Tag Archives: 14th Amendment

Humpty Dumpty Was President of U.S. 2017-2021

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Donald Trump, in one of his multitude of efforts through obfuscation and delay to avoid accountability for his many crimes against the nation and humanity, has stated what may be his most remarkable lie yet. In the litigation over whether he is disqualified from the Colorado ballot in 2024 due to his inciting the January 6 insurrection, Trump’s lawyers have declared that he never gave an oath to “support” the Constitution. https://tinyurl.com/3kdazbku

Here is text of the presidential swearing-in ceremony for Trump in 2017, and every other president:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

Section 3 of the 14th Amendment, states that:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

Trump’s Colorado filing states:

The framers excluded the office of President from Section Three purposefully. Section Three does not apply, because the presidency is not an office ‘under the United States,’ and President Trump did not take an oath ‘to support the Constitution of the United States.

From many decades of law practice in sometimes fraught circumstances, I am conscious of the pressure on lawyers to produce arguments that can strain credulity. They usually do this because they have nothing else, and the client demands they fight with anything and everything. So, they throw some legal slop at the wall and hope some of it sticks. I learned early, however, that such tactics usually do more harm than good and rarely convince experienced judges and neutral juries that an extreme position, lacking any basis in reason or precedent, should be embraced.

Here we have the former president of the United States, through his attorneys, flatly disavowing his oath of office. His lawyers are arguing, in effect, that “preserve, protect and defend” are not synonyms of “support.” In short, Trump is telling the Supreme Court,

Yes, the world saw me swear on a bible that I would preserve, protect, and defend the Constitution but that didn’t mean I support the Constitution. In fact, I don’t support the Constitution. I am opposed to the Constitution.

Now, imagine, if you can, that at his actual inauguration in 2017, Trump had placed his hand on the bible, Melania looking stricken behind him, and said to the world: “I decline to take the oath as prescribed. I don’t support the Constitution. I am opposed to the Constitution.” Imagine.

Trump’s lawyers are also arguing that the presidency is not an office “under the United States” and thus that the president is not an “officer of the United States,” as stated in the 14th Amendment, even though the president is the chief executive officer of the United States and is the repository of the “executive power” of the federal government as plainly stated in Clause 1 of Article II. By the way, this is the same Article II that Trump famously said conferred upon him the authority to “do whatever I want.” http://tinyurl.com/4jpuc2y9

The Trump position is right out of Alice in Wonderland:

When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means what I choose it to mean – neither more nor less.

Alice’s retort, you may recall, was:

The question is … whether you can make words mean different things.

Trump would say, yes, of course, I’m Donald Trump and I can say ‘yes’ and mean ‘no.’ I can bow down before foreign dictators while claiming that I courageously stood up to them. I can say something with complete seriousness and later claim I was joking if people don’t like what I said. I’m like the governor in The Best Little Whorehouse in Texas who sings Side Step:

Ooh, I love to dance the little sidestep

Now they see me, now they don’t

I’ve come and gone

And ooh, I love to sweep around a wide step

Cut a little swath

And lead the people on!

Such foolishness may work in movies and childish fantasies but in the real world, Trump must be treated like an adult. He swore an oath before the world. That oath is prescribed by the Constitution. Trump may not be heard now to disavow his oath and its plain meaning. He is estopped, in the language of the law:

Estoppel is an equitable doctrine, a bar that prevents one from asserting a claim or right that contradicts what one has said or done before, or what has been legally established as true.[https://www.law.cornell.edu/wex/estoppel]

It is way past time that the courts brought the hammer down on Trump’s dissembling. Special Prosecutor Jack Smith has taken a major step in that direction by seeking immediate Supreme Court review of Trump’s preposterous claim that he is absolutely immune from prosecution because he was once President of the United States.

Trump’s legal strategy has always been predicated on delay, delay, and more delay. Smith, seeing the delay strategy at work again, is calling the question whether Trump can escape responsibility for his criminal conduct. Trump is asserting something akin to the divine right of kings. But there are no kings in this country. The fate of the nation hangs on the Supreme Court’s decision. The Humpty Dumpty defense must be rejected. If not, violence may result. In 1776 and again in 1787, we said, “no more kings.” It cannot be otherwise.

Closing Note:  It appears that the Judge in the DC case has stayed the proceedings until the Trump’s claim of absolute immunity for crimes committed while president is resolved by higher courts. While expedited briefing schedules have been established, it is entirely possible that the Supreme Court will deny the government’s petition for certiorari and dump the case back to the DC Circuit Court of Appeals. That court may be independently looking at Trump’s appeal anyway. Chaos reigns. More time will pass, and Trump will avoid the consequences of his preposterous legal position yet again. If so, we will move another giant step toward autocracy and the death of American democracy.

I will have more to say about this as soon as I can get through the multitude of decisions and pleadings being filed almost every day. The irony is that by committing so many crimes in so many jurisdictions, Trump has managed to create a scenario that will allow some courts to accede to his delay tactics. I will never understand why the judiciary has not taken central control of this situation rather than letting Trump’s cadre of lawyers making ludicrous arguments play the courts against each other. But that seems to be where we are.

Trump Confesses

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When you hire a lawyer to represent you, it is presumed that when the lawyer speaks or files pleadings in court on your behalf, he is speaking and/or presenting positions with which you concur. He is, after all and in fact and in law, your representative.

Sometimes, lawyers are forced to make arguments that seem preposterous on their face and are in fact preposterous. They normally do this when they are “out of ammunition” in the form of well-reasoned and at least plausible arguments. They do this when the client is desperate to present a defense when none exists. Those lawyers feel duty-bound to not only the zealous representation that legal ethics required of them, but, one might say, to throw something at the judicial wall and just hope against hope that it sticks.

It is thus with the latest Trump effort to escape responsibility for his treasonous insurrection against the government of the United States. Reports state that Trump’s attorneys have thrown such stuff at the wall in the Colorado case brought by the Citizens for Responsibility and Ethics in Washington (CREW) seeking to bar him from the 2024 presidential ballot. https://www.rawstory.com/trump-wont-support-constitution/

Recall that the Fourteenth Amendment to the U.S. Constitution prohibits anyone who has “engaged in insurrection” against the United States from holding a civil, military, or elected office unless a two-thirds majority of the House and Senate approve. I quote the Rawstory article:

Trump’s lawyers are arguing that the specific language of the Constitution argues that this requirement only applies to people in offices who are bound to “support” the Constitution — and the presidency is not one of those offices.

“The Presidential oath, which the framers of the Fourteenth Amendment surely knew, requires the President to swear to ‘preserve, protect and defend’ the Constitution — not to ‘support’ the Constitution,” said the filing by Trump’s attorneys. “Because the framers chose to define the group of people subject to Section Three by an oath to ‘support’ the Constitution of the United States, and not by an oath to ‘preserve, protect and defend’ the Constitution, the framers of the Fourteenth Amendment never intended for it to apply to the President.”

My guess is that Trump’s lawyers don’t expect the trial judge to buy this nonsense. They are instead laying the foundation for an appeal, eventually, to the U.S. Supreme Court where, they hope, the “originalist” thinkers led by Clarence Thomas will “strictly construe” the Constitutional language and hold that “support” is not the same as “preserve, protect and defend” such that the Framers left a gaping hole for people like Trump to walk through while toppling the very structure the Framers worked so hard to establish.

But, you ask, why is this argument nonsense? Here’s why.

We could go on with this for hours, but I think it suffices that Oxford Languages (the world’s leading dictionary publisher, with over 150 years of experience creating and delivering authoritative dictionaries globally in more than 50 languages) has solved the puzzle for us.

“Preserve” is defined as “maintain (something) in its original or existing state.” Synonyms include: conserve, protect, maintain, care for, take care of, look after, save, safeguard, and keep. Antonyms include: damage and neglect.

“Protect” is defined as “keep safe from harm or injury.” Synonyms include: keep safe, keep from harm, save, safeguard, shield, preserve, defend, cushion, shelter, screen, secure, fortify, guard, mount/stand guard on, watch over, look after, take care of, care for, tend, keep, mind, afford protection to, harbor, house, hedge, inoculate, insulate. Antonyms: expose, neglect, attack, harm.

Finally, “defend” means “resist an attack made on (someone or something); protect from harm or danger.” Synonyms: protect, guard, safeguard, keep from harm, preserve, secure, shield, shelter, screen, fortify, garrison, barricade, fight for, uphold, support, be on the side of, take up cudgels for, watch over, be the defender of.”  The antonym: attack.

Being my discerning readers, I know you saw “support” in the third list as a synonym of “defend.”

Even if “support” were not listed there, it is defined as “enable to function or act” and is a synonym of: help, aid, assist, contribute to, back, succor, champion, give help to, be on the side of, side with, favor, abet, aid and abet, encourage, ally oneself with, stand behind, stand up for, defend, promote (among others).

One “rule” I always tried to follow in advocacy when I was practicing law was: don’t be stupid. Trump’s lawyers must be utterly desperate to put forward the argument that the President of the United States is not obligated by his oath of office to “support” the Constitution of the United States. Of all the implausible positions advanced for him and his  many co-indicted co-conspirators, this one take the cake.

The word legerdemain leaps to mind: deception; trickery, chicanery, skulduggery, deceit, deception, artifice, cheating, dissimulation. All seem to apply nicely to Trump’s argument. I particularly like “skulduggery” but that’s just me.

 

 

 

Is Trump Disqualified?

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The New York Times reports that:

Two prominent conservative law professors have concluded that Donald J. Trump is ineligible to be president under a provision of the Constitution that bars people who have engaged in an insurrection from holding government office.

https://tinyurl.com/yh38rjyd

Oh, Lordy, I wish they were right.

But are they?

The NYT article says:

The professors are active members of the Federalist Society, the conservative legal group, and proponents of originalism, the method of interpretation that seeks to determine the Constitution’s original meaning.

Upon reading that, my first thought was Groucho Marx’s infamous saying that, “I don’t want to belong to any club that will accept me as a member.” But I digress. I do not adhere to such absolutist thinking about most things, and I suspect there’s a club somewhere that I might want to join, though whether there is one that would have me is another question for another day.

Returning to my new-found idols (if and only if they’re right) in the Federalist Society, they summarize their conclusion this way:

Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.

Affirming what I and many others have been saying since at least January 6, 2021, the esteemed authors of a forthcoming law review article state there is:

“abundant evidence” that Mr. Trump engaged in an insurrection, including by setting out to overturn the result of the 2020 presidential election, trying to alter vote counts by fraud and intimidation, encouraging bogus slates of competing electors, pressuring the vice president to violate the Constitution, calling for the march on the Capitol and remaining silent for hours during the attack itself.

“It is unquestionably fair to say that Trump ‘engaged in’ the Jan. 6 insurrection through both his actions and his inaction,” ….

Abundant evidence. Yes. Unquestionably fair. Without a doubt, reasonable or otherwise.

But is saying it enough? What about innocent until proven guilty, etc. Right to a fair trial. All that.

The relevant sections of the 14thAmendment to the Constitution state:

No person shall … hold any office, civil or military, under the United States … who, having previously taken an oath, … as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The central question is, I think, whether the provision is self-executing or requires a judicial finding that the person in question has engaged in insurrection, etc. The least relevant question is whether Congress would give Trump a pass. Two-thirds of “each House” means what it says (originalists are stuck with that) and that’s not happening.

According to the Times, the article concludes that:

essentially all of that evidence pointed in the same direction: “toward a broad understanding of what constitutes insurrection and rebellion and a remarkably, almost extraordinarily, broad understanding of what types of conduct constitute engaging in, assisting, or giving aid or comfort to such movements.”

It added, “The bottom line is that Donald Trump both ‘engaged in’ ‘insurrection or rebellion’ and gave ‘aid or comfort’ to others engaging in such conduct, within the original meaning of those terms as employed in Section 3 of the 14th Amendment.”

I’m fully down with that so far but the question remains, I think.

The provision’s language is automatic, the article said, establishing a qualification for holding office no different in principle from the Constitution’s requirement that only people who are at least 35 years old are eligible to be president.

“Section 3’s disqualification rule may and must be followed — applied, honored, obeyed, enforced, carried out — by anyone whose job it is to figure out whether someone is legally qualified to office,” the authors wrote. That includes election administrators, the article said.

In an interview, apparently, Professor Steven Calabresi, a law professor at Northwestern and Yale and a founder of the Federalist Society, said those administrators must act:

“Trump is ineligible to be on the ballot, and each of the 50 state secretaries of state has an obligation to print ballots without his name on them,” he said, adding that they may be sued for refusing to do so.

Therein lies the rub. Republican secretaries of state, many of whom are abjectly committed to support Trump no matter what, cannot be assumed to perform the asserted duty, no matter how forcefully that obligation is confirmed by Federalist Society professors. Some enterprising journalist should immediately put the question to each of the fifty secretaries of state, starting tomorrow. What they say will not, of course, be binding but still would be good to know their answers in fashioning a way forward.

As much as I desperately want to believe that Section 3 of the Fourteenth Amendment is self-executing, the cynics among us (me) do not believe anything so simple could possibly work in the political world Trump has handed down to our country. Lawsuits are going to be necessary, complicated, I suggest, by the fact that Special Counsel Jack Smith elected not to charge Trump with insurrection under the relevant statute:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. [18 U.S. Code § 2383-enacted June 25, 1948]

Why Smith did not bring that charge has not been, and likely will never be, explained, but Trump will try to drive his denial truck through that gap and, typically, more litigation will ensue if anyone tries to disqualify him through legal action.

A final observation. I just read that Alan Dershowitz, ready to defend Trump’s criminality at every turn, has reportedly declared that the 14thAmendment applies only to “those who served the Confederacy during the Civil War.” Reported in the Daily Caller (where else?) but published only in the SmartNews app, apparently. The piece notes that the “the text does not authorize Congress—or any other body or individual—to impose the disqualification in the first place.” Further, the article claims, “It wasn’t intended as a general provision empowering one party to disqualify the leading candidate of the other party in any future elections.”

That’s an odd claim for an ultra-originalist to make. That fact, moreover, undermines Dershowitz’s argument. If no mechanism for applying the law was created, the most reasonable conclusion is that Congress thought it was self-actuating. And, if it were true that the law was only to apply to ex-Confederates, it would be most reasonable to expect that the statutory text would have been explicit to that effect.

The contrary position states that

it was fairly evident who participated in the Civil War on the part of the South. No formal mechanism was needed for making that obvious determination. If the disqualification had been intended as a general rule applicable to all future elections, it would have been essential to designate the appropriate decision maker, the procedures and the criteria for making so important a decision.

That argument ignores that Marbury v Madison was decided by the United States Supreme Court establishing the principle of judicial review, that the Constitution was indeed the supreme law of the land that Congress could not by itself change. While the article lists all kinds of mischief that might ensue without explicit mandates of who decides what, the reality, I suggest, is that the claimed disabilities are overcome by the fact that judicial review of all actions inconsistent with the plain intent of the statute would be available. As with many other laws in which judicial oversight is not expressly mentioned, the supremacy of federal law and the even greater supremacy of the Constitution are sufficient to warrant the conclusion that Congress did not have to established a specific enforcement mechanism for the operative sections of the Amendment. The courts were available to adjudicate any conflicting claims.

Thus, the absence of an explicit provision for judicial review does not support the speculation that the courts “might regard as a political question” the issue of whether a candidate had engaged in insurrection. No reason exists to think of that as a political question beyond the courts’ purview or that “if the controversy were not resolved by the Supreme Court, there would be a constitutional crisis.” Such imaginings are the product of an overactive ultra-originalist imagination.

Dershowitz gives himself away in the ensuing argument that,

Interpreting this post-Civil War amendment as a general provision for disqualifying candidates who some people may believeparticipated in what they regard as an insurrection or rebellion—as distinguished from a protest or even a riot—would create yet another divisive weapon in our increasingly partisan war. It would be used by Republicans against candidates who may have supported (gave “aid or comfort” to) riots such as those that followed the killing of George Floyd or other violence-provoking events. [boldface added]

The Constitution articulated limited qualifications for presidential eligibility. Beyond those neutral criteria, the decision should be made by voters, who are free to consider the participation of a candidate in activities with which they disagree. Unless an amendment was clearly intended to further limit these qualifications, the voters are the ones to decide who is to be their president.

Quite clearly, Dershowitz is fine if “the voters” decide it’s acceptable to elect a criminal who tried to stop the peaceful transfer of presidential power and who has threatened violence and further insurrection if he is elected. That is not the argument of a “constitutionalist,” at least not the one that laid the foundation for the United States. No basis exists, I suggest, for interpreting the Constitution or any federal statute as permitting the overthrow of the government if a bare majority use the ballot box rather than armed revolt to accomplish it.

That said, I believe it is entirely appropriate for lawsuits to be instituted to present to the courts for adjudication the question whether January 6 was an unlawful insurrection and, if so, whether Donald Trump inspired, incited, and directed it. If yes, he’s out. Period.

Let’s get on with it. Somebody (ACLU?) sue to bar his candidacy for the presidency and let the future of our democracy be decided.

No Führer in America

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Donald Trump, the illegitimate president of the United States, hasn’t brought up the idea of a master race yet, but it seems likely that it’s only a matter of time. The concept is already implicit in his views on immigration and citizenship. How long will it be before it gives up that ridiculous thumbs up routine of his and demands some form of salute from everyone? Meanwhile, he continues his deflection strategy as the mid-term elections draw near.

Trump has ordered more than 5,000 American troops to the U.S.-Mexico border to, presumably, confront the “caravan” of refugees and asylum seekers moving slowly through Mexico toward the United States. He has claimed, with the usual lack of evidence or truth, that the group has been seeded with Middle Eastern terrorists.

So, what do we expect to come of this?  Will the troops be ordered to fire on the refugees? Is this going to be another Kent State to a higher power with mass casualties? Will Trump’s racist base support a massacre of unarmed people fleeing oppression? Will the troops follow an order to fire on unarmed immigrants for trying to cross the border illegally? Or bayonet them? Beat them into submission? He will stop at nothing to get what he wants. What could possibly go wrong?

Maybe this incident, if it turns violent, will be the Trumpian equivalent of the Reichstag fire that gave Hitler the excuse he wanted (blaming the attack on the communists) to begin the final takeover of Germany by the Nazi Party. As reported by Wikipedia, “The term Reichstag fire has come to refer to false flag actions perpetrated or facilitated by an authority to promote their own interests through popular approval of retribution or retraction of civil rights.” https://en.wikipedia.org/wiki/Reichstag_fire That’s close enough.

Trump no doubt loves the idea of ordering the Army around but he is not, and never will be, the American version of the Führer. One of those in history was one too many. But he is playing with fire, literally, in ordering troops to the border. Will the troops cross the border, entering under arms a foreign country’s territory? If so, Trump will, in keeping with his usual approach, blame the outcome on the members of the caravan. “If they hadn’t threatened to cross our border, we would not have had to invade Mexico and shoot them!”

In a related vein, and also connected to the imminent mid-term elections, Trump has announced that he has received advice that he can, by executive order, nullify the 14th Amendment to the U.S. Constitution. Almost all authentic legal commentators believe that idea is ridiculous. Here is the relevant text:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [emphasis added]

The idea that Trump can change the meaning of the 14th Amendment is indeed ridiculous. Even a few Republicans think so. That doesn’t mean he won’t try. He knows he’ll be challenged in the courts, which is fine with him. Being challenged in court will give Trump yet another pretext for accusing the court system of bias against him, giving his political base yet another reason to feel oppressed by the “system.”

Rick Santorum was on television last night, playing the role of the loyal Republican mouthpiece, blathering and blaming the divisiveness surrounding Trump’s Pittsburgh incursion on the local people in Pittsburgh rather than Trump’s typically insensitive decision to visit when he was told it was too soon and he was not welcome. Some of CNN’s pundits are falling all over themselves to justify Trump’s decision, arguing that Trump is actually trying to engage in healing actions rather than taking political advantage of the national focus on the Pittsburgh situation.

It is beyond remarkable that these same pundits who routinely question Trump’s divisive comments about race now wipe out that record in an effort to attribute sincerity to his visit. Trump is an insensitive, self-interested bully and nothing he does in one moment can wipe out his racism, misogyny and hate-filled agenda that he pursues at every other opportunity. It comes with ill grace every time the press says “oh, look, Trump is acting like a human being.” It’s not only rare but it’s utterly false.

Trump’s proposal to override the Constitution by executive order reflects a total lack of understanding of the Constitution but, more fundamentally, total indifference to its meaning. Trump will do whatever he thinks will win him political points with his hard-core base of supporters who apparently have also not been schooled in the fundamentals of the Constitution they claim to revere. Trump has violated his oath of office multiple times and this would be just another one. He’ll lose in court and use that to proclaim himself and his supporters as victims. And his base will buy it.

It’s time for Trump to go.  Time to say goodbye. But first there is an election. To paraphrase Benjamin Franklin, “you’ll have a republic if you can keep it.” People of good will must vote for Democrats or we will lose the republic. History teaches that once democracy fails, it is nearly impossible to restore. Let’s not fail. Take your family and friends to the polls and vote.