. “In the examination of questions of this sort,” Chase wrote, “great attention is properly paid to the argument from inconvenience.”128 And here “the argument from inconveniences” was “great” in Chase’s estimation— it was “of no light weight.”129

In several incompletely reconstructed Southern governments, many offices were in fact held by former oath-breaking rebels.130 If Section Three were automatically operative, it would have immediately barred all such men from office. (Indeed.) Yet, Chase argued, many such disqualified persons in fact had not vacated their offices but instead continued to exercise authority under those offices notwithstanding the ratification of the Fourteenth Amendment. To give Section Three immediate effect would thus upset the apple cart in a fairly major way. “No sentence, no judgment, no decree, no acknowledgement of a deed, no record of a deed, no sheriff’s or commissioner’s sale—in short no official act—is of the least validity.”131 Chase found this unthinkable: “It is impossible to measure the evils which such a construction would add to the calamities which have already fallen upon the people of these [Southern] states.”132

Chase went on: not only did Section Three impose great “inconveniences” and “calamities,” it was unfairly punitive—ungraciously ousting once-lawfully-appointed officers from their offices—and ostensibly inconsistent with the “spirit” of prior constitutional principles, concerning due process, bills of attainder and ex post facto laws.133 And besides, the specific remedy sought—vacating Griffin’s conviction—only worked mischief, because it did not even seek the literal removal of Judge Sheffey from office. Put these things together and you have Chase’s interpretive driver: “Surely,” Chase continued, “a construction which fails to accomplish the main purpose of the amendment, and yet necessarily works the mischief and inconveniences which have been described, and is repugnant to the first principles of justice and right embodied in other provisions of the constitution, is not to be favored, if any other reasonable construction can be found.”134

Chase tried to funnel these policy arguments into a rule of constitutional construction: “the argument from inconvenience.”135 This argument “it is true, can not prevail over plain words or clear reason,” Chase acknowledged.136 “But, on the other hand,” he wrote, “a construction which must necessarily occasion great public and private mischief, must never be preferred to a construction which will occasion neither, or neither in so great a degree, unless the terms of the instrument absolutely require such preference.”137

This is not an unreasonable principle, as interpretive canons go. When confronted with two plausible interpretations of genuinely ambiguous, unclear text, one of which would produce manifestly jarring results, the less jarring interpretation is more likely the correct one. As James Madison said in his famous speech against the national bank: “Where a meaning is clear, the consequences, whatever they may be, are to be admitted—where doubtful, it is fairly triable by its consequences.”138 Or as Chief Justice Marshall said in United States v. Fisher: “where great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the legislature be plain; in which case it must be obeyed.”139 But Chase’s canon was noticeably more aggressive: The supposedly more disruptive reading must “never be preferred” unless the text’s terms “absolutely require” such preference.140 That is putting not just a thumb on the scale, but a whole hand.

But that is not the real problem with Chase’s analysis. The real problem was how Chase applied these principles to Section Three.

First, Chase was too quick—far too quick—to dismiss the “literal” reading of the “terms of the instrument” as meaning exactly what they seem to say. As discussed above, the language of Section Three’s prohibition on office holding is clear and direct; it is hardly doubtful at all. It takes considerable effort to impute any ambiguity to the text and Chase’s opinion does not even undertake that effort. Instead, the opinion assumes its own conclusion—that the text’s language is somehow insufficiently clear to justify applying the “literal” meaning of its words. Indeed, even on Chase’s own hyper-strict standard, the words of Section Three do “absolutely require” the conclusion that it, on its own, disqualifies covered rebels from office.

Second, Chase was too ready—far too ready—to find that following the (“literal”) language of the document would produce (what Chase considered to be) great “inconveniences” or “mischief”— indeed, increase “calamities” already visited upon the South. Chase emphasized the breadth of Section Three’s language: it applied in all the states, not just the former Confederacy (so?); it applied beyond the context of Civil War but included aiding enemies in a foreign war (so?); it would apply in terms to immediately disqualify men for acts done long ago, for example in the Mexican War (so?); it would apply “to all persons in the category” and “for all time, present and future” (so?). And, taken seriously, this broad rule would, as noted, “annul all official acts” performed by disqualified officers, including judges. (Would it?)

For Chase, all this seemed to border on the shocking—a parade of horribles demanding the search for an alternative construction of Section Three. But why? Because it might have a broad effect? Because it adopted a new rule of constitutional law superseding prior law? Because it would have removed immediately a substantial number of former-oath-swearing-office-holders-turned-rebels from positions of power? Because it could have the effect of invalidating their unauthorized, lawless actions? Chase’s parade of horribles assumes, without argument, the correctness of his own apparent policy prejudices.141

Now Chase did attempt to groom these prejudices into more plausible legal arguments, which we will get to in a moment. But because these arguments from inconvenience are the heart of Chase’s opinion, and because we still see these kinds of arguments repeated today, we pause to emphasize that this is not how judging is supposed to work, even if it too often does.

Chase’s construe-to-avoid-the-force-of-constitutional-language-whose-policy-consequences-you-dislike approach to constitutional interpretation is simply wrong. Judges do not get to rewrite constitutional provisions they find objectionable on policy grounds. Relatedly, judges do not get to make up new provisions of law in order to devise policy “solutions” to texts they don’t like. Chase’s opinion imposed, as a solution to textual literalism and its real and imagined policy inconveniences, a different kind of constitutional provision, one more like the Impeachment Clause and the Treason Clause. Put bluntly, Chase made up law that was not there in order to change law that was there but that he did not like.

b. The argument from “the intention of the people”

In places, Chase raises the inconvenience argument as an inquiry into the “intent” of the Framers: “What was the intention of the people of the United States in adopting the fourteenth amendment? What is the true scope and purpose of the prohibition to hold office contained in the third section?”142 This at least sounds kind of like the question a judge should be asking—the original meaning of the constitutional provision adopted by We The People and binding on those who interpret it. But in fact it conceals still more sleight of hand.

First and foremost, Chase’s framing of the interpretive question commits a classic blunder: swapping in original intent for original meaning. In our constitutional system, law is made by enacting texts, not by searching for the unenacted wishes of lawmakers.143 And whatever evidence Chase might have that the consequences of Section Three were unintended by some of those who voted for it, he had no evidence that these consequences were not entailed by what they voted for.

Second, however dubious it is to look to original intent over original meaning generally, it is especially dicey to do so in the case of the Fourteenth Amendment. The Fourteenth Amendment was ratified in unusual, exigent circumstances. In Congress, the Amendment represented a compromise between different Republican factions, some much more radical than the others. And in the states, where ratification made it law, the Amendment depended on the ratification votes of the southern states, who were pressured—some might say “coerced”—to ratify the Amendment as the price of regaining their representation in Congress.144 Even if one accepts this process as lawful (which we do) it is obvious that it means one must cast a skeptical eye on stories about the supposed “intent” of those who ratified it, especially in the South. It may well be that some of the ratifiers had their fingers crossed behind their backs and intended to give the Amendment as little effect and as little quarter as they could get away with. But so what? What matters is what they did, in one of the highest-stakes moments of constitutional law making in American history. By diminishing the plain scope of the Amendment’s text, Chase was succumbing to this kind of anti-constitutional subversion.

Third and finally, all of Chase’s evidence of this supposed intent just boils down to the inconvenience argument we have just discussed. And as discussed above, this is why one must be especially careful with judges who invoke the supposed “intent” of a written text. When meaning is uncertain, it is permissible to give a slight edge to the interpretation that is more likely to match what its authors were trying to do. But it is easy for a judge to use this principle as an excuse for reading into the text his own views of what the law should be. After all, the authors of the provision were reasonable people, trying to do reasonable things, and, I, the judge, am also reasonable, so surely if I don’t like this result, they wouldn’t have liked this result, and therefore it must not be the result. To write it down this way would give up the game, but it is too easy to think it. Chase’s use of original intent is makeweight at best, and a trick at worst.

c. The argument that Section Three should not be read to depart from the “spirit” of prior constitutional law

The “inconveniences” and “calamities” that, surely, were not intended by the authors of the Fourteenth Amendment were Chase’s main arguments. But he had a bit more to say. There was “another principle, which in determining the construction of this amendment, is entitled to equal consideration.”

Of two constructions, either of which is warranted by the words of an amendment of a public act, that is to be preferred which best harmonizes the amendment with the general terms and spirit of the act amended. This principle forbids a construction of the amendment, not clearly required by its terms, which will bring it into conflict or disaccord with the other provisions of the constitution.145

What was the supposed conflict between Section Three and the rest of the Constitution? Chase fretted that Section Three was a penal enactment, imposing punishment without trial on secessionists, and thus in tension with the spirit of earlier provisions on bills of attainder, ex post facto laws, and due process:

Now it is undoubted that those provisions of the constitution which deny to the legislature power to deprive any person of life, liberty, or property, without due process of law, or to pass a bill of attainder or an ex post facto, are inconsistent in their spirit and general purpose with a provision which, at once and without trial, deprives a whole class of persons of offices held by them, for cause, however grave. It is true that no limit can be imposed on the people when exercising their sovereign power in amending their own constitution of government. But it is a necessary presumption that the people in the exercise of that power, seek to confirm and improve, rather than to weaken and impair the general spirit of the constitution.146

Thus, Chase concluded, Section Three should not be read as accomplishing disqualification of its own force.

Now once again, the interpretive rule Chase is formulating here is not totally crazy. But it is a warped version of the real thing. As we discuss at length in the next part: It is true that repeals by implication are disfavored, and this principle applies to constitutional law. But at the same time, constitutional amendments change things, and when an amendment is inconsistent with prior constitutional rules, ultimately it is the amendment that controls. If a new provision fairly can be harmonized with prior law—where there is no true conflict—the provisions should be read harmoniously.147 But where new language in fact changes old law, by clear terms or necessary logical effect, the greater error is to deny such change out of undue attachment to the former legal regime.

This greater error is exactly what Chase did. Chase leaned very heavily—too heavily—on the rule against implied repeals, ratcheting it up to “forbid[]” readings of a text “not clearly required” by its terms, that would “bring it into conflict or disaccord” with other provisions of the Constitution.148 Each leaning is wrong. Repeals by implication may be disfavored; but repeals, made in terms or by necessary logical implication, are not presumptively forbidden. Nor does new language changing old provisions require such extraordinary clarity as Chase would have it. The true question is whether the language and logic of a new provision really does present a conflict with prior law. And the idea that constitutional amendments should presumptively be read so as not to change the Constitution (!)—that they should be construed to avoid conflict or even mere disaccord with prior constitutional law—is indefensible. Of course constitutional amendments change prior constitutional law. That is their purpose and function. Now, that doesn’t warrant reading them to change more than they really do. But a presumption that constitutional amendments should be read to change as little as possible makes no sense.

Finally, this part of Chase’s argument took a puzzling turn that is worth noting. In one of many strange asides, Chase noted the possibility that Section Three had implicitly repealed the Treason Clause: “in the judgment of some enlightened jurists, the legal effect” of Section Three’s imposition of a new prohibition on officeholding for rebels and insurrectionists “was to remit all other punishments” for treason.149 If anything this seemed to hurt Chase’s argument against self-execution, because it emphasized that Section Three could change the preexisting constitutional rules. And at the same time this supposedly enlightened argument was also bonkers. The enactment of a constitutional rule of disqualification from office does not remotely suggest a supersession or repeal of criminal-law punishment for treason. And if it did it would have the perverse effect of leaving Confederates who had not previously taken a constitutional oath subject to the death penalty, while previous office holders avoided all criminal punishment except the officeholding ban.150

So why did Chase bring it up? Who were these “enlightened jurists” who imagined such a thing? The answer is . . . Chase himself! He had asserted precisely this wacky construction of Section Three’s effect on the criminal penalty for treason—and quietly suggested the argument to defense counsel—in the federal criminal treason prosecution of Jefferson Davis just two years earlier.151 Even Davis’s lawyers had been puzzled by the argument, and wondered if it was some sort of trick, and it seems likely that Chase had complex political motivations in proposing it at the time.152 This argument was tendentious then, and weirdly irrelevant in Griffin’s Case. But it is a helpful reminder that Chief Justice Chase was not shooting straight in his applications of Section Three.

d. The argument from the Section Five enforcement power

Having flailed to avoid the natural reading of Section Three, Chase finally offered his alternative, “reasonable construction”:

For in the very nature of things, it must be ascertained what particular individuals are embraced by the definition, before any sentence of exclusion can be made to operate. To accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and enforcement of decisions, more or less formal, are indispensable; and these can only be provided by Congress. Now, the necessity of this is recognized by the amendment itself, in its fifth and final section, which declares that ‘congress shall have power to enforce, by appropriate legislation, the provision[s] of this article.’ [sic] … The fifth section qualifies the third to the same extent as it would if the whole amendment consisted of these two sections.153

Section Five “qualifies” Section Three. Of course, this proves too much. Taken seriously, it would suggest that Section Five likewise “qualifies” Section One and renders its commands—birthright citizenship, privileges or immunities, due process, and equal protection—inoperative until enforced by congressional legislation. It would imply that Section One had no self-executing legal effect, which has never been the law. It also proves too little. It is true, perhaps, that carrying a legal prohibition into practical effect in actual situations frequently will involve, necessarily, actions by persons and institutions charged with applying that prohibition as law in the course of performing their assigned duties. But as noted above there is no reason why “proceedings” and “decisions” and “enforcement” with respect to Section Three’s commands may not be conducted and carried out by these various state and federal actors, exercising their usual authority with respect to such matters.154 It is simply not true that “these can only be provided by Congress.” Congress can provide them. But so can many others. Indeed, that is just what Judge Underwood was trying to accomplish in Griffin’s Case, until Chase stopped him.

Chase’s tendentious construction of Section Three has gone on to a surprisingly serious career as a precedent. But it simply does not hold up as an original matter. But that is not even the weirdest thing about Griffin’s Case.

3. Griffin’s Self-Defeating and Highly Irregular Dictum

Chase concluded his discussion of Section Three this way: “After the most careful consideration, therefore, I find myself constrained to the conclusion that Hugh W. Sheffey had not been removed from the office of judge at the time of the trial and sentence of the petitioner; and that the sentence of the circuit court of Rockbridge county was lawful.”155

By Chase’s logic, such as it was, that should have been the final line of his opinion. But strangely, Chase was not actually done. He then launched into the weirdest part of his opinion, a sort of half-dictum, half-advisory opinion that cast further doubt on all that had come before:

In this view of the case, it becomes unnecessary to determine the question relating to the effect of the sentence of a judge de facto, exercising the office with the color, but without the substance of right. It is proper to say, however, that I should have no difficulty in sustaining the custody of the sheriff under sentence of a court held by such a judge. . . .

This subject received the consideration of the judges of the supreme court at the last term, with reference to this and kindred cases in this district, and I am authorized to say that they unanimously concur in the opinion that a person convicted by a judge de facto acting under color of office, though not de jure, and detained in custody in pursuance of his sentence, can not be properly discharged upon habeas corpus.156

What is going on here? Chase describes an alternate ground for the case—“a judge de facto acting under color of office,” which we would now call the “de facto officer doctrine”—explains that it is unnecessary to decide it, but then also explains that he would “have no difficulty” resolving the case on that alternate ground, and also that the rest of the Supreme Court agrees with him. It is hard to make sense of this part of Chase’s opinion, but the more one digs in to it the more dubious the whole opinion becomes.

First of all, notice that what Chase says here fatally undercuts his earlier arguments about Section Three. The heart of Chase’s argument was that a sel-executing Section Three would have calamitous consequences that could not possibly have been intended. But here Chase says that even an illegally appointed officer can be a “de facto” officer whose acts are treated as valid for purposes of a habeas claim. If Chase believed this claim about the de facto officer doctrine, then his earlier claim about the consequences was overblown. The de facto officer doctrine would limit or eliminate the supposedly calamitous consequences and allow Section Three to be given its more natural interpretation in other situations. On its own terms, then, this dictum is colossally selfdefeating.157

Indeed, if Chase’s extensive dictum about Section Three made it “unnecessary” to resolve the de facto officer doctrine, the same was equally true in reverse. Accepting Chase’s conclusion about the de facto officer doctrine would have made his erroneous disquisition on Section Three completely unnecessary. The criticisms sometimes levelled against the chief justices who wrote the famous (or infamous) opinions in Marbury v. Madison, and Dred Scott v. Sandford, for having reached out to decide, gratuitously, unnecessarily, and improperly, grand questions of constitutional law,158 fall far more heavily upon the head of Chief Justice Chase for his opinion in Griffin’s Case.

Even stranger, Chase represented that the full Supreme Court unanimously agreed with him that on the de facto officer question. “This subject received the consideration of the judges of the supreme court at the last term,” Chase asserted, “with reference to this and kindred cases in this district.”159 The full Court had apparently decided the de facto officer question, in secret, without having announced the fact in any case decision or written opinion,160 in some form of advisory preemptive appellate jurisdiction!?

To be sure, judicial norms were looser back then, but the whole thing was highly irregular even by the standards of the day. Charles Fairman, whose account defends the whole affair as an urgent workaround to stop Judge Underwood, nonetheless acknowledges that “[i]t was most unusual to hear a Justice on circuit declare that he was authorized to announce the opinion of the Justices of the Supreme Court on a matter pending in the Circuit Court.”161 Fairman further acknowledges technical problems with this maneuver, because the only issue in front of the full Court was an original writ of prohibition in Ex Parte State of Virginia, where the Court had granted a stay despite manifest procedural flaws.162 Somehow the Court’s nonruling in a dubious vehicle became a secondhand advisory opinion on a legal question of great importance. The criticisms levelled today at the shenanigans allegedly perpetrated on the Supreme Court’s “shadow docket,”163 fall much more heavily and justifiably on the heads of the Reconstruction justices.

And to return to this point once more, even if we accept this whole problematic advisory opinion, it simultaneously undermines the other part of Chase’s decision—his interpretation of Section Three. As Chase described it, there were two alternative ways to resolve the case—one massive constitutional question, and the other a more modest procedural question. Chase claimed that the whole Supreme Court had authorized him to issue a secondhand advisory opinion on the procedural question, an opinion adequate to resolve the Judge Underwood situation. But Chase ignored his colleagues’ apparent preference and resolved the case on massive constitutional grounds instead—grounds that he did not claim were endorsed by the rest of the Court. Is there any justification for his doing so other than a personal power grab?

All of this is without taking a view on the merits of the de facto officer question. This, we think, is not as obvious as Chase (and apparently his colleagues) made it out to be. True, American and English history was full of many statements about the valid acts of “de facto” officers and even specifically judges.164 But many of these statements could not be taken to their logical extreme in our constitutional system, and indeed, at the founding the Supreme Court had refused to accept the actions of several de facto judges in the saga surrounding Hayburn’s Case.165

How to reconcile these principles is a difficult question. One possibility, stated in some of the cases, is that an unlawful, but de facto, officer’s acts can be questioned directly, and on direct review, but not “collaterally.”166 On this possibility, maybe the de facto officer doctrine was a defense to claims like habeas—the procedural vehicle in Griffin’s Case—because habeas was a collateral attack.167 Habeas could not be used as a substitute for a writ of error, where the challenge would have been properly raised.

But another possibility is that the de facto officer doctrine protects only technical and ordinary legal defects in an officer’s appointment, not fundamental inability to exercise power, as when that power is forbidden by the Constitution.168 On this possibility, Judge Sheffey’s acts were inherently void, and thus everything he did fell outside of his court’s jurisdiction.169 The de facto officer arguments in Griffin’s Case—and thus the correct legal fate of Caesar Griffin—turn on these technicalities.170 Indeed, these technicalities were argued by the parties and they were the main subject of Judge Underwood’s opinion below.171 Chief Justice Chase could have turned his considerable powers to them, had he not been busy kneecapping the Fourteenth Amendment instead.

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Re: Trump lashes out at Gov. Doug Ducey following certificat

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part 3 of 8

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There is little to be said in defense of Griffin’s Case, but much to be learned from it. The very weakness of its arguments; the obviously result-oriented nature of its legal analysis; and the inconsistency of its conclusion with Section Three’s language, end up confirming the core conclusion in this section: Section Three’s disqualification of designated persons from office is a self-executing constitutional command that requires nothing more to have immediate legal force.

III. Section Three Supersedes, Qualifies, or Satisfies Prior Constitutional Provisions

Our third proposition is logically and methodologically straightforward but perhaps unsettling in some of its implications: Section Three trumps the earlier parts of the Constitution—to the extent there is a true conflict between them.

As noted above, one of Chief Justice Chase’s arguments against enforcing Section Three was that it conflicted (he thought) with prior constitutional norms—of due process, prospectivity, fairness, and so on.172 Even for those who do not put the claim in so many words, we suspect that they might share a similar intuition—there is something about Section Three, taken seriously, that seems harsh, unforgiving, undemocratic, unAmerican (?), even . . . unconstitutional(!?). If so, it might seem to follow that somebody (judges?) should tame Section Three.

This is an understandable instinct. But it is wrong: dead wrong. We think the conflict with prior constitutional rules is overstated—more feel than real. But to the extent the conflict is real, Section Three wins the faceoff.

Constitutional amendments change the Constitution. It thus should be unsurprising—indeed, it is in the very nature of constitutional amendments—that such new provisions, when added to the Constitution, supersede, displace, qualify, adjust, correct, or simply must be considered to satisfy earlier constitutional rules, to the extent of any actual conflict between them. Simply put: a constitutional amendment supersedes prior law precisely to the extent that it departs from the prior rules. This general maxim of interpretation applies to Section Three of the Fourteenth Amendment the same as it applies to any other constitutional amendment provision. If the original textual meaning of Section Three’s terms, understood in their natural sense and accounting for any terms of art or specialized usages of words, departs from or alters prior constitutional understandings, that new constitutional language must be given full effect and priority over earlier provisions.

These basic principles of conflicting legal provisions were astutely captured by Alexander Hamilton, writing as Publius in The Federalist Number 78. “It not uncommonly happens that there are two statutes existing at one time, clashing in whole or in part with each other and neither of them containing any repealing clause or expression,” Hamilton wrote. When this occurs, the courts must determine the “meaning and operation” of the two provisions.

Hamilton articulated two principles for doing so, which work as a complementary pair. “So far as they can, by fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done”—there’s the first of the pair, but Hamilton’s sentence does not end there, but instead pauses only ever-so-briefly, with a semicolon, before proceeding to the second rule of the pair: “where this is impracticable, it becomes a matter of necessity to give effect to one in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is that the last in order of time shall be preferred to the first.” This was, Hamilton continued, “a mere rule of construction,” but it was an appropriate one, “consonant to truth and propriety,” consistently recognized by courts as interpreters of law: that, as “between the interfering acts of an equal authority that which was the last indication of its will should have the preference.”173

Hamilton went on, more famously, to explain that a different interpretive principle governed the interfering acts of a superior and a subordinate authority—and proceeded to derive the proposition customarily called “judicial review.”174 But that is not the interpretive question here. Here, the key point is precisely Hamilton’s leadin proposition: that, as between “interfering” acts of equal legal stature—the paradigm being two statutes, adopted by the same legislature, at different times—the last in time prevails to the extent of any true, irreconcilable conflict. As with statutes adopted by the same legislative authority at different times, so with constitutional provisions adopted by the same authority at different times and possessing the same legal status: By the terms of Article V, constitutional amendments are “valid to all Intents and Purposes, as Part of this Constitution,” when adopted.175 Thus, where We, the People, have adopted a new constitutional text “interfering” with or departing from prior constitutional provisions, the lastintime enacted prevails to the extent of any conflict. That is the interpretive principle that governs the relationship between new constitutional language and old language from which it departs.

Actual constitutional examples of these principles abound. The entire Bill of Rights in a sense qualifies, or limits, the original Constitution’s grant of enumerated powers—to the extent of a conflict between those powers and the subsequently enumerated rights.176 Likewise, the Eleventh Amendment qualifies Article III’s extension of the federal judicial power to various cases and controversies. To the extent the Eleventh Amendment changes what Article III may originally have provided, the amendment supersedes that prior law.177

Much of the time, new amendments can be harmonized with what came before them. Section Five of the Fourteenth Amendment’s grant of “power to enforce, by appropriate legislation, the provisions of this article”178 does not preempt, for example, the Due Process Clause or the Cruel or Unusual Punishments Clause. It does not allow Congress to punish civil rights violations through summary tortures without trial. Similarly, Section Five does not preempt the Veto Clause; it can and should be read together with Article I, to require “appropriate legislation” to go through the preexisting lawmaking process.179 A new amendment does not ignore the legal system that it amends.

On the other hand, other parts of the Reconstruction Amendments did conflict sharply with prior constitutional norms, and they displaced them precisely to that extent. Consider the Thirteenth Amendment’s ban on slavery—a dramatic and particularly obvious illustration of the point that new constitutional language supersedes and repudiates old constitutional language, to the extent of any conflict. The Thirteenth Amendment’s abolition of slavery implicitly but necessarily overrides and extinguishes the Fugitive Slave Clause and any other provision of the original Constitution that protected the institution of slavery to the full logical extent of inconsistency with the amendment’s flat ban. Similarly, Section Two of the Fourteenth Amendment supersedes and displaces the Constitution’s original apportionment rules including the notorious Three-fifths Clause.180 Because the two rules conflict in substance, the amendment prevails over the Constitution’s original language.

Section Three of the Fourteenth Amendment is in the same family. In most respects, Section Three can be easily harmonized with other parts of the Constitution, such as Article I’s Speech or Debate Clause, Article I and II’s impeachment provisions, Article II’s process of presidential selection, Article III’s requirement of a case or controversy, and so on. As we have discussed, Section Three’s new constitutional qualification for office is enforced in the same way as other constitutional qualifications for office, and is easily reconciled with existing constitutional rules.

But there are a few constitutional provisions that have been alleged to conflict with Section Three. If and when this is the case, just as any later-enacted constitutional provision supersedes or modifies an earlier-enacted constitutional provisions with which the new provision conflicts, Section Three of the Fourteenth Amendment logically qualifies and, where the language so compels the conclusion, overrides prior constitutional rules.181

Thus, we think all this follows: To the extent of any inconsistency between them, Section Three overrides any limitations otherwise imposed by the Bill of Attainder Clause. To the extent of any inconsistency between them, Section Three also overrides limitations imposed by the Ex post Facto Clause. To the extent of any inconsistency between them, Section Three likewise overrides—or simply satisfies—prior constitutional requirements of due process of law.

Finally—and this example might present more difficult questions—to the extent of any inconsistency between them, Section Three overrides, supersedes, or satisfies the free speech principles reflected in the First Amendment. That is: Whatever the correct meaning of Section Three as applied to conspiracies, attempts, incitements, and advocacy that meet the description of “engag[ing] in insurrection or rebellion” or of giving of “aid or comfort” to enemies of the constitutional government of the United States, the constitutional meaning of Section Three of the Fourteenth Amendment modifies or qualifies what otherwise might have been thought the dictates of the First Amendment.

In the end, we think that these various prior provisions can mostly be read harmoniously with Section Three. Reason and common sense suggest they should be read consistently with one another to the extent fairly possible; and it is, for the most part, fairly possible to do so. But to the legitimate extent of any conflict or tension, Section Three controls over the Bill of Attainder Clause, the Ex Post Facto Clause, the Due Process Clause, and the First Amendment.

The first three are easy.

A. Bills of Attainder

A bill of attainder is the legislative infliction of punishment on specific people without a trial.182 It is a violation of both the separation of powers and individual rights because it short-circuits the normal adjudication of guilt or innocence. But Section Three is neither a bill nor an attainder. It is not a “bill”—that is, an enactment of the legislature. Rather, it is an enactment of The People as supreme constitutional law. And it is not an “attainder” either—in that it is not at all clear that it inflicts punishment, because disqualification from office is not necessarily or exclusively a form of punishment. For instance, the Twenty-second Amendment is surely not inflicting a “punishment” when it precludes the President from running for a third term.183 Moreover, Section Three does not inflict it on specified persons or groups, but rather on anybody who has committed a described course of conduct.

To be sure, Supreme Court precedent has read the Bill of Attainder Clauses more broadly, both in a pair of 20thcentury “red scare” cases184 and perhaps more relevantly in a pair of immediate post-Civil War-era loyalty cases: In Cummings v. Missouri185 and Ex Parte Garland,186 the Supreme Court invalidated state and federal oath requirements that required an “Ironclad Oath” from anybody holding a range of positions, both public and private. That oath was really a past-loyalty-requirement, requiring people to swear that they had not supported the confederacy or the like.187 The Court concluded that these requirements were effectively bills of attainder—and also ex post facto laws—and held them unconstitutional.

Even if one takes these precedents at face value it does not follow that Section Three would similarly be a bill of attainder. First, the “Ironclad Oath” laws had a broader scope than Section Three: Garland dealt with bar membership, and concluded that “exclusion from any of the professions or any of the ordinary avocations of life for past conduct can be regarded in no other light than as punishment for such conduct.”188 Similarly, the plaintiff in Cummings was a Catholic priest forbidden from preaching.189 Neither case dealt with a more focused exclusion from constitutional office. Indeed, the majority opinion emphasized this fact, explicitly noting that neither case involved qualifications for public office.190 Second, because both cases focused on the retroactive effect of the laws,191 neither case’s reasoning would seem applicable to Section Three in post-Civil-War insurrections and rebellions—which of course are the only insurrections and rebellions to which Section Three still applies.192

And in any event we doubt that one should take these precedents at face value. First of all, if we had to take sides, we might well be inclined to say that Garland at least may have been wrong, for reasons stated in dissent by Justice Miller (joined by three other justices, including, perhaps somewhat ironically given his later position in Griffin, Chief Justice Chase).193 Second, and more fundamentally, if constitutional amendments can change the Constitution, a fortiori they can change judicial interpretations (and misinterpretations) of the Constitution. That is of course what Section One of the Fourteenth Amendment famously did with respect to Dred Scott, what the Eleventh Amendment did with respect to Chisholm, and so on.194 In short, the Court’s interpretation of the Bill of Attainder Clause was a stretch, and regardless, it does not stretch far enough to change or limit the meaning of Section Three.

B. Ex Post Facto Laws

Article I also forbids both the state and federal governments from enacting an “Ex Post Facto” law.195 An ex post facto law is generally thought to mean a legislative enactment that makes a past act criminal even though it was lawful at the time it was done. Once again, Section Three does not meet this description, being neither a legislative enactment (but rather a new constitutional provision) nor a legislative enactment defining a criminal offense.196 True, as applied to actions done before 1868, Section Three has retroactive (noncriminal) constitutional legal effect. But as applied to actions done after 1868, the idea that Section Three might depart even from the “spirit” of the ban on ex post facto laws makes precious little sense.

So Section Three no longer produces any conflict—if it ever did—with the Ex Post Facto Clauses or with any Ex Post Facto Spirit that might be supposed to lurk behind them. And even if it did, Section Three would supersede both prior law and lurking spirit.

Indeed, we have this on especially good authority, as this very question has been asked and answered in the past. The Eleventh Amendment, as noted above, had the effect of cutting off jurisdiction previously recognized by Chisholm v. Georgia’s interpretation of Article III. In Hollingsworth v. Virginia, the Court then confronted the question whether the Amendment was retroactive, cutting off suits pending when the Amendment became law. The plaintiffs argued in the U.S. Supreme Court against retroactivity, because “[t]he spirit of the constitution,” forbade “the mischief of an ex post facto Constitution.”197 Indeed, this argument mirrored precisely the arguments for narrow construction we have seen above: “It is true, that an amendment to the Constitution cannot be controuled by those provisions; and if the words were explicit and positive, to produce the retrospective effect contended for, they must prevail. But the words are doubtful; and, therefore, they ought to be so construed, as to conform to the general principle of the Constitution.”198 But the Supreme Court disagreed emphatically—unanimously ruling the very next day that the Amendment applied retroactively, by necessary implication.199 As with the Eleventh, so too for the Fourteenth: Had the Supreme Court ever been called upon to consider the question, the right answer surely is that the Fourteenth Amendment’s rules immediately governed upon ratification and applied “retroactively” to prior actions covered by the revised constitutional rules.

C. Due Process of Law

The Constitution also forbids the deprivation of “life, liberty, or property without due process of law,” which in many circumstances requires judicial process. Does Section Three’s self-executing legal disqualification from office present any incompatibility with this requirement? Again, we think the two sets of provisions readily reconciled by giving the Due Process Clause no more than its due.

First of all, it is far from clear that the right to hold public office is a form of life, liberty, or property. It is a public privilege, a public trust, to be vested with the power of the people. And though it is a closer case, the same thing may be true even for those who already hold office at the moment that Section Three disqualifies them. Due process protects private vested rights from public deprivation. It does not protect public rights.200 It has been argued that in England, offices were understood as vested rights of property, and occasionally early American courts said so as well.201 But that was not the better rule in America. Treating offices as property did not fit well with republican principles,202 and by 1900 the Supreme Court could rightly state: “The decisions are numerous to the effect that public offices are mere agencies or trusts, and not property as such.”203

In any event, even if it were otherwise, and those who held offices were deprived of property by Section Three, what would follow? Nothing. Section Three would prevail. Consider once again the Thirteenth Amendment, which did directly interfere with private property rights—the right recognized in southern states to hold other humans in bondage. The Thirteenth Amendment instantly, self-executingly, eliminated those property rights, due process notwithstanding.204 So too would Section Three.

Principles of due process might also animate a different objection—that imposing such harsh consequences on individual wrongdoing simply ought to involve fair notice and an opportunity to be heard. Perhaps this instinct motivates the argument against self-execution, as in Griffin’s Case. But in our view this objection is sufficiently answered by the terms of Section Three itself. Perhaps the reason that Section Three only applies to holding office and not voting, and only applies to prior officeholders, who have previously sworn a constitutional oath—indeed, these limitations are the only ways in which Section Three’s scope was appreciably narrowed during the drafting process—is that we can expect once and future officials and oathtakers to be on particularly strong notice about the basic rules of the constitutional order. Section Three does not ensnare garden-variety crime or miscreance. It ensnares offenses against the authority of the system by those who have been and seek to be part of that system.

Similarly, so long as Section Three is applied through the established and customary procedures for determining qualifications for office, many due process objections would seem to disappear. As discussed above, in many scenarios, Section Three’s disqualification would be enforced through administrative hearings, quo warranto suits, state and federal judicial review, congressional adjudications, and so on. Anybody who wishes to argue that his conduct is not covered by the substantive sweep of Section Three is free to litigate that point through all relevant channels.205 Section Three is therefore not in conflict with any requirements of fair notice or an opportunity to be heard.

D. The Ominous Question: Section Three and the First Amendment

With respect to the Constitution’s provisions on bills of attainder, ex post facto laws, and due process, the harmonization of Section Three with prior constitutional law is easy and relatively unproblematic. There is little conflict between the two provisions, and to the extent there is, Section Three is plain enough that it must prevail. The interaction of Section Three with the First Amendment presents a more interesting, even troubling, question. Does Section Three partially revoke the right to political dissent?

Thinking too hard about this problem yields a morass: What exactly is the relationship between Section Three’s language imposing disqualification for having “engaged in insurrection or rebellion” and the First Amendment’s protections of the freedoms of speech, press, assembly, and petition? Likewise, what is the relationship between the disqualification for having given “aid or comfort” to insurrectionists, rebels, or other enemies of the United States and the First Amendment? As we have argued, Section Three in principle can supersede, qualify, or modify (or be deemed to “satisfy”) prior constitutional requirements, rendering the provisions of the First Amendment essentially without independent constitutional force as limitations on the scope of Section Three. But how might the prior and important constitutional principles of the First Amendment affect the proper understanding of Section Three’s meaning and scope? What exactly does Section Three effectuate, in relation to the First Amendment? Where do the usual protections of the First Amendment leave off and the legal disabilities imposed by Section Three take over, as a matter of the proper understanding of Section Three?

There are, crudely, three possible ways of describing the relationship. The first is to find Section Three (implicitly) limited by the First Amendment. The second is, in contrast, to view Section Three as properly understood as carving out a zone of exception to, supersession of, or satisfaction of First Amendment principles. The third, which we believe correct, lies somewhere in the middle: Section Three should be construed, to the extent fairly possible, consistently with the free speech principles memorialized in the First Amendment. But to the extent of a true conflict between them, Section Three must control.

To consider a not-so-hypothetical example, suppose that an officeholder covered by Section Three gives a speech to an assembled crowd encouraging them to engage in rebellious or insurrectionary conduct. (And suppose further that the crowd accepts the encouragement, rebelling against members of Congress carrying out a constitutional duty at the seat of government.) We will return to this example206 but for now we consider: how do we judge such an example? Is this only a question of the constitutional definition of “engage in insurrection” and “aid or comfort”—of whether an encouraging speech to an insurrectionary crowd is covered by those terms? Or is it also a question of whether that speech is protected by freedom of speech, and under modern doctrine, that would mean the very stringent test of Brandenburg v. Ohio?207 Or is it somehow both?

To a large extent, we think the conflicts between Section Three and free speech can be minimized—as Hamilton would counsel.208 First, even under modern doctrine, free speech does not protect several categories of speech that overlap with Section Three. Second, Section Three’s terms will not often reach pure speech.

To elaborate on the first point: Modern First Amendment doctrine leaves the government free to punish actual conspiracy and solicitation, direct incitement, and material support of unlawful activities such as insurrection, rebellion, and treason. (There are serious questions about how much modern First Amendment doctrine has exceeded the original protections of freedom of speech and freedom of the press, which we will largely put aside, but the point is that these exceptions are recognized even on today’s liberal understandings.209)

The First Amendment has long been held not to protect conspiracy to commit a crime or direct solicitation of unlawful activity, because this is “speech integral to criminal conduct.”210 And while one must use some caution about unduly expanding this category, conspiracy and solicitation are at its core.211 Thus, efforts to steal elections, to pressure state officials to manufacture votes, to pressure other officials (like the Vice President) to violate their constitutional duties in service of a constitutional coup—would all be unprotected by the First Amendment. To the extent those efforts are swept up by Section Three, there would be no conflict.

More familiar may be the modern line of cases concerning “incitement.” Over the course of the twentieth century, judicial doctrine increasingly gave greater protection to speech that could be seen as generally inciting unlawful activity, recognizing that earlier doctrine (such as the famous “clear and present danger” test) had too readily permitted suppression of disfavored political views. The modern rule, stated in Brandenburg v. Ohio in 1969, excludes from First Amendment protection only advocacy or expressive conduct (i) “directed to” (ii) triggering or inciting (iii) “imminent” lawless action (presumably including acts of insurrection or rebellion) and (iv) “likely” to produce such action.212 That is a fairly strict standard, but not one that is impossible to satisfy. Importantly, it does leave open—even under the generous terms of modern First Amendment law—the prospect that some acts of advocacy and expression supporting insurrection or rebellion are simply unprotected by the First Amendment in any event, so that Section Three does not even need to have amended or superseded the First Amendment in order for its terms to be given their full legal effect.

The Supreme Court’s relatively recent decision in Holder v. Humanitarian Law Project213 recognized a further and more controversial limitation on subversive speech: it can be forbidden where it provides “material support” to a foreign organization engaged in or committed to terrorist violence against the nation. The Court concluded that because the “interest in combating terrorism is an urgent objective of the highest order,” the Congress could forbid even speech—such as teaching and training—assisting such organizations, and even though the speech did not directly further terrorist conduct. While this decision is hedged by multiple limiting principles,214 it illustrates another set of circumstances where the First Amendment would create no conflict with potential applications of Section Three.

In sum, while modern First Amendment doctrine is quite generous in its protection of speech, in many cases it would produce no conflict with the coverage of Section Three. We will elaborate on the second point—the scope of Section Three itself—more fully in Part IV, but for now suffice it to say that the occasions will be rare where speech alone is what qualifies one as having “engaged in insurrection” or provided “aid or comfort” to enemies.

That said, we will concede that the conflict between free speech and Section Three cannot be denied entirely. Consider the Civil War example of Clement Vallandigham, who was arrested and imprisoned by the military on the theory that “he was laboring, with some effect, to prevent the raising of troops; to encourage desertions from the army; and to leave the Rebellion without an adequate military force to suppress it,”— that he was “warring upon the Military.”215 It is conceivable (though we do not prejudge the point) that Vallandigham’s antimilitary efforts could be covered by Section Three. And yet it is also quite plausible that his efforts would be protected by free speech.

Or for a sharper example, even more on point, consider the case of Representativeelect John Y. Brown, who was excluded from the Fortieth Congress on the grounds that he had given aid and comfort to the Confederacy by writing to the Louisville Courier promising to resist the Union army “unto the death” and stating that anybody who volunteered for the Union army “ought and I believe will be shot down before he leaves the State.”216 This exclusion was part of the backdrop of Section Three’s enactment and likely the kind of thing Section Three was intended to cover. But, argues one scholar of the incident, this preSection Three exclusion “was entirely unconstitutional” and “plainly violative of the First Amendment.”217 If that was so before Section Three’s enactment, does Section Three make it otherwise?218

Finally and perhaps most explosively, consider the 1919 exclusion of socialist newspaper editor Victor Berger from the House. Berger was denounced by members of the House for having given “aid and comfort to the enemies of this country during this Great War,” and excluded in part on that basis.219 (Indeed, Berger had also been convicted and sentenced under the Espionage Act, though the charges were overturned by the Supreme Court on grounds of judicial bias.)220 Another scholar of the incident writes that “Under a good reading of the First Amendment, Berger’s speeches and writings could not have been seditious; however under the interpretation prevailing at the time, they probably were.”221 What should we make of such an incident?

In the end, in a case where free speech principles conflict with the best original understanding of “engaged in insurrection” or “aid or comfort,” we think that free speech principles must give way. We stress that we do not think that all or even most disloyal speech will rise to the level of triggering Section Three’s disqualifications.222 But where it does, where “it becomes a matter of necessity to give effect to one in exclusion of the other,” it is the more recent Fourteenth Amendment that “shall be preferred” to the earlier rule.223

For those (like us) who value First Amendment liberties of speech, press, assembly, religion, and the right to dissent generally, might Section Three therefore be thought a little dangerous? Might Section Three, in the wrong hands or applied improperly, be used to suppress dissent in the name of excluding insurrectionists from office? Perhaps. We do not shy away from the point. But the supposed danger of a constitutional provision is not really an argument against its meaning. And the potential abuse of a constitutional power, privilege, or disqualification is not really a good legal argument against its existence. Section Three’s exclusion could be thought to pose a danger; but insurrection and rebellion are dangers too—all too real dangers, as recent events have shown. Where exactly that line is drawn by the Constitution, and the extent to which that line changes the prior rules of the First Amendment, are ultimately questions of the meaning of Section Three’s general terms triggering disqualification from future office—“insurrection,” “rebellion,” “engaged in,” “given aid or comfort to”—and of who all is included under Section Three’s ban. To that set of important questions we turn next.

IV. Section Three’s Substantive Disqualification is Sweeping

We come at last to the heart of the beast: the substance of Section Three’s prohibition. We begin (in Subpart A) with the most interesting and important set of issues—the types of misconduct that trigger Section Three. What deeds (and words?) amount to having “engaged in” “insurrection” or “rebellion” against the lawful authority of the Constitution and the system of government it establishes? What acts (or words?) amount to having given “aid or comfort” to “enemies” of lawful government under the Constitution?

These terms to some extent bear a range of meaning and fair construction. The events they describe are often exceptional and to some extent unique. Still, some applications will be clear and virtually indisputable, falling within the terms’ core meaning—the center of the interpretive bullseye, so to speak. Such scenarios so clearly fall within Section Three that they may be said to be contained within the opposite of a safe harbor—a “sure shipwreck,”224 to borrow Susan Morse’s phrase—of unquestionably disqualifying conduct falling within the core of Section Three’s meaning: for example, declared secession from lawful constitutional government; or the taking up of arms against government (as in the waging of the Civil War). At the other end of the continuum, there will be situations that clearly lie in a safe harbor outside the legitimate range of meaning of Section Three’s terms—ordinary expression of political dissent as well as even ordinary law violations. In between these markers, there is a zone of reasonable, fair construction of allowable interpretation and application in which government officials may make judgments that must be conceded to be within the range of what the Constitution permits—and where the decisions and actions of government officials exercising their constitutional powers consequently cannot be considered unlawful and thereby subject to judicial invalidation. Within that fair range of meaning, different interpreters legitimately can reach differing conclusions, all in accordance with the Constitution. We address all of these questions in subpart A.

We then turn more briefly (in subpart B) to the questions of what priorofficeholding, oathtaking categories of persons—persons who then subsequently engaged in insurrection or rebellion—are covered by Section Three’s ban and (a similar but distinct question) what future offices are constitutionally barred to such persons. We conclude that Section Three’s disqualification is sweeping, both in the substantive conduct that triggers such disqualification and in the officeholders and offices to which it applies. In particular, contrary to one recent revisionist view, we believe it applies to the Presidency.

Finally (in Subpart C) we will consider the attempted overthrow of the 2020 Presidential election. Did the incumbent president’s willful, deliberate refusal to accept the outcome of the lawful constitutional election resulting in his defeat for reelection and, instead, his (and others’) attempt to overthrow constitutional election results and install or maintain himself in office, by force, by fraud or by attempted de facto political coup d’etat against the regime of lawful constitutional government, constitute engaging in “insurrection or rebellion against the Constitution of the United States”? We think the answer is yes.

Whether called a “rebellion,” an attempted coup d’etat seeking to displace lawful government authority under the Constitution, or an “insurrection,” instigating, inciting and encouraging a mob to engage in acts of forcible violence directed against the ability of Congress and the Vice President to carry out their constitutional duties—and then refusing to intervene—such conduct is covered by Section Three, and is disqualifying. If those are indeed the facts concerning Donald Trump’s (and others’) efforts to overthrow the election—and we think they are—such conduct triggers the disqualification rule of Section Three.

Whether other federal and state officeholders—members of Congress, state legislators, past or present state and federal executive and judicial officers—engaged in conduct constituting “insurrection” or “rebellion” (including meaningful action in deliberate furtherance of an attempted coup against lawful constitutional government), or gave “aid or comfort” (approval, encouragement, support) to others who did, might sometimes involve more difficult questions of fact and judgment. But they are the questions Section Three compels us to ask, and to answer. Where such evaluations and judgments have been made by actors exercising legitimate authority to make them (as discussed in Part II) and fall within the fair range of Section Three’s meaning, those judgments are entitled to full legal effect.

A. Section Three’s Disqualifying Conduct: “Insurrection or Rebellion”; “Engaged In”; “Aid or Comfort” to “Enemies”

What is the proper, original public meaning of “insurrection” and “rebellion” as used in Section Three? Of having “engaged in” such conduct? Of having given “aid or comfort” to “enemies”?

Because the terms are capacious and the evidence is sprawling, we will start by proposing our working definitions for these terms. We then show how they are largely consistent with standard sources for discerning the meaning of constitutional text: contemporaneous definitions of these terms; usage elsewhere in the Constitution; and especially contemporaneous public, political, and legal usage of the terms. This last category, which is especially instructive, includes usages from President Lincoln, legislation adopted and sometimes implemented by the Civil War Congress (both the 1862 “Ironclad” oath and the Second Confiscation Act), and the significant mid-Civil-War decision of the Supreme Court in The Prize Cases. We also consider, albeit in somewhat more abbreviated fashion, statutes and usages leading up to the Civil War, including the Insurrection Act of 1795 as amended, and an important series of exclusions from Congress itself, as well as the relevant legislative history of Section Three, and a few scattered post-enactment applications of Section Three itself.

1. Working definitions

We begin by offering working definitions of the terms insurrection and rebellion as used in Section Three and of what might constitute “engaging in” such conduct or giving “aid or comfort” to others who do.

Insurrection is best understood as concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect. The term “insurrection” connotes something more than mere ordinary lawbreaking. It suggests an affirmative contest with, and active resistance to, the authority of the government. It is in that sense more than just organized resistance to the laws—more than just a protest, even one involving civil disobedience. Rather, it is organized resistance to the government. Insurrection is also more than mere “protest” in that it implies some element of forcible resistance. It is something more than a mere spontaneous, disorganized “riot.”225 Insurrection suggests at least some degree of coordinated, concerted action. The term also implies something more than acts of solitary individuals: to qualify as an insurrection the acts in question must involve some form of collective action, even if not an advance plan.

At the same time, insurrection may fall short of outright rebellion—even as the terms overlap and might bleed into each other—in that an insurrection might not seek to overturn, overthrow, or displace the government itself, in whole or in part (as a rebellion does). As the Supreme Court put it in The Prize Cases, in 1863: “Insurrection against a government may or may not culminate in an organized rebellion.”226

Rebellion is thus closely related to insurrection, but perhaps not quite identical in meaning. A rebellion is arguably broader in its reach than an insurrection: rebellion implies an effort to overturn or displace lawful government authority by unlawful means. (In the case of secession, or a declaration of independence, the rebellion is an effort to free those engaged in rebellion from the authority of the existing lawful government.) Rebellion is something beyond mere resistance to government authority in a particular instance or set of instances. A rebellion seeks to replace the existing regime, not just resist its law-executing authority. Rebellion involves repudiation, to some degree or another, of the regime’s authority, legitimacy, or validity. It is a challenge, direct or indirect, to the regime itself. The South’s attempted secession was a species of rebellion—an attempt to overturn the authority of the Constitution and government of the United States by the states asserting the right to secede. Likewise, an attempted coup d’etat is arguably also a species of rebellion—an effort to displace, replace, upend, or overthrow the existing lawful regime and substitute different authority in its stead.

The term rebellion can also imply a competing claim to legitimacy. “Rebellion” thus seems to carry a stronger political-claim-of-right valence than does “insurrection.”227 Crucially, however, the fact that an insurrection or rebellion claims political or moral legitimacy—as the American Revolution did; indeed, as the South’s secession did—does not make it any the less an insurrection or rebellion. The fact that an attempted coup d’etat, or declaration of independence, or secession, is claimed to be a “vindication” or “restoration” of rightful governmental authority—or asserted to be a preemptive effort to thwart some other person’s or group’s alleged wrongful assertion of authority—does not immunize such action from the legal characterization of rebellion against the regime. If somebody in fact participates in an attempt to overthrow the government, it makes no difference that he might think himself in the right for doing so, see himself as an agent for preserving lawful government, or view his acts and intention not as “rebellion” but restoration. Mistake of law is no defense to a coup d’etat. The South offered a variety of constitutional legal theories in defense of the supposed lawfulness of secession as an act for the vindication of its believed rights.228 That did not make its acts of rebellion any less acts of rebellion.

As to the overlap and distinction between insurrection and rebellion our working definition is more tentative. It is possible that a rebellion is simply a special case of an insurrection, in the way that a square is a special case of a rectangle. But it is also possible that the term rebellion is not necessarily limited to regime change by force—and thus may occupy some ground not covered by the word “insurrection” (which, we have suggested, must be forcible). There are such things as “bloodless coups”: actions that effectively displace or upend the prior constitutional order without shots being fired, but that nonetheless are in unlawful defiance or repudiation of the existing legal order.229

To illustrate this hypothesized distinction between insurrection and rebellion: Imagine that the Southern attack on Fort Sumter in April 1861 had preceded any declared right to secession. The attack would have been an act of insurrection—an exercise of concerted, forcible defiance of the authority of the Union government—but not necessarily outright rebellion. Conversely, the ordinances of secession adopted by state conventions in the South in 1860 and 1861230 preceded (mostly) any acts of actual forcible resistance to the authority of the United States to execute the laws. The secession ordinances might still immediately constitute acts of “rebellion,” even before any accompanying violence. In short: Sumter without secession would have still been insurrection. Secession without Sumter was already rebellion. Put the two events together—acts of forcible insurrection and declarations of avowed rebellion frequently travel in pairs (as they obviously did with the Civil War)—and it becomes difficult to distinguish “insurrection” from “rebellion.” The overlap of the two terms in theory becomes complete in practice.

In the end, however, we do not wish to make too much of the ways in which the terms differ in shades of color and in their implication. The coverage of the terms overlaps substantially. Sometimes, the terms, occupying much of the same ground, seem capable of being used almost interchangeably. Indeed, the bigger picture point for understanding Section Three is that “insurrection” and “rebellion,” in tandem, cover pretty much the entire terrain of largescale unlawful resistance to government authority.

So much for our working definitions of “insurrection” and “rebellion.” What does it mean to have “engaged in” such conduct? We believe one has “engaged” in insurrection or rebellion when one has been actively involved in the planning or execution of intentional acts of insurrection or rebellion; or when one has knowingly provided active, meaningful, voluntary, direct support for, material assistance to, or specific encouragement of such actions. Such planning, participation, support, assistance, or encouragement may be in the form of either words or deeds, as long as the person who has “engaged in” such activities embraced the objectives of the insurrection or rebellion in question and did things that contributed in a meaningful way to advancing those objectives.231 (There is obvious overlap here with the closely related concept of having given “aid or comfort” to the nation’s enemies, which we discuss presently.)

Of course, there are also important limits to how far the concept of having “engaged in” insurrection or rebellion extends. Mere passive acquiescence, resigned acceptance, silence, or inaction is not typically enough to have “engaged in” insurrection or rebellion. An exception to this limitation might exist where a person possesses an affirmative duty to speak or act. Further, mere abstract advocacy of, or theorizing concerning, the desirability of insurrection or rebellion, without more, is not the same as actually engaging in it. We think this is true even though the First Amendment does not formally constrain Section Three: it is simply the best understanding of Section Three’s terms.

Then there is the related question of what constitutes having given “aid or comfort” to “the enemies thereof.” This reads as a separate, independent ground for disqualification: Section Three is triggered by having engaged in insurrection or rebellion “or” having given aid or comfort to enemies. This language, of course, closely echoes the earlier constitutional language of the Treason Clause.232

In many cases, giving “aid or comfort” to enemies will be similar to the kind of conduct that counts as having “engaged in” insurrection or rebellion through intentional, active assistance. If there is a difference, it is that the term “aid or comfort” reinforces and emphasizes Section Three’s coverage of indirect but material assistance. Such material assistance—possibly including expression supporting, encouraging, counseling, or promoting the enemy—might more naturally fall into Section Three’s “aid or comfort” language, even where it might be debatable whether to characterize such conduct as directly “engag[ing] in” insurrection or rebellion.

Additionally, while Section Three uses some language paralleling that contained in the Treason Clause, Section Three is by no means limited to the constitutional crime of treason. “Insurrection” and “rebellion” are their own things, distinct from “treason.” While some acts of insurrection and rebellion might also constitute treason they need not do so in order to be encompassed within Section Three. So even if “aid or comfort” in Section Three connotes the same type of assistance-and-embrace principles as “Aid and Comfort” in Article III’s Treason Clause,233 the relevant conduct to which such assistance is given might well differ. (And, as noted earlier, it is plain that Section Three requires no prior criminal-law conviction, for treason or any other defined crime, as a prerequisite for its disqualification to apply.)

Finally, aid or comfort to whom? “[T]he enemies thereof.” We believe that “enemies” as employed in Section Three, embraces enemies both foreign and domestic. That now-familiar phrase (“enemies foreign and domestic”) comes from the “Ironclad Oath,” written into law in 1862, in the midst of the Civil War,234 and it seems clear from the political context of Section Three, enacted in the wake of a domestic civil war, that domestic enemies are enemies. It is almost unthinkable that Confederate rebels would not have been thought “enemies” in the sense employed by the text.235 Given the history and context of Section Three “enemies” seems to include the domestic rebels and insurrectionists just described earlier in the sentence.236

Our sense of the whole—of Section Three’s substantive terms triggering disqualification for those who have engaged in the conduct described—is that Section Three is quite sweeping, using overlapping terms to cover several different characterizations of major collective resistance to the authority of government under the Constitution. Whether it be called “insurrection” or “rebellion”; and whether a covered individual is thought to have “engaged in” such activity or given “aid or comfort” to “enemies” engaging in such activity, Section Three’s disqualification is triggered. The language is not unlimited, to be sure. But the broad and overlapping terms are not intended to be hospitable to loopholes or artful, narrow, technical evasions.

Finally, let us reiterate one consequence of Section Three’s breadth and capaciousness. Because Section Three’s terms possess a range of meaning, both a determinate core and a fuzzier periphery, we need a second-order rule concerning the authority of decisionmakers to act on the basis of fair interpretations of indefinite terms. We think that the general rule of our constitutional order is that political officials may take actions premised on fair interpretations of indefinite terms, and that when they do so, their actions cannot rightly be held “unconstitutional” by the courts, precisely because they fit within the fair range afforded by the Constitution. Where the Constitution admits of a range of choice, political authorities may exercise choices within that range.

This is foundational to our constitutional law.237 It is the premise of judicial review as set forth in Marbury v. Madison, which justifies setting aside the acts of other branches only because, and only to the extent to, they deviate from the Constitution’s meaning. It is classically illustrated by the Court’s reasoning in M‘Culloch v. Maryland,238 which upheld Congress’s power to create the Bank of the United States because a generation of political actors had acted within the fair range of meaning of constitutionally granted powers.

And this principle means, as a practical matter, that the breadth of Section Three’s broad terms cannot be ignored, or artificially limited, by judicial construction. Where those charged with responsibilities that involve applying Section Three’s terms have given that language its full legitimate sweep, that breadth must be honored.

We now canvas—perhaps too briefly and yet at too great a length—some of the evidence supporting these working definitions.

2. Contemporaneous Dictionary Definitions

As we have said, the task of ascertaining true constitutional meaning consists of seeking out the objective, original meaning of the words and phrases of the text: that is, the meaning Section Three’s terms and structure would have had in the legal system at the time. A starting point for such an inquiry—though not the ending point—is to look at contemporaneous dictionary definitions. (We think that evidence of contemporaneous political and legal usage of words and phrases contained in the constitutional text is actually quite often stronger evidence of original, objective linguistic meaning: it can serve as a kind of operational, practical concordance that may “define” terms more precisely in their application than can a cold dictionary definition.)

Nineteenth century dictionaries contain definitions of “insurrection” and “rebellion” that substantially corroborate our working definitions. Webster defined “insurrection” as “[a] rising against civil or political authority; the open and active opposition of a number of persons to the execution of law in a city or state.”239 Rebellion was “[a]n open and avowed renunciation of the authority of the government to which one owes allegiance.”240

Importantly, Webster also noted several distinctions between these and other terms. In defining rebellion, he distinguished an insurrection as “a rising in opposition to a particular act or law, without a design to renounce wholly all subjection to the government,” while a rebellion was a more categorical “attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction.”241 And in defining insurrection, Webster noted that insurrection is “equivalent to sedition, except that sedition expresses a less extensive rising of citizens.”242 This suggests a spectrum from sedition (not covered by Section Three) to insurrection to rebellion (both covered).

At the same time, Webster also conceded some overlap in these terms, writing that “[i]nsurrection may be, but is not necessarily, rebellion”243 and that despite these technical distinctions, “[i]nsurrection is however used with latitude as to comprehend either sedition or rebellion.”244 This suggests a great deal of potential breadth and overlap in these terms.

Along similar lines, a prominent midcentury legal dictionary, John Bouvier’s Law Dictionary in its 1868 edition, contains detailed definitions of insurrection, rebellion, and aid and comfort. “INSURRECTION” was defined simply as “[a] rebellion of citizens or subjects of a country against its government.”245 “REBELLION” is correspondingly defined: “The taking up arms traitorously against the government. The forcible opposition and resistance to the laws and process lawfully issued.”246 Bouvier’s thus treated “insurrection” and “rebellion” as nearly interchangeable terms, both involving some degree of concerted and forcible opposition to the authority of the lawfully constituted government but not clearly distinguishing between them.247

Bouvier’s dictionary also offers an instructive definition of “AID AND COMFORT” as “[h]elp, support, assistance, counsel, encouragement.” The entry adds this discussion, noting the lack of U.S. judicial interpretation at the time but a generally accepted English background understanding of the term:

The constitution of the United States, art. 3, s. 3, declares that adhering to the enemies of the United States, giving them aid and comfort, shall be treason. These words, as they are to be understood in the constitution, have not received a full judicial discussion. They import, however, help, support, assistance, countenance, encouragement. The word aid, which occurs in the stat. Westm. 1, c.14, is explained by Lord Coke (2 Inst. 182) as comprehending all persons counselling, abetting, plotting, assenting, consenting, and encouraging to do the act …248

This tends to confirm our broad construction of “aid or comfort” as encompassing many kinds of intentional support, akin to the common law.

3. Intratextualism

In some cases, the Constitution can also serve as its own internal dictionary. The meaning of a constitutional term in one part of the document can inform its meaning in another, either because of the complete (or near) copying of one constitutional text by another or by virtue of subtle contrast, refinement, or qualification in a term’s usage. (Professor Akhil Amar has dubbed this method of interpretation “Intratextualism.”)249 Chief Justice Marshall, for example, famously employed this method in M‘Culloch v. Maryland as part of his argument for the constitutionality of Congress’s chartering of a Bank of the United States.250

Might the Constitution’s other usages of terms that also appear in Section Three serve as such markers of meaning for “insurrection” and “rebellion,” and “aid or comfort” to enemies, as those terms are used in Section Three? A quick canvass suggests only limited help.

The word “insurrection” appears in the Militia Clause of Article I, Section 8 of the original Constitution: Congress is given the enumerated power to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”251 The word “rebellion” appears in the Writ Suspension Clause of Article I, Section 9: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or invasion the public Safety may require it.”252 In neither instance, however, does the context suggest any particular definition or explication of the term. They are thus of little direct assistance to the task of unpacking the meaning of Section Three.

As noted, the language in Section Three’s alternative trigger—the giving of “aid and comfort” to enemies—borrows the nearly identical language of the Treason Clause of Article III. But once again, the similar language in Article III is not self-defining. Nor was there an established, settled, authoritative judicial interpretation of this language that might have been understood specifically to define “aid and comfort” as a constitutional term-of-art at the time of the framing of the Fourteenth Amendment.253 Moreover, in the 1860s, the pairing of “aid” and/or “comfort” had become ubiquitous in legal and public discourse as a general allegation of improper assistance, making it still less clear that it was perfectly coterminous with the law of the Treason Clause.254

Finally, the words “insurrection” and “rebellion” also appear elsewhere in the Fourteenth Amendment itself, but again in ways that give little external light on Section Three. A person’s “participation in rebellion” is specified in Section Two as an allowable ground for denying the right to vote that does not trigger a reduction in a state’s representation as a consequence.255 Section Four of the amendment prohibits payment of debts or obligations “incurred in aid of insurrection or rebellion.”256 These neighboring sections use slightly different phrases for the behavior they cover (“participation” and “engaged in”; “aid or comfort” and “in aid of”), but it is difficult to say if the variations are meaningful.

4. Contemporaneous Public, Political, Legal Usage

Perhaps the best evidence of the public meaning of the terms “insurrection,” “rebellion,” and “engaging in,” as they came to be used in Section Three, consists of their common and frequent public, political, and legal usage in the 1860s—the years immediately surrounding the adoption of the Fourteenth Amendment—by a variety of actors: by President Abraham Lincoln, in prominent speeches, messages, public letters, and proclamations; by Congress, in major acts of legislation; and by the Supreme Court, in the landmark decision in The Prize Cases. The consistent pattern of usage was to treat the actions of the South as being, legally, “insurrection” or “rebellion.” A wide range of actions supportive of secession appears to have constituted “engaging in” or giving “aid or comfort” to rebellion or insurrection.

This leads us to what we think an obvious “sure shipwreck”257 for understanding Section Three’s terms. Whatever else “insurrection or rebellion” might embrace, they certainly embrace the cluster of actions with which Section Three was, historically, immediately and directly concerned: first, the attempted secession from the authority of the U.S. Constitution—the effort to displace the lawful authority of the United States in favor of the supposedly “seceded” state governments and their confederation into the “Confederate States of America”; and second, engaging in forcible resistance to the authority of the United States to execute the laws of the United States—armed resistance to the Constitution, specifically in the shape of waging civil war against the nation. Conduct participating in, advancing, supporting, or assisting either secession or armed resistance to U.S. authority constituted “engaging in” or giving “aid or comfort to” the Union’s enemies. Section Three encompasses all such actions in support of secession and civil war as included within its substantive trigger.
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Part 4 of 8

a. President Lincoln

An extremely important contemporaneous source for understanding the public constitutional meaning of “insurrection” and “rebellion” in 1860s public discourse is President Abraham Lincoln. Lincoln looms large in the public understanding of the day concerning the meaning of those terms. Lincoln consistently characterized secession and the Civil War as acts of insurrection or rebellion, avoiding wherever possible treating “secession” as if it were a separate legal category. Secession, for Lincoln, was a Southern euphemism for rebellion and treason. The Confederacy had no valid legal existence: what was going on with the Civil War was properly called insurrection and rebellion—the lawless attempt to overthrow the constitutional processes of the United States and displace lawful government with unlawful governments.

Lincoln was insistent and relentless—and very public and prominent—on this point, consistently so, across a range of contexts. For instance, the Civil War was emphatically not, in Lincoln’s view, a “war” between the United States and another sovereign.258 It was not subject to Congress’s Article I, section 8, clause 11 power to “declare War,” but was rather an illegal rebellion—a “giant insurrection”—to be suppressed by executive authority pursuant to Congress’s Article I, section 8, clause 15 power to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”259

Consider just a few prominent and illustrative statements: In his First Inaugural Address, on March 4, 1861, Lincoln, after setting forth arguments that “no State upon its own mere motion can lawfully get out of the Union,” concluded that “acts of violence within any State or States against the authority of the United States” are “insurrectionary or revolutionary, according to circumstances.”260 Following the attack on Fort Sumter, Lincoln’s April 15, 1861 proclamation calling forth the militia similarly characterized the attack as fitting the statutory definition of insurrection.261 And in his July 4, 1861 Message to Congress, Lincoln labelled the South’s purported secession a “giant insurrection” and, vividly, as “rebellion … sugar coated.” The “so-called ‘Confederate States’” had formed an “insurrectionary government.”262 In the same July 4 Message, Lincoln used the nature of secession as rebellion to justify suspension of the writ of habeas corpus as authorized by the terms of Article I, section 9, clause 2 of the Constitution, which used exactly that language of “rebellion.”263 Lincoln’s use of terms was significant and pulled no punches: efforts to displace lawful government authority with unlawful government—no matter how labelled by their perpetrators, no matter how deluded participants might be as to the lawfulness or propriety of their actions—were insurrectionary; such declarations and actions constituted rebellion.

Two years later, at the height of the war, Lincoln returned to the characterization of the South’s actions as “rebellion” (and the constitutional question of power to suspend habeas corpus) in a notable incident testing the limit of Union military suppression of antiwar and disloyal speech. In a June 12, 1863 public letter, nominally addressed to Erastus Corning, Lincoln defended the military arrest of former Ohio Congressman Clement Vallandigham, a notorious racist and prominent “Copperhead” pro-South, anti-Union northerner, who had made a public speech vehemently condemning the Emancipation Proclamation and the propriety of the Union’s war effort.

Lincoln distinguished law enforcement arrests from detentions in cases of rebellion. Wrote Lincoln: “Ours is a case of Rebellion—so called by the resolutions before me—in fact, a clear, flagrant, and gigantic case of Rebellion.” And that, Lincoln concluded, was what allowed suspension of habeas corpus.264 In the course of his argument, Lincoln described rebellion as “sudden and extensive uprisings against the government.”265 This is a useful description that supports our working definition: Rebellion is an “uprising.” It is something more than mere protest. It is, often, “sudden.” It is “extensive.” It is directed “against the government.” Rebellion is something more than ordinary law violation and that is why it is treated differently by the Constitution.

How did Vallandigham’s actions associate him with the rebellion? Lincoln made a forceful case that even pure speech might constitute assistance to rebellion—if it were advocacy producing direct, material effects benefitting the rebel enemy cause, by tangibly harming the military authority engaged in trying to suppress that rebellion. In the Corning Letter, Lincoln wrote that, “under cover of ’Liberty of speech,’ ‘Liberty of the press,’ and ‘Habeas corpus,’” rebel sympathizers “hoped to keep on foot amongst us a most efficient corps of spies, informers, supplyers, and aiders and abettors of their cause in a thousand ways.”266 Claims of freedom of speech could improperly furnish a shield or cloak for wrongful conduct; they supplied “cover” for, and thus assisted, rebellion and insurrection.

Lincoln expanded these arguments in yet more arresting ways. He suggested that, in some circumstances, a person’s refusal to speak out against rebellion might be tacit support for such rebellion: a “man who stands by and says nothing, when the peril of his government is discussed, can not be misunderstood. If not hindered, he is sure to help the enemy.” He also hinted at regret that he had not earlier arrested prominent oathbreaking officers now “occupying the very highest places in the rebel war service,” such as John Breckinridge, Robert E. Lee, Joseph Johnston, and John Magruder: “I think the time not unlikely to come when I shall be blamed for having made too few arrests rather than too many.”267 Lincoln’s position seems clear, if perhaps a bit unsettling: claims of freedom of speech did not invariably prevail over the imperative constitutional necessity of suppressing rebellion; where words fueled insurrection, or thwarted its suppression, or signaled disloyalty, the speaker was aiding the enemy. Such expression was not necessarily privileged.

This is not exactly an expansive conception of First Amendment rights. Lincoln fully recognized the difficulties with his stance. He did not ignore the tension between his conclusions and peacetime free speech principles but argued that the tension could be reconciled.268 In a colorful metaphor, Lincoln ventured:

I can no more be persuaded that the Government can constitutionally take no strong measures in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown not to be good food for a well one. Nor am I able to appreciate the danger apprehended by the meeting that the American people will, by means of military arrests during the Rebellion, lose the right of Public Discussion, the Liberty of Speech and the Press, the Law of Evidence, Trial by Jury, and Habeas Corpus, throughout the indefinite peaceful future, which I trust lies before them, any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness as to persist in feeding upon them during the remainder of his healthful life.269

Lincoln also stressed a distinction between speech directed at criticism of the government’s political policy—fully protected by the freedom of speech—and expression more or less directly aimed at harming the military’s recruitment and war effort. If Vallandigham had been arrested merely because he was “damaging the political prospects of the administration” or “the personal interests of the general,” that would be one thing, Lincoln observed. “[I]f there was no other reason for the arrest, then I concede that the arrest was wrong.” But as Lincoln understood it, the arrest “was made for a very different reason”—that Vallandigham was “laboring, with some effect, to prevent the raising of troops, to encourage desertions from the army, and to leave the rebellion without an adequate military force to suppress it.” Vallandigham was, in short, “warring upon the military.” He who “dissuades one man from volunteering, or induces one soldier to desert, weakens the Union cause as much as he who kills a union soldier in battle.” Desertion was punishable by death, of course. In a famous line, Lincoln asked, rhetorically “Must I shoot a simpleminded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert?”270 Lincoln’s answer was no: “I think that in such a case, to silence the agitator, and save the boy, is not only constitutional, but, withal a great mercy.” 271

Lincoln continued: “If I be wrong on this question of constitutional power,” he added, “my error lies in believing that certain proceedings are constitutional when, in cases of rebellion or Invasion, the public Safety requires them, which would not be constitutional when, in absence of rebellion or invasion, the public Safety does not require them in other words, that the constitution is not in it's application in all respects the same, in cases of Rebellion or invasion, involving the public Safety, as it is in times of profound peace and public security.”272

Lincoln thus embraced the view that material assistance to insurrection or rebellion could in some cases take the form of effective advocacy of unlawful conduct that, if engaged in by substantial numbers, would materially advance the rebel cause or harm the military prospects of the Union. The fact that such assistance to rebellion came in the form of words did not furnish any constitutional privilege to such action. Where rebellion threatens public safety or public security, the Constitution permits restriction on advocacy furthering, supporting, or assisting such rebellion.

To be sure, one might well conclude that Lincoln went too far in his arguments in the Corning Letter or in some of his actions during the war. That is an interesting and difficult question—and not our point here. Our point is that Lincoln’s view was a prominently expressed contemporaneous understanding—and on the issues of insurrection, rebellion, and complicity, it was consistent with his longstanding and oft-repeated views. This does not directly answer the question whether or to what extent such thinking specifically informed general public understanding of Section Three. But Lincoln’s thinking, articulated in such a public context, may well have informed the potential reach of the terms “insurrection or rebellion,” and what constitutes engaging in or aiding such conduct, as those terms came to be employed in Section Three of the Fourteenth Amendment.

At all events, Lincoln made clear and prominent the position that declaring secession, engaging in forcible opposition to the constitutional authority of the Union, and materially assisting others in such conduct, all constituted forms of support for and participation in “insurrection” or “rebellion.” And this stance continued throughout the war, even as the nation began to look to the war’s conclusion and to questions of the postwar status of persons who had participation in that rebellion—questions at the core of Section Three of the Fourteenth Amendment.273

b. Congress

President Lincoln was not the only public figure grappling with concepts of insurrection and rebellion during the Civil War. Similar themes can be found in the statements and actions of Congress and the Supreme Court.

Start with Congress: We think two specific enactments of Congress during the Civil War are especially probative of the understandings of “insurrection” and “rebellion” and of what conduct was publicly understood to constitute having “engaged in” or given assistance to rebellion. First, there is the so-called “Ironclad Oath,” adopted on July 2, 1862 as the oath one must be able to swear in order to hold federal office.274 Second, there is the “Second Confiscation Act,” adopted that same month, on July 17, 1862, to authorize legal forfeitures of property and slaves, and also to enforce disqualifications from federal office, by persons who had engaged in specified activities constituting “rebellion” or “insurrection.”275 These two enactments, and their implementation to exclude former insurrectionists and rebels from future office, say much about the terms they employed.

i. The Ironclad Oath

Congress adopted The Ironclad Oath in the thick of the Civil War and it was required of most federal officeholders from 1862 to 1884.276 The text of the Oath sets forth the types of misconduct regarded as disqualifying an individual from eligibility for federal office because he had been engaged in supporting the rebellion—an inquiry very closely parallel to that contained in Section Three of the Fourteenth Amendment, proposed by Congress just a few years later.

The Ironclad Oath required that prospective officeholders swear or affirm that they had not done any of several things. In that sense it did not function like a traditional oath of office—a promise of future behavior—but much more like a disqualification for past misbehavior.277 It did indirectly what Section Three was soon to do directly. That makes the Ironclad Oath’s list of never-have-Ievers particularly instructive. Here’s the oath, with its most-relevant-to-Section-Three features and phrases italicized (and with bracketed numbers inserted):

I . . . do solemnly swear (or affirm) that I have never [1] voluntarily borne arms against the United States since I have been a citizen thereof; that I have [2] voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have [3] neither sought nor accepted nor attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States; that I have [4] not yielded a voluntary support to any pretended government, authority, power or constitution within the United States, hostile or inimical thereto.

While not using the words insurrection or rebellion, the Ironclad Oath’s list of never-have-Ievers would seem strongly suggestive of how Section Three’s triggering language likely would have been understood in public usage at the time. The Ironclad Oath is not a definition of Section Three’s constitutional terms, of course. But it would appear an apt descriptive specification of the kinds of misconduct included within those terms. Under the oath, disqualifying behavior included: (1) fighting against the United States; (2) aiding or encouraging such armed hostility; (3) accepting office under a hostile authority (or “pretended authority”); and—a highly evocative phrase—(4) “yield[ing]” one’s “voluntary support” to “any pretended government, authority, power or constitution . . . hostile or inimical” to the United States.

The content of this oath’s requirement establishes a useful, historically prominent marker for the scope of Section Three: What the Ironclad Oath understood to be disqualifying for federal office, Section Three likely embraced as constitutionally disqualifying conduct for the far broader sweep of offices to which it extended.278

ii. The Second Confiscation Act

Barely more than two weeks after adopting the Ironclad Oath, the Civil War Congress enacted what is popularly called the “Second Confiscation Act.” Its full title spoke explicitly in terms of insurrection and rebellion: “An Act to suppress Insurrection, to punish Treason and Rebellion, to seize and confiscate the Property of Rebels, and for other Purposes.”279

This Second Confiscation Act was a very prominent piece of legislation. It imposed sweeping penalties, forfeitures, and disqualifications on anybody who had engaged in or assisted the rebellion.280 The Second Confiscation Act was long and vigorously debated in Congress, much discussed in the press and in public discourse, objected to by many on constitutional grounds, and nearly vetoed by President Lincoln.281 Enactment of the Second Confiscation Act gave rise to very public pressure on President Lincoln to take aggressive action against slavery in rebel states—pressure that helped spur Lincoln to issue his Emancipation Proclamation as an executive military order. The Second Confiscation Act was a big deal. 282

The Act itself was a complicated and somewhat confusing hodgepodge of distinct provisions, combining property confiscation, emancipation, a new federal crime, and disqualification from office. But the terms it used are especially evocative, visiting legal consequences on persons who “engaged in,” “incite[d],” “set on foot,” or “assist[ed]” “rebellion” or “insurrection” or who had “given aid or comfort” to rebellion or done acts “aiding and abetting” rebellion. The Act is practically a glossary of the terms used in Section Three of the Fourteenth Amendment proposed by Congress just four years later.

Specifically: Section 2 made it a new crime, distinct from treason, to “incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States or the laws thereof” or to “give aid or comfort thereto” or to “engage in, or give aid and comfort to,” any “existing rebellion or insurrection.”283 It is worth pausing to parse the linguistic resemblances to Section Three, and the ways in which like terms are used and explained. Following Lincoln, secession and civil war are equated with “rebellion or insurrection.” Those terms are described as involving acts “against the authority of the United States, or the laws thereof” (a formulation closely conforming to our working definitions). Section 2 imposes criminal liability on persons who “incite” such acts; who “set on foot” such acts; who “assist” such acts; who in any other way “engage in” such conduct; or who “give aid and comfort to” such conduct. All of these terms have close parallels in Section Three of the Fourteenth Amendment.

Section 3 of the Act then imposed a sweeping disqualification from future officeholding—a kind of proto-Section Three of the Fourteenth Amendment: “every person guilty of either of the offences described in this act shall be forever incapable and disqualified to hold any office under the United States.”284 Section 5 directed the President to seize rebel property belonging to a long list of confederate officers plus anyone in a loyal state who “shall hereafter assist and give aid and comfort to such rebellion.”285 Officeholding in a rebel government or military was per se blameworthy participation; but general giving of assistance or aid or comfort also qualified as participation in rebellion. Section 6 provided a further authorization for seizure of the property of any person not already mentioned who, “being engaged in armed rebellion against the government of the United States, or aiding or abetting such rebellion,” and, after sixty days’ notice issued by the President, did not “cease to aid, countenance, and abet such rebellion, and return to his allegiance to the United States.”286 Section 7 and Section 8 provided for in rem proceedings against property “found to have belonged to a person engaged in rebellion, or who has given aid or comfort thereto,” in which case it “shall be condemned as enemies’ property.”287 And Section 9 famously emancipated slaves of persons “who shall hereafter be engaged in rebellion” against the Union or who “shall in any way give aid or comfort thereto.”288 Throughout these sections, one can see the recurrent use of terms and concepts, and synonyms for such terms, that would reappear in Section Three of the Fourteenth Amendment: “engaged in,” “rebellion,” “aid or comfort,” “abet,” “countenance,” “enemies.”

Unlike the Ironclad Oath, the Second Confiscation Act did not give rise to many opportunities for immediate application and further interpretation. In part, this was simply due to the exigencies and realities of Civil War at the time. For example, the civil forfeiture provisions contemplated in rem judicial proceedings against persons in the district where property was located. At the time, such property was often located in areas of rebel control. Often, the federal courts were not even functioning there 289 Similarly, as a practical matter, criminal prosecutions of rebels for treason and insurrection had to await Union military success. (And after success came, President Andrew Johnson ultimately pardoned a great many offenders.)290 The Lincoln administration, focused on other matters, showed little interest in bringing legal actions to enforce the Act’s specific policies. The administration, according to one scholar, “chose not to implement the law vigorously.”291 Attorney General Bates “exerted no more than a minimal effort to make the first and second confiscation acts work.”292 And the Act’s section authorizing limited military emancipation section was rapidly overtaken—superseded in practical effect—by President Lincoln’s far more comprehensive Emancipation Proclamation, issued pursuant to his constitutional Commander in Chief power.

But in some ways the lack of enforcement cases is beside our point here, which concerns the Act’s prominence in national discussions and its pervasive use of terms, phrases, and concepts—rebellion, insurrection, engage in, aid or comfort—that would reappear in only slightly different form in Section Three of the Fourteenth Amendment. Like the Ironclad Oath, the Second Confiscation Act employed terminology nearly identical to that employed in Section Three of the Fourteenth Amendment. The usage of the terms in this landmark legislation we think helps explicate the meaning, in public legal context, of the language in the amendment. In the context of 1860s public legal usage, engaging in or giving aid or comfort to rebellion and insurrection extended to a broad range of activity advancing or furthering efforts to unlawfully upend the lawful operation of the U.S. constitutional regime. This strongly supports the conclusion that Section Three’s terms can fairly be read quite expansively, as embracing a broad range of conduct directed against the authority of government under the Constitution.

c. The Supreme Court’s decision in The Prize Cases

The most important constitutional decision of the U.S. Supreme Court during the Civil War was The Prize Cases.293 There, the majority upheld the constitutionality of Lincoln’s unilateral military order, made very early in the Civil War, imposing a blockade on Southern ports. In a truly landmark decision, the Supreme Court held that the President’s war powers (including the power to impose a blockade) were triggered immediately, as soon as the South’s rebellion took the form of organized military resistance to the authority of the U.S. government. The President’s power to wage civil war against rebel forces derived from his delegated statutory power to employ force to suppress rebellion, the Court held. A congressional declaration of war was neither a prerequisite nor legally appropriate for this type of use of force: “This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections” but “sprung forth suddenly … in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name.”294

The Court’s decision in The Prize Cases is today regarded as the leading judicial exposition of the Constitution’s allocation of war powers. At the time, the case had other hugely consequential implications: the principles set forth in the decision essentially endorsed in advance (but of course without addressing the question directly) Lincoln’s constitutional justification for the Emancipation Proclamation, which he had issued earlier that year.295 The decision of The Prize Cases was a very big deal indeed.

Of special interest for our purposes is the Court’s usage and explanation—in a highly prominent legal context—of the terms insurrection and rebellion, and their relationship to war and the war powers of the national government: “Insurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the Government,” the majority said.296 A civil war “becomes such by its accidents—the number, power, and organization of the persons who originate and carry it on.”297 Where a rebellion has come to possess certain military characteristics, the “party in rebellion” might come to be treated as a belligerent for lawofwar purposes, even though a domestic rebellion stands on different constitutional legal ground than war with a foreign nation. “It is not the less a civil war, with belligerent parties in hostile array, because it may be called an ‘insurrection’ by one side, and the insurgents be considered as rebels or traitors.”298

In a nutshell: insurrection or rebellion were forms of active resistance to the lawful authority of the government. An insurrection might be something short of outright rebellion. But an insurrection against government authority sometimes grows into full-on “rebellion.” A rebellion, in turn, need not take the form of civil war in order to be a rebellion. But sometimes it does. At all events, rebellion seems its own distinct, more general legal concept of repudiation or attempted overthrow of the lawful constitutional regime by unlawful means.

The Prize Cases also held that persons engaged in insurrection or rebellion could be treated as “enemies” (as well as traitors) for legal purposes. Further, the war power, such as imposition of a blockade, could lawfully affect the legal property rights of persons engaged in “commerce” that “supplies” rebels or insurrectionists—and could do so irrespective of the supposed loyalties of the property owner. Even “neutral” powers’ shipping could be seized when it violated a blockade: “Whether property be liable to capture as ‘enemies’ property’ does not in any manner depend on the personal allegiance of the owner. ‘It is the illegal traffic that stamps it as “enemies’ property.”’299

The Prize Cases’ treatment of the concepts of insurrection and rebellion, of who constituted “enemies,” and of what actions constituted support for rebellion, would have been very much part of the legal culture of the day and provides important legal background as to how these terms would have been understood at the time of the drafting of Section Three of the Fourteenth Amendment, just a few years later. Insurrection and rebellion involve varying degrees of concerted resistance to “the lawful authority of the Government,” with insurrection being the arguably somewhat lesser form and rebellion the somewhat greater. A rebellion or insurrection need not involve acts tantamount to levying war. (War is sometimes a feature of rebellion but does not define it.) The Civil War was an outgrowth of insurrection or rebellion. But the fundamental act of rebellion remains the attempt to displace the lawful authority of government by unlawful means. And those who give material assistance to the enemy may also suffer legal consequences.

We find the overall evidence of prominent 1860s political and legal usage of the same concepts and language as would soon be employed by Section Three—“insurrection,” “rebellion,” and what it meant to “engage in” or provide “aid or comfort” to the same—highly probative of Section Three’s original public meaning. President Lincoln, repeatedly and insistently; Congress, pointedly and consistently; and the Supreme Court, decisively, used these terms in connection with secession, forcible resistance to the legal authority of the Constitution, and participation to varying degrees in efforts to overthrow, subvert, or undermine the authority of lawful government. These usages were public, prominent, legal, and essentially undisputed within the Union. While the specific circumstances of secession and civil war gave rise to these formulations, they did not define or limit the terms’ meanings, which were more general. Secession, and civil war, were species of insurrection and rebellion—organized, group resistance to the authority of government to execute the laws and attempts to substitute an unlawful legal regime for the lawful, constitutional one. But insurrection and rebellion were the broader categories. It is hard to avoid the conclusion that these 1860s Civil War usages of terms carried over into the meaning of Section Three.

5. Other Extant Statutory Sources and Notorious Examples

a. The Insurrection Acts (and Insurrections Generally)

What about the Insurrection Acts themselves—the statutes that comprised the statutory authority supporting Lincoln’s use of military force to suppress secession? These statutes implemented Congress’s power “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” as well as its other war powers over the army and navy. The central statute was enacted in 1795 (superseding a similar enactment in 1792) and was amended in 1807 and 1861. These statutes—the conduct they were understood to reach; the forms and degree of opposition to government authority that were believed to trigger the statutes’ application; and the circumstances in which they had been invoked and applied in the past—also would have been part of the background understanding of the term “insurrection” as it came to be incorporated into Section Three.

The 1795 act explicitly recited that it was enacted in part to carry into execution the power to “suppress insurrections.” But it also applied to repel invasions and to enforce federal law. Together, these were the three circumstances where Congress had the power to provide for calling out the militia.300 Section One of the Act allowed the President to call forth the militia “whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe,” as well as, upon request of state authorities, “in case of an insurrection in any state against the government thereof.”301 Section Two allowed the President to call forth the militia “whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act.”302 Section Two encompasses insurrections against the United States.303 (Section One specifically deals only with insurrections against a state government.)

In 1807, Congress supplemented this power with the power to call out the army and navy in similar circumstances: “in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States as shall be judged necessary …” The 1807 act thus carried forward and repeated the 1795 act’s understanding of insurrection.304

Finally, on July 29, 1861, Congress amended the trigger again to specifically describe “rebellion.” It allowed the President to call forth the militia “whenever, by reason of unlawful obstructions, combinations, or assemblages of persons, or rebellion against the authority of the Government of the United States, it shall become impracticable, in the judgment of the President of the United States, to enforce, by the ordinary course of judicial proceedings, the laws of the United States . . .”305

The various versions of the Insurrection Act illustrate a common theme: insurrection is more than ordinary law violation; it entails “combinations” or “assemblages,” acting together, to “oppose[s]” or “obstruct” the ability of government to “execute” the law, in numbers “too powerful” to be suppressed by the usual means of law enforcement.306

Moreover, several famous instances in which this statutory authority had been (or might have been) invoked provide additional informative context for understanding “insurrection” or “rebellion.” Consider just a few.

The “Whiskey Rebellion” was one famous such instance. In 1794, acting under the 1792 predecessor statute, President George Washington personally led militia forces into western Pennsylvania to suppress a large uprising against the government spurred by resistance to the enactment of a federal tax on distilleries. Notably, the Whiskey Rebellion involved armed mobs, organized and employed for the purposes of intimidating and threatening federal officers, keeping them from performing their duties under the law, and preventing others from assuming federal office (or inducing them to renounce their authority).307

We believe the “Whiskey Rebellion” would have been regarded in the nineteenth century as a classic illustration of what was meant by the terms insurrection and rebellion.308 Indeed, by the time of the drafting of Section Three, it seems to have been regularly referred to in precisely those terms.309 In commonplace usage, as well as in political, and legal discourse, the Whiskey Rebellion was a familiar illustration of an “insurrection” or “rebellion.”

“Fries Rebellion,” in 1799, was another well-known antitax revolt, this time in eastern Pennsylvania.310 President John Adams invoked the 1795 Act to suppress the “insurrection,” as he called it,311 which had involved threats, intimidation, and violence directed at federal tax assessors by organized bands of persons designed to prevent the assessors from performing their duties, and further such acts directed against the ability of the government to arrest tax resisters. In at least one instance, armed opponents of the government successfully freed prisoners from federal custody. The Adam’s administration’s suppression of the insurrection led to widely publicized treason prosecutions312 of leaders and instigators of the unlawful resistance, including John Fries. As with the Whiskey Rebellion, Fries Rebellion was characterized by concerted acts of forcible interference with federal officials’ ability to perform their duties under law.313

Nat Turner’s Rebellion, a violent slave revolt in 1831, did not lead to a presidential invocation of the Insurrection Act.314 But it surely would have been a classic illustration of at least an “insurrection” and perhaps even a “rebellion”—a concerted uprising seeking forcibly to overturn the legal order and thwart government’s ability to execute the law. A published report of Turner’s own account called it both an insurrection315 and in one instance an “open rebellion.”316 This example, too, likely would have formed part of the background understanding of the terms insurrection or rebellion at the time they were employed in Section Three.

More broadly, slavery and antislavery produced other prominent incidents that would have been classed as small or large insurrections against government—instances that went beyond individual instances of legal disobedience, or of resistance to the laws themselves, and rose to the level of active, concerted, unlawful resistance to the authority of government to execute the laws. Specifically, revolt against the Fugitive Slave Act of 1850 sometimes took the form of slave liberation in open defiance of government authority. For example, in Boston in 1850 and 1851, a local vigilance committee invoked “the ‘higher law’ doctrine” to openly harbor freed slaves to the point that President Millard Fillmore “threatened to send in federal troops.”317 In Christiana, Pennsylvania in 1851, a Quaker community took up arms (!) to defend fugitive slaves, shooting several slaveowners who had arrived from nearby Maryland. This was denounced as an “act of insurrection,” and this time President Fillmore did call out federal troops.318 In Wisconsin in 1859, resistance to federal authority became so widespread as to prefigure the coming of the Civil War.319 And of course John Brown’s fateful raid on Harper’s Ferry in 1859 was an explicit act of insurrection and rebellion: a quixotic and ill prepared attempt to foment a massive slave insurrection and to overthrow the power of proslavery governments in the South.320 These rebels and insurrectionists were fighting deeply unjust laws, but there is no question that they committed many acts of insurrection nonetheless. Rebellion for a good cause is still rebellion.

Another prominently identified insurrection or rebellion would have been Dorr’s Rebellion, in Rhode Island, in 18411842 which led to the Supreme Court’s 1849 decision in Luther v. Borden.321 There, a cabal claiming to constitute the new, lawful government of Rhode Island engaged in forcible resistance to and sought to overturn the authority of the prior, lawful state government (the “charter” government that traced its authority to Rhode Island’s original colonial charter). The federal government did not invoke the Insurrection Act to intervene, but it well might have. When the Supreme Court ultimately adjudicated the case—through the vehicle of a trespass suit by a member of one faction, against members of the other—the Court held that the question of which government constituted the lawful government of the state was a political question committed to the judgment of Congress and the President and that the judiciary lacked authority to interfere with the political branches’ actions (and inactions), which had tacitly supported the charter government. The practical result of the decision—relevant to our inquiry– was that the losing side in the struggle (the faction headed by Mr. Dorr) legally could be treated by the prevailing side (the charter government) as having engaged in “insurrection” against the rightful state government. The Court noted, and seemingly accepted, the charter government’s characterization of plaintiff and others having “assembled in arms . . . for the purpose of overthrowing the government by military force”322 and as having attempted “to assert the authority of [the Dorr government] by force,”323 as amounting to having “engaged in the insurrection.”324 The Court also referred to the government’s actions as having been designed to suppress that “insurrection.”325 The Court appeared to equate with “insurrection” the Dorr group’s attempts to displace or supersede the existing government and forcibly assert its own claimed authority as a replacement.

Finally, several notable invocations of the Insurrection Act occurred during the period of Reconstruction during the presidency of Ulysses S. Grant.326 While these events occurred after ratification of the Fourteenth Amendment (and thus could not have formed any part of the subjective understanding of the drafters and ratifiers of the meaning of Section Three), they nonetheless deserve mention as roughly contemporaneous evidence of the objective meaning of “insurrection” as displayed by important usage within a few years of adoption of the Fourteenth Amendment. Briefly summarized: In South Carolina in 1871, Grant twice invoked the Insurrection Act (as well as suspending habeas corpus, among other actions) to secure order in dealing with the Ku Klux Klan.327 In Louisiana, in 1872, a contested gubernatorial election spawned efforts by white supremacists to overthrow the elected pro-Reconstruction Republican government, culminating in the infamous “Colfax Massacre” of April 13, 1873, in which a white mob attacked and massacred perhaps 150 black citizens who had been defending a courthouse in Colfax, Louisiana and, more broadly, the Reconstruction Republican government. President Grant invoked the Insurrection Act as authority to suppress the insurrection that sought to overturn the election result.328 Later, in 1874, Grant again invoked the Insurrection Act in Louisiana, this time to suppress a white supremacist coup d’etat that had overthrown the Republican governor by force.329 Federal troops reinstated the lawful government, but the insurrectionists established a rival state government that effectively controlled much of Louisiana outside of the capital—New Orleans at the time. (The conflict lasted until 1877, when Reconstruction was abandoned by the national government and white supremacists took full control of the state.) In Mississippi, in 1874, white supremacists fabricated criminal charges against the newly elected black sheriff, Peter Crosby, and deposed him by mob action.330 Black citizens organizing an effort to reinstate Crosby were attacked by white mobs, resulting in the massacre of as many as 300 black citizens. Again, President Grant invoked the Insurrection Act and sent federal troops to reinstate Crosby and prevent further violence. Also in 1874, in Arkansas, Grant invoked the Insurrection Act to quell violence in an ongoing dispute over the 1872 gubernatorial election results.331 And in 1876, in South Carolina, Grant invoked the Insurrection Act to protect the gubernatorial election process from white supremacist groups.332 Common to each of these instances during the Grant administration was the idea that concerted efforts to overturn lawful popular election results by mob action, force, violence, and intimidation constituted “insurrection” against government.

It is difficult to evaluate precisely the probative force of all of these incidents, and application of federal authority to suppress “insurrections,” for understanding Section Three. But they were unquestionably part of the picture, contributing to the background for understanding Section Three’s terms. They were very much part of a common historical vocabulary of “insurrection” and “rebellion” and culpable participation in the same, familiar to those who drafted and ratified the Fourteenth Amendment: The Whiskey Rebellion, Shay’s Rebellion, Nat Turner’s Rebellion, Dorr’s Rebellion, the insurrections against the Fugitive Slave Act in the 1850s, John Brown’s raid on Harper’s Ferry in 1859—all of these incidents would have informed the general understanding of what constitutes “insurrection or rebellion” and what actions amount to having “engaged in” or given “aid or comfort” to such uprisings. They all tend to support our working definitions of Section Three’s terms. Even President Grant’s post1868 invocations of the Insurrection Act, to combat attempts to overthrow election results or displace lawful state authority, may shine some interpretive light backward on Section Three’s meaning. If an uprising of similar nature to these events were to occur, it seems to us that it likely would have been understood as an insurrection or rebellion within the coverage of Section Three.

b. The Congressional Exclusion Debates

As noted above, the federal Ironclad Oath adopted during the Civil War closely paralleled the requirements and consequences of Section Three. These parallels are drawn more sharply by a series of cases where both houses of Congress enforced the oath to exclude their own prospective members from being seated. As one scholar has put it, these debates “were littered with relevant concepts, and we can judge the Fortieth Congress’s reception to those similar arguments as indicative of their expectations as to Section 3’s application.”333 Moreover, several of these proceedings occurred right around the time of the proposal and ratification of the Fourteenth Amendment. In some cases after the Fourteenth Amendment was ratified, Congress applied Section Three itself, further demonstrating continuity and overlap with the Ironclad Oath.

The familiar source compiling the houses’ debates on such matters of internal administration is Hinds’ Precedents, which we rely on here.334

First, Kentucky: In 1867, Kentucky submitted eight members-elect to the House, seven of whom were challenged as ineligible on the ground that they had given aid or comfort to the Confederacy, during the Civil War. The Committee on Elections concluded that “no person who has been engaged in armed hostility to the Government of the United States, or who has given aid and comfort to its enemies during the late rebellion,” ought to be sworn or seated.335 A subsequent report determined that such charges needed to be “proved by clear and satisfactory testimony” and establish more than mere lack of active support for the Union or passive sympathy for the rebellion but that “the claimant has by act or speech given aid or countenance to the rebellion.”336 Such acts or speech need not rise to the level of constitutional treason, but they “must have been so overt and public, and must have been done or said under such circumstances, as fairly to show that they were actually designed to, and in their nature tended to, forward the cause of the rebellion.”337

On this standard, the committee found that four of the challenged members-elect were not proved to have either “engaged in armed hostility” to the Government or provided “aid and comfort” to its adversaries. These four were admitted to their seats. Three others—John Y. Brown, John D. Young, and Lawrence Trimble—posed more serious difficulty, however. The House ultimately refused to seat either Brown or Young but admitted Trimble. The facts of these cases are instructive explorations of the boundaries between free speech and “aid or comfort” to rebellion.

The House addressed the John Y. Brown case first. “This election case,” Hinds’ reports, was “the first of its kind since the formation of the Constitution, and recognized by the House as of the highest importance.”338 It also involved an incident of pure speech as disqualifying a member-elect from office: John Y. Brown had explicitly embraced and advocated violent resistance to the Union in Kentucky. Indeed, he had gone so far as to urge the shooting of any man who volunteered for service in Union forces. Brown’s disqualifying conduct consisted solely of such acts of speech. The committee relied on a letter Brown had written to the Louisville Courier in 1861 in which Brown had gone to great lengths to affirm his support for the rebellion in unequivocal terms:

Editors Louisville Courier:

My attention has been called to the following paragraph, which appeared in your paper of this date:

“JOHN YOUNG BROWN’S POSITION.– This gentleman, in reply to some searching interrogatories put to him by Governor Helm, said, in reference to the call of the President for four regiments of volunteers to march against the South—

‘I would not send one solitary man to aid that Government, and those who volunteer should be shot down in their tracks.’”

This ambiguous report of my remarks has, I find, been misunderstood by some who have read it, who construe my language to apply to the government of the Confederate States! What I did say was this:

“Not one man or one dollar will Kentucky furnish Lincoln to aid him in his unholy war against the South. If this northern army shall attempt to cross our borders, we will resist it unto the death; and if one man shall be found in our Commonwealth to volunteer to join them he ought and I believe will be shot down before he leaves the State.”

This was not said in reply to any question propounded by ex-Governor Helm, as you have stated, and is no more than I frequently uttered public and privately prior to my debate with him.



The House concluded, on the strength of this letter alone, that Brown had supported the rebellion and therefore voted to exclude him. This became a precedent for the House’s subsequent actions in other cases. The standard applied—whether the facts, “proved by clear and satisfactory testimony,” showed that an individual had, by an “act or speech … overt and public … done or said under such circumstances, as fairly to show that they were actually designed to, and in their nature tended to, forward the cause of the rebellion”—had been satisfied by Brown’s letter.340

Similarly, in March 1868, the House excluded John D. Young under this standard. Young’s case also involved speech. The Young case involved numerous expressions of support and sympathy for the South and against the Union, and the committee explicitly took the position “that ‘aid and comfort’ may be given to an enemy by words of encouragement, or the expression of an opinion” by a person (like Young, a county judge) in an “influential position.”341 But Young’s case was overdetermined, because there was also testimony that Young had provided material assistance to Confederate troops, by giving them food and provisions and assisting in the capture by Confederate troops of a Union soldier. According to the committee, Young’s “expressions and admissions” of sympathy for the enemy, “taken in connection with the open acts of ‘aid and comfort to the enemies of the United States,’” established that he could not “’honestly and truly take the oath,’”342 and the full House agreed.

The contrasting case of Lawrence Trimble, however, showed that mere political opposition did not establish disloyalty. Aside from some overly vague allegations that he had traded with the enemy, the core of the case against Trimble were his political speeches. Trimble had been the Union candidate for Congress in 1861 and “made Union speeches in that canvass throughout the district.” Trimble opposed Lincoln’s war policies after the Emancipation Proclamation, asserting that the North was waging “an abolition war” and reportedly was opposed to “voting any more men or money to aid in carrying it on.” These views and statements, however, were not materially different from other members’ statements in Congress opposing the administration’s policy. The committee (and House) considered Trimble’s “loyalty unquestioned” and found no case for disqualifying him.343

Next consider Tennessee: Tennessee supplied two interesting membership cases, one in the House and one in the Senate. Both involved undoubtedly pro-Union men who nonetheless had held state office under Tennessee’s secessionist regime and sworn oaths under it, while seemingly using their positions to support Union interests and resist the secession government. This presented a distinct problem under the Ironclad Oath, which required its swearer to disaffirm that he had ever accepted or exercised office under a pretended government hostile to the United States. What to do? In each case—Senator-elect David Patterson, who had served as a state court judge in the eastern region of Tennessee during the Confederate regime; and Representative-elect R.R. Butler, who had retained his seat in the state legislature during secession, while opposing it—the respective house ultimately admitted the applicant to his seat and permitted him to take a modified oath omitting the neverheldofficeunderahostileregime sentence.344

A potentially broad understanding of “aid or comfort” also surfaced in the exclusion of Maryland Senator-elect Philip Thomas in 1867.345 What had Thomas done to support the South in its rebellion? Apparently, he had permitted his minor son, a member of his household, to join the Confederate army, and given his son $100 on the way out the door. The Senate debated whether Thomas had done anything more by way of counsel or encouragement of his son’s taking up arms against the United States and it is not clear how the senators evaluated such evidence. Some seemed to have thought Thomas’s treatment of his son disqualifying. Others focused instead on allegations that Thomas had resigned as President Buchanan’s Treasury Secretary because he disagreed with the President’s decision to send federal reinforcements to Charleston Harbor.346 Either theory of Thomas’s exclusion suggests that “aid or comfort” to rebellion was understood to sweep broadly and possibly include conduct of a somewhat more passive or quiescent nature—allowing one’s son to become a rebel soldier, under circumstances where such permission (and financial assistance) might have been withheld; opposing, or resisting, measures to suppress insurrection and defend national institutions and personnel, and resigning office in protest against such measures.

Cases like these continued in the House and Senate after Section Three of the Fourteenth Amendment had taken effect. By this point, the basic principles were more established, and the cases were sometimes more factbound or less illuminating, but they further confirm the continuity between Section Three and the Ironclad Oath, and illustrate the understanding of Section Three very shortly after its adoption.

To recount them very briefly: In 1868, John Christy had received the most votes for Congress in Georgia’s sixth district, but the House committee found that Christy, by his own admission, had given “aid, countenance, counsel, and encouragement” to persons in armed hostility against the Union and therefore, “in accordance with the precedent in the case of John Y. Brown,” was disqualified by the Ironclad Oath, and he was not seated.347 In 1869, the House sat John Rice from Kentucky despite a divided House committee’s conclusion that he was disqualified by Section Three.348 The pages of the Congressional Globe reveal a debate about whether Rice had in fact joined the Confederate Army, which turned on the dubious credibility of two witnesses.349 In 1870, the House allowed Representative George Booker of Virginia to keep his seat, despite subsequent charges that he had directly supported the militia of the rebel government in his role as justice of the peace. But Booker made an apparently persuasive case that he had been loyal all along, even as he worked within the Confederacy, and as a practical matter he had already been seated. For one reason or the other, the House ultimately voted to table the issue, leaving Booker in office.350 Also in 1870, the House allowed Representative Lewis McKenzie of Virginia to sit, despite various votes he had taken as a member of the Virginia house of delegates in 1861—votes pledging Virginia’s commitment to “unite her destiny with the slaveholding States of the South” should attempts to reconcile differences between North and South fail, supporting Virginia’s willingness to fight, and to provision Virginia fighters. Because all of these votes occurred before voter ratification of Virginia’s secession ordinance on May 23, 1861, and because McKenzie remained “an outspoken Union man” after secession and throughout the war, the House concluded he had neither engaged in rebellion nor given it aid or comfort.

Finally, in 1871, the Senate declined to seat Senator-elect Zebulon Vance from North Carolina.351 The exclusion of Vance was a particularly easy case. After serving in Congress, he had led Confederate troops in battle against the Union and then became the wartime governor of Confederate-regime North Carolina.352 If anyone had engaged in rebellion and given aid or comfort to the Union’s enemies, it was Vance. He was clearly barred by both Section Three and by the Ironclad Oath. He could be seated only if Congress chose to exercise amnesty, which it did not do until later.353

These congressional seating challenges suggest some rough lines as to what Congress thought was “aid or comfort” to the Confederacy. On one hand, direct material support for the rebel cause—providing supplies or working with enemy forces— was clearly aid or comfort. On the other hand, disfavored political beliefs and prewar political stances were clearly not. In between lay contested territory. But there was no bright line, for instance, protecting all speech or political activity. In some situations, speech alone could be disqualifying. A sufficiently clear and unequivocal statement of disloyalty in the form of proposed active resistance to Union authority or encouragement to violence against Union forces appears generally to have been thought disqualifying. Voluntarily holding confederate office or advocating resistance to the Union also could be enough to disqualify. We do not suggest these individual applications—many of which were contested and complicated—are strictly binding. But they provide useful concrete evidence for how parts of Section Three may well have been understood and thought to work.354
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Part 5 of 8

6. Legislative History

There is only a little fruit to be gleaned from the legislative history of the Fourteenth Amendment—the records of the proposing Congress’s debates over its various provisions and of state ratification debates. The Fourteenth Amendment’s legislative history is famously voluminous, and Section Three—like the other “forgotten” sections of the Amendment (Section Two and Section Four)—was much more salient to the debates then than it is to today.355 As briefly noted above, the legislative history supports the key propositions we have advanced earlier in this article—that Section Three was designed to be general and prospective, and not limited to the situation of the Civil War and Reconstruction; that Section Three’s disqualification was seen by proponents and opponents alike to be self-executing and automatic; and that Section Three was understood to supersede (or satisfy) prior constitutional limitations.356

Perhaps somewhat surprisingly, however, we have found relatively few interpretive insights about the scope of conduct triggering disqualification under Section Three. What evidence there is generally confirms the understanding that the provision would have sweeping consequences: there appears to have been substantial agreement—by both opponents and proponents—that the provision would cover a broad range of activity supporting or assisting the South’s efforts to throw off the authority of the Union and the Constitution. The original proposal would have excluded all such persons from voting, not just officeholding and, further, would not have been limited in its coverage to former oath-swearing federal and state officeholders. However, the language concerning what conduct triggered disfranchisement (and, as later revised, disqualification from officeholding) was carried forward throughout the discussion. Opponents of what eventually became Section Three thought the range of what was included in disability-triggering conduct (that is, when one might be said to have “engaged in” insurrection or rebellion or given “aid or comfort” to it) was hugely broad in its reach, sweeping in nearly everybody in the rebel South—and viewed the proposal as regrettable on account of such breadth. Significantly, proponents of the amendment did not disagree with its opponents concerning the breadth of the description of disability-triggering conduct. The proponents simply thought such breadth appropriate, necessary, and valuable.357

As things proceeded, Congress narrowed the provision in two specific respects. Congress backed away from complete disfranchisement to disqualification from holding office. And relatedly, it narrowed Section Three to cover only those who had sworn a prior oath of loyalty to the U.S. Constitution as federal or state officeholders. Rather than disenfranchising pretty much the entire white South, it would disqualify from future office those who had held constitutional office and then rebelled.

But what did not change was the broad description of the conduct that triggered disfranchisement (in the earlier proposal) or disqualification from office (in the proposal eventually agreed to).358 As noted, there is not a great deal of explication of what this conduct was, exactly. But the overall tenor of the debates over what became Section Three suggest that all meaningful connection with, support for, or aid to the Confederacy—officeholding, military service (whether voluntary or not), political support or endorsement, provision of material assistance to rebellion or rebel forces—was regarded by the proposing Congress as covered. The legislative history of Section Three—such as it is—supports a broad understanding of the prohibition contained in its language.

7. Early Applications of Section Three

A final set of evidence comes from the handful of cases applying Section Three shortly after its adoption. Once again, because these examples come after the provision was adopted, they do not provide direct evidence of its original public meaning, but they still can be informative.359 Section Three came up in a range of procedural and institutional situations; each of these situations further confirms Section Three’s broad substantive sweep.360

For instance, the 1867 Military Reconstruction Act—which imposed provisional governments on the southern states until they obtained readmission to representation in Congress by enacting new, republican, Reconstruction-compliant constitutions—directly incorporated Section Three of the proposed (but not yet ratified) Fourteenth Amendment as a restriction on those governments. Persons disqualified under Section Three could not hold office under the provisional governments, nor could they serve in—or even vote for those who would serve in—the state’s constitutional convention.361

Andrew Johnson’s attorney general, Henry Stanbery, published a two-part opinion in 1867 setting forth his interpretation of the Act and thus, indirectly, of Section Three.362 Stanberry’s opinion is explicitly slanted toward a narrow construction of Section Three, because of his concerns that it would be punitive and ex post facto in this context.363 Even so, Stanberry’s opinion found Section Three’s definition of what constituted participation in rebellion to be quite broad:

“All those who, in legislative or other official capacity, were engaged in the furtherance of the common unlawful purpose, or persons who, in their individual capacity, have done any overt act for the purpose of promoting the rebellion, may well be said, in the meaning of this law, to have engaged in rebellion.”364

As to individuals, Stanberry also reiterated several times that any voluntary support, even if not violent, was covered and culpable. He found “it to be clear, that in the sense of this law persons may have engaged in rebellion without having actually levied war or taken arms,”365 and added that “wherever an act is done voluntarily in aid of the rebel cause . . . it must work disqualification under this law.”366

Subsequent cases took even broader positions. For instance, in the 1869 decision of Worthy v. Barrett, the North Carolina Supreme Court concluded that a state sheriff was disqualified under Section Three for holding basically the same office as a sheriff when his state was in rebellion. The court’s reasoning on this issue was succinct but clear:

What will amount to having engaged in the rebellion?

(1st.) Holding any of these offices under the Confederate government.

2d Voluntarily aiding the rebellion, by personal service, or by contributions, other than charitable, of any thing that was useful or necessary in the Confederate service.367

That is, the North Carolina Supreme Court embraced Stanberry’s view that almost any voluntary assistance to the rebel cause was a form of engaging in rebellion, but also held that holding any office, even an ordinary nonmilitary office far from the front lines, was a form of engaging in rebellion covered by Section Three.368

Shortly after this—and shortly after Chief Justice Chase’s unsound and unfortunate decision in Griffin’s Case had held that Section Three required congressional legislation in order to be put into operation – Congress enacted federal procedures to directly enforce Section Three in federal court. The 1870 Enforcement Act, also known as the First Ku Klux Klan Act, authorized district attorneys of the United States to bring quo warranto actions to remove officials holding office “contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution” and to bring criminal prosecutions against person who “shall hereafter knowingly accept or hold” office in violation of Section Three.369 In proceedings brought under both enforcement sections of the Act, in the short period between 1870 and 1872, the scope of Section Three’s prohibition was interpreted broadly. (Recall that in 1872 Congress removed Section Three’s disqualification as to most former rebels.)

Consider first a notable criminal prosecution under the 1870 Act. In North Carolina again, this time in federal court, the government brought criminal charges against Amos Powell, for accepting an appointment as county sheriff despite being covered by Section Three.370 Powell’s alleged act of rebellion was having “furnished a substitute for himself to the Confederate army,” and Powell’s defense was that this was involuntary, because he was about to be involuntarily conscripted himself.371 This gave the federal court, through Judge Hugh Lennox Bond, occasion to instruct the jury on the relevance of voluntariness to Section Three:

[T]he word “engage” implies, and was intended to imply, a voluntary effort to assist the Insurrection or Rebellion, and to bring it to a successful termination; and unless you find the defendant did that, with which he is charged, voluntarily, and not by compulsion, he is not guilty of the indictment. But it is not every appearance of force nor timid fear that will excuse such actual participation in the Rebellion or Insurrection. Defendant’s conduct must have been prompted by a well grounded fear of great bodily harm and the result of force, which the defendant was neither able to escape nor resist. And further, the defendant’s action must spring from his want of sympathy with the insurrectionary movement, and not from his repugnance to being in an army, merely.372

In other words, only great duress and pure heart would be a defense if one’s conduct otherwise provided material support to the rebellion. Section Three’s disqualification for having “engaged” in insurrection covered a wide swath of voluntary participatory acts supporting or assisting rebellion, some bordering on near-passive acquiescence.

Meanwhile, in Tennessee. the U.S. Attorney brought dozens of federal enforcement actions, including against three members of the Tennessee Supreme Court.373 Many of those charged were unquestionably covered by Section Three because they had fought in the Civil War, for the Confederacy. But some were charged for more remote participation. For instance, Thomas Nelson, one of the Tennessee Justices, had been a unionist during the war, and indeed at one point a prisoner of the Confederacy. His participation in the rebellion appears to have been limited to being elected to the U.S. House of Representatives from Tennessee, after Tennessee’s purported secession, and traveling to Washington to attempt to represent the state in Congress.374 While these Section Three claims were never adjudicated, the fact that they were brought in the first place is consistent with the broad sweep of Section Three.375

The other scattered discussion of Section Three we have found are more ambiguous, but still consistent with these broad interpretations of Section Three’s substantive disqualification—broad interpretations of insurrection, rebellion, “engaged in,” and so on. Recall, for instance, that in Griffin’s Case, it was essentially taken as given that Judge Hugh Sheffey would be disqualified by Section Three (if it applied) because he was “a member of the legislature of Virginia in 1862 during the late Rebellion, and as such voted for measures to sustain the so-called Confederate States in their war against the United States.”376 Other cases are consistent with similarly broad assumptions.377 We have found none that took a substantially narrower view of Section Three, and even if some exist, they would seem to be the minority and inferior construction.

The application of Section Three immediately after its enactment is consistent with what the text, structure, context, and history of Section Three all tell us: to have “engaged] in,” or given “aid or comfort” to, insurrection and rebellion, was understood to embrace an incredibly broad sweep of voluntary conduct that provides support, material assistance, or specific encouragement to such actions.

In the end, essentially all the evidence concerning the original textual meaning of Section Three—contemporaneous dictionary definitions; parallel constitutional use of the same or similar language; the inferences that fairly may be drawn from the legislative history of Section Three’s drafting; the especially strong evidence from 1860s Civil War era political and legal usage of nearly the precise same terms (in prominent presidential statements, congressional enactments and their implementation, and a landmark Supreme Court constitutional decision employing the same terms); the general legal backdrop of eighteenth century Insurrection Acts and the myriad and familiar historical incidents of “insurrection” and “rebellion” to which they applied; and finally early practice enforcing Section Three—points 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.

B. What Prior Officeholders are Covered? What Future Offices are Barred?

The next step in the analysis of Section Three is rather more tedious than difficult. But it is important to get it right: Holders of what prior offices or positions are covered by Section Three’s disqualification from future office if they engaged in insurrection or rebellion? And from what future offices or positions are they thereby disqualified? The text of Section Three takes up these points in reverse order (and so we shall too) and uses slightly different language for each category.

First, the offices or positions from which a disqualified person is barred:

No person shall be a Senator or Representative in Congress, or an elector of President and Vice President, or hold any office, civil or military, under the United States or under any State … 378

Second, the offices or positions previously held, and for which an oath to the Constitution was taken, that trigger Section Three’s disqualification:

… 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 … 379

We begin with a few observations.

First, the language of these provisions should be read in as straightforward and commonsense a manner as possible. The text must be read precisely, of course, but also sensibly, naturally and in context, without artifice or ingenious invention unwarranted by that context. Some constitutional provisions embody precise terms of art that must be attended to. But a reading that renders the document a “secret code” loaded with hidden meanings discernible only by a select priesthood of illuminati is generally an unlikely one.380 Keep this in mind as we proceed: we think readers should be wary of any interpretation of Section Three that would impute to the text a hypertechnical set of hidden distinctions not fully warranted by the language. Where the simplest and most plausible explanation of minor textual differences is merely stylistic or accidental variation, that explanation should not lightly be cast aside.

Second, it appears that the list of disqualification-triggering offices tracks closely, but not identically, the listing of positions for which the original Constitution imposed an oath requirement. Article VI of the Constitution dictates that “Senators and Representatives . . . Members of the several State legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by Oath or Affirmation, to support this Constitution.”381 Article II, overlapping this general oath mandate, prescribes a specific oath for the President, who swears both that he will “faithfully execute the Office of President of the United States” and “’to the best of my Ability, preserve, protect, and defend the Constitution of the United States.’”382

Section Three’s listing of triggering positions largely tracks the substance (and to some extent even the sequence) of the all-offices-legislative-executive-judicial-federal-and-state oath mandates. Section Three’s list of positions from which a covered person is disqualified builds on this list. All positions that trigger disqualification are disqualified-from. In addition, the disqualified-from list includes, notably, presidential electors, who are not listed in the Constitution as persons required to swear an oath to the Constitution. The wording also appears designed to clarify that the ban extends to “military” offices—including state military offices—whether or not they would be considered “executive” offices under state law or Article VI. Thus, in general: If the original Constitution required an oath for a position, Section Three treats having held such a position as the trigger for Section Three’s application. And if a person who once held any such position is disqualified under Section Three for engaging in or supporting insurrection, that person is barred (absent congressional relief) from holding any of those same positions plus disqualified from being an elector for President and Vice President. That seems to be the basic structure of the provision.

Our third observation is related. It appears to us that the text’s overall project of office-listing, in both clauses, was designed to be reasonably comprehensive, covering the waterfront: both taking care not to accidentally leave out anything considered important—including everybody who was constitutionally required to have sworn an oath—and adding positions where appropriate, as with adding the category of electors to the list of positions from which a covered person is disqualified.

With these principles in mind, it appears to us that the two clauses—describing what past positions trigger disqualification and what future positions fall within the scope of that disqualification—can and should be read, together, in a straightforward manner. First, as to the persons to whom the provision applies (the second, “triggering” clause): Section Three’s disqualification attaches to persons who previously swore an oath to support the Constitution as:

[i] a “member” of Congress, or as

[ii] an “officer of” the United States, or as

[iii] a “member” of any State legislature, or as

[iv] an “executive or judicial officer of” any State.383

These four categories are then closely paralleled (with differences noted) in the description of offices from which covered persons are excluded (the first clause). Covered insurrectionists, rebels, and aid-and-comforters are disqualified from being:

[i] “a Senator or Representative” in Congress (paralleling “member,” a seemingly purely stylistic variation) or

[ii] an elector for President or Vice President (a new exclusion from a position that is not an oath-required triggering position); or

[iii] holding “any office, civil or military,” “under” either federal or state government (paralleling “officer” of the United States or of any State, respectively, in the second and fourth triggering categories above—with the noted clarification of the inclusion of “military” officers).

The description “civil” office, in the disqualified-from list seems designed to embrace the categories of “executive or judicial” officer in the triggering list. Though somewhat more awkward, we think an elected office in a state legislature also qualifies as a “civil” office within the language and design of Section Three, reading the word “office” in this context in an ordinary, nontechnical sense.384

The overall result is a broad list of disqualification-triggering positions covering essentially every major federal or state legislative, executive, and judicial office; and a list of barred-from positions embracing all of the above plus electors for president and vice president (and clarifying “military”). The legislative positions in question are the relevant elected offices—members of the legislature, whether a state legislature or the federal Congress—and do not embrace unelected staff positions. The executive positions embrace anyone in the executive branches of federal or state government who holds an “office” within that branch.

To be sure, there might be ancillary questions concerning what federal executive and judicial positions qualify as an “office,” held by an “officer”—as opposed to nonofficer, non-“office”-holding employees. That is: exactly how far down the organizational chart does the list of triggering and disqualified-from positions go?385 Likewise, for the federal judicial branch, Article III judges and justices are plainly covered. (Other officers in the judicial branch, such as the clerks in Ex Parte Hennen,386 are presumably covered as well—as well as perhaps bankruptcy judges, magistrate judges and the like.)387 Non-office-holding employees, again, would not be covered. And of course there might be similar residual questions as to what state government positions constitute state executive “office” held by “officers” (thus, perhaps, the special need for designation “military,” to be sure state military positions are included), and what state judicial-branch positions constitute a judicial office. But in the main, the description of who all is covered by Section Three and what offices such person, if disqualified, is excluded from holding strikes us as fairly straightforward.

The only challenge anyone has raised concerning this general description is the argument by professors Josh Blackman and Seth Tillman that a person who has served as President (and the same argument is made as to Vice President), while perhaps having held an office “under” the United States, is not properly classified as an “officer of” the United States.388 On this view, disqualified persons might be barred from being President or Vice President—the authors are somewhat noncommittal about this389—but having been President or Vice President, and engaged in insurrection or rebellion, does not trigger disqualification of an individual from anything! On this argument, the President and Vice President—alone among constitutional oathtakers—are exempt from Section Three’s consequences for committing treason to that oath.

We do not buy it, for many reasons: First, it adopts precisely the type of “secret code” hidden-meanings hermeneutic we think should be viewed extremely skeptically. Moreover, the code has a facially implausible consequence: an insurrectionist President is not covered by Section Three’s disqualification (though nearly every other federal or state officeholder is); the President is (perhaps?) a disqualified-from office but not a disqualification-triggering office. This makes little sense.390

Second (and relatedly), the argument rather implausibly splits linguistic hairs. No one denies that the President is an executive branch officer holding executive office. At the risk of belaboring the obvious: Article II refers to the “office” of President innumerable times. It specifies the length of term for which the President “holds his Office,” certain minimum qualifications for eligibility “to that Office,” what happens upon the President’s removal “from Office,” or inability to discharge “the Powers and Duties of said Office,” and the oath he shall take before entering “on the Execution of his Office.”391 If the Presidency is not an office, nothing is.

So the argument must rely instead on the fine parsing of prepositional phrases. The President (perhaps?) holds an “office under” the United States but is not an “officer of” the United States? This seems to defy textual common sense. Far more sensible and straightforward to conclude, we think, that the officeholder holding the office of President is an officer “of” the United States who holds office under the authority of the United States. The minor textual difference between the triggering clause (“officer of”) and the positions-disqualified clause (“office under”)—a choice between prepositions—appears to be of no significant substantive consequence in Section Three, much as other minor textual variations in or among constitutional provisions often do not support differences in meaning.392 Indeed, one far simpler and more straightforward explanation for the Constitution’s use of “office under” and “officer of” in Section Three and elsewhere is that “office” and “officer” simply take different prepositions: the Constitution uses “of” when referring to an officer and “under” when referring to an office.

Finally, even if a plausible argument can be constructed that the difference might have once been thought capable of sustaining a term-of-art distinction with respect to different prepositional phrases in the original Constitution—surmounting the presumption against “secret code” interpretation—there is no evidence of such a distinction in Section Three and little logic to such a distinction either.393

Third, a variant of the Blackman-Tillman argument was explicitly made and explicitly refuted in the congressional debates proposing Section Three. Senator Reverdy Johnson of Maryland charged that the language employed was defective because the offices of President and Vice President had inadvertently been omitted from Section Three. The amendment “does not go far enough,” Johnson averred.394 “I do not see but that any one of these gentlemen may be elected President or Vice President of the United States, and why did you omit to exclude them?”395 Johnson was complaining that these two officers should be included in Section Three and there was no good reason to omit them. Whereupon Senator Morrill of Vermont interrupted: “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’”396 Senator Johnson promptly, and somewhat sheepishly, retreated: “Perhaps I am wrong as to the exclusion from the presidency; no doubt I am; but I was misled by noticing the special exclusion in the case of Senators and Representatives.”397

The Blackman-Tillman argument is not quite the same, but it is the mirror image of Johnson’s concern. Johnson’s inquiry was whether a covered, insurrectionist nonetheless might become president. The Blackman-Tillman argument is that an insurrectionist president is not an “officer of” the United States whose prior position triggers Section Three’s restrictions on future office. The Johnson-Morrill colloquy does not specifically address that reverse-image argument. But it certainly suggests that the framers of Section Three were not parsing it as a secret code with facially implausible consequences. The question whether Section Three applied to former Presidents and Vice Presidents does not appear to have been raised again, by anyone.398 Nor did anybody else involved in drafting or ratifying Section Three suggest that the mirror-image question would be any different. Subject to all the usual reservations about the use of legislative history (and legislative silence) in determining textual meaning, this further confirms the more natural reading. The only time anything like the question was raised, the point was answered by a proponent of Section Three, clearly and unequivocally, and the questioning Senator accepted the answer as correct.

Fourth and finally, in an additional piece of prepositional jujitsu, Blackman and Tillman tellingly equivocate about whether the President holds “office under” the United States as well. (If he does, Section Three stops covered insurrectionists from becoming President, and if not, not.) Blackman and Tillman do not deny this possibility, but they do not confirm it either. The difficulty for them is that both answers show the implausibility of their position.

If Blackman and Tillman maintain that the President does not hold “office under” the United States, then they must fly in the face of the directly on point discussion between Senators Johnson and Morrill. They must claim to understand Section Three better than its framers. This seems unlikely. But if they confirm that the President does hold “office under” the United States, then they must maintain a sharp and crucial distinction between “office under” and “officer of.” As Mark Graber has observed, this distinction was also contradicted by Section Three’s framers: “[T]he members of the Congress who framed Section 3 of the 14th Amendment often indicated—and sometimes explicitly stated—that all persons who held office ‘under the United States’ were officers ‘of the United States.’ During the debates over Section 3, no representative or senator alluded to the existence of a distinction between ‘of’ and ‘under’. Representatives and senators often described the president as having an ‘office under the United States’ and being an ‘officer of the United States.’”399 If a secret code was really at work, it was an extraordinarily well-kept secret. The implausibility of both horns of the Blackman-Tillman straddle demonstrates the implausibility of their position.

In short, the ordinary sense of the text; the structure and logic of its provisions; the evident design to be comprehensive; the text’s many references to the office of the Presidency as an “office”; the seeming absurdity of the prospect of exclusion of the offices of President and Vice President from triggering the disqualification fashioned by the Radical Reconstruction Congress that drafted the Fourteenth Amendment; the fact that the only legislative debate over the language discussing whether Section Three inadvertently omitted the offices of President and Vice President rejected any such suggestion; and the fact that no one ever suggested that the “under/of” difference meant the presidency was not a covered office triggering Section Three, all convince us that the natural conclusion is the correct one: Section Three includes in its coverage, or “triggering” language, insurrectionists who once served as President and Vice President. And Section Three excludes disqualified insurrectionists from subsequently holding the office of either President or Vice President.

C. The Attempted Overthrow of the 2020 Presidential Election

We come finally to the urgent question of the day: How does Section Three apply to the events of 20202021—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 Joseph Biden?

Consider 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 states’ selection of electors for President and Vice President; the efforts to have the Vice President unconstitutionally claim a 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 Congress’s and the Vice President’s counting of such lawfully cast votes, culminating in a violent and deadly assault on the Capitol (and Congress and the Vice President) on January 6, 2021.

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 overturn or thwart the lawful outcome of a presidential election and to install, instead, the election loser as president. They constituted a serious attempt to overturn the American constitutional order. Does Section Three cover this conduct? Did these events constitute “insurrection” or “rebellion” within the meaning of the Constitution? And if so, who all might be said to have “engaged in” that conduct, or given “aid or comfort” to those who did? We will consider those questions in turn.

1. The Question of Coverage: Insurrection and Rebellion

We begin with the general legal question whether the attempted overturning of the result of the 2020 presidential election is covered by Section Three in any respect. Do such efforts, in part or in whole, qualify as insurrection or rebellion, disqualifying prior-oath-swearing persons who participated in such acts from future office? In our view, based on all the foregoing analysis, the answer is yes.

There are multiple arguments for how Section Three would apply to the events of 20202021, but let us first focus on the events of January 6, 2021.400 These include first the cluster of actions taken in assembling, encouraging, charging, and inciting an armed (in part) mob, producing the January 6, 2021 attack on the Capitol, Congress, and the Vice President. For some, importantly including Trump, these acts would also include subsequent deliberate inaction against the January 6 attack—by persons with duties and capacity to act to suppress, halt, or quell the insurrection in progress—that effectively facilitated, permitted, aided, and encouraged such insurrectionary violence.

Overall, it seems to us to be quite clear that the specific series of events leading up to and culminating in the January 6, 2021 attack qualifies as an insurrection within the meaning of Section Three: “concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect.”401 The large group of people who descended upon, entered, and occupied the U.S. Capitol building used force to prevent a key step in the constitutional transfer of power. The group was in part coordinated, not merely a riot.402 Some members of the group were armed,403 and many used force to breach the Capitol, to overpower law enforcement there, and to effectuate their unlawful aim.404

Furthermore, it seems that, as a whole, the group’s goal—to the extent the group had a specific objective in mind—was to disrupt the constitutional transfer of power, by disrupting a necessary formal step in the constitutional process.405 The invasion of the Capitol on January 6 was not simply a violation of the law (though it was that of course). It was not merely a protest of a particular legal measure, but a forcible prevention and disruption of it. And it was not the disruption of just any legal measure, but of one that was itself central to the allocation of authority under our Constitution. If this is a fair description of what happened on January 6, then that day was something quite different from more common acts of protest, even disruptive protest. January 6 was an insurrection.

To be sure, the events of January 6 itself—the attack on Congress and the Capitol—did not remotely rival in overall magnitude, or in sheer carnage, the experience of the U.S. Civil War, where more than 600,000 people died. Still, considered as discrete events, it is notable that more people died, and many more were injured, as a result of the January 6, 2021 attack on the Capitol than died or suffered injuries as a result of the attack on Fort Sumter. The events of January 6 match, in their essential elements—concerted resistance to federal authority, serious attempts to frustrate execution of national law, attacks on government officials and facilities, intimidation and violence—and arguably exceeded in their seriousness, the events of the Whiskey Rebellion, Fries’ Rebellion, and other more limited historical insurrections. And at all events, it is less the magnitude or degree of disruption occasioned by an insurrection than whether it fits within the broad meaning of Section Three, as illuminated by evidence of its original meaning and historical understandings. As the Prize Cases teach, not every insurrection or rebellion ripens into a full-fledged war.406 Most of the time, the authority of the state can nip it in the bud. But it is still an insurrection.407

Our assessment of the events of January 6, specifically, as an “insurrection” confirms the judgment made by public authorities: An act of Congress, to “award four congressional gold medals to the United States Capitol Police and those who protected the U.S. Capitol on January 6, 2021,”408 found that the events of January 6 constituted an insurrection. The text of the act contains an official finding: “On January 6, 2021, a mob of insurrectionists forced its way into the U.S. Capitol building and congressional office buildings and engaged in acts of vandalism, looting, and violently attacked Capitol Police officers.”409 Another finding noted the historic magnitude and symbolic importance of that insurrection against democracy: “The desecration of the U.S. Capitol, which is the temple of American Democracy, and the violence targeting Congress are horrors that will forever stain our Nation’s history.”410 The impeachment charges brought against President Trump as a result of January 6 were equally explicit in concluding that the events of January 6 constituted an insurrection. A majority of the House of Representatives approved (232 to 197) an article of impeachment charging then-President Trump with “incitement of insurrection” for the events of January 6th.411 The Senate’s vote to convict Trump of this charge, while falling short of the two-thirds majority required by the Constitution’s impeachment process, constituted a substantial majority (57 to 43) of the Senate endorsing the House’s charge and characterization. Majorities of both houses of Congress thus determined—at least twice—that January 6th was an insurrection; and in the impeachment proceedings majorities of both houses determined that Trump was responsible for having incited that insurrection.412

Finally, there is an additional possibility that we should see the events of January 6, 2021, as just one part of a broader “rebellion” against constitutional government, much like secession—actions seeking unlawfully to displace or replace the authority of lawful constitutional government and substitute a constitutionally unauthorized governmental authority in its stead.

We acknowledge that applying the term “rebellion” to the events of 20202021 goes beyond the Civil War era dictionaries. The attempt to overturn the 2020 election was neither an “open and avowed renunciation of the authority of the government,” as Webster would have it, nor (outside of the insurrection of January 6) “the taking up of arms” or “forcible opposition” as Bouvier would have it.413 It is not a perfect fit.

Nonetheless, consider the argument that the term “rebellion” could be used more broadly to describe a coup d’etat seeking to overthrow the constitutional order—including a so-called "bloodless” coup d’etat (where no force is used) and a successful “self-coup” of the bloodless variety414 (where the existing unlawful regime commands such force that it need not be used). Consider the following chain of logical steps: 1. A military coup d’etat upending lawful government by use of force surely qualifies, constitutionally, as a “rebellion.” It is literally an effort unlawfully to overthrow constitutional government, by force. 2. It follows that a military coup d’etat upending lawful government by show or threat of force should be treated the same way, even though force was not used. 3. A military coup d’etat by the existing regime—a “self-coup,” would seem, legally, to be the same thing. In such a case the regime does not seize power, by show or threat of force; it retains power by show or threat of force. But it is logically identical to situations #1 and #2. 4. A “bloodless" self-coup against the lawful regime, where no force is used because none is needed, should be treated the same as #3. Indeed, it seems fair to say that situation #4 is merely an instance of situation #3. 5. The same self-coup attempt, but that styles itself as not renouncing but instead as restoring or maintaining, the constitutional regime—but that in truth seeks to overthrow or defeat that regime—logically should be treated the same as #4. If one accepts this chain of reasoning, one might then fairly conclude that the entirety of the course of conduct attempting dishonestly and unlawfully to overthrow the 20202021 election constituted a “rebellion,” even though this might stretch somewhat the dictionary definitions of the term.415

Calling the events of 2020 and 2021 “insurrection” or potentially even “rebellion” might seem to some exaggerated or hyperbolic. It is not. It is simply being legally precise and not shying away from difficult or upsetting consequences that flow from legal precision. We believe it is important to call the events of 2020 and 2021 by their true legal names, their right names, unshielded by artful euphemism.416

2. The Question of Participation: “Engaged in” and “Aid or Comfort”

This brings us to the rubber-hits-the-road question: 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 result of the presidential election of 2020 and unlawfully maintain Donald Trump in office as President of the United States? Who, while perhaps not a direct or indirect participant in insurrectionary or rebellious conduct, provided “aid or comfort” to those who did?

As detailed at great—perhaps excruciating—length above, “engaged in” under Section Three is properly understood to embrace a broad range of willful participatory conduct. This includes, certainly, deliberate acts in the nature of planning, promoting, encouraging, counseling, supporting, materially assisting, advancing, or facilitating activity or plots that can fairly be characterized, legally, as “insurrection” or “rebellion.” And, as noted, in certain circumstances it might well include inaction supporting insurrection. Finally, giving “aid or comfort” to insurrection or rebellion arguably expands the range of acts of participation, support, and encouragement that qualify as triggering Section Three’s disqualification.417

Who, then, engaged in such behavior?

a. General Principles Concerning Culpable Participation

Some applications of Section Three are factually straightforward. Others might involve potentially more difficult questions of fact and proof concerning the degree and nature of an individual’s voluntary and intentional participation in (i) the overall plot and concrete efforts to overthrow the election and install Trump as president reelect; (ii) the assembly, instigation, and incitement of a mob to attack the Capitol on January 6, 2021 to prevent certification of the election outcome; or (iii) the willful failure to take action to suppress the attack on Congress while it was in progress.

As discussed in Part II, above, judgments concerning the application of the legal standards of Section Three to specific individuals may and must be made by a variety of public actors—all those whose responsibilities call for application of the Constitution’s criteria for eligibility to hold office. The ultimate judgment will rest with different actors and institutions in different circumstances: sometimes by state election officials; sometimes by presidential electors; sometimes by state and federal executive branch officials; sometimes by the respective houses of Congress or by state legislatures. In many cases, the judgment ultimately will fall to state and federal courts, including the U.S. Supreme Court. Everybody in such positions is bound to apply Section Three faithfully and enforce its commands rigorously.

That said, from our interpretation of Section Three’s broad sweep, it is clear that at least two purported factual defenses are simply immaterial:

First, it is no defense that an individual might claim that his or her conduct does not constitute having engaged in or supported “insurrection” or “rebellion” because the election was in fact stolen—that is, that Trump in fact won the election—making it legitimate to “stop the steal.” The problem is that the premise is simply false. Decisionmakers can and should act on the well settled factual understanding that Joe Biden won, and Donald Trump lost, the election of 2020.418

Second, it likewise is no defense that an individual believed (even if mistakenly) that the election had in fact been stolen, or believed that their insurrectionary conduct was somehow lawful. That one may have been deluded or deceived by disinformation does not excuse acts of insurrection or rebellion. And as the South’s secession and the resulting Civil War illustrate, a bogus and unsuccessful constitutional theory does not excuse them either. In other words, there is no mistake-of-insurrection defense to Section Three.419 Acts intentionally done as part of what is in fact and in law insurrection or rebellion are covered, irrespective of an individual’s wrong subjective belief that no such insurrection or rebellion occurred, or the reasons for such wrong belief.420

b. Section Three Disqualifies Donald Trump from Future Office

The most politically explosive application of Section Three to the events of January 6, is at the same time the most straightforward. 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 case for disqualification is strong. There is abundant evidence that Trump deliberately set out to overturn the result of the 2020 presidential election result, calling it “stolen” and “rigged”;421 that Trump (with the assistance of others) pursued numerous schemes to effectuate this objective; that among these were efforts to alter the vote counts of several states by force, by fraud, or by intended intimidation of state election officials,422 to pressure or persuade state legislatures and/or courts unlawfully to overturn state election results,423 to assemble and induce others to submit bogus slates of competing state electors,424 to persuade or pressure Congress to refuse to count electors’ votes submitted by several states,425 and finally, to pressure the Vice President unconstitutionally to overturn state election results in his role of presiding over the counting of electors’ votes.426

Leading up to January 6, Trump repeatedly solicited, suborned, and pressured Vice President Mike Pence to prevent the counting of the electoral votes in favor of President-elect Biden.427 Not only that: Trump assembled a large crowd to march on the Capitol and intimidate Congress and the Vice President into complying with his wishes and thereby prevent the official counting of the votes of electors confirming Trump’s defeat. Trump had announced on Twitter a protest to be held on January 6, 2021: “Big protest in D.C. on January 6th. Be there, will be wild!”428 According to testimony amassed by the House’s January 6th Commission, Trump’s supporters interpreted this as a call to arms, sometimes literally.429

Then there are the events of January 6 specifically. When January 6 arrived, Trump delivered an incendiary address at the White House Ellipse to the crowd of supporters he had effectively summoned to the Capitol to oppose what he had been calling the “steal” of the election. Trump reiterated his false claim that he had in fact won the election—“we won this election and we won it by a landslide”—but that the Democrats and the media had “stolen” the election and “rigged” a false outcome. “They rigged it like they’ve never rigged an election before,” he charged. “Make no mistake, this election was stolen from you, from me and from the country. … This [is] the most corrupt election in the history, maybe of the world.” The crowd was “gathered together in the heart of our nation’s capital for one very, very basic and simple reason: To save our democracy.” Trump called on the crowd to march on the Capitol. “Our country has had enough. We will not take it anymore and that’s what this is all about. … We will stop the steal.” He urged the assembled mass of thousands, some of whom Trump knew to be armed, to “fight like hell, and if you don’t fight like hell you’re not going to have a country anymore.”430

Some might quibble that the speech is ambiguous.431 Not all of Trump’s rambling address called literally for the crowd to “fight.” Some of his statements were ambiguous and at one point he remarked that the crowd would be marching “peacefully and patriotically.”432 He never directly and literally called for attacking the Capitol or the Vice President. Much of what might be thought incitement to lawlessness was innuendo. Nonetheless, the general and specific message was that the election had been stolen; that a constitutional fraud of colossal proportions and cataclysmic consequence was in the process of being perpetrated on the nation; that the crowd needed to take “strong” and direct action to protect the country; and that immediate action was necessary to prevent Vice President Pence and Congress from ratifying the unconstitutional election of an illegitimate president and doing irreparable damage to the nation.

These ambiguities have given rise to a debate about whether Trump’s speech did or did not cross the strict incitement threshold of Brandenburg v. Ohio.433 It could well be that it did cross the line: Trump had deliberately assembled the mob of supporters, steeled them to action, knew that they were ready to take immediate action, and directed them to take it.434 But the most important thing is that the Brandenburg question is beside the point. Section Three of the Fourteenth Amendment does not enact the legal standard of Brandenburg v. Ohio. It enacts the standard of having “engaged] in insurrection,” or given “aid or comfort” to those doing so, and qualifies, modifies, or simply satisfies the First Amendment to the extent of any conflict between these constitutional principles.435 First Amendment or no, the speech was part of Trump’s participation in and support for the insurrection.

Finally, as events unfolded and the violence began, Trump maintained silence—and indeed deliberate indifference bordering on tacit encouragement—for what had by that time clearly become a forcible insurrection. For three hours after learning that his supporters had forcibly invaded the Capitol and were disrupting the constitutional process, Trump took no action to urge them to leave, despite being begged to do so by his advisors and despite having a constitutional duty to take care that the laws be faithfully executed.436 During this same period, while the insurrection was in progress and after the Capitol had been breached, he again condemned Vice President Pence for not “hav[ing] the courage to do what should have been done to protect our Country and our Constitution,”437 a statement that the January 6th Commission concluded was “a statement that could only further enrage the mob” and that in fact apparently did so.438 Once Trump finally did – after several hours and with great reluctance—direct his supporters to leave the Capitol, they quickly dispersed.439

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. Section Three reaches a broad range of conduct providing meaningful assistance to or support for acts of insurrection or rebellion performed by others, even quite passively.440 Sitting by and doing nothing—declining to act to arrest a violent uprising, despite possessing the material capacity and legal responsibility to intervene—might qualify. Additionally and equally important, Trump’s deliberate inaction renders his January 6 speech much more incriminating in hindsight, because it makes it even less plausible (if it was ever plausible) that the crowd’s reaction was all a big mistake or misunderstanding.

Taking these events as a whole, and judging them under the standard of Section Three, it is unquestionably fair to say that Trump “engaged in” the January 6 insurrection through both his actions and his inaction. Officials—administrators, courts, legislators—whose responsibilities call upon them to apply Section Three properly and lawfully may, indeed must, take action within their powers to preclude Trump from holding future office,

Moreover, if one accepts the broader argument that the entire campaign to overthrow the results of the 2020 election was a form of constitutional rebellion,441 then Trump’s complicity is even more obvious—as the leader, motive force, and chief attempted perpetrator of that rebellion. Indeed, it would not be going too far to say that Trump, having previously sworn a constitutionally required oath to preserve, protect, and defend the Constitution of the United States knowingly attempted to execute what, had it succeeded, would have amounted to a political coup d’etat against the Constitution and its system of elections and overturn the results of the constitutional process, in order to maintain himself in office as President contrary to law. If that itself constitutes “rebellion” against the Constitution, Trump’s overall course of conduct disqualifies him under Section Three, even apart from the specific incitement to storm the Capitol on January 6.

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.

c. Beyond Trump

Donald Trump is at the top of the list of Section Three disqualifications, but the list does not end with him. The public record to date shows many others who are or may be connected to either the insurrection of January 6 or to a possible broader rebellion. These include government lawyers, executive branch officials, state officeholders, and even members of Congress. It is not for us to definitively say who all these may be—that, as we have said, is ultimately the responsibility and judgment of all those whose public duties call upon them to apply the Constitution’s provisions concerning officeholder qualifications. But to see why this responsibility is urgent, consider the following categories:

Consider first those who marched with—who rose up with—the January 6 mob itself. Some of these folks, such as Couy Green of New Mexico, and Derrick Evans of West Virginia, have already been stripped of or resigned from their state offices, as Section Three contemplates.442 They present the easiest case of “engag[ing] in . . . insurrection.” Open and shut.

But many more cases follow. Consider those who were not part of the uprising itself, but who provided planning, encouragement, assistance, or other material support to those who rose up on January 6. Recent proceedings against U.S. Representatives Biggs, Gosar, and Greene, for instance, raise this as a serious possibility.443 Pennsylvania State Senator Doug Mastriano—who is also a retired military officer and recent gubernatorial candidate—is said to have transported busloads of people to what became the insurrection and “was near the Capitol during the attack.”444 Former New York City Mayor Rudolph Giuliani worked extensively to overturn the election, and likewise riled the mob at the Ellipse on January 6.445 Trump Chief of Staff (and former legislator) Mark Meadows planned and organized parts of the January 6 rally and apparently also “directed that [Giuliani] be allowed to speak” to the crowd.446 These current and former officeholders are also subject to serious challenge under Section Three.

And if one entertains the argument that the entire course of conduct to overthrow the 2020 election was a broader rebellion,447 the list just grows longer and longer. According to the public record: Former National Security Advisor General Michael Flynn proposed a plan to seize voting machines, invalidate election results, and rerun the vote in swing states won by Biden.448 Would-be Trump electors (some of whom came from state political offices covered by Section Three) met on December 14 even in states where Biden’s electors had been chosen, thus laying the groundwork for Trump’s schemes.449 Assistant Attorney General Jeffrey Clark sought to use the power and authority of the Department of Justice to fraudulently upend state election results.450 At least one member of Congress pressed for the removal of more senior Department of Justice officials who opposed Clark’s scheme, and lobbied for the appointment of Clark as Acting Attorney General, thus providing aid and comfort.451 These officials, too, would be subject to challenge.

We could go on, but we have made the point: All persons who betrayed their earlier constitutional oaths by subsequently engaging in conduct (in any of a number of forms) directed at overthrowing the result of a lawful presidential election or supporting an attack on Congress and the Capitol, should face serious inquiry under Section Three. If they try to hold, retain, reobtain, or seek public office, their eligibility for such positions should be stringently scrutinized. That inquiry should be conducted by every relevant level of government, from state election officials to the halls of Congress, to the courts throughout the country. In many cases we may not yet even know the full extent of the participation and support for acts of insurrection or rebellion in 20202021. But we must find out.

Taking Section Three seriously as part of our nation’s operative, ongoing fundamental law means that such inquiries are constitutionally necessary. Indeed, they are constitutionally required. Taking Section Three seriously, as binding constitutional law, means faithfully ascertaining and fearlessly applying the objective, original meaning of its words and phrases, understood in their historical context, whether we like that meaning or not, and tirelessly following the logic of the text’s meaning to its fair conclusions. The upshot of doing so, we think—the consequence of adhering to constitutional principle—may well be the disqualification from public office of a great many more individuals than is generally recognized. In many cases, the inquiry has not yet begun. It is past time to start the reckoning.
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