What Are Parties For?

Further thoughts on this week’s newsletters.

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155
Republican presidential candidate Vivek Ramaswamy raps to Eminem's "Lose Yourself" at the conclusion of one of Iowa Governor Kim Reynolds' "Fair-Side Chats" at the Iowa State Fair on August 12, 2023 in Des Moines, Iowa. (Photo by Chip Somodevilla/Getty Images)

It’s Friday, it’s August, it’s miserably hot. No one’s in the mood for a long 2,500-word march of doom through a depressing topic. Let’s do something different.

How does a 2,500-word march of doom through multiple depressing topics sound?

On Tuesday we raised a glass to the latest indictment in Georgia. On Wednesday we considered the prospect of a landslide Trump defeat next fall. It’s been a pretty upbeat run lately for this newsletter.

I’m strung out from it, frankly. The pessimistic itch demands to be scratched. 

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  1. Avatar photo
    Ben Connelly

    Vivek is not going to be the nominee. Every primary has BS surges and every pundit has to pretend to take them seriously. I heard part of that Hugh Hewitt interview. Vivek is a joke and Hewitt made it obvious the guy doesn’t know anything.

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  2. Paul in NC

    The Republican Party, as it once was, is finished. There was a time when it looked like it could become one thing or the other.

    It became the other.

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      Brian Ruff

      Very few people are discussing the vacuum forming in the American political system as a result of Trump's capture of the GOP: there is still a sizable center-right group of voters that no one is representing, at least at the top of a national ticket. IMHO it's only a matter of time until the US gives birth to a Conservative Party. It'll be a rough go for a while - Democrats will win everything until the GOP is well and truly dead - but it will happen.

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        Ben Connelly

        Jonah floated that idea a while back. Part of me likes it. It would be a party founded explicitly on some form of fusionism (which was, of course, an attempt to have a broad tent rather than a boilerplate set of beliefs everyone was required to assent to) or something like that. For the conservative movement, that could be better than using the Republican Party as a vehicle.

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  3. Dougrhon

    "If you’re right-wing, populist, fervently opposed to the left and devoutly pro-Trump, you’re a Republican."

    If this is true, an it well may be,then registered Republicans who do not fit this description are going to need to form another party that actually opposes the left but isn't populist and devoutly pro Trump.

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  4. AC

    Vivek is the 2024 version of Herman Cain. A dangerous crank who will briefly rise up only to plummet back to earth once people understand who he is. He’s currently got the same momentum RDS initially had when he was a credible alternative to Trump without people having had the chance to know anything about him.

    Given sufficient exposure, people will determine he’s not a viable alternative as well.

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  5. Merina812

    I'm so tired of the outsider thing. Would you look for an outsider to fix your car, as your doctor or for any other purpose, and yet so-called conservatives want to hand the presidency to an "outsider". Sure, many politicians are less than admirable, but there is a craft to governing, bringing together coalitions, managing foreign policy, budgets and all the rest. Experience helps.This is why I prefer former governors to senators or congressmen for president. Outsiders tend to be disastrous, as DT has demonstrated. Will we ever get past the mad, mad, mad, mad world we live in right now? It is deeply destructive.

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      BloggerBarbie

      Amen, preach. And also, coalitions and compromises are what people in government are supposed to do. They're there to balance the law, the interests of disparate groups of people, and the interests of the nation, and come up with something that gets the best possible outcome from pie-in-the-sky nonsense coming at them from every side.

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      PJ

      Thank you, well said!

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  6. Avatar photo
    Bill Dyer (aka Beldar)

    What does this even mean? "The chances of the Supreme Court using Section 3 to knock Trump off the ballot two years ago were slim; the chances of them doing so now that he’s up 40 points in the primary and seemingly unstoppable are nil."

    Never mind the cartoon view of the Court as a political body, in which you're projecting onto the SCOTUS your own unfortunate obsession with public opinion polling. Just tell us: What ballot was Trump ON two years ago?!?

    Or do you mean three years ago, and you're referring to the 2020 general election ballot? Trump's qualification for each state's ballot, access to which Trump obtained state-by-state after securing the GOP nomination, occurred during the months of September and October, well before election day. Was the SCOTUS supposed to knock him off that ballot before election day for "hav[ing] engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof," AFTER the election that hadn't yet taken place? That's pretty "Minority Report."

    I just don't follow at all what you're trying to say. Help us out here.

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    Bill Dyer (aka Beldar)

    "To uncork a Section 3 argument now, nine months after he formally entered the race, would raise the question of why his critics didn’t press that argument in the two and a half years since January 6. What’s the answer?"

    Because the deadlines to apply for ballot access for the 2024 presidential primaries — the first occasion since January 6, 2020, that any official whose responsibilities include confirming ballot eligibility (for instance, state secretaries of state) will have to undertake that task with respect to Donald Trump — begin in very late November in just a few states, and for the most part are in mid-December. Link: https://ballotpedia.org/Deadline_to_run_for_president,_2024

    Trump's not currently a public official, in contrast to, say, that fellow in New Mexico, so there's no current office in which his status can be challenged via quo warranto proceedings.

    It's ... not ... ripe, as to Trump.

    It might be, for purposes of setting some precedent that could in turn bite Trump, but in litigation involving some other currently serving public official who participated in the insurrection.

    There's no "estoppel" or "laches" in Section 3 of the Fourteenth Amendment, Mr. Catoggio. Indeed, in response to expected criticisms that the potency of Section 3 has faded with disuse since the Civil War veterans felt its bite and needed Congressional rehabilitation, Baude & Paulsen deliver one of the finest lines I've ever heard outside a Scalia opinion: "The Constitution is not a spice cabinet."

    And from start to finish, Bush v. Gore took from November 9 to December 12, 2000.

    Trump can't wait until the deadline in any state where his eligibility may be questioned. He has to allow time to get emergency court relief before the deadline, if a secretary of state has just refused him ballot access.

    So let's say Nevada SecState Cisco Aguilar, a Democrat, decides he's a Baude & Paulsen Section 3 believer, in his capacity as someone constitutionally responsible for applying Section 3 in judging ballot qualifications. Nevada's filing deadline for presidential primaries is October 16, 2020.

    Do you think Donald Trump would like to be on the ballot in Nevada? I do. Would he be wise to wait until, say, October 15 to ask Mr. Aguilar's office to put him on that ballot? Oh, no. It would be cutting it close if he waited until October 1st! If he wants a chance for a stay or injunction pending appeal, he needs to allow another couple of weeks, meaning he should file for a place on the 2024 Nevada GOP presidential primary ballot no later than mid-September. That's less than a month away.

    You're being too dismissive of this, my friend. This question suggests to me, with due respect, that you haven't given it enough thought. I strongly encourage you to get the #*&@*!(*&# off Twitter-nka-X for 24 hours and devote four or five of them to reading this article with all your internet-connected electronic devices turned off. Then get back to us.

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  8. Avatar photo
    Jhc

    "The Section 3 argument for disqualification ... [is] a nice idea. But this illegitimate child was born far too late to make trouble for Trump."

    It would be wonderful if the Constitution provided the stake to drive through the heart of the Trump party.

    But what I wonder is: Where & when has there been a court finding or other legal determination that Trump "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof"?

    Isn't the point of Jack Smith's J6 indictment to determine whether or not Trump is guilty of insurrection or rebellion? That case hasn't gone to trial yet. So Trump's still "presumed innocent," right?

    My *personal* view is that Trump's plainly culpable. But absent any objective legal finding that Trump is guilty of "insurrection or rebellion," his supporters are going to claim that this would be only another move against Trump by their "deep state."

    Academic and newspaper interests aside, what's the point of all this talk about 14 A / Section 3?

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      Bill Dyer (aka Beldar)

      Nope nope nope.

      Jack Smith has NOT charged Trump with statutory crimes of insurrection or inciting violence.

      The standard used in Section 3 is not that contained in the statute forbidding insurrection, but rather something unique: it applies to those who have "engaged in [no mention of being convicted of] insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof." From this language and from its historical application, Baude & Paulsen argue persuasively that, as their abstract puts it, "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.'" That includes things which wouldn't qualify for a criminal prosecution for treason, insurrection, or incitement to violence (things Smith has pointedly stayed away from charging).

      The Section 3 argument needs to be taken on its own, not as some sort of sideshow to prosecutions by Smith, Bragg, or Willis. There's no proving beyond a reasonable doubt needed, for one thing. There are no First Amendment or other Bill of Rights-based defenses, for another. This is a whole 'nuther critter, and with due respect, our host, Mr. Catoggio, hasn't yet gotten his head around it. It took me a while, too; now I'm convinced.

      Mr. Catoggio's presentation of the Baude/Paulsen article is woefully, distressingly incomplete. I commend you to the article itself, or even just the first half-dozen pages of it. It's some of the best, clearest legal writing I've ever read.

      Link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751

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      1. Avatar photo
        Jhc

        Good morning, Beldar.

        1. Thanks for the correction regarding what Jack Smith is NOT doing. My misstatement.

        2. My basic points were:
        Who will enforce Section 3? And: Who shall decide who's guilty of insurrection or rebellion - or of abetting those who are - and so ineligible for office under Section 3?

        3. So I followed your suggestion and read the first half-dozen pages of the Baude/Paulsen article to see what it had to say on that topic. Here's what I found.

        (a) Page 1: "It can and should be enforced by every official, state or federal, who judges qualifications."

        (b) Page 6: "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."

        That second sentence makes my point very clearly. "In many cases, Section Three will give rise to judiciable controversies in the courts."

        And of course that will happen. It's as predictable as the tides. Trump & crew don't need good reasons for their lawsuits. Just ask Rudy ("Theories But No Evidence") Giuliani or Sydney ("No Reasonable Person") Powell.

        In short (and borrowing from KDW), can you imagine what a Goat Rodeo trying to enforce Section 3 would turn into? The State & Federal officials who oppose Trump will enforce Section 3, while those officials who don't oppose Trump won't enforce Section 3. Imagine courts in Wyoming ruling against Section 3 disqualification, while courts in California are ruling in favor of disqualification. That'll be a fine election, won't it?

        My view is that our situation is already fraught with enough confusion and the danger of civil unrest. Do we want to increase that confusion and danger with some patchwork enforcement of a heretofore little-known clause of the Constitution?

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          Bill Dyer (aka Beldar)

          Jhc, I salute you! I commend your example to other comment readers! And Baude & Paulsen, I humbly submit, saw each of these very formidable reservations from folks like you coming, long before they finished even the outline of their thesis.

          Which other parts of the Constitution do you propose we disregard?

          As for the difficulties of application, you may not yet have read far enough, perhaps, to come to this (at page 22): "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." This concludes a genuinely brilliant set of demonstrations of other hard things the Constitution sometimes has required.

          The patchwork nature is crowd-sourcing — a feature, not a bug. The question is simply which challenge either (1) tips a political balance (which none may ever, so we can't count on that), or (2) which one first creates a vehicle to get a definitive ruling from the SCOTUS. Thereafter the law is settled, the fact so found (that Trump did indeed engage in insurrection, revolution, or aid and comfort to those engaged in either) is binding upon Trump throughout the land in every court, state and federal (collateral estoppel/issue preclusion is the term for that).

          And section 3 was sufficiently "well-known" to require multiple supermajority votes in Congress in the years after its passage, first to restore eligibility to particular individuals, then in a pair of retrospective-only broad-scale removals of disability. Is the fact that Section 3 worked then, despite all difficulties, to mean that now — with no intervening major insurrections and rebellions (thankfully!) — we're to presume it can't? Congress could have written it to cover only the insurrection and rebellion that had just been resolved, but instead the Framers of the Fourteenth Amendment chose words of radical sweep and permanent effect. (Hence the article title.)

          Because the goat rodeo, as you very aptly put it (and I don't thing Baude & Paulsen would quibble), was how it worked then, just after the Civil War. There weren't individual prosecutions or declaratory judgment actions or anything else like that to establish that yes, indeed, all those thousands of former southern oath-givers (out of a vastly larger citizenry) were indeed disqualified from office. Or not, until Congress relented; it could do so for Trump just as soon as he musters the two-thirds of each chamber of Congress in a joint resolution to remove his disability. (He can even skip Joe Biden's signature.)

          The Trumpkin Goat Rodeo tour of courthouses, state and federal, between Election Day 2020 and January 6th turned out to be NOT the problem at all, but a consistent string of Trump defeats that actually served as the glue to keep the nation together, IMHO.

          These objections, I humbly submit, are constitutionally out of order. One must come up with a better set of excuses to write out of the Constitution that which first Congress, then the states, ratified and put into the Constitution. "Drat!" and "Oh, bother!" was never enough to get rid of Prohibition, for instance.

          Or shall we also abandon equal protection and due process at the state level from Section 1 of the Fourteenth Amendment? It's precisely the same age and vintage, after all, as Section 3 — and precisely as legally self-executing, requiring no further enforcement from Congress as to individual cases.

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            Jhc

            That's a well-written response, Beldar.

            1. "Which other parts of the Constitution do you propose we disregard?"

            None. Nor do I propose that anyone disregard this part we're talking about. If the election officials in my state choose to disqualify Mr. Trump under Section 3, then more power to them.

            When my state's A.G. decided in 2020 to join Ken Paxton's "Battleground States" suit, I wrote a letter to him complaining about that decision. He gave me a polite reply (to his credit) but my letter had zero effect. So if my state's Secretary of State decides to disqualify Trump under Section 3, I expect my opinions about that decision will have just as much effect.

            2. "One must come up with a better set of excuses to write out of the Constitution that which first Congress, then the states, ratified and put into the Constitution."

            I'm not making excuses to avoid using Section 3 because I think it may be difficult. (Nothing is easy in politics, as far as I can tell.)

            It's that I think using Section 3 could easily turn out to be an unwise strategy, one that may make our current political dystopia worse.

            Thanks for a good discussion.

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  9. Goatprairie

    Ramaswamy is a nice guy (very wealthy nice guy) who is way in over his head. There's no way I'd vote for him.
    DeSantis, Haley, Scott, or some of the other candidates who don't have a chance in hell of getting elected, but not Ramaswamy.
    Unlike Trump he is fit to run, but he's the least qualified GOP candidate to run.
    Trump doesn't enter into the conversation because he's unfit to run and belongs in a prison cell and not the WH.

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    1. AJLiberty

      The Presidency is NOT an entry-level position. A candidate needs to prove that they can maintain the public trust and that they are leaders of character. Being charming and rich are not especially relevant to that end. Mix in the dangerous positions he advocates with regards to Taiwan and Russia and his blathering ignorance regarding Trump's charges and there is no way I can support him. I'm NeverRamaswamy.

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      1. Goatprairie

        He doesn't appear to be as morally bankrupt as Trump and not nearly as irritating. He's just immensely unqualified for the job. In that respect, he's certainly not alone amongst the GOP candidates. But he's probably the most unqualified.

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        Bill Dyer (aka Beldar)

        Whatever he intends, in practical effect he is a Trump stalking horse.

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  10. Bkeenan0

    "The Justice Department has no excuse, really, for why Jack Smith’s latest indictment took so long."

    It takes time to get cell phone records to get a warrant to seize phones and then to Crack the phones. Perhaps that's what the FBI and DOJ were doing. See emptywheel.net

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