‘Where Do You Cross the Line From Bush v. Gore to Coup d’Etat?’

The Colorado Supreme Court ruled Tuesday that Donald Trump is disqualified from holding office again under Section 3 of the 14th Amendment, which bars people who have taken an oath of office to defend the Constitution from holding “any office, civil or military, under the United States” if they had previously “engaged in insurrection.”

The lawsuit, which was filed in September by six Colorado voters, was one of several such challenges brought in the wake of a law review article by Will Baude of the University of Chicago Law School and Michael Paulsen of the University of St. Thomas School of Law, which “set[] forth the full sweep and force of Section Three” and argued that Trump should be disqualified for his efforts to overthrow the 2020 election.

Baude joined Sarah and David on Advisory Opinions to discuss the article in early October, and, in light of the news out of Colorado, we are publishing a rushed transcript of their conversation below, lightly edited for clarity. Please excuse any typos. You can also listen to the podcast here.

Sarah Isgur: Welcome to Advisory Opinions. I’m Sarah Isgur, that’s David French, and it’s the pod we’ve all been waiting for. That’s right. I talked about the 14th Amendment, Section 3, enough that I goaded professor Will Baude, author of “The Sweep and Force of Section Three.” I wouldn’t say it’s the thing that started it all, but it’s definitely the face that launched a thousand ships, nevertheless.

David French: Is it the only law review article ever brought up at a Republican presidential debate?

Sarah Isgur: For sure.

David French: Yeah, it’s got to be.

Sarah Isgur: I mean, Will Baude is a rock star at the University of Chicago already. Students talk about him in hushed tones, I’m hearing. And when he walks through the halls, the students part, quiet falls along the hallway. But now that rock star status, I mean, he’s basically Taylor Swift. I don’t know if that makes Michael Paulson Travis Kelce, his co-author.

David French: Certainly, yeah.

Sarah Isgur: This is the biggest deal in appellate Twitter in a long time. So Professor Baude, friend of the pod, thank you for returning.

William Baude: Thank you for having me on.

David French: So I have a question. Real quick—as a rock star professor. When there were rock star professors at law school when I was there and they always were rolling at least six deep. So they would have the professor and like five students in a kind of a swarm around them wherever they went. What’s your over/under on your swarm around you?

William Baude: I walk alone.

Sarah Isgur: He is Johnny Cash. I want walk through your law review article table of contents style or cert petition brief style just so that people get a flavor of what the rest of it is about. But we’re going to skip to the end for some substance here. So first thing, I want to start by reading for everyone, once again, the 14th Amendment, Section 3. So we all know what we’re talking about here.

William Baude: It’s taped up at my desk. 

Sarah Isgur: Is it really?

William Baude: It is, well the whole 14th Amendment is.

Sarah Isgur: Like taped, like you printed it out and then you-

William Baude: I printed out a paper copy, it’s taped right here.

Sarah Isgur: So it’s not fancy. Nobody got you a fancy copy. Okay. Well, I know what he could use for Christmas, everyone. All right. He could read it, but I will nevertheless. 

“Disqualification from holding office. 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.” 

All right, I kind of want to do a table of contents version, a cert petition version of the whole top part of your law review article. And then what I really want to get to is the officer of the United States section, but I feel like everyone needs to get the flavor for the rest. So I guess, first of all, that this is still in effect. What is that argument?

William Baude: And so here the basic point is this still applies to future insurrections. You know it’s obviously about the Civil War. That’s the insurrection or rebellion at the top of the mind. But it’s not only about the Civil War. There was an early draft that said the late insurrection—being the one that just happened. But it’s still there. It’s still ready for use. And it hasn’t been repealed. There are some statutes Congress passed using that “two-thirds of each house” clause towards the end of the Civil War and then in 1898 that sort of granted amnesty to everybody who was left under the Civil War. But those haven’t sunset going forward. So if we’ve had a new insurrection, perhaps in 2021, then this clause is still relevant, still there.

Sarah Isgur: This to me totally makes sense. I’s very textual, hard to see how people were arguing with that in any real way, but yep, good. 

William Baude: Michael McConnell complained that should not be in our article because it was so obvious.

David French: You gotta have the building blocks. You gotta show your work.

William Baude: You never know where people are going to get off the train, so it’s important to start at the beginning.

Sarah Isgur: Okay. Next up, that it’s self-executing. This is the next level, the water’s getting a little warmer. Explain the self-execution part.

William Baude: So this means: This is just a rule, a qualification for who can hold office, like the rule that you have to be a natural born citizen to be president, or you can’t be president if you were already president for two terms. It’s not something that has to be imposed on you. Like in the wake of January 6, there were people who said, “Oh, Congress should activate Section 3 somehow. We should use Section 3. Or there are people who think maybe if you’re convicted for the federal crime of incitement of insurrection, maybe that activates Section 3. And the point is, Section 3 is already activated. It just has a rule. It says, if you did the thing, you can’t have the office.

Sarah Isgur: Okay, I think there’s been some confusion over self-execution, that people think you don’t even need a judicial opinion on it, or this wouldn’t go to court, we can all just sort of look at each other and agree, or something like that. I don’t think that’s what you meant by self-executing.

William Baude: Right. Also, obviously, self-executing does not mean self-enforcing. Section 3 is not running around, like, collaring people off of the political scene or editing the ballots. It can’t do anything by itself. What it means is just anybody whose job it is to enforce the Constitution has this as one of the constitutional rules they’re supposed to enforce.

Sarah Isgur: You don’t need legislation.

William Baude: You don’t need legislation. You don’t need a criminal conviction. You just need somebody, a secretary of state or a Minnesota Supreme Court, whoever is in charge of figuring out who could be president, to figure out whether or not this clause applies.

Sarah Isgur: And that was not random that he picked the Minnesota Supreme Court, but we will come back to that. Next up is the definition of an insurrection or rebellion. Now the water’s getting pretty warm, a little hot, toasty water, hot tub water. Explain this.

William Baude: I think the best working definition of insurrection is “a concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect.” And if you like, “rebellion is something like an effort to overturn or displace lawful government authority by unlawful means.” We derive those definitions from every possible relevant source for original meaning—from the dictionaries at the time, to the contemporaneous usage of the concept insurrection/ rebellion by President Lincoln and Congress and the Supreme Court and the Prize Cases, to Congress’ authority to suppress insurrections that have been used in the decades leading up to the 14th Amendment and so on and so forth. So to put it all together, the working definition of an insurrection is concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect.

Sarah Isgur: So when did Donald Trump do this?

William Baude: Let’s start with whether there was an insurrection. I think the attack on the Capitol on January 6, 2021, was an insurrection. It was concerted forcible resistance. That was the use of force as a group to stop Congress from engaging in the peaceful transfer of power. 

Sarah Isgur: This says that he has to engage in insurrection or rebellion.

William Baude: Or give aid or comfort to the enemies thereof. 

Sarah Isgur: Of the United States. Wait, sorry. Do you think “thereof” refers to the people involved in the insurrection of rebellion or enemies thereof, meaning “thereof of the United States”? 

William Baude: Let’s do one at a time. So first of all, I think the best evidence at the time is that inciting an insurrection counted as engaging in an insurrection. Attorney General [Henry] Stanbery says this explicitly in his opinions about the Reconstruction Acts, which construe Section 3. That seems to be the dominant view of Congress. I think the easiest case is just to say incitement to insurrection is a form of engaging insurrection. However, there is this other phrase, “aid or comfort.” Aid or comfort to the enemies thereof is more confusing, both because who are the enemies and what is the thereof? I think the best way to read it is that “enemies thereof” just refers back to the people in the earlier sentence who have engaged in insurrection or rebellion against the same. The core idea is that the people in the Confederacy, the South, the Confederate soldiers were engaged in an insurrection or rebellion, and they were the enemies of the United States or of the Constitution of the United States—whichever one you like— and you couldn’t get them aid or comfort. Some people like to parse that into two tracks instead, so that there might be insurrections or rebellions that are covered by Section 3, but not enemy covered, which seems really complicated to me.

Sarah Isgur: So in order for this to apply to Donald Trump, you have to believe that he incited January 6 vs. believing that the fake electors scheme—where they submitted a slate of electors to Congress that was not real—was somehow an insurrection or rebellion.

William Baude: In the article, we take the firm position that January 6 was an insurrection, and that’s the easy case. We discuss the possibility, without taking a firm position either way, that the entire attempt to overturn the 2020 election was in a sense a rebellion. And then everything sort of associated with that would be covered. It’s a little more of a reach, frankly, because the entire scheme you know, it’s not forcible. Much of it takes place through lawyers. Much of it takes place through attempts to kind of abuse the lawful means of contesting an election. So it’s a little harder to figure out, but I think there is an argument that the whole thing is a rebellion, in which case the fake electors, everything involved in that scheme would be participation in a rebellion.

Sarah Isgur: I think that’s a good explanation of that section. Now we’ve got two clauses that list who this all applies to. So the first part is what offices you can’t hold if you violated Section 3. 

William Baude: Mm-hmm.

Sarah Isgur: So no person shall be a senator, a 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. So just that, not much question in my mind that the office of the president is a civil office under the United States.

William Baude: All right, you agree. The president holds an office under the United States.

Sarah Isgur: Correct. We’re going to now have all the comments about whether the commander in chief is a military officer. That’s all that anyone’s going to care about in this podcast. And we’re not going to spend any time on it because I don’t think it is and you think it is, and that’s a whole different thing. We’re doing it another time. So after having listed what offices you can hold, it says, who, having previously taken an oath as a member of Congress or as an officer of the United States. Now it’s going to say, or as a member of any state legislature or as an executive or judicial officer of any state. We don’t need to worry about the state people. All we need to care about is you took the oath previously as a member of Congress or as an officer of the United States. And the question is going to be, is the president included in that “or as an officer of the United States.” And there’s a few arguments around that. One is simply that it wouldn’t be an afterthought. You wouldn’t have members of Congress or that other thing, the presidency. I’m going to undermine my own argument on that. I don’t super buy into that as much because iArticle I is Congress, then Article II is the presidency. So having it as No. 2, I don’t think offends me in any textualist sense. But here’s the part that I am most keyed up on. OHaving previously taken an oath as a member of Congress, that’s in the Constitution, or as an officer of the United States, and that’s in the Constitution too. There is an oath that officers of the United States take, and it is different from the Article II oath that the president of the United States takes. So why is it not the case that having previously taken an oath as a member of Congress or as an officer of the United States refers specifically to those parts of the Constitution, and therefore by leaving out the Article II separate oath that the president of the United States takes—whether intentionally or accidentally, from a textualist matter—they left out 

the president as an officer of the United States?

William Baude: All right, let’s just make sure we’re on the same page about the oath. Okay. 

Sarah Isgur: Yep, let’s do it.

William Baude: You’re thinking about Article 6, the Supremacy Clause, which says, “the senators and representatives before mentioned and the 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.” 

Sarah Isgur: And it tracks pretty closely to how Section 3 that we’re talking about reads. And again, ”The senators and representatives before mentioned and the members of the several state legislatures and all executive and judicial officers, both of the United States and the several States” are going to take an oath.

William Baude: So your concern is that the president doesn’t take an Article 6 oath to support the Constitution because he takes a separate Article 2 oath? Is that the view?

Sarah Isgur: Correct. Therefore, he is not for these purposes considered an officer of the United States.

William Baude: So let’s then bring in Article 2. Article 2, Section 1 says, “Before he enter on the execution of his office, he shall take the following oath or affirmation: I do solemnly swear or affirm that I will faithfully execute the office of President of the United States and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.” Is that not an oath to support the Constitution, Sarah? 

Sarah Isgur: Absolutely it is.

William Baude: Okay, well, that’s all Article 6 requires. All Article 6 says is, any executive officer of the United States has to take an oath to support the Constitution, and the president does. Now note that Article 6 leaves the exact language of the oath vague for everybody but the president. Congress, through the Necessary and Proper Clause, decides exactly what that one will say, and they have a statute on that. And the president’s is so important that it’s not vague. We specify, and we add not just support, but preserve, protect, or defend, which is probably important. But it still seems like the president’s oath is just a specification of an oath to preserve, protect, defend, support the Constitution.

Sarah Isgur: No, it’s not that I’m arguing over the oath per se, it’s that it goes to what the definition of an officer of the United States is. I am not convinced that the president is an officer of the United States because in so many other parts of the Constitution, officer of the United States clearly excludes the president, a la this distinction, I think, between Article 6 and the Article 2 oath, where officer of the United States is included in Article 6 and then in Article 2 the president is separated out.

William Baude: So I think there are some other clauses that are gonna be better ground for this argument for you.

Sarah Isgur: Okay, let’s do it.

William Baude: But here, imagine Article 2 didn’t mention the president’s oath, and all we had was Article 6. You would read this and you’d say, “Does the president have to take the oath or only everybody else?” You would read this and say, “Obviously the president takes the oath too, right? He’s included” as a, they list everybody in the government who’s supposed to take an oath to support the Constitution. There’s no reason to think that the president wouldn’t be. So the only question is, should we read the Article 2 oath as kind of like implicitly carving the president out as not one of these people?

Sarah Isgur: Yes, that’s my argument: that it carves them out and that the other sections of the Constitution that we’re about to talk about, make that even more explicit.

William Baude: So the oath might be, the oath just seems like the, not the best place for that argument because the two are compatible. 

Sarah Isgur: Okay, you don’t like my oath argument.

David French: If he liked it, Sarah, his law review article would have come out differently.

William Baude: No, I worried about that. I thought you were going to tell me that preserve, protect, and defend are not the same thing as support and that there’s some subtle difference. 

Sarah Isgur: No, no, no. I mean, there might be, but no. Not for these purposes. 

William Baude: Okay. What else you got?

Sarah Isgur: Let’s do the impeachment section.Article 2, Section 4, the president, vice president, and all civil officers of the United States shall be removed from office on impeachment. It doesn’t say the president, vice president, and all other officers of the United States. Zgain, that looks like a carve-out to me where the president and vice president are not considered officers of the United States.

William Baude: So now you see why my military aside was not just me wasting time. But if you thought it was debatable whether the president was a civil officer or military officer, if you were worried that the commenters on Advisory Opinions would one day come in and say, no, the commander in chief is the highest ranking military officer in the United States, you might wanna specifically call out the president and the vice president, who’s in a way,second in line to be the commander in chief as included. And note that they don’t include military officers as  impeachable, which is important now in debates about sanctioning the military and control of the military. So Congress can’t impeach a general, um, only the president could do that.

Sarah Isgur: You know, I don’t like that argument for a variety of reasons, but it’s a pretty good argument.

William Baude: I don’t like the idea of thinking of the president as a military officer either. I like to say what sets the United States apart is we have civilian control of the military. And so we think of the president as being a civilian, a civil officer.

Sarah Isgur: But I take your argument to be just in case this was debatable, not that it settles the debate.

William Baude: Right. And especially, you know, the first president that sits being George Washington, you could imagine that really blurring the lines in people’s minds.

Sarah Isgur: David, let’s go off on this little aside then, now that Baude has made it more like not a cul-de-sac, but the main highway. Do you think the president is a military officer?

David French: I think the phrase commander in chief gives him military command of the armed forces. In other words, the phrase commander in chief is a military term to its core. Um, and so he is on the chain of command exactly the same way in which a general is.

Sarah Isgur: But isn’t the secretary of defense also? And that’s a civil office.

David French: The secretary of defense in some ways only really has the authority, the military authority, that is given him by the commander in chief. When I was in Iraq, you had rules of engagement and the rules of engagement sometimes did move up to what was called the national command authority. And the national command authority was a small group of officials, such as the president, the secretary of defense, the vice president of the United States. But, the vice president and the secretary of defense, their command authority over operations in the field was really much more specified by regulation than by statute, which is ultimately under control of the commander in chief. So the commander in chief could delegate to other civilian officials some of his command authority, but as commander in chief, it was thoroughly a military concept. In other words, if the highest ranking general was a four star at that time, you would treat the president as a five star. If the highest ranking was a five star, the president is the six star. So I think that in every way that matters militarily, he is a commander. He is a military commander. There’s another complicator, which I haven’t really looked at. Well, if he’s a military commander, is he subject to the Uniform Code of Military Justice, the UCMJ? Now, that’s a really good question. In some ways, I would say, yeah. He would be subject to the UCMJ. If he, for example, ordered or gave orders in violation of the UCMJ, he can’t, you know, he can’t trump the Uniform Code of Military Justice.. But as far as being subject to courts martial,that’s, I’ve never even heard a discussion of that. So there’s a lot of things where it never really occurred to us that the president could participate in a coup. And so there’s a lot of, um, open questions abouttheir command authority, but when it comes as a matter of military command authority, he possesses thoroughly military command authority. I think even more as a hybrid actually, Sarah, than sort of entirely one or the other.

Sarah Isgur: Okay, I think Baude has shelved my impeachment clause argument. I’m going to cry uncle on that one. Let’s move to advise and consent. This is referring now to Congress’ power to advise and consent. “He (meaning the president) shall have the power by and with the advise and consent of the Senate to make treaties, (to blah, blah). He shall nominate and, by and with the advise and consent of the Senate, shall appoint ambassadors and other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for and which shall be established by law.” So I think I know what your answer on this one’s going to be, but go ahead.

William Baude: Well, I was going to say, who do you think are the other officers in the United States whose appointments are not here and otherwise provided for, which shall be established by law? So, because they’ve got the other, right, there are some whose appointments are otherwise provided for. Yeah. I don’t know. So let’s just say, yeah, who do you think those people are?

Sarah Isgur: Well, I think the question is whether other here then includes the president or other refers to that other list, meaning the ambassadors were also officers of the United States because they’re appointed. The president obviously is not appointed.

William Baude: Right, but it says, okay, so the president has to appoint ambassadors, public ministers and councils, and judges of the Supreme Court. Okay, and then all others are officers of the United States whose appointments are not here and otherwise provided for and which shall be established by law. So it’s like most of the people in the administrative branch, right?

Sarah Isgur: Sure. 

William Baude: Yeah. 

Sarah Isgur: Or it was supposed to be. And so you’re saying “all other officers” refers only to those requiring appointment.

William Baude: Well, at a minimum, this seems even more ambiguous than the impeachment clause, because this one says, all other officers whose appointments are not here and otherwise provided for and which shall be established by law. Not just all other offices in the United States which shall be established by law, but there’s some set of other officers whose appointments are not otherwise provided for, or whose, sorry, whose appointments are otherwise provided for, which is why they have to say only the ones whose appointments are not otherwise provided for. So if you look through the Constitution and say, whose appointments are not in the ambassadors, public ministers and councils and judges of the Supreme Court list, but something in the constitution says where those officers get office. The president’s one of them. That’s the reason they need the “whose appointments are not here and otherwise provided for” to make clear that Congress couldn’t come in and have some like new rule for appointing the president.

Sarah Isgur: Okay, the president shall from time to time give Congress information on the state of the Union. He shall receive ambassadors and other public ministers. He shall take care that the laws be faithfully executed and he shall commission all the officers of the United States.

William Baude: That’s the best one.If the president is an officer of the United States for all purposes, the president is supposed to commission the president. And the president, as far as I know, has never commissioned himself or the next president, right? 

Sarah Isgur: Not that I know of.

William Baude: Yeah, I think somebody did raise the question of, are we actually sure this didn’t happen? How would we know? But let’s, you know, that’s fair. So, one question is, what is a commission? Like, when we know from Marbury v. Madison that there’s one thing a commission can be, it’s like this document signed by the president that has to be delivered to your office before you can hold office. I have one on my wall, because it turns out that for being appointed to the advisory commission on the Supreme Court, you get an actual commission, which I did not know.

Sarah Isgur: That’s pretty exciting actually. That’s fun. And by the way, just as a reminder, tell everyone about that commission just for a second, because we spent a lot of time on AO on it and I just loved every nerd minute of it, listening to all seven hours per hearing, etc.

William Baude: You poor soul. This is the commission that President Biden convened in 2021 to decide whether or not to make recommendations or not make recommendations or in some way do something about whether or not they should reform the court in various ways. 

Sarah Isgur: The Supreme Court.

William Baude: The Supreme Court, people were talking about court packing. And so one question was, is court packing lawful and or a good idea? But then actually a lot of it was about, why is court packing the only option? Can we talk about jurisdiction? Can we talk about term limits? Can we talk about other things?

Sarah Isgur: It’s a great little report. I like the draft report better than the final report, but you know, again, that’s, it’s like me saying I like the book better than the movie maybe.

William Baude: Um… Uh, I don’t like either of the reports, but… There they are.

Sarah Isgur: Okay, so you have a commission. Please continue on the definition of commission.

William Baude: So there is a question of should we functionally define commission? Is there a sense in which, of course, the president does get commissioned? What is the commission, but the official formal delivery of the office in a way that, you know, sets up a record that everybody knows about. And you might think that taking the oath of office in front of the Supreme Court, in front of the chief justice of the Supreme Court and thousands of other people is commissioning. I don’t buy it. I just say, I’m more of a… I’m more of a formalist with these things, and I don’t think there’s an actual commission involved, but one could ask that question. No, I think it’s fair to say that for purposes of the commission clause, the president doesn’t seem to have been included as one of the offices in the United States that should be commissioned. Or we goofed and we actually should have been commissioning the president the whole time and nobody cares, which would make me sad, but we can’t rule that out.

Sarah Isgur: And again, to read it, having previously taken the oath as a member of Congress or as an officer of the United States, that if they meant to include the president, they wouldn’t have left this to us sitting here parsing, well, no, impeachment seems okay. Oh, the civil officers, that was distinguishing between the president because he might be a hybrid military officer and David French isn’t quite sure whether the UCMJ, you know, could court-martial him.

David French: Well, no, he can’t be court-martialed. The question is how much is he bound by the UCMJ, which is that  he cannot order, for example, the commission of war crimes. 

Sarah Isgur: Okay? That they could have just specified it, Baude, and they didn’t. And by not specifying it, they, whether again, intentionally or accidentally, they excluded it.

William Baude: Why are you willing to concede that the president holds office under the United States? Tere are these two lists in Section 3, right? Office under the United States for what you can’t be an officer of the United States for what you can’t have been. And so, one view which I understand is the view that both of those are mouse holes and neither of them includes the president. But the idea that like, under the five letter mouse hole is just big enough to hold the president, but of the two letter mouse hole is so small, it can’t hold the president. Doesn’t totally make sense in the president’s mind.

Sarah Isgur: Yeah, so, wait, why does the number of letters in the word President-

David French: Sarah, it’s just math. It’s just math. How can you hide a nine letter word in a two letter word? I mean.

Sarah Isgur: Okay, yeah.

William Baude: You tell me why the five letter word and the two letter word are different, Sarah.

Sarah Isgur: So I’m not totally sure. I just don’t want to stake my argument on the under, because I think there is an argument that Article 2 itself is an office under the United States, but that the president is not an officer. I’m, not even sure that I buy that argument because I think that it’s weird, unlike my, well, look, Article 1 is Congress, Article 2 is the presidency. So of course you would always mention Congress first. This is weirder here at the top. It says no person shall be a senator or representative in Congress or, and next up they don’t go to Article 2 or anything that could include Article 2, elector of president and vice president or any office under the United States, I think there is a decent elephant and mouse hole argument there. I just don’t think it’s as strong as the next one, but, but yeah.

William Baude: Although it’s not that weird in that senators, representatives, and electors are the three people who it wouldn’t be obvious what you’d call them would be offices because none of them are in the executive branch. And sometimes we’d use the word office to think of people in the executive branch, whereas electors-

Sarah Isgur: But why would you not just say be a senator or representative in Congress, president or vice president to the United States, or an elector of president and vice president or hold any other civi ….  if that’s really what they thought, that would have been so much clearer, so much more obvious to draft it that way.

William Baude: Maybe, although if what you started with was the second list, you start by saying, okay, who took an oath to support the Constitution of the United States? Copy that out of Article 6.

Sarah Isgur: I actually think the whole order here is weird, which is maybe what you’re about to get to. Why would you start with the offices you can’t hold, but then get to the people who can’t hold them?

William Baude: Yeah, that’s so you can get no person shall be so it’s more clear that it that way it parallels the other qualifications. It’s like “no person should be president who…” Then if you looked at the list of the things you can’t have been list, the oath list and said, “is there anything missing here?” we need to be sure to include, you might want to add electors because I think electors in some states take an oath support the Constitution, but not in all states, electors is a sort of funny, and nowadays, there are even states where electors take an oath to support the party, not the Constitution.

Sarah Isgur: True. But don’t you think it’s weird to include electors like they then didn’t think about the president? Like you literally included electors of president and vice president and you didn’t list out. Talk about nine-letter words. They wrote the nine-letter word for a longer, for elector of president.

William Baude: So I know that I’ll probably get pulled off this podcast right now for citing legislative history, but it-

Sarah Isgur: Oh, I actually think it’s the best part of your article, so please.

William Baude: It is worth noting that so while they’re drafting the 14th Amendment, this is before the Senate, and Reverend A. Johnson looks at this constitution and has a Sarah moment and says, isn’t it weird that we’re not including the president? Isn’t this provision under inclusive? It’s a senator or representative or elector of president, but then doesn’t include the president. And Senator Morrill says, well actually the president is included because it’s an office under the United States. And Senator Johnson, this is what’s interesting. Senator Johnson says, oh yeah, I see that. I must have mistaken. He says, now, you know, it was a forgivable mistake. It’s weird to think of the president as being included as office under the United States, but I see that, you’re right. And that’s the moment, of course, you know, I realize again, lots of reasons not to always care about legislative history, but that’s the moment at which they could have fixed it. Right, that’s the moment at which somebody is raising this objection on the floor and the answer is no it’s included we’re good and so it does seem, it requires a lot of confidence on our part to think they were looking at the text they asked this very question whether it included the thing they wanted to include they concluded they were good and we’re going to come in and say no you weren’t good. You thought you thought your words meant what you thought your words meant but actually your words had a different secret meaning unbeknownst to you that you had to include the president. Now that’s under, not of, so you might then say okay I concede under. But at that point, maybe we also ought to wonder how confident we are in this move. If they didn’t then have a separate Sarah moment about of, we’re still gonna hold them to that.

Sarah Isgur: I’m just pleased that anyone had Sarah moments back in the day. 

David French: Your power extends and radiates way back into the past.

William Baude: Can I offer a different sort of framing thought for this? 

Sarah Isgur: Yes.

William Baude: So part of the question is, do we think of these phrases as unambiguous terms of art? Or do we think that they are phrases that might sometimes mean something slightly different in the context of each sentence? So I think if you were convinced that officer of the United States is an unambiguous term of art that just means in some dictionary, everybody in the executive branch, but not the president or the vice president. And like everybody knows that’s what it means that it means that everywhere, then that’s stronger sort of elephants and mouse holes argument. Whereas if you think when you go through each even of the clauses in the original constitution, some of them, like the commission’s clause, seem like they can’t possibly include the president and others seem much more ambiguous, then that maybe colors how we think about it when we get to Section 3. And so one question, like so Steve Calabrese, who also has taken this view, having previously not taken this view-

Sarah Isgur: Taken your view

William Baude: He now takes your view. 

Sarah Isgur: Oh, I thought he, okay, sorry

William Baude: He switched.

David French: Yeah, he switched, he switched. 

Sarah Isgur:  I got the order wrong. Oh, he’s having a Sarah moment.

William Baude: He’s having a Sarah moment. He, well, a stronger moment. So he, he thinks his view is officer of the United States is a term of art that does not include the president or vice president. He says the framers of the 14th Amendment did not know this. So they use the term of art believing it include the president, but they were wrong, they committed a Scrivener’s error and he doesn’t believe in correcting Scrivener’s errors, even in the Constitution. And so despite the original understanding and intent of the 14th Amendment, the original meaning of the 14th Amendment accidentally uses a term of art that excludes the president. I don’t know, that may not be a Sarah version, right? 

Sarah Isgur: No, I think it’s interesting, but no, it is not my moment.

William Baude: And then this is the sort of related, then there’s Seth Barrett Tillman and Josh Blackman, who have an even more, their view is that the entire original constitution systematically uses officer of the United States and office under the United States to exclude the president in every provision, including the foreign emoluments clause litigated against President Donald Trump, including the impeachment disqualification clause, a bunch of other clauses. And so their view is again, like there’s a systematic term of art in the original constitution that the 14th Amendment then implements. Now they too lose their nerve on office under. So they say, well, okay, maybe the 14th Amendment doesn’t actually implement the term of art for office under, but we’re still sure it implements it for officer of. Well, it’s not clear why. And on their view, which again, you’d think would be sensible, office under and officer of are just a matched set. Like strange fact we haven’t talked about. Every time the Constitution uses officer, a person, it then uses the preposition of. And every time it uses office, the thing, it uses the preposition under. So maybe the more natural reading is just there’s no difference from the five-letter word and the two-letter word, other than one of them goes with office and one of them goes with officer.

Sarah Isgur: Oh, but see, I could see the office of the presidency being different than the person holding like a constitutional office. The president and the vice president are constitutional officers. The office of the president is different because it’s the only thing where the office is the whole article also. Like it is unique in the constitution. I mean, that’s the argument around that at least. But here’s the thing. I think that your argument is plausible and interesting and it’s why everyone is engaging in it. And I just want to make very clear and underline, I thought your legislative history point, like when I was reading your article and I was like, nah, maybe I don’t know. And I got to that, it like, I think it literally stopped me. I read it over and over and over again, because I think your intellectual heft that you brought to the overall exercise is really important and helpful. That was the one thing you brought to this conversation though, that was totally new to me, um, and important, I think, because regardless of how you view legislative history, you do need to grapple with that. Now, I think an easy way to grapple with it, that was two guys. We don’t even know if everyone else heard them arguing about it, or maybe they did and they went to the bathroom and peeing next to each other, decided something else differently. Like that’s why legislative history is a problem, but nevertheless, like, you have to grapple with it somehow in your article. And I love that about it. And just like you sort of conceded the commission language as a bit of a thorn, I will totally concede that your legislative history point is a thorn for me. David.

David French: Can I jump in? Because two things, one, my mind won’t stop thinking about the civilian military distinction about the president, like literally, because he’s not really subject to court martial, but at the same time he has absolute military command authority, but here’s an interesting question. What if he orders a war crime commission, the commission of a war crime, and he’s out of office? How there’s still criminal liability that attaches for that? How is that resolved? So many things, but anyway, there is-

Sarah Isgur: is killing your former chairman of the Joint Chiefs a War crime?

David French:Yeah, that would be a war crime. That would be a war crime. 

Sarah Isgur: Oh, just curious.

William Baude: And a crime crime.

Sarah Isgur: 

And also a crime crime.

David French: So yeah, so anyway, I think there’s probably a lot of, a lot of people yelling going, he’s definitely civilian. And I get it, the civilian argument, but also you can’t, anyway, that’s going on. But here’s the other thing. If I had to boil this down, let me tell you, see if you think this is like the fairest way of saying it. Words officer of the United States have a kind of obvious meaning in plain English, which is, you know, and if so, if you’re the chief executive officer, if you’re the CEO, the operative word in CEO is, oh, officer, you are an officer of the United States. And then the question is, okay, if the colloquial plain meaning of officer is officer, and the president is the chief executive officer, then there is, at one level, it just seems like why are we arguing about this? And then the question would seem to me to be, okay, if the word officer just has sort of this plain meaning, the distinct way that the original constitution used the term officer, was that saying that for all, all matters going forward, that word officer is then to be read in accordance with the very distinct way it’s used in very specific circumstances in the original constitution, or is that just a quite situation specific narrowing of the general term, but the general term still survives. Is that the way of framing it?

William Baude: I think so. I think so. I mean, this is like one of the great challenges of the Constitution is they’re trying to do a bunch of complicated legal stuff, right, and what they have to work with are words. And so, yeah, part of the question is like, when you see them doing something slightly complicated in the Commission’s Clause, like to what extent does that, you know, mark some…

David French: Change the colloquial meaning of the term for all time. Right.

William Baude:Yeah. Right. So, and I will say, just to put one more clause on the table, apologies. In Article 1, Section 8, there’s something called the Necessary and Proper Clause, which gives Congress the power to make all laws that are necessary and proper for carrying into execution its own powers, which is how Congress kind of can do things that are not literally just tax laws in helping set up the IRS and so on. But it also says that Congress can make all laws that are necessary and proper for carrying into execution all other powers vested by this constitution in the government of the United States or in any department or officer thereof, which is what’s called the horizontal necessary and proper clause. It’s what lets Congress give the Supreme Court law clerks because there are powers vested by the constitution in the judiciary department. And it’s what lets the constitution give the president a staff. So why, the president’s pardon power is the president’s power. Congress can’t regulate the pardon power. But Congress can give the president a pardon attorney and a bunch of people who work on pardon stuff because that’s a law necessary and proper for carrying into execution a power vested by this constitution in an officer of the United States.

Sarah Isgur: Disagree.

David French:Disagree with what specifically? The reading of the quote or no.

Sarah Isgur: That the officer part is what’s, including the president. Which Baude knows.

William Baude: You’re going to say he’s a department?

Sarah Isgur: All other powers vested by this constitution in the government of the United States, and so if you go to the beginning of Article 2, Section 1, the executive power shall be vested in a president of the United States. So in that sense, it undermines David’s point too. It’s not a chief executive officer that they vest it under. The executive power of all of Article 2 shall be vested in a president. And you know, you compare that to Article I, which people do all the time for totally other conversations. All legislative power herein granted shall be vested in a Congress of the United States. And so you’ll notice over and over again, and well, twice, in the 14th Amendment Section 3, but also some of these other clauses that we’re talking about. They will specifically say Senator and Member of the House or Congress, because that legislative power is vested in the Congress of the United States, which shall consist of a Senate and a House of Representatives. In Article Two, the executive power is vested in a President of the United States. That’s why it’s a constitutional officer. It is not an officer of the United States. For your Section 3 purposes in the 14th amendment or in your Article 1, Section 8 horizontal Necessary and Proper Clause, sir.

William Baude:And do you care well, here’s one of the legislative questions, do you care, 

Sarah Isgur: I care about lots of things.

William Baude: Do you care how people around the time of the 14th Amendment describe the president? Like if Andrew Johnson regularly described himself as an officer of the United States or the chief executive officer of the United States, or would that…

Sarah Isgur: Do I care what Andrew Johnson in his drunken impeached state is calling himself or other people? Yeah, I do. 

William Baude: Well, he is the president at the time, yeah.

Sarah Isgur: Look, I, I such as it is. Um, I, fine. Yes, I care. I care. I don’t want to, but I do.

William Baude: This is one of the other interesting methodological questions related to David’s question is, you know, we read the Constitution as one document, but the amendments are added at different times. And so there is this question, when you get an amendment that’s added, you know, when understandings and times have changed somewhat, even though we don’t like to think about that, we don’t like to admit that can happen, you know, to what extent is our job to be faithful to the understandings that go with the 14th Amendment? And to what extent is our job to pretend that like, James Madison’s ghost is still in charge of all the amendments? You know, I mean, this comes up a lot in the incorporation of the Bill of Rights context, where people debate about whether the Second Amendment was an individual right, of the scope of free exercise, even though it’s clear by the time of the Fourteenth Amendment, those were powerful, important individual rights that are understood much in their modern way. 

Sarah Isgur: Yeah, I mean, look, the qualified immunity conversation. Are we looking at 1871? Are we looking at like, it’s when are you looking to be an original public meaningist or a textualist? I totally grant you that. Okay, so are you gonna tell me what Andrew Johnson said or not?

William Baude: He regularly referred to himself as an officer of the United States. Often it was chief executive officer of the United States, so you might say that’s different. But Mark Graber and Jared Magliocca and John Villopoulos all have, I think somebody’s doing a corpus linguistics thing on this too, if you like that.

Sarah Isgur: Oh, we were very into corpus linguistics here at advisory opinion, not necessarily pro it, maybe we are, but we’re very into saying it a lot.

William Baude:Yeah. 

David French: We’re corpus linguistic curious. You know, it’s like we’re trying to read the Constitution like a statute where a statute often begins with a series of defined terms that says for purposes of this statute, officer means this. And you go down the line and that often begins statutes. And that’s often the most important part of the statute is how the terms are defined for all purposes going forward within the statute. But we don’t have that in the Constitution. We don’t have the list of defined terms in the Constitution. And so we’re…It seems to me that we then default necessarily in the absence of this list of specific defined terms where they may not mean what you think they mean in standard English, that you default to standard English unless there are specific provisions in the Constitution where standard English doesn’t apply, because we just don’t have that carving out of specific terms from standard English when we’re interpreting the Constitution.

William Baude:There’s this opinion by Justice John Marshall called McCulloch v. Maryland that is famous for many lines, one of which is exactly this:  It says that one of the things to remember about the Constitution, is that’s a Constitution we’re expounding because it will not admit of the prolixity of a legal code. There are ways, if you’ve got a statute, there are things you would expect. Everything has to be spelled out because the legal codes are very long and lawyers spell everything out. But the Constitution, if it were like that, if it were like a statute it could scarcely be read or understood by the public. It wouldn’t be possible to have a public conversation and vote about it if you included every definition of laws for every term. This might be a perfect example of that.

Sarah Isgur: Let’s talk practicality and just side note, if you’ve gotten this far in the podcast and you’re now just thinking, why doesn’t Will Baude have his own like NPR show, like his voice is so good for this. You could just listen to him all day long. Um, you in fact do occasionally do a podcast, correct?

William Baude:I do. Divided argument.

Sarah Isgur: There we go. So you can get more Baude Baude-ing all the time for Baude-ing or otherwise.

David French: Well, and the thing is his word, his, his speech is both NPR ish, but can be menacing as when he said, I walk alone, which I took as kind of a warning to all law students on campus. Like I need some room here.

William Baude: Hahaha!

Sarah Isgur: Let’s talk some practicality here. There are various versions of this percolating around the country, but we’re focused on the Minnesota version. Can you just sort of lay out what’s happening next here?

William Baude: Practicality is not my specialty but so as we mentioned earlier this argument sort of goes through the state election law process right the 14th Amendment does not itself contain an election code that says who can or can’t run for office or how you do ballots or whatever, but states often don’t want somebody who’s ineligible for office on the ballot and in Minnesota apparently the way this works— and I spent some time looking into this, as Minnesota also happens to be where my co-author Mike Paulson lives and has taught law for a very long time. In Minnesota, the secretary of state has no authority to make eligibility determinations. Their job is just to take whoever the party sends over and put them on the ballot. But, Minnesota law says that anybody who believes that somebody has been inappropriately included on the ballot can bring an original jurisdiction action in the Minnesota Supreme Court, called an errors or omissions petition. And there’s now a pending errors or omissions proceeding in the Minnesota Supreme Court, which has agreed to hear oral argument, I

think in early November on the question of whether or not Donald Trump can be on the Minnesota ballot for president.

Sarah Isgur: And what’s a little odd about that is that this would happen before he’s actually been accepted to be on the ballot?

William Baude: So I think the Minnesota Secretary of State has asked the Minnesota Supreme Court to rule by early January because the hard thing about election law is you can’t decide these things too early or else they’re not ripe. But if you decide them too late, then you screw up the election, have to reprint all the ballots and screw everything up. And in federal court, you’ll apply the Purcell principle, which says courts won’t do anything too close to an election where too close is kind of vague and decided on vibes. So there is a kind of weird sweet spot for like when it’s too late and too early. That too is a sort of state law question. Right. But the, but the idea is we now have a pretty good sense. It’s pretty likely that Donald Trump’s name is going to be on the ballot, unless the Minnesota Supreme court says it shouldn’t be. I would like to know before we print off however many million ballots, uh, whether it should. 

David French: So it’s more like a Goldilocks principle. It can’t be too hot and it can’t be too cold. The porridge has to be just right.

William Baude:I mean, this is actually how I teach federal courts, right? And this is true of everything. It’s like, you want to challenge some new law that you think is unconstitutional. You can’t do it too soon. You can’t just be like, this law was enacted, I want to challenge it. You have to show some incredible threat of enforcement. But you also can’t wait until you’ve been prosecuted and put in jail, because then we’ll say, oh, sorry, you should have filed for habeas. And you can’t file for habeas anymore, because of EDPA. And then there’s like a whole sort of challenge in federal courts about like, when is the porridge just right?

Sarah Isgur: There’s a very practical reason, I think, to reject the Baude-Paulson, not theory, but the practical implication of it, which is that when in doubt, when there’s a gray area, we should leave this to political accountability, either at the ballot box or even in the House and Senate, for instance, at least they’re politically accountable. So fine, elect someone who’s 32 years old and have the House and Senate reject them, for instance. But that your version, which would then allow sort of removing someone from the ballot, potentially, now maybe not in this case, but it’s hard to see. Look, this could move fast enough where there’s no votes that have been cast for Donald Trump and he’s removed from the ballot everywhere because of this, you know, it goes to the Minnesota Supreme Court, they hear it in November, they decide it, you know, the next day in November, it goes up an emergency petition to the US Supreme Court. It’s possible, it’s unlikely. And so what’s more likely is that you’ve had millions of votes cast for Donald Trump before this is decided. And that then he’s disqualified under this theory. And that’s not great.

William Baude: So I do think you could do this quickly. There are a lot of people, you know, calling on the Supreme Court and the Minnesota Supreme Court to just—-whatever the answer —- let’s just figure this out now. And of course, figuring this out at the primary stage seems to be a lot healthier than waiting until the general. The same reasons that I think if Donald Trump died tomorrow, the Republican Party would have to find somebody else. And so it might be healthier to think about that now. That said, one of the other options you floated, Sarah, is what people like to call the January 6 solution. The reason January 6 happened on January 6 is that’s the day that the votes are counted in the joint session of Congress. If the choices are either deciding this relatively early during the primary season, before the general, or deciding this only after all the votes are cast and we know who won or lost on January 6, I don’t think the latter is a better recipe for civic health.

David French: Oh, gosh. Oh, gosh. No. Oh man, that’s a recipe for civil war.

William Baude: I don’t, I mean, look, I don’t even think Congress has the authority to decide whether somebody is qualified or not. I think that Congress has powers to count the votes, not to judge them. But that’s ambiguous too. And the people who wrote the Electoral Account Reform Act might have a different view and then they have to get into whether the Electoral Account Reform Act is constitutional and what it means for a vote to be regularly given under the Electoral Account Reform Act. So I mean, look, if that’s where we have to go, that’s where we have to go. We follow the law. But if you said like, oh, that’s the like the safe, secure or democratic place to resolve this. That doesn’t seem great. 

Sarah Isgur: Okay, what about, this is my other practical argument against the Baude-Paulson reading, which is, so we’ve done sort of the specific textual analysis and comparing it to other parts of the constitution. We’ve done the elephant and mouse holes argument that they should have or could have delineated it and didn’t. And my last one is, ah, they did intentionally leave out president because there was always a different way to disqualify the president from holding office if they engaged in an insurrection or rebellion, the impeachment power. And that’s why they didn’t include him. And so look, the president was impeached for his role after the election, including January 6th. It failed. That was the, it sort of combines all of these, right? That was the political accountability. That was the effort to do, uh, the 14th Amendment Section 3, yada yada, all the things, it failed.

William Baude: All right, so first of all, this again gets us into a weird form of like “under of truther-ism” because the impeachment disqualification clause is another under clause. So you do have to for the impeachment disqualification work, you do have to accept the president as it holds office under if it’s not an office of. Now, funny thing is, of course, one of the reasons that impeachment failed is that a number of members of the Senate were worried that you couldn’t impeach the president after he had left office. Then it was too late to impeach the president because he was no longer an officer of the United States. And so you couldn’t hold him. 

Sarah Isgur: This merry-go-round is fun.

David French:This was the McConnell argument. The McConnell argument was he is constitutionally ineligible for impeachment because he is no longer, because the consequence is removal, he’s gone from office. Yeah.

William Baude:Right. And now I think at least if you impeach the president before the clock goes, so since the impeachment came in time, that then you can conclude the trial. This is the other McConnell argument. Michael McConnell wrote an article about this saying like the impeachment’s legit. It’s like it’s more like the statute of limitations in civil litigation. If you get your complaint in under the wire, right, then we can keep doing the case even though the statute of limitations is run. I think that’s the better argument. But that’s ambiguous too.

So it seems awfully wild to have a system where the, it seems more like a constitutional shell game to say, you’re supposed to impeach the president and disqualify him from future office. Oh, but if the time runs out and the president’s not president anymore, you can’t do that. But now the president can become president again, because they stopped being president fast enough. That just seems, that seems like a wild combo.

Sarah Isgur: And perhaps in the end, we’re just left with the people of the United States who are supposed to decide this as voters.

David French:  I guess I’m just kind of imagining Jefferson Davis, it’s 1880. And he’s like on a rehabilitation tour and he stands in front of the stage and he says, I am your Democratic nominee for president of the United States. And people go, wait, you’re Jefferson Davis. You were the president of the Confederacy. You’re not eligible. 14th Amendment, Section 3. And he goes, ha ha, read it closely. I am not encompassed in that statute. Um, I mean, in that, in that amendment, I think people would fall out of their chairs in shock at the idea that Jefferson Davis could run in 1880 and Congress had just barely missed it. Like-

Sarah Isgur: To be clear, he super was though. He was a senator, right? Like he was all the things.

William Baude:So this is an under argument rather than an of argument, which is just again, a sign of how. 

Sarah Isgur: Oh, okay. Okay. You’re you’re doing okay. Okay, fair.

William Baude: Let’s not forget about Congress here .Everybody agrees, actually, Donald Trump can become president through a democratic mechanism. The question is what the mechanism is. Is it enough for him to get a minority of the popular vote, squeak through with an Electoral College majority, just like it is for anybody else? Or, maybe for him, should we have the slightly higher standard that he needs to get a small sliver of the Democrats in Congress to first sign off. Beause Congress can, by two-thirds vote, remove the disability. It did during the Civil War, it granted amnesty to almost all the Confederates except Jefferson Davis. And indeed that was one of the conversations at the time when Congress was debating the amnesty legislation. And there was some possibility they were going to grant amnesty to everybody. People said, “Jeff Davis and Robert E. Lee becoming president, are you kidding?” And so Congress carefully crafted the amnesty legislation to leave them out. They were like, a lot of people participated, you know, we’ve accepted their apologies, but not them. The other weird thing is, Jefferson Davis and Robert E. Lee at least did kind of apologize.

Sarah Isgur: Our bad, yo.

William Baude: Like they, I mean, you know, now you might say like, yeah, now you might say, “I’m sorry is inadequate for the Civil War,” but—

Sarah Isgur: I do, I do actually say that.

David French: Yeah, I agree.

William Baude: I think it’s not crazy for Congress to consider granting amnesty to Donald Trump, given the democratic stakes. I think that’s not crazy. I mean, there are people who aren’t opposed to that. I see why they would do that. I don’t think I would do it, but I see why they would do it. I think if I were going to think about doing it, the one condition I might have would be an apology. 

Sarah Isgur: Like South Park BP style, we’re sorry.

William Baude:You know, we could talk about what form the apology has to take. I have a six year old and a three year old and like, you know, there’s a lot of technical performance of apologies, but, but I would think like the one thing you might want first would just be like some acknowledgement that what happened on January 6th was wrong and that the president’s pardon, was wrong. Maybe, maybe once, you know, then we could talk about like civil war style forgiveness, but it doesn’t, it’s funny to me that like demanding that, demanding at least that is thought to start to make you an undemocratic like crazy person. Um, that just seems like a sign of how far we’ve fallen.

Sarah Isgur:  How did y’all get the idea to write this article and are you surprised with the ubiquity of its fame?

William Baude: Yes. Several years ago, Mike and I, I think when people were first talking about Section 3, like in January 2021, and had all these claims about it, and there was talk about impeachment and all that stuff, we were just emailing about it, trying to figure out how this worked. And then sort of tossed around and then learned that some people didn’t think it was self-executing and some people thought it didn’t apply anymore. And so we sort of started thinking, well, we should write. I still have the original draft of our first article, which calls this a short article making four small points. And then, you know, the more we started working on it, the more there was there. Nobody will ever believe this, but I swear it’s true. When we started working on it, it was not obvious like how it was gonna come out. You know, we started just trying to think like, we’re law professors, this seems to be a constitutional revision that people don’t fully understand. Let’s try to figure it out. It took me a while to conclude that the definition of insurrection was as broad as we concluded it was. I sort of thought that like it had to be the Civil War to be an insurrection at first, until I started reading about the legal term insurrection and a lot of the military history that David probably knows better than I do. So then it just took several years of going back and forth before we realized we had something important to say. I did not anticipate, we put this on SSRN, where you can download preprints of law review articles, short letters they placed. And I did not anticipate this scale of reaction. Um, until now, my most downloaded article by a lot is, “Is qualified immunity unlawful”. Um, which has been downloaded like 6,000 times. And I thought, you know, probably this article will never be as downloaded as “Is qualified immunity unlawful”. Like it doesn’t have that same kind of like political viral possibility, but, but you know, maybe, maybe it’ll be, you know, interesting. And I think Adam Liptak saw it very quickly and wrote a little piece about it. I was like, okay, then at least it will be noticed. 

Sarah Isgur:  What’s the number? What’s the number?

William Baude:

Uh, it’s I stopped counting when it went over 100,000.

David French: Oh yeah, I was gonna say it shocked me if it was less than 100,000. 

William Baude:It’s 101,218 this morning. Oh, no, 221.

David French: Sarah doesn’t know this cause she was out, but I was using a lot of WWE analogies during the, like, is that Steve Calabresi’s music? And where he’s coming in and you think he’s gonna take one side and he picks up the folding chair and he like bangs his former allies with it, you know. But as soon as I saw this article, I knew it was gonna blow up. I mean, I just knew it was gonna blow up because I heard Will Baude’s music. Like, is that Will Baude’s music? He’s coming in on the 14th Amendment. I knew this thing was gonna blow up. Everybody knew this thing was gonna blow up. It’s a phenomenal article. It’s a, and I recommend the pieces, um, you know, attempting to rebut you, I recommend them as well, Josh Blackman’s, and we should probably put that in the show notes as well. It’s an incredibly important debate. And the thing that one thing that grieves me about it is that, uh, I do in fact think that the porridge is just right to decide it right now, and I’m really worried that courts just will say, nah, they’ll just nah dog it because we’ve got this election coming up.

William Baude: I mean, that is what happened to it last time, right? So we alluded to this self-executing issue, and the main reason people now think that the amendment is not self-executing is because of a circuit court opinion by Chief Justice Chase riding circuit. It has like no presidential status, but it’s there in the Federal Reporters, and it’s by Chief Justice Chase, where he basically nah-dogs it, right? He gets asked, you know, here in Virginia, they’re just letting insurrectionists hold office, and this guy was convicted by a judge who is disqualified under Section 3, files for habeas. And the question is, like, do we have to do that? And the district judge says, Yup, he’s disqualified. I guess I should grab habeas. And Chief Justice Chase rides down and basically says, and basically says in so many words, like, whoa, if we took the Constitution, we took Section 3 seriously, what would happen? Like, what would happen to all these people governing in the south? And I think there is some reason to worry behind the scenes. One of his worries was like, the south just won’t stand for it. Like it’s true, this is what it requires, but we’re having a hard enough time getting the South to accept the 14th Amendment as it is. We just can’t, it’s just asking too much to ask people to take the Constitution seriously.

David French: We just gotta give in to the bullies.

Sarah Isgur: 

There’s a few theories, there’s a few theories to apply to that. One is that Chase was applying the bad man stays in jail theory. Cause sure it would have disqualified the judge, but the actual result was to let anyone that judge had sentenced or convicted out. So bad man stays in jail theory would resolve that case in the same way. Um, there is also the, uh, anti-Gorciccian chaos theory where like, look, we just don’t decide things that result in total chaos where there’s not a lot to be done with it because all of a sudden all of these office holders in the South would be just like that day, no longer holding their office. Or do we retroactively say that anything they did while in that office doesn’t count anymore? Um, total chaos. And that’s part of Chase’s argument.

William Baude: Although Chase had a bad man stays in jail theory, a separate theory called the de facto officer doctrine, a well established centuries old bad man stays in jail theory that says that- 

Sarah Isgur: That we don’t retroactively apply.

William Baude: Even if the, yeah, even if the person shouldn’t hold their office, like going forward, you know, right, we just don’t worry what happens so far. And what’s funny is that that’s the ground that the Supreme Court as a whole apparently privately instructed Chase would be fine. And he goes down and instead delivers the bolder argument, instead delivers the full on death blow to Section 3. And then says now it’s true as an alternative ground, I could go with the de facto officer doctrine, but I don’t need to get into that because I’ve successfully resolved the case on a broader ground. But I, I was like, as I read the number of people who I respect, who have a version of this response to this argument, I totally see where it comes from, right? I totally see where somebody would say, it’s just asking too much of the country to expect the Republican party to accept the legitimacy of a Section 3 application. Like it’s just, it’s just not going to happen. We know it’s not going to happen. We’re trying to get them to accept the results of the 2024 election, whatever it may be, like don’t make it worse by actually like applying the Constitution to that election in a way that will disfavor them.

David French: Every time I hear that I hear, peace in our time, peace in our time.

Sarah Isgur: Can I tell you where I’ve, where I fall at the end of this conversation is a little where I started, but I, I think I’ve moved a little shifted in my chair a bit. Um, so first of all, I would love for this to apply. I don’t think anyone who’s been listening to this podcast or knows anything I think about anything thinks that I don’t want this to apply. I wish lightning strikes would apply. You know what I mean? Like, but.

Sarah Isgur: But if it’s going to apply, it needs to be air fricking tight. It really needs to be rock solid. And it’s why I wanted to have this conversation because I think conversations like this articles, like this, the articles refuting it, like all of it. Is going to get us to that air-tight rock solid place where we can all feel comfortable or not at the end of the road that we’re going on minus, like again, if, if lightning would just do this job for us. I think we’d all, you know, I don’t know. I don’t want the secret service knocking on my door. I don’t control lightning. This problem does not seem to be self-executing if it were like as it were. So, uh, I don’t think that we should be applying the 14th Amendment Article 3 in close calls. If that makes sense.

William Baude:Yeah, no, I mean, I would like to think we live in a world where airtight legal arguments convince everybody. So where if it is airtight, that’ll, you know, cause everybody to say, well, yeah, I don’t like it, but I see it.

Sarah Isgur: But then I’m in David’s camp. Like we, it’s not, we’re, if it’s an airtight legal argument, we don’t then say like, Oh, well, but these people don’t like airtight legal arguments and they’re bullies. Like that’s different, but it’s also different than saying it’s a close call, so we’re applying it against your guy, against the person you want to vote for. And we also need to make damn sure that we want to apply this in the same breadth and scope and everything else moving forward. Cause it’s sure as hell not going to accept it if it’s disqualification for thee, but not for me.

William Baude: Yeah, no, I mean, look, I would love to think that January 6 is the last insurrection against the United States we’ll ever have in this country, but I don’t think that’s likely.

Sarah Isgur: If it is, it’s because the United States ended.

William Baude: Fair enough.

David French: You know, that’s, I’m glad you brought that up because, you know, one of the things I’ve been talking to actually a lot of folks about just when I’m out and speaking and everything is, when is everything gonna get back to normal is sort of the question. And I’m like, if you look at a big sweep of American history, we’re in a version of normal. So if you look at, for example, just the whole run up to the Civil War, post Civil War, election of 1876, compromise that resolves the election of 1876, and all of, and the way that threw millions of Americans, black Americans under the bus going forward for generations, we have in this country demonstrated that one of our versions of normal is living in open defiance of the plain meaning of the constitution, much to our detriment. And so, you know, one of the reasons why I think this is such an important argument is that we cannot be living in a new normal that essentially is saying, well, what an insurrection is against the United States is you gotta be wearing gray and riding a horse named Traveler or whatever Lee’s horse was before, you know, you’re gonna be disqualified from office. Do these words have real force and effect to regulate and to modulate the radicalism of dissenting movements in the United States? And so I think it’s really important to establish what the normal is going forward. And if the normal is that insurrection or rebellion, we’re essentially helpless against it as a matter of law, as a matter of law and our entire defense system is just punting it and hoping that a demagogue doesn’t persuade enough people in swing states to vote for him, man the Constitution’s more fragile than we thought.

Sarah Isgur:  Don’t forget after 1876 and that election, which William Rehnquist has written, written a great book about, uh, which is fun and short and everyone should read it cause it’s a good time, especially right now, uh, 1880, that guy’s assassinated within months of taking office. So, you know, days really.

David French:There are versions of normal in this country that are really bad. We don’t want to go back to those.

William Baude:Yeah, people sometimes ask, actually, I just agreed to go to a symposium on teaching law in a time of change and crisis. It’s sort of like, how do you teach law in this moment? And my remarks are more or less going to be, you have always been teaching law in a time of change or crisis. You may just not have noticed before.

Sarah Isgur: All right. With that professor Baude, thank you so, so much for coming on to spend an hour talking about officers of and under and how many letters are in the word president. Um, this has been a super treat, a treat for all the nerd AO listeners. Um, and, you know, we’re, we’re trying to make that more perfect union. This, these conversations to me in a small way, uh, contribute to that, but your law review article in a large way, I think contributes to it. 

William Baude:It’s a treat for me too. I do not do a lot of these things about Section 3 because I don’t want to just have the same conversations over and over again for things that are already in the article. But once you promised me we could spend time on actually getting into the, you know, the most detailed textual and structural arguments, I couldn’t say no. 

Sarah Isgur:  Did I fulfill my promise? 

William Baude: You did.

Sarah Isgur:  All right. Thank you.

David French: Thank you, Professor.