Coup de Target

A provision not taken seriously since 1872.

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Can Donald Trump be disqualified from holding public office? Sarah and David host a friendly debate with Michael McConnell, a former circuit judge and current Stanford law professor, over whether Donald Trump “engaged in insurrection or rebellion” or not. Also:

-Hunter Biden plea deal update

-Removal jurisdiction

Show notes-

-Prof. Michael McConnell, Responding About the Fourteenth Amendment, “Insurrection,” and Trump

–The Sweep and Force of Section Three

–David’s NYT equivalent of a double bird

-NYT: Inside the Hunter Biden Plea Deal

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Comments (183)
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  1. Noah Katzen

    Apart from the question whether the President is an "officer of the United States" within the meaning of Section 3 of the Fourteenth Amendment, it is not clear to me that he has "taken an oath ... to support the Constitution of the United States."

    Prior to the Fourteenth Amendment, the Constitution specified the content of two oaths. First, Article II set forth the presidential oath, in which the President swears or affirms that he will "preserve, protect, and defend" the Constitution. Second, Article VI required members of Congress, state legislators, and federal and state executive and judicial officers to swear or affirm that they will "support" the Constitution.

    With that background in mind, I would not assume that the Fourteenth Amendment's reference to an oath to "support" the Constitution includes the presidential oath. Not only does Article II (unlike Article VI) not use the word "support," but the Fourteenth Amendment's description of previous oath-takers mirrors Article VI's description of the persons bound to take that oath: members of Congress, state legislators, and federal and state officers.

    The parallels between the Fourteenth Amendment and Article VI are pretty hard to ignore, and it seems to be a fair inference that the oath referred to in the Fourteenth Amendment is the oath required by Article VI, rather than the oath the President must take under Article II. Thus, even assuming the President is an "officer of the United States," he may not be the kind of "officer" who takes an oath to "support" the Constitution within the meaning of the Fourteenth Amendment.

    My thinking on this is tentative and could well be wrong, so any disagreement is welcome.

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  2. InadvertantObfuscation

    An "otherwise" problem?
    No, I do not think so.
    I see Sarah's three points as a progression from what Congress clearly could do to what was not so clear. "No person shall be [1.] a Senator or Representative in Congress [, and clearly we have the authority to reject potential members], or [2.] elector of President and Vice-President [, for that is in essence a federal position, though elected by a state], or [2.] hold any office, civil or military, [a)] under the United States, or [b)] under any State [though that is a stretch of Congressional powers, clearly the US Constitution guides the states.]"

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  3. AD

    Interesting, after Professors Baude and Paulsen declined to appear on AO, saying they wanted to let their paper speak for itself, they chose instead to be guests on Akhil Amar’s “Amarica’s Constitution” podcast. The episode - which might be the first of two! - just went live this morning; link below.

    I’m guessing this wasn’t intended to be a diss of AO; more likely Baude and Paulsen opted to appear on a podcast hosted by a fellow professor that has more of an academic bent to it, and maybe their common connections to YLS factored in, too. Apparently Paulsen and Amar were roommates at YLS back in the 80s, and Baude was Amar’s student there in the 2000s.

    https://podcasts.apple.com/us/podcast/amaricas-constitution/id1549624070?i=1000626157545

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    Abacaxi

    I found Judge McConnell's interpretation of "insurrection" highly unpersuasive. January 6 (which should not be viewed in isolation but as the culmination of a process of at least two months) was clearly more than an attempt to coerce government officials into changing their decision, it was an attempt to overthrow the constitutional order. That part isn't hard. That doesn't mean the 14th Am. applies or that it is prudent to invoke it here, but come on.

    I also didn't understand McConnell's attempt to create a reductio ad absurdum using the Portland riots which included burning a federal courthouse. I think there is a very good case that those riots -- which literally included an attempt to create an "autonomous zone" free of U.S. law -- was absolutely an insurrection.

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    Marc Frischhertz

    “Many criminal statutes require proof that a defendant acted knowingly or willfully, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances.”

    The above quote is from Alito’s majority opinion in Global-Tech. So raise your hand if you think Alito will apply this same reasoning to Trump?

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  6. Gnelson

    It seems that the strongest argument against the 14th amendment applying here is that, so far, none of those convicted of a crime for Jan 6 have been charged or convicted of insurrection by our own Justice Department. Disappointing, but I suspect that it would be among the primary points for an effective defense. Thanks so much for this discussion! I have been waiting for it for two years.

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    Andy Napoli

    Also, shame on Mike Pence for not invoking the 25th Amendment on the evening of January 6

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    Mike D

    Blaming Pelosi for Republicans not convicting Trump? Huh? Those worms wouldn’t have convicted on a baby eating murder charge. I don’t understand your bothsidesishism.

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  9. Mrjsfisher

    Man o man I’m a lawyer and this is why people hate lawyers. Only lawyers are gonna say violently storming the United States capitol while Congress is in session is not an insurrection or rebellion just a “riot.”

    I guess if a mob takes over a military base that’s just a riot but if they intend to take over the military then it’s an insurrection? Literally WTF

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      Bill Dyer (aka Beldar)

      Baude & Paulsen make a more convincing analysis of the terms "insurrection and rebellion," "engaged in," and "aid and comfort" than I thought Prof. McConnell's paraphrases perhaps suggested. See my long blockquote from their internal summary at this comment (if I've figured out what passes for permalinks) elsewhere on this page: https://thedispatch.com/podcast/advisoryopinions/coup-de-target/?utm_source=reply_notification_email&utm_medium=email#comment-1013894

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  10. Bradjac

    I don’t know Will Baude, but I’ve known Mike Paulsen for 35 years. Trust me; “bonkers” and “so?” are totally in line with the fun tone of so many Paulsen articles. Just to pick two, look at “Captain Kirk and the Enterprise of Constitutional Interpretation” or “Is Bill Clinton Unconstitutional? The Case for President Strom Thurmond.”

    Brad Jacob
    Regent University Law School

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      Bill Dyer (aka Beldar)

      It's not at all obvious that two different people wrote this article; the voice throughout is consistent, and consistently informal and occasionally irreverent. It's just awfully well written and polished. Elegant, comprehensive — and in its mode of legal argumentation, it much reminded me of Lincoln's Cooper Union address, neatly placing each brick, after examining it well, into the perfect place on a formidable wall.

      They could have broken this up into a series of a dozen TED-Talk like videos, with, say, Jon Hamm or Kenneth Branagh reading their text (omitting all the footnotes) — and they'd make the top 50 on Netflix, maybe the top 20. Not the top 10; you just can't compete with Johnny Depp and Amber Heard trial excerpts.

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