Patterico's Pontifications

1/15/2024

Constitutional Vanguard: The Dispatch, My Favorite Site, Is Misleading Its Audience About the Maine Secretary of State’s 14th Amendment Decision

Filed under: General — Patterico @ 12:13 pm



Today’s piece, running nearly 6,000 words, is entirely free to all subscribers. Excerpt:

Isgur and French have both told their readers and listeners that the level of process given by the Maine Secretary of State was “none.” Isgur, who is the principal offender, has also: said that Donald Trump was not given an opportunity to defend himself; strongly implied that the Maine Secretary of State conducted no hearings and took testimony from no witnesses; and repeatedly claimed (and since corrected herself, on this claim only) that the Maine Secretary of State did not make it clear what standard she was applying.

As I will show in detail in this post, all of these claims are false. The Maine Secretary of State gave the parties notice and an opportunity to respond, which are the hallmarks of procedural due process. The Secretary of State conducted a hearing with testimony from witnesses. Trump, through his lawyers, participated in that hearing. Before that hearing, the parties exchanged witness lists and exhibit lists. There was briefing. Trump filed objections. And the Maine Secretary of State issued a written decision, detailing all of the procedures she had followed, explicitly stating the standard she was using, and explaining her reasoning—including descriptions of the evidence that she used to reach her conclusions.

Not only would you know virtually none of this from listening to the Advisory Opinions podcast, you would actually conclude the opposite of the truth—because that podcast described the process as “none,” and strongly implied there had been no hearing and no witnesses. You would also be misled if you relied on the Collision newsletter, which said that Trump had no chance to provide his side of the case, and that the Maine Secretary of State had failed to disclose the standard she applied, or the evidence upon which she had relied.

All of that is just flat wrong.

Hopefully by next Monday, I will publish a piece principally for paid subscribers that I have been worked on, off and on, for months. This one I wanted to make public to all, because I am seeking a correction from my favorite legal podcast, and I want the hosts of that podcast to be able to read my entire argument.

Read it here. Subscribe here.

77 Responses to “Constitutional Vanguard: The Dispatch, My Favorite Site, Is Misleading Its Audience About the Maine Secretary of State’s 14th Amendment Decision”

  1. FWIW, I am currently in a Twitter discussion with Isgur, who appears to acknowledge that more corrections will be forthcoming.

    Patterico (5741d8)

  2. The whole due process argument seems to ignore that there is already a statute that addresses the issue. These other processes, seeking the truthiness of Trump’s insurrection, are lacking the protections that someone accused under 19 USC 2383 (Insurrection) would enjoy.

    I am reminded of the college “rape” trials, which also had forms of due process, but which did not offer anything like the protections that a criminal charge of rape would provide (but did have the same life-altering repercussions).

    Now, I am not a fan of Mr Trump, and would love to see him tried for insurrection, convicted, and live the rest of his life in a Supermax. But I am not willing to tear down all the laws to get at him.

    Kevin M (ed969f)

  3. *18 USC 2383. My bad.

    Kevin M (ed969f)

  4. Kevin M,

    I briefly address this argument in the piece, but if you’re interested in a fully fleshed-out argument, I commend to you pages 18-23 of the Maine Secretary of State’s written decision. I find the argument that Section 3 is not self-executing to be one of the weakest arguments floating out there. Here’s the paragraph from my Substack piece on this issue:

    She concludes that Section 3 is self-executing, which I believe to be nearly self-evident. She says: “The Supreme Court has described the Fourteenth Amendment as ‘undoubtedly self-executing without any ancillary legislation, so far as ts terms are applicable to any existing set of circumstances.’ Civil Rights Cases, 109 US. 3, 20 (1883).” No legislation is required to give force to the 14th Amendment’s principles of due process or equal protection, and Section 3 is no different. It was enforced before Congress ever passed any legislation to enforce it—and the fact that Section 3 contains a provision for Congress to remove the disability that Section 3 imposes on insurrectionists presupposes that this disability already exists. In addition, Section 3 covers the presidency; nobody in 1868 thought Jefferson Davis could become President of the United States under Section 3.

    It is true that Congress has passed legislation to execute parts of Section 3, but Congress can pass legislation to enforce Section 1’s guarantees of due process and equal protection as well . . . that does not mean that Americans cannot rely on principles of due process or equal protection outside the scope of that legislation. And as I note in the block quote above, the amendment was enforced after the Civil War before Congress ever passed any legislation.

    To me, the most convincing argument is that Congress is specifically authorized to remove the disability with a 2/3 vote. How can they remove a disability that isn’t there to begin with?

    Patterico (5741d8)

  5. So i guess the question was there enough “Due Process”, and can the same standard apply to any presidential candidate?

    Joe (141406)

  6. It was enforced before Congress ever passed any legislation to enforce it

    And it was also not enforced. A number of former rebels were allowed to serve in the federal government shortly after the end of the war, and no act of Congress removed the disability.

    But that’s not even my real issue; it’s the roll-your-own interpretation of “due process” that we are seeing. As I said, it’s like campus investigations of student encounters where the process that is offered varies wildly. “DUE” process is not the same as any old process.

    Don’t you see a problem when there are 100 different “due process” schemes, all allegedly based on the 14th Amendment when there IS a crime on the books that has the penalty that the amendment prescribes?

    Kevin M (ed969f)

  7. Now, you may argue (I think you do argue) that there is a set of procedures that constitute due process, even if they fall short of what is required in criminal law.

    Would you argue that convicting someone of a civil rights violation can be done by a less-formal tribunal than a federal court?

    Kevin M (ed969f)

  8. To me, the most convincing argument is that Congress is specifically authorized to remove the disability with a 2/3 vote. How can they remove a disability that isn’t there to begin with?

    To me that’s a hand-wave. It does not address how the disability is formally created, only how it is removed.

    In my state a (not very nice) county commissioner was removed under 14.3 because he was found guilty of misdemeanor trespassing on J6. I really do not want to see a hodge-podge of processes, all called “due”, to remove Trump from ballots.

    It is a momentous thing to do, and should have the most solid and consistent basis in the law, especially considering the serious rebellion doing that will cause. I do not want to see Bosnia here.

    Kevin M (ed969f)

  9. Question: How many civilian deaths are too many to enforce this reading of the Amendment? 100? 1,000? 10,000?

    In the actual Civil War, 2% of the population was killed. If one is going to risk ANYTHING of that sort, it should be based on more than anger.

    To defend democracy by killing democracy does not seem like a good trade.

    Kevin M (ed969f)

  10. If it makes you feel better, I don’t think the Supreme Court will uphold Colorado’s decision. It is a vexing problem to ensure that bad faith actors like Donald Yrump supporters do not pervert this process like they pervert every other process they can get their hands on.

    Patterico (c6e992)

  11. Pat,

    I would be overjoyed if Donald Trump were barred from the ballot. But process matters and it has to be iron-clad. If he were convicted in the existing DC cases, and maybe in the GA cases too, it might be enough. I would rather see him convicted of insurrection or treason, but I can’t always get what I want.

    Kevin M (ed969f)

  12. Patterico, this would be a good opportunity for you to be guest on AO. It would be a lively and informative podcast, and would reflect well on the hosts and yourself if that occurs.

    Two, I know that your critique comes from a good place, and The Dispatch will be a better place for the constructive disagreement.

    Three, I’ve been listening to Advisory Opinions off and on for the past few months and it’s pretty good, but out of the very good Dispatch staff, Isgur just ain’t my favorite. I wish I could pin it down better than that.

    Last, I’m glad the USSC will get this matter sorted. I think there are good arguments on both sides, and articulated by smart conservatives on both sides.

    Paul Montagu (d52d7d)

  13. Three, I’ve been listening to Advisory Opinions off and on for the past few months and it’s pretty good, but out of the very good Dispatch staff, Isgur just ain’t my favorite. I wish I could pin it down better than that.

    As I said in my Substack comments, my main beef with her is when she gets protective of Trump vis a vis stuff like this or the criminal proceedings or the impeachment. Basically anything where people have tried to impose consequences on Trump for his thuggery. Her positions on those issues seem partisan and wholly unconvincing to me. I also am flummoxed by her love of the ridiculous clown Chip Roy. I get that they’re friends, but Roy is ridiculous. I see him as a walking joke. But by far the worst thing she ever said was that the OJ jury acquitted him for the right reasons. Yikes!

    If I can put these quibbles aside (although the OJ thing is nearly unforgivable) I can appreciate her detailed legal analyses and close attention to Supreme Court arguments. But Trump comes up so often I find myself annoyed more often than with most other podcasts I listen to.

    All in all, I think she is smart and energetic and adds a lot of value. But I also disagree with her an awful lot.

    Patterico (5741d8)

  14. And I doubt I’m going to end up as a guest. I’m just hoping they issue a thorough correction that gives people a fair picture of what the Maine SoS did. Isgur’s tweet suggesting she might be restricting the correction to the Collision newsletter was concerning, but hopefully there will be an AO correction too. Now that I have published my Substack piece and gotten feedback, I see there are a number of listeners besides myself who noticed the same problems I did.

    Patterico (5741d8)

  15. It’s not the roll-your-own interpretation of “due process” that is the problem, it’s the roll-your-own interpretation of “insurrection” plus no point where the decision is made nd furthermore, the amendment only kicks in after a person has been elected and someone or some body has to determine whether Section 3 applies.

    Sammy Finkelman (c2c77e)

  16. “But by far the worst thing she ever said was that the OJ jury acquitted him for the right reasons.”

    Yikes is right. The OJ jury didn’t understand what reasonable means…and went with theatrics over facts and reasonable conclusions.

    I was dismissive early of Baude’s argument. It is far more persuasive than my first take considered. I still believe that it can’t prevail because of the consequences it portends. You and our old friend Beldar have moved me a bit on the due process argument. Clearly there has been some due process in both Colorado and Maine. Facts do trump early perceptions, though it remains in such a momentous decision, is the due process sufficient?

    I fear though that the offered due process will not satisfy Trump’s supporters that it was fair. You can argue that these supporters are neither rational nor well informed, but it does not change the fact that a big chunk of the country will view any “technical” disqualification as unfair….primarily because like doubting Thomas, they haven’t probed the arguments through their preferred media filters. But that’s the problem, right? Trump supporters don’t want to honestly confront J6. They want to make excuses, draw false analogies, and point the finger at Biden’s failings instead. We want a drunk group to recite the alphabet backwards. They want to keep drinking.

    I would love for the USSC to surprise us, but I think they will keep any ruling narrow…and let 2024 be the referendum on J6. God help us.

    AJ_Liberty (307a3c)

  17. Any hypothetical (because there will be no real) ruling against Trump on this question would have to have safeguards against the inevitable pledge by bad faith Trump-supporting actors on the right to remove presidential candidates with zero legal basis as an act of revenge.

    At a minimum I think SCOTUS would have to set up a standard of de novo review for the future.

    At a certain point this becomes a matter of our systems being unable to restrain people (like Trump supporters) who have no sense of civic responsibility or regard for the truth. At this point I consider every Trump supporter, even though they may be very nice people as individuals, to be a threat to the nation. Any ruling has to take that threat into account, in the sense that it must anticipate their deceive to pervert this power in favor of evil.

    Patterico (c4860c)

  18. @ Patterico (c4860c) — 1/16/2024 @ 7:31 am

    Seriously? “Threat to the nation”
    And what exactly should be done to this threat?

    Joe (141406)

  19. @18

    Any hypothetical (because there will be no real) ruling against Trump on this question would have to have safeguards against the inevitable pledge by bad faith Trump-supporting actors on the right to remove presidential candidates with zero legal basis as an act of revenge.

    I don’t see how the Supreme Court can carve out a “but Trump” exception when devising guardrails to prevent his supporters from doing the same thing.

    In politics, the old adage of “what goes around, comes around” is the ‘Sword of Damocles’ to buttress a sort of political M.A.D.D. principle.

    When political actors deviates from this principle, just look what happened after Harry Reid nuked the filibuster for district/appellate judges.

    whembly (5f7596)

  20. If my state Secretary of State wants to revoke my drivers license for drunken driving, he needs a certified record of my conviction for drunken driving. It’s not too much to ask for a certified record of a conviction for insurrection to keep someone off the Presidential ballot under Section 3.

    Now, state Secretaries of State can also refuse to grant drivers license for failure to pass the vision test. But that’s because the legislature has given them that power. We have no need to give them that much power over Presidential ballots. The much-touted Gorsuch dicta in the Hassan case is nothing more than evidence that Gorsuch is no Scalia.

    nk (de0d44)

  21. I see the real disconnect here is in comparing the situation after the Civil War, when the participation in insurrection was mostly a matter of record, and today where significant proof is required and definitions are debatable.

    In 1870, the clause could be self-executing since the facts were easy to establish. Today, there are several more levels of inquiry required and no clear procedure for doing so. That makes the “self-executing” part far less obvious, and not analogous to the 1870 situation at all.

    Kevin M (ed969f)

  22. At this point I consider every Trump supporter, even though they may be very nice people as individuals, to be a threat to the nation. Any ruling has to take that threat into account, in the sense that it must anticipate their deceive to pervert this power in favor of evil.

    The “clear and present danger” argument? Hmmm. Are we talking security clearances here, or something criminal?

    In any event, what is “evil”? Is advocating for confiscatory tax rates evil? What about forcing parents to allow the state to treat their children for sexual dysphoria, as the state sees fit? The list is endless.

    Kevin M (ed969f)

  23. I would love for the USSC to surprise us, but I think they will keep any ruling narrow…and let 2024 be the referendum on J6. God help us.

    At most, the surprise would be to set some DC J6 trial charge as the bar. But I expect them to either say that conviction on Insurrection was required, or that the question is political and non justiciable.

    Kevin M (ed969f)

  24. Kevin M (ed969f) — 1/16/2024 @ 8:55 am

    but I expect them to either say that conviction on Insurrection was required, or that the question is political and non justiciable.

    I would expect them to push it off – correct is sing the question of Trump being covered by Section 3 is premature – let him first be elected president, and Congress must then not waive the bar, and then either Congress must legislate a method of determining that, or the courts will decide and it’s also preature to decide how the courts will decide – it’s not been properly argued.

    But states can disqualify based upon an assessment of the probability of a candidate being disqualified, just so long that they make it clear that whoever decides that, it is merely an assessment.

    A state can disqualify any candidate for president. for instance it may disqualify from the election anyone who once occupied the office and lost a subsequent election. But Section 3, standing alone, cannot be a disqualification, because that is a federal question and furthermore Congress must be given an opportunity to waive the disqualification.

    If Electors are bound is complicated So a party might list one candidate nd tell everyone they really mean another candidate unless maybe a state outlaws that and there must be some due process for hat. .

    For primaries, states can make any law and a political party may use or not use the results of the primary as they wish. Example: Nevada this year.

    Sammy Finkelman (c2c77e)

  25. * correct is saying the question of Trump being covered by Section 3 is premature.

    Sammy Finkelman (c2c77e)

  26. Justice Gorsuch, while a federal judge did rule that Colorado could consider a person who was a naturalized citizen disqualified and not allowed on a presidential primary ballot.

    But the underlying facts were not in dispute.

    Sammy Finkelman (c2c77e)

  27. I would expect them to push it off – correct is sing the question of Trump being covered by Section 3 is premature – let him first be elected president, and Congress must then not waive the bar, and then either Congress must legislate a method of determining that, or the courts will decide and it’s also preature to decide how the courts will decide – it’s not been properly argued.

    This is the one thing I am certain they will not do. To wait until after a candidate is ELECTED to disqualify him, particularly if the electorate was aware of the potential problem when they voted, would be far far worse than Trump’s attempt to alter the 2020 election.

    People (including our host) have at times suggested that had Trump succeeded violent opposition would be justified. What do you expect would happen if the shoe was on the other foot, less rational people were involved, and the guy that actually won the election wasn’t allowed to take office?

    The Court is practical and is not keen on being the Taney Court. They will either disqualify him now, specify what conviction would disqualify him later, or say that it is not a matter for the courts.

    I guess it’s possible that they will allow states to make these decisions themselves regarding ballot access — sustaining the CO and ME rulings — but that is pretty messy, too.

    Kevin M (ed969f)

  28. @ Patterico (c4860c) — 1/16/2024 @ 7:31 am

    Seriously? “Threat to the nation”
    And what exactly should be done to this threat?

    Yes, seriously.

    What “should be done” “to” Trump supporters? Nothing, obviously. We just have to outvote them, and then prosecute anyone who (again) tries to take part in a scheme to nullify our vote.

    Patterico (0165ba)

  29. I’m not in the business of persuading Trump voters not to vote Trump, any more than I am in the business of deprogramming other members of other cults. I’m just in the business of faking it like I see it. If you support Trump at this juncture, you are a civic disaster. You might be a nice person but you are a menace to the nation.

    Patterico (0165ba)

  30. If that hurts your feelings, I submit that having the person actually elected assume office is miles more important than the feelings of any one Trump cult member, or even the feelings of the lot of them.

    Patterico (0165ba)

  31. And I’m sure many of you have fine rationalizations for supporting Trump, but none of them stack up against the results of the national election being nullified and the presidency being handed to the guy who lost. Avoiding that is of paramount importance, and support of Trump is support for that kind of election nullification. It is support for the unforgivable, and you can cite me all the rationalizations you like, none of it works.

    Patterico (0165ba)

  32. Kevin M (ed969f) — 1/16/2024 @ 11:13 am

    This is the one thing I am certain they will not do. To wait until after a candidate is ELECTED to disqualify him, particularly if the electorate was aware of the potential problem when they voted, would be far far worse than Trump’s attempt to alter the 2020 election.

    It’s the proper interpretation of the constitution,

    What’s more, it’s what the Democrats are likely to attempt todo is Trump wins. And if Biden wins, Trump is likely to claim that he won, like in 2020..

    The only way to avoid that is for everyone to agree that the election is thrown into the House of Representatives. The only way to do that is run different candidates in different states

    the guy that actually won the election wasn’t allowed to take office?

    That’s what’s was going on this week in Guatemala.

    https://www.youtube.com/watch?v=_UeH94RGxpM

    https://www.reuters.com/world/americas/guatemalas-arevalo-due-assume-presidency-with-difficult-path-ahead-2024-01-14

    Reformist Arevalo sworn in as Guatemala president after opponents delay inauguration

    By Sofia Menchu
    January 15, 2024 3:28 AM ES

    ….Arevalo won August elections by a landslide and about 9 hours after his inauguration was scheduled to start, he took the oath as president, replacing conservative politician Alejandro Giammattei whose government has been engulfed in corruption scandals. Giammattei skipped the ceremony.

    “Our democracy has the strength to resist and through unity and trust we can transform the political landscape in Guatemala,” Arevalo said moments after taking office.

    The problem there maybe was that the certification took place too close to the inauguration

    The Court is practical and is not keen on being the Taney Court. They will either disqualify him now, specify what conviction would disqualify him later, or say that it is not a matter for the courts.

    How would the latter help?

    I guess it’s possible that they will allow states to make these decisions themselves regarding ballot access — sustaining the CO and ME rulings — but that is pretty messy, too.

    Yes, but the state would have to pass a special law – but if a state wants to do that, they can just pass a special law to disqualify Trump ballot access on another e basis – say that any former president is disqualified and he is an ex-incumbent. There’ll be no questions in that case.

    Of course only the deepest blue state would do that, (or Maine maybe) and a third party candidate might have a chance of winning the state.

    The Republican Party also might announce say that while the ballot may say, say, Elise Stefanik, their Electors will really vote for Trump for president..

    Sammy Finkelman (1d215a)

  33. none of them stack up against the results of the national election being nullified and the presidency being handed to the guy who lost.

    If Trump is the Republican nominee, both major parties will attempt to do that. The disaster is already there with Trump being the nominee. Unless maybe No Labels saves us.

    Sammy Finkelman (1d215a)

  34. @ 28
    I think you are being inconsistent to say that someone is a “threat” then say nothing should be done.
    My feelings are not hurt, but i do not understand your logic or passion here.

    Joe (141406)

  35. I think you are being inconsistent to say that someone is a “threat” then say nothing should be done.

    I did not say that. I said something should be done: outvote them.

    I just said nothing should be done *to* them unless they violate the law.

    Patterico (296682)

  36. Very long time lurker, seldom-time poster. I don’t agree with the politics of this site (any more), but still will put eyes on sites that I’ve read and respected over the years, even if my ideologies aren’t aligned as much anymore.

    Quite frankly, it’s clear that this case is going to be one where the JG Roberts Court are going to have to “break the Constitution to save the Constitution”. Half the country will be pissed off by the ruling. The one-half that is somehow brainwashed that multiple Federal grand jury indictments are politically motivated. And the other half that believes we can’t allow Trump to have any more power (even if he weakly used his power, was only interested in enriching himself meaning one of the political parties is playing Princess Bride game of wits — is Trump going to be the weakest opponent or the weakest President?). All the people saying “conviction is required”, are ignoring the history of 14 Amendment, Section 3. Intentionally, a conviction was never required — the penalty was merely “you can’t hold Federal public office”. That’s it. Additionally, it’s clear that Congress can fix the defect. I mean, the Supreme Court may not be able to “cure the defect” — it doesn’t say if you want to be re-instated you can appeal to the Supreme Court (I think Kagan will latch onto this all day long). This is sort of the 180 from the “11 votes away from impeachment”.

    How is it that a local guy in New Mexico was barred under 14th Amendment, Section 3 – but Trump cannot be barred? Couy Griffin — certainly he had defects in his appeals, but the Supreme Court didn’t take up his case. Of course, President is the most unique position, in that every other position barred is only voted at a “local” level (at most state-wide). So this has to be adjudicated at a National level. I believe that the Supreme Court is going to put both the Constitution (14th Amendment, Section 3) on trial, and President Trump’s actions on trial. Not sure how they can avoid those points on the arguments. Although, I think they will stop short of providing a ruling on Trump’s actions, as they are obviously going to somehow sideline 14th Amendment, Section 3. Unfortunately, it didn’t say “if this angers insurrectionists, they can simply rule that this section doesn’t apply.” Saying something like “at the time of the 14th amendment, Congress thought ‘insurrection’ meant Civil War” is going to open the door to complaints about things like the second amendment — but they Court has never really minded that hypocrisy. This is just going to hurt Supreme Court credibility more (I suspect). They could surprise me and come up with something clear, fair that still allows a process for Trump to be properly unqualified.

    Here’s my crazy take though. I think that Chief Justice John G Roberts should try to direct the Court towards a political compromise. That is:
    1) The election should move forward with Trump on the ballot.

    2) The Federal cases against Trump should move forward — at an expedited pace (not necessarily the state cases at this time).

    3) Provided Trump is elected — if either of the Federal cases result a conviction, Trump is removed and his Vice President gets to take office.

    This would be a ruling which says that Trump can be disqualified under 14A, Section 3 and Federal convictions could meet that standard. I just don’t see how they can justify saying “14A, Section 3 doesn’t apply to the President…” even though that’s the popular argument from conservative insurrection apologists. Don’t tell the Confederates they could have just nominated and elected Jefferson Davis to the Presidency (well, I guess they didn’t have a friendly Supreme Court either).

    I’m not sure people are thinking this far ahead when it comes to Trump — but his re-election could just be the start of multiple new Constitutional / Federal issues.
    And all for a below average cult-leader…. err.. President.

    I think everyone assumes Trump will direct the AG / Special Counsel to stop his trials. Because all the voters already knows that Trump is facing Federal trials, he shouldn’t get to stop those trials if elected President. We are willingly electing a President who will be distracted by Federal trials and State trials. There’s fair notice that we’ve elected someone who has 91 indictments. Has it been ruled that, “If you are President, you can avoid criminal trials?” Justice has to move forward. This is unlike someone who has charges/indictments brought up *during* Presidency. In fact, I wonder if Trump wins the election if Jack Smith wouldn’t go to the Courts and argue that Trump can’t shut down the Federal cases against him (nor could he dismiss the Special Counsel). Otherwise, we would elect something like a king. Based on his actions to get the Twitter DMs (which conservatives on the DC Circuit Court called out — I think properly, although hard to say if Trump/Twitter could end up erasing DMs) – I think Jack Smith won’t go down without putting his best arguments forward.

    YLSP (990e17)

  37. It does bother me that Trump has shifted his spiel from “secret plan to defeat ISIS”, “balance the budget in x years”, “build a Wall”, and “repeal Obamacare and replace it with something better” to “I will be your justice; I will be your retribution”.

    I am not bothered because he is likely to be any more successful at the later than he was at the former. Or try any harder. He is a con man, all talk and no results.

    No, I am bothered, because that’s what his sans cullotes respond to. And if he knows anything, he knows his rubes. But it’s pointless to tell them that.

    nk (05bc90)

  38. Does Section 5 of the 14th exist?

    If so, ME’s SoS is not Congress (last I checked) and therefore has no jurisdiction to enforce Section 3.

    SaveFarris (614a29)

  39. “In my state a (not very nice) county commissioner was removed under 14.3 because he was found guilty of misdemeanor trespassing on J6. I really do not want to see a hodge-podge of processes, all called “due”, to remove Trump from ballots.”

    – Kevin M

    That’s not true. He was removed after a five-day trial through a standard quo warranto proceeding. There was substantial motions practice. There were evidentiary battles. There was a long written opinion and an opportunity to appeal.

    The fact that the commissioner failed to avail himself effectively of due process protections (by not obtaining counsel, first and foremost) does not mean that due process was not available to him.

    If you believe that only a criminal conviction should suffice for application of Section 3, make that argument. Otherwise, the civil preponderance standard is a pretty widely utilized and accepted one.

    Leviticus (adf059)

  40. “To me, the most convincing argument is that Congress is specifically authorized to remove the disability with a 2/3 vote. How can they remove a disability that isn’t there to begin with?”

    – Patterico

    This is by far the most convincing argument to me as well – both that the clause is “self-executing” and that the judiciary has the power to decide the question of “insurrection.” These arguments are so closely related as to be functionally identical, but I think the latter argument gets broken out separately via arguments about the political question doctrine.

    Leviticus (003029)

  41. “To defend democracy by killing democracy does not seem like a good trade.”

    – Kevin M

    Democracy can’t exist without a process for ensuring the peaceful transition of power, which is precisely the process against which Trump rallied his supporters.

    If the same January 6 crowd had attacked Hunter Biden’s house or something (rather than Congress, in the midst of its counting of electoral votes mandated by 3 U.S.C. § 15), the insurrection arguments would be far weaker.

    Leviticus (003029)

  42. Rebellion and insurrection are high crimes, akin to treason, which bear the gravest of penalties, including attainder, the loss of civil rights; and must be tried before the highest courts holding the high justice, and including the right to trial by jury and proof beyond a reasonable doubt; and not by legislative or quasi-legislative bodies or by ministerial officers,

    So let it be written, so let it be done.

    Good to see you around, Leviticus.

    nk (bc7011)

  43. Good to see you too, nk.

    These are troubled times. I hope everyone’s well.

    Leviticus (003029)

  44. Democracy can’t exist without a process for ensuring the peaceful transition of power, which is precisely the process against which Trump rallied his supporters.

    Agreed, but preventing participation in the democratic process by abbreviated processes, or disqualifying a candidate AFTER election, is no better and in some ways worse.

    Kevin M (ed969f)

  45. If you believe that only a criminal conviction should suffice for application of Section 3, make that argument.

    I HAVE made that argument, ad nauseum. I made it with respect to Mr Griffin at the time. nk states my basic position adequately @41.

    Kevin M (ed969f)

  46. At a minimum I think SCOTUS would have to set up a standard of de novo review for the future.

    Something like that. My first concern is with kangaroo courts (not that anything at this point should be called that, but give it time). A preponderance of evidence standard does not seem sufficient, and ministerial action seems dangerous. Given the way that activist DA’s have acted in the past (e.g. Travis County), clear procedural rules and definitions are required.

    The problem is that we are using a clause that was designed in the aftermath of a terrible civil war and applying it to something far less clear. In 1870, ministerial action would suffice as it was a matter of legal records. Today there is just so much grey.

    On top of that is the need to respect the voters. Only in the most egregious cases should any action be taken to remove the voter’s choices. Doing so lightly, in an already divided nation, will not increase political stability. And stability and comity should be the goal.

    Kevin M (ed969f)

  47. And if he knows anything, he knows his rubes.

    Indeed. Perhaps all politicians do, but Trump has got them nailed.

    Kevin M (ed969f)

  48. If so, ME’s SoS is not Congress (last I checked) and therefore has no jurisdiction to enforce Section 3.

    Section 5 does not reserve the right to Congress.

    Kevin M (ed969f)

  49. @42

    So let it be written, so let it be done.

    nk (bc7011) — 1/17/2024 @ 8:48 am

    Lyrics found in Metallica’s Creeping Death!

    \m/

    whembly (5f7596)

  50. @48

    Section 5 does not reserve the right to Congress.

    Kevin M (ed969f) — 1/17/2024 @ 9:29 am

    I can’t get past this.

    It surely does. Simply so:
    The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

    There were alot (still?) controversies about whether or not Congress can expand/restrict rights and all that jazz, so maybe there’s still a lot of grey area.

    I simply don’t see how you can interpret Section 5 in a vacuum and they say “not Congress” shall have the power to enforce it…

    whembly (5f7596)

  51. whembly,

    Take a look at Patterico’s #4, which directly addresses this argument. Sounds like the Supreme Court answered the question for good back in 1880.

    Appalled (03f53c)

  52. @ 52
    Hasn’t the history of the SC shown that nothing is answered for good?

    Joe (141406)

  53. The power to enforce is a precaution and not inconsistent with some things being self-enforcing — but self enforcing still requires a decisor. I think it also should be clear that Section 3 kicks in only after someone would otherwise be considered elected.

    Section 5 applies mainly to other sections of the 14th amendment

    However, Congress, because of the expansion of the commerce power by the Supreme Court in the 1930s has largely or entirely not rested any legislaton on this basis.

    Sammy Finkelman (1d215a)

  54. @51

    whembly,

    Take a look at Patterico’s #4, which directly addresses this argument. Sounds like the Supreme Court answered the question for good back in 1880.

    Appalled (03f53c) — 1/17/2024 @ 12:19 pm

    But, Congress didn’t pass laws governing “what is insurrection” until something like 10 years after doing so.

    So, at it’s start when the 14th Amendment was passed, all of what Pat articulated may be true.

    But, since then, no less than 3 times, Congress passed laws narrowing what constitute an “insurrection”.

    I simply cannot square that we currently have a Federal law the covers “insurrection”, which can be used for the disqualification provisions in Section 3 AND a “not Congress” using some other means (CO Judicially & Maine’s SoS’ belief) to claim using the exact same provision 3 while ignoring Section 5.

    whembly (5f7596)

  55. “To me, the most convincing argument is that Congress is specifically authorized to remove the disability with a 2/3 vote. How can they remove a disability that isn’t there to begin with?”

    – Patterico

    Most commonly, this question would come up with election to Congress, where each House is the sole decider of the qualifications of its members.

    Sammy Finkelman (1d215a)

  56. Section 6 is in addition to whatever the rest of the 14th amendment establishes by itself. But by itself, typically means federal courts in the final analysis.

    Sammy Finkelman (1d215a)

  57. So let it be written, so let it be done.

    nk (bc7011) — 1/17/2024 @ 8:48 am

    Lyrics found in Metallica’s Creeping Death!

    \m/

    whembly (5f7596) — 1/17/2024 @ 11:09 am

    Yul Brynner in The Ten Commandments.

    nk (bc7011)

  58. So, at it’s start when the 14th Amendment was passed, all of what Pat articulated may be true.

    But, since then, no less than 3 times, Congress passed laws narrowing what constitute an “insurrection”.

    I simply cannot square that we currently have a Federal law the covers “insurrection”, which can be used for the disqualification provisions in Section 3 AND a “not Congress” using some other means (CO Judicially & Maine’s SoS’ belief) to claim using the exact same provision 3 while ignoring Section 5.

    But Congress has no power to “narrow” a provision of the Constitution.

    Under section 5, Congress may pass legislation that *enforces* certain provisions, but it can’t “narrow” any provision on its own.

    As for its ability under section 5 to enforce legislation that enforces the 14th amendment, is it your view that they could pass legislation that narrows the Equal Protection Clause to make it not applicable to, say, Jewish people? Of course not! Section 1 (containing the Equal Protection Clause) is self-executing . . . and whether Congress passes laws enforcing it or not, it can be enforced in the courts.

    Nothing about section 5 changes that.

    And Section 3 was enforced before Congress passed any legislation to enforce it.

    Leviticus, it is fantastic to see you commenting. What a ridiculous position we are in here.

    Patterico (e45dd4)

  59. Leviticus! It’s great to see you, man. How are you?

    aphrael (78fce1)

  60. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

    I do not see the word ONLY there. Certainly the Supremacy Clause would hold that they COULD override local laws on the subject, but absent any Congressional enforcement I don’t see it.

    Are you arguing that state laws against racial discrimination are invalid?

    Kevin M (ed969f)

  61. Could a state pass a law that said “Any person convicted of any crime, due to their involvement in the events at the national Capitol on Jan 6, 2021, is prohibited from contesting any office in any election held in this state.”

    I think the answer is “Yes” and I don’t think that the 14th Amendment needs to be invoked. But I also think that there would have to be such a conviction. Just a charge, plus some showing of truthiness, is insufficient.

    Kevin M (ed969f)

  62. @53

    So, at it’s start when the 14th Amendment was passed, all of what Pat articulated may be true.

    But, since then, no less than 3 times, Congress passed laws narrowing what constitute an “insurrection”.

    I simply cannot square that we currently have a Federal law the covers “insurrection”, which can be used for the disqualification provisions in Section 3 AND a “not Congress” using some other means (CO Judicially & Maine’s SoS’ belief) to claim using the exact same provision 3 while ignoring Section 5.

    But Congress has no power to “narrow” a provision of the Constitution.

    Then how do you explain the way 18 U.S. Code § 2383 exists now vs how one would “prosecute” an insurrection case prior to 18 U.S. Code § 2383?

    Under section 5, Congress may pass legislation that *enforces* certain provisions, but it can’t “narrow” any provision on its own.

    Section 5 does NOT say “Congress may…”

    Right? Am I missing it?

    Here it is again:

    Section 5 Enforcement
    The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

    Yes, I’m stuck on the ‘shall’ vs ‘may’ distinction.

    https://www.law.cornell.edu/wex/shall#:~:text=Shall%20is%20an%20imperative%20command,implying%20some%20degree%20of%20discretion.

    Shall

    Shall is an imperative command, usually indicating that certain actions are mandatory, and not permissive. This contrasts with the word “may,” which is generally used to indicate a permissive provision, ordinarily implying some degree of discretion.

    IF the usages of ‘shall’ in Section 5 doesn’t give you pause, then what’s to stop State political actors from co-opting Congress’ Article I powers of the Constitution? Much of the powers defined by Congress uses variations of the word ‘shall’:

    Article I
    Section 1
    All legislative Powers herein granted shall be vested…

    Section 2
    The House of Representatives shall be composed..

    No Person shall be a Representative who shall..

    Representatives and direct Taxes shall be apportioned…

    When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue…

    The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.

    Section 3
    The Senate of the United States shall be composed…

    Nothing in the Constitution, nor specifically in 14th Amendment uses “may” or some other phrase to denote that it’s ONLY reserved to the legislature.

    Section 5 of 15th does NOT say:

    Section 5 Enforcement
    The Congress shall have [ the exclusive ] power to enforce, by appropriate legislation, the provisions of this article.

    or

    Section 5 Enforcement
    The Congress[ only ] shall have power to enforce, by appropriate legislation, the provisions of this article.

    So, to put it all together: The Congress has passed a law (18 U.S. Code § 2383) that defined what constitute an insurrection under federal penal law, that can be used to enforce provisions within the 14th Amendment.

    As for its ability under section 5 to enforce legislation that enforces the 14th amendment, is it your view that they could pass legislation that narrows the Equal Protection Clause to make it not applicable to, say, Jewish people? Of course not!

    Of course not, that’s absurd.

    18 U.S. Code § 2383 merely defines what amounts to an insurrection under federal penal code.

    Section 1 (containing the Equal Protection Clause) is self-executing . . . and whether Congress passes laws enforcing it or not, it can be enforced in the courts.

    Isn’t that because of Incorporation doctrine?

    Nothing about section 5 changes that.

    That, right here, is where I’m struggling to be convinced by your position on this.

    And Section 3 was enforced before Congress passed any legislation to enforce it.

    I never stipulated otherwise.

    But, Congress did pass additional legislations and my struggle here is that has to change how provisions are enforced.

    Patterico (e45dd4) — 1/17/2024 @ 8:21 pm
    The other thing that bothers me, is this.

    Our governance is federal, whereby the state government and federal government are sovereigns. With the states being subordinate to the federal government.

    Under the incorporation doctrine, if a state where to “pass judgement” on whether or not a person committed an insurrection, should they HAVE to use the federal penal code 18 U.S. Code § 2383? To my knowledge, there’s no comparable state laws that defines insurrection and if there is, I’m unaware of anyone in Trump’s orbit charged with state insurrection laws.

    And this is where I don’t have the expertise/knowledge in the judicial/legal/government sphere to navigate this question:
    How does a state official adjudicate a case/issue to determine if a defendant committed a crime (aka insurrection) and strictly use Section 3 of the 14th while penal code 18 U.S. Code § 2383 exists, now?

    All of this is to say, that this is a deeply thorny and political issue. And if the law isn’t CLEAR and the laymen doesn’t UNDERSTAND the applications, we’re in a serious world of hurt politically, such that I don’t see how old norms can survive.

    whembly (5f7596)

  63. @60

    The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

    See my post 62.

    I do not see the word ONLY there. Certainly the Supremacy Clause would hold that they COULD override local laws on the subject, but absent any Congressional enforcement I don’t see it.

    Are you arguing that state laws against racial discrimination are invalid?

    Kevin M (ed969f) — 1/17/2024 @ 10:17 pm

    Of course not. But, again, I bring up the “Shall” vs “may” distinction that you and Pat are not taking to account:
    https://www.law.cornell.edu/wex/shall#:~:text=Shall%20is%20an%20imperative%20command,implying%20some%20degree%20of%20discretion.

    whembly (5f7596)

  64. Ugh… sorry Pat and Kevin for the typos… wished we had that edit button!

    I’ll own my own tpyos.

    whembly (5f7596)

  65. Then how do you explain the way 18 U.S. Code § 2383 exists now vs how one would “prosecute” an insurrection case prior to 18 U.S. Code § 2383?

    Under section 5, Congress may pass legislation that *enforces* certain provisions, but it can’t “narrow” any provision on its own.

    Section 5 does NOT say “Congress may…”

    Right? Am I missing it?

    Here it is again:

    Section 5 Enforcement
    The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

    Yes, I’m stuck on the ‘shall’ vs ‘may’ distinction.

    It doesn’t say Congress “shall pass” legislation. It says Congress “shall have power” to pass legislation. That is the same as saying Congress may pass legislation. I did not say Congress may have that power. I said and meant Congress may pass legislation. Because it undoubtedly has the power to. But it doesn’t have to.

    Your position is:

    1. You concede Section 3 was enforced before any enforcing legislation was passed. Thus, you must concede the Constitution itself, through Section 3, disqualified the relevant group of insurrectionist oath-breakers from holding federal office.

    2. We agree that Congress subsequently passed legislation enforcing Section 3.

    3. Your contention seems to be that by doing #2 (passing legislation), Congress somehow narrowed the reach of Section 3.

    It is #3 that I take issue with. Congress can enforce Section 3 through legislation is is authorized to pass through Section 5. But it cannot narrow the reach of Section 3 through that legislation. Nothing in ythe 14th Amendment allows Congress to narrow the protections of the 14th Amendment through enforcement legislation. All Congress may do is enforce the 14th Amendment.

    Congress cannot narrow Section 3 any more than it can narrow Section 1, which you have conceded it cannot do — indeed, you properly term the very question “absurd” regarding any Congressional authority to narrow the protections of Section 1.

    Why is it not equally absurd to posit that Congress can narrow the protections of Section 3?

    Patterico (fc12e0)

  66. @66

    Why is it not equally absurd to posit that Congress can narrow the protections of Section 3?

    Patterico (fc12e0) — 1/18/2024 @ 12:19 pm

    Is it really a “narrowing” when Congress passes a law the defines insurrection?

    But, yes, you have my position exactly right. I’m struggling to square your positions.

    Thanks for taking the time Pat, appreciate ya.

    whembly (04477b)

  67. Of course not. But, again, I bring up the “Shall” vs “may” distinction that you and Pat are not taking to account

    The Constitution reserves certain powers to Congress, notably in I.10, in which a number of federal powers are listed as prohibited to the states. But states may do some things that are listed in I.8’s “shalls”, such as build roads and establish inferior courts. The 10th Amendment makes that even clearer.

    The powers in the 14th Amendment that Congress can enforce are NOT explicitly reserved to Congress, and the 10th Amendment would then suggest that the states have a role to play. Clearly states can prohibit private racial discrimination, and they could even after the Supreme Court said that the federal government could not.

    Is the power to disqualify a candidate for participating in an insurrection reserved to the federal government and solely under laws passed by Congress? I don’t think “shall” means that, and “shall have the power to” is not the same as “shall do” and certainly not “shall have the sole power to” which is what you argue.

    My concern is elsewhere: unlike the Civil War aftermath, where “insurrection” was not debatable, and the concrete actions people took (was a Confederate officer or official) were well documented, the J6 situation is not trivially analyzed. So, there needs to be a finding of fact, well-defined terms, respect for the rights of the accused, and, above all, consistency of process.

    For 50 states and subordinate jurisdictions to all find their own paths to a decision creates a playground for scoundrels. On the one hand, there is the federal Insurrection crime, which would serve. Going afield from that will require a federal standard, either from Congress (ha!) or from the federal courts.

    Kevin M (ed969f)

  68. @Patterico and @Kevin M…

    I think I’m coming around to your arguments. Still wrapping my head around it and I appreciate ya’lls involvment.

    whembly (04477b)

  69. The Devil’s Advocate in me suggests that states may have substantial control over their state ballots. The 14th Amendment limits that control when it comes to invidious discrimination (e.g. barring state parties from putting racial qualifications on “their” “private” primaries).

    But absent any judicial or legislative limitation, D.A. see no real reason why they cannot bar those they see as insurrectionists from their state’s officers and/or ballots.

    Congress clearly has the power to regulate elections, the federal courts have assumed the power to regulate damn near anything (e.g. freeway designs), and some minimum of due process must be observed. But absent that the Advocate think the states can point at A.10 and do as they will.

    I don’t LIKE such a state of affairs as its abuse will take about 12 nanoseconds, but I see the argument.

    Kevin M (ed969f)

  70. Kevin M (ed969f) — 1/18/2024 @ 1:15 pm

    The Devil’s Advocate in me suggests that states may have substantial control over their state ballots.

    They have 100 control, both over the presidential primary and over the general election, though for different reasons. In the case of a primary, because it not an election for a legal office (and political parties are free to more the results at the convention, which is usually held out of state in any case) and in the case of a general election they can do more or less what they want as long as they don’t change the rules after the date Congress has set for an election (which is the first Tuesday after the first Monday in November of a leap year)

    https://constitutioncenter.org/the-constitution/articles/article-ii/clauses/350

    Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector….The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States…

    And they have more control over that than they have over elections for Congress, where Congress can set rules.

    Sammy Finkelman (1d215a)

  71. Kevin M:

    The 14th Amendment limits that control when it comes to invidious discrimination (e.g. barring state parties from putting racial qualifications on “their” “private” primaries).

    But absent any judicial or legislative limitation, D.A. see no real reason why they cannot bar those they see as insurrectionists from their state’s officers and/or ballots.

    The big question is does Colorado or Maine give someone the authority to bar anyone they see as insurrectionists, (even if they are wrong, just so long as they say they think so) or would they have to allege that they are actually insurrectionists. If the latter, and I think that both in Colorado and Maine the determination was made that they are actually insurrectionists, I don’t think they have the legal power to adjudicate that (if it is disputed by the candidate in question.)

    Congress clearly has the power to regulate elections, the federal courts have assumed the power to regulate damn near anything (e.g. freeway designs), and some minimum of due process must be observed.

    If they hold an election, Congress and the constitution have a lot to say about the voting process.

    But absent that the Advocate think the states can point at A.10 and do as they will.

    No,at an explicit grant of authority in Article 1.

    And if astate wants to be certain that votes for electors pledged to Donald Trump will not be counted, they could make something other than being an insurrectionist grounds for disqualification – like say, a former president running for the office again.

    How the public in their state will react is another question.

    I don’t LIKE such a state of affairs as its abuse will take about 12 nanoseconds, but I see the argument.

    It depends on how the public sees it.

    Incidentally, the Electors may be pledged to person A but tell all they will vote for person B and whether they can do so without penalty is a matter of sate law and litigation.

    And Congress can maybe, just maybe reject the electors, but not their votes,.

    If the Democrats aim to use the 14th amendment to disqualify Trump next January, in order to get benefit from it, they will also have to use the 14th amendment to disqualify his vice presidential candidate, Elise Stefanik on the grounds that she, too is an insurrectionist, and they’ve already started laying the groundwork for this

    Sammy Finkelman (1d215a)

  72. This could make Speaker Hakeem Jeffries Acting president.

    If only they had the votes for it.

    Sammy Finkelman (1d215a)

  73. Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors,

    But maybe not in the manner that the Secretary of State directs, or a superior court judge in another county

    Kevin M (ed969f)

  74. I don’t LIKE such a state of affairs as its abuse will take about 12 nanoseconds, but I see the argument.

    It depends on how the public sees it.

    Oh, there’s a fine protection for the Republic. Mob rule!

    Kevin M (ed969f)

  75. It depends on how the public sees it.

    Kevin M (ed969f) — 1/18/2024 @ 5:26 pm

    Oh, there’s a fine protection for the Republic. Mob rule!

    No. Politicians look ahead to future elections. And there will still be elections – everything won’t go bad everywhere at once with candidates being disqualified willy nilly based on the 14th amendment.

    This was actually what Trump was trying to do on Jan 6 – exaggerating his support and the size of the crowd to try to push members of Congress into throwing out electoral votes.

    Sammy Finkelman (1d215a)

  76. Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors,

    Kevin M (ed969f) — 1/18/2024 @ 5:22 pm

    But maybe not in the manner that the Secretary of State directs, or a superior court judge in another county

    In Colorado, and maybe in Maine, they were carrying out state law as they saw it.

    Colorado law allows any voters (not just opposing candidates) to sue for removal from the ballot is a candidate is not qualified. They probably meant not enough signatures, but courts – Justice Gorsuch when he was a lower court judge – ruled that it also meant ineligible to hold the office, and someone who was a naturalized citizen was knocked off a presidential primary ballot some years ago..

    Sammy Finkelman (1d215a)


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