Our Best Stuff on Ukraine, the War in Gaza, and 2024

Plus: Joe Biden has a challenger and Nikki Haley is on the rise.

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Nikki Haley poses for photos after the Republican presidential debate at the Adrienne Arsht Center for the Performing Arts on November 8, 2023. (Photo by Jonathan Newton/Washington Post/Getty Images)

Hello and happy Sunday. Itโ€™s been a pretty quiet weekend in the Ohio bureau. My Buckeyes had an easy game against the Minnesota Gophers, I got a head start on Christmas decorating, and weโ€™re looking forward to our oldest being home from college for Thanksgiving. Having no obligations lets the mind wander a bit, so bear with me. 

As we head into the 2024 presidential electionโ€”the Iowa caucuses are January 15, just on the other side of the holiday season weโ€™re gearing up forโ€”the overwhelming likelihood is that the race will come down to a rematch of the 2020 election between President Joe Biden and former President Donald Trump. Biden is the incumbent after all, and Trump has maintained an astronomical lead over the Republican field. 

One crazy thing about all of this, of course, is that, as Bloomberg put it recently, โ€œBiden-Trump 2 Is the Election No One Wants.โ€ I donโ€™t think I need to spend too much time explaining that to readers of this newsletter. But even crazier is that, according to a new New York Times poll,  Trump is leading Biden in five key battleground states. Biden is oldโ€”and even Democrats have questioned his fitness for officeโ€”but Trump is providing young historians with guaranteed full employment for their careers and has constitutional lawyers scratching their heads by running while facing four separate criminal indictments. 

Itโ€™s bound to be an ugly election. The rift in the Democratic Party between progressives and moderates has been exacerbated by the war between Israel and Hamas, with many in the left wing of the party upset by Bidenโ€™s support for Israel. Trump is running an explicit revenge campaign, and has vowed to conduct mass deportations, implement a Muslim ban, and fire thousands of federal employees if heโ€™s elected.

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  1. Avatar photo
    Brian

    I had to stop reading and start skimming Kevinโ€™s piece about halfway through. Iโ€™m not a native but have lived in Texas (Houston) for forty years. Asshats like these folks sadly make the rest of the country think weโ€™re all like this. Maybe Abbott can put them on a bus to NY or Chicago๐Ÿค”.

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  2. Robertrudolph95

    Rachael:
    Trump v. Biden II. A rematch of two political figures that the public does not want? It is not only unjust and undemocratic; it is absurd. However, presidential candidates are chosen by attrition and money, not popular will. That's the reason celebrities, members of famous families, and former vice presidents are so often nominated; they find it much easier to raise campaign money. Still worse, each man hopes that re-election will ratify his conduct in office. I may spend Thanksgiving week asking for the intervention of God.

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    John N.

    Thanks for the weekly roundup Rachael. Here's hoping you and yours have a lovely Thanksgiving.

    Jonah's piece from Wednesday should be required reading, especially for all those Hamas apologist commenters from The Morning Dispatch.

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      Rachael Larimore vertical-nib Author

      Thank you! The turkeys are already in the fridge. And you are right on Jonahโ€™s piece from Wednesday. Have a great Thanksgiving.

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        Brian

        Almost time to watch the WKRP Turkey Drop episode!

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    JohnM.

    Happy Thanksgiving, Rachael. We really appreciate all of your hard work here.

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    1. Avatar photocircle-angle-nib
      Rachael Larimore vertical-nib Author

      Thank you so much!

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  5. Avatar photo
    Bill Dyer (aka Beldar)

    This will surely be the subject of more extended analysis during the coming week on Dispatch Media, but for those of you who've read of the Colorado state trial court's refusal late Friday to bar Trump from the GOP primary election ballot there on grounds that he's ineligible under Section 3 of the Fourteenth Amendment:

    I commend to you this online article from law prof Ilya Somin. His subhead nails it: "The court ruled against Trump on his strongest arguments, but accepted a weak one."

    https://reason.com/volokh/2023/11/18/colorado-court-rules-trump-engaged-in-insurrection-but-cannot-be-disqualified-under-section-three/

    To Prof. Somin's analysis, I'd add: If the Colorado Supreme Court and the SCOTUS disagree with the trial judge on this pure point of law, then the trial judge's factfindings in this bench trial on the merits (NOT a preliminary injunction hearing) would permit them to order Trump's removal from the Colorado primary election ballot. I think those factfindings will survive appellate review under a clearly erroneous standard, and I think that will indeed be the appropriate standard of review on questions of fact resolved in this bench trial.

    As silver linings go, this one could turn around and swallow its cloud: While any litigant would rather, in general, be an appellee than an appellant, the next best thing is to be an appellant who wins if the appellate court agrees on a point of pure law โ€” like this โ€” which when applied to the facts found by the lower court, gives you a win on appeal.

    And on that legal point, I hope and trust that one or both of these appellate courts will conclude, as I have, that it's ultimately silly to conclude that the person who takes the MOST IMPORTANT OATH OF OFFICE, before assuming the single most important executive office in our government, is somehow NOT an "officer of the United States."

    I continue to await anyone who can explain why or how the Fourteenth Amendment's framers would have intended to permit an oath-breaking insurrectionist who'd been POTUS to again take such an office and oath (without the removal first of his disability by a two-thirds vote of each chamber of Congress) โ€” while simultaneously barring from future office oath-breaking insurrectionists whose previous oaths of office had merely been those taken by federal or state legislators, judges, or even presidential ELECTORS. That is an absurd result, the result of legal scholars and pundits of cramped reasoning operating deep in the legal weeds off the wrong path.

    =====

    [EDIT Nov 19 @ 10:25pm:] I've now reviewed in much more detail the trial court's 102-page Final Order, and I'll republish here the link to it that was in Prof. Somin's post because source documents rule:

    https://www.courts.state.co.us/userfiles/file/Court_Probation/02nd_Judicial_District/Denver_District_Court/11_17_2023FinalOrder.pdf

    Bless her heart, Judge Wallace admits in two footnotes that she can't answer my rhetorical question about why the Framers would have WANTED to exclude the officers whose only prior oaths were as POTUS or VPOTUS from Section 3 disqualification.

    First, in footnote 18 (on page 97), she writes:

    ===begin quote===
    In response to the argument that it would be preposterous that Section Three of the Fourteenth Amendment would not prevent Jefferson Davis from being President of the United States, the Court notes that one possible reason why the Presidency was not included in positions disqualified is that Section Three clearly disqualifies electors for the office of the President and Vice President. Perhaps, the thought process was that by excluding electors who were former oath swearing confederates, there was effectively no chance of a former confederate leader becoming President or Vice President.
    ===end quote===

    That phrase โ€” "perhaps the thought process was" โ€” should be a giant red flag. That's not how we do constitutional interpretation as a general rule. But then, when she concludes (at pp. 100-01) "that for whatever reason the drafters of Section Three did not intend to include a person who had only taken the Presidential Oath," she hangs from that footnote 20, which reads:

    ===begin quote===
    Whether this omission [of the offices of POTUS and VPOTUS from the samples of less obvious "officers of the United States" given in Section 3] was intentional, or an oversight is not for this Court to decide. It may very well have been an oversight because to the Courtโ€™s knowledge Trump is the first President of the United States who had not previously taken an oath of office.
    ===end quote===

    That's just incoherent. She's imputing to the Framers a knowledge of future office-seekers they couldn't possibly have had.

    I haven't read all the briefing, so I don't know the extent to which she was led into this by bad lawyering. But no, she can't explain โ€” and hasn't made any more than these lame guesses โ€” as to why this interpretation of the phrase "officers of the United States" to EXCLUDE the offices of POTUS and VPOTUS would've made any sense whatsoever, given the well-understood goals of the Framers of Section 3.

    She got to the brink โ€” and lost her nerve.

    I do commend her, though, for her procedural care: I think she correctly allocated the burden of proof to the petitioners, and that she was correct in applying the preponderance of the evidence standard specified in the Colorado statute which makes court challenges of ballot eligibility like this possible. But she included an alternative ruling that even if she'd held the petitioners to a higher "clear and convincing evidence" standard, their evidence met it. It's a smart trial judge who includes alternative findings upon which the appellate court could affirm even if it gets to that result by a slightly different legal path.

    AND HERE'S SOMETHING HUGE that I don't think many folks have grasped yet: When this goes up on appeal, on the factual question of whether Trump engaged in insurrection, Trump is going to be limited to the evidence IN THIS RECORD. And he mostly chose not to present evidence himself; he chose not to show up to testify about his subjective intentions, for example, leaving the factfinder to draw inferences from circumstances without any directly rebutting testimony from him about what he knew or intended.

    I assume Trump will conditionally cross-appeal the findings against him: Trump will argue to the Colorado Supreme Court that IF (and only if) it disagrees with the trial judge, and instead concludes that Trump's prior oath (January 2017) was indeed taken as "an officer of the United States," then the Colorado Supreme Court should still affirm the trial court's refusal to grant relief, but on the alternative ground that the trial court's factual findings were "clearly erroneous." But the Colorado Supreme Court won't go along with that unless FROM THE RECORD AT THIS BENCH TRIAL ON THE MERITS โ€” and not some hypothetical one being created by ten thousand internet pundits โ€” no reasonable factfinder could have reached the factual findings she did.

    Take, for instance, Trump's argument through two of his witnesses that he'd authorized 10-20k National Guardsmen for security. This judge has found, as a matter of fact, that the testimony supporting that assertion is not credible, and that as a matter of fact, Trump didn't authorize ANY National Guardsmen. If Trump were to show up tomorrow with some newly discovered document โ€” a signed executive order, a written directive, an aide's notes of a verbal command โ€” to support this assertion, that would not matter a bit to the appellate court, because Trump didn't present that evidence AT THIS BENCH TRIAL.

    If he gets to the point of needing to fight about these fact-findings, in other words, then Trump's failure to take this trial as seriously as it deserved โ€” his failure to show up and testify! โ€” is going to come back and bite him in the butt.

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    1. Jaybrown

      I think the analyses of the applicability of the 14A are hindered by the fact that this amendment was designed to prevent former Confederate office holders from attaining office again, and not much else.

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        Bill Dyer (aka Beldar)

        Baude & Paulsen disagree (part I-A at pp 7-11, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751).

        The Thirteenth, Fourteenth, and Fifteenth Amendments were all the direct result of the Civil War, of course. So former Confederate officeholders who'd broken their oaths of office during it were of course the first group of people Section 3 was intended to affect. But why would anyone think they're the LAST group intended to be affected?

        The Framers could, I suppose, have referenced "the Late War" โ€” or its more euphemistic version, "the Late Unpleasantness" โ€” perhaps with a date range or reference to specific past events. Certainly in other contexts, constitutional draftsmen have expressly and explicitly created sunset provisions and retroactive-only provisions.

        But the framers of Section 3 chose instead to use the terms "rebellion" and "insurrection." And they wrote for the future: "No person shall ... hold any office, civil or military, under the United States ...." There's no reason at all to believe that they intended to limit this to PAST rebellions and insurrections โ€” and indeed, we'd all think it preposterous if the REST of the Fourteenth Amendment (e.g., committing states to equal protection and due process) were intended to be retrospective only!

        No, the Framers of Section 3 were indeed wise enough to write it so as to anticipate the possibility of future insurrections and rebellions โ€” with actors then unborn but who'd turn out to be, in their temporal context, as repulsive to the sound governance of our nation in the future as was the prospect of the VP of the Confederacy, Alexander Stephens, being returned to his pre-war seat in the U.S. Senate. The obvious point of Section 3 is to CLOSE THE DOOR FOR ALL TIME on the prospect of returning to public office those who'd previously taken an oath of office, but who'd then betrayed it by engaging in rebellion or insurrection. They intended to take the return of such serial oath-breakers altogether OUT of the political process, and to take the option away from the voters who'd return such scoundrels to office if normal democratic mechanisms were employed. And although firmly closed, the door could be knocked upon: a two-thirds vote of Congress could remove the disability, and eventually (in 1898!) did so on a blanket basis for all previously disqualified.

        Thus, in my very favorite line of the Baude & Paulsen article, they assert: "The Constitution is not a spice cabinet." Its provisions don't lose force or relevance through disuse โ€” although we ought count ourselves lucky that they were disused for so long, and luckier still that the Framers were so foresighted as to make this rule perpetual (short of another constitutional amendment)!Show lessExpand full comment

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        1. Jaybrown

          You might be right, I don't know, and no one else really knows either. But the fact that it is a reconstruction amendment is still a main cause of dispute over its meaning and intent.

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      JohnM.

      Thanks for taking a deeper dive into this one, counselor. It sure fleshed out the meager legal coverage that was given to the case in much of the news media.

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        Bill Dyer (aka Beldar)

        You're welcome! It came out late and will get more coverage, here and elsewhere, tomorrow I'm certain.

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  6. Avatar photo
    Victor Clairmont

    I see โ€œon the riseโ€ and I kinda goโ€ฆ.

    โ€œIs she really?โ€

    I feel like in a race the 6th place contestant went to 3rd while 1st is still 50 meters away.

    Thank you for The Round Upโ€”-

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    1. Avatar photocircle-angle-nib
      Rachael Larimore vertical-nib Author

      Well, I mean... all things considered!

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        Victor Clairmont

        Indeed!

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  7. John Galley

    Dartmouth University?? PUHLEASE!! It is Dartmouth COLLEGE. Have you never heard of "The Dartmouth College Case" - which is one of the most important early Supreme Court cases in history addressing fundamentals of corporate law - and is required reading for all law school students?

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      Bill Dyer (aka Beldar)

      I'm generally in favor of naming things correctly. So yes, Dartmouth College. Or Trinity College at Oxford University. Or whatever; there's usually history attached, and I'm a history fan.

      However:

      Dartmouth has graduate degree programs but chooses not to group them under a "Dartmouth University" label the way Yale College and Harvard College do. (See, e.g., https://college.harvard.edu/resources/faq/what-difference-between-harvard-college-and-harvard-university)

      So it's become a distinction without a difference. I've heard Dartmouth graduates accused of many things, but immodesty has rarely been one of them; perhaps this is the exception that proves the rule. Insisting on "Dartmouth College" makes more sense to me than the people who write, "THE Ohio State University," which I presume is intended to distinguish the genuine article from the counterfeit Ohio State Universities, however many there be. If that butters their bread, de gustibus non est disputandum, as they constantly said on the prairies of west Texas whence I sprang.

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      1. John Galley

        You may have a technical point of sorts. Dartmouth does have some graduate programs albeit smaller in number than most "universities". However, it is the smallest of the Ivy schools and both its size and campus are more "college-like" than the other Ivies. And "The Dartmouth College Case" is one of the most important early cases decided by the Supreme Court - and it was, in part, focused on whether Dartmouth was to be called a "college" or "university". And as for "immodesty", Daniel Webster famously said in the above mentioned case, "She is small college, sir. But there are those who love her." And Forbes has ranked Dartmouth #1 for the support and love it receives from its graduates.

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          Bill Dyer (aka Beldar)

          It enjoys and deserves great renown. Vox clamantis in deserto!

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          1. John Galley

            Many thanks!

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    2. Avatar photocircle-angle-nib
      Rachael Larimore vertical-nib Author

      Totally fair, thanks for flagging! Iโ€™m going to post a correction right now, and Iโ€™m definitely not going to throw Declan under the bus for adding that in even though he said I could. ;)

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      1. John Galley

        Thank You!

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  8. Avatar photo
    Show Jay Janney the ๐Ÿšช!

    Rachael
    The question on everyone's mind is if you'll write next week's review before "๐‘ป๐’‰๐’† ๐‘ฎ๐’‚๐’Ž๐’†" or after.
    The danger to waiting until after the game is simple: If the Bucks win, you'll be so happy celebrating you may not be sufficiently sober until Tuesday to write it. And if the sign stealers win it, you may be so despondent it'll drive you to drink until Tuesday! But can you focus on writing it knowing the outcome of "๐‘ป๐’‰๐’† ๐‘ฎ๐’‚๐’Ž๐’†" has CFP repercussions?

    Lol, I was born and raised a Hoosier, not a Buckeye (a Hoosier educated in Kentucky: just talk slow and I'll catch most of what you say). But my best friend in college was a diehard Bucks fan. So much so the only time she swore was about her illness, or that team up north. If I didn't know better, I would have sworn their school name was actually F UM!

    After a victory she'd sometimes sing The Ohio State University drinking song (although she never drank), and I loved hearing
    "And we'll drink a little booze
    'til we wobble in our shoes".

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    1. Avatar photocircle-angle-nib
      Rachael Larimore vertical-nib Author

      Geez, youโ€™ve totally thwarted my plans to take the weekend off. Now I feel like I HAVE to write about it. But Iโ€™ll definitely have to do the writing before. If it all goes south for the Buckeyes, it would be hard to write about it all in the family-friendly language that we try to use at The Dispatch!

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  9. Nechamah Goldfarb Goldfarb

    I agree that people who condemn Israel and who call for a ceasefire are in effect (if not outright) saying that Jews deserve it. It reminds me of WW2 and the germans pointing out that no one wanted us. Most of the world deep down thought that the Jews 'deserved' it.

    It was always obvious to me that chamas lies. Now we see from the tunnels and weapons caches as well as remains of kidnapped victims that the doctors who professed there was no terrorist activity and chamas did not operate out of the hospital lied as well. And I am wondering how many of these doctors, considering they are liars and covering for chamas, are/were actually terrorists or at least enablers, and this is one reason why they kept their faces covered even as proud as they were as they massacred, tortured, et al. It may explain the medical knowledge and precision of many of the atrocities committed.

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    PSCook

    >Our journey out of this morass will take timeโ€ฆ

    Is a morass the same as a quagmire?

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      Pastorfbt

      Or, as a song from the Vietnam era would have it, "neck deep in the big muddy, the big fool says to push on..."

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        JohnM.

        Pete Seeger nods.

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