Podcast Summary
Colorado Supreme Court Disqualifies Trump from Ballot Based on 14th Amendment: The Colorado Supreme Court barred Trump from the 2024 Republican primary ballot due to his role in the Jan. 6 insurrection, invoking the 14th Amendment's Section 3. This decision raises debates about the tension between democratic choice and constitutional guardrails.
During this political moment, Donald Trump is poised to be the Republican nominee for the 2024 presidential election, yet he faces significant legal and constitutional challenges. The Colorado Supreme Court ruled that Trump's efforts to overturn the election results on January 6th disqualified him from the ballot. The reasoning behind this decision was based on the 14th Amendment's Section 3, which prohibits individuals from holding office if they have engaged in insurrection or rebellion against the constitution. This constitutional provision, designed to address the issue of political popularity among insurrectionists, has sparked debates about the balance between democratic choice and constitutional guardrails. David French, a fellow New York Times columnist, joined the show to discuss these ballot disqualification questions and the implications of the Colorado Supreme Court's decision.
Counter Majoritarian Provision to Prevent Insurrectionists from Public Office: The 14th Amendment, Section 3, restricts individuals who engaged in insurrection or rebellion from holding public office to prevent their return to power and maintain peace and stability.
The 14th Amendment, Section 3, is a counter majoritarian provision in the Constitution designed to prevent individuals who have engaged in insurrection or rebellion from holding public office. This provision was enacted following the Civil War to address the issue of former Confederates, who were treasonous insurrectionists but still had the support of some segments of the population. The amendment was a balance between extending forgiveness and preventing these individuals from returning to government. The interpretation and application of this section to modern political contexts, such as the case of former President Trump, have been influenced by scholarly articles and debates among legal experts.
Application of Disqualification Clause to Trump's case: The authors argue that Trump's involvement in the Capitol attack makes him ineligible for future public office based on the Disqualification Clause, using originalist interpretation to support their argument.
The authors of a highly respected law review article argued for the application of the Disqualification Clause, which bars individuals from holding public office if they have previously violated their oath to support the Constitution, to the case of former President Donald Trump and the January 6th Capitol attack. Using originalist legal analysis, they concluded that the definition of "insurrection or rebellion" in the text was broad enough to encompass the attack, making Trump ineligible for office. This interpretation, which gained significant downloads and attention, highlights the potential of originalist legal analysis in providing clear and historically grounded interpretations of constitutional provisions. However, critics might argue that Trump did not personally engage in insurrection but rather encouraged it, and the clause allows for Congress to remove disabilities by a 2/3 vote. Regardless, this analysis showcases the importance and relevance of originalist interpretation in contemporary constitutional debates.
Trump's Actions Extended Beyond Legal Rebellion: Trump's actions on Jan 6th went beyond legal protest and included both legal subterfuge and violent action, creating an atmosphere that led to the Capitol insurrection.
While former President Donald Trump's actions leading up to the Capitol riots may have been legally permissible, such as encouraging peaceful protests and contacting state officials, his involvement extended beyond legal rebellion and included incitement to violence. The events of January 6th went beyond the bounds of lawful protest and included both legal subterfuge and violent action. Trump's repeated calls for his supporters to go to the Capitol, knowing they were armed, and his urging for them to fight like hell, created an atmosphere that led to the insurrection. Despite arguments that Trump believed the election was rigged, his actions went beyond trying to right a perceived democratic wrong. The legal standard for proving incitement to insurrection or rebellion is complex and goes beyond specific magic words, requiring consideration of the whole situation.
The 14th Amendment's Section 3: Disqualifying Individuals for Insurrection or Rebellion: The 14th Amendment's Section 3 disqualifies individuals from holding office if they engaged in insurrection or rebellion, without requiring a prior criminal conviction. The determination of whether actions constitute an insurrection or rebellion is a historical and contextual question, and may require Congressional involvement.
The 14th Amendment's Section 3, which disqualifies individuals from holding office if they have engaged in insurrection or rebellion, does not require a prior criminal conviction. Instead, it focuses on the question of whether the individual's actions constituted an insurrection or rebellion. The amendment is self-executing but may require Congress to determine the venue for such decisions. The distinction between this provision and a criminal statute lies in the historical context and the ease of determining who was involved in the insurrection or rebellion at that time. In the case of the January 6th events, the real question is whether those actions constituted an insurrection or rebellion, and there is ongoing debate about the self-executing nature of this provision and the due process rights for those who may contest such a determination.
Liberty Interest in Running for Public Office: The liberty interest of running for public office doesn't have the same constitutional process as in criminal cases. The 14th amendment aims to prevent insurrectionists or rebels from regaining power, and the process for challenging disqualification varies by state laws.
The liberty interest of an individual running for public office, such as the presidency, does not carry the same level of constitutional process as in criminal cases. The discussion highlights that the Colorado process provided notice, an opportunity to be heard, and a hearing, but it was not criminal style legal process. The liberty interest in running for office is important for the country, but the framers of the 14th amendment did not require a criminal conviction or specify a process for disqualification. Instead, the amendment's language aims to prevent insurrectionists or rebels from regaining access to government, creating a presumption against eligibility. The process for challenging disqualification will depend on the specific circumstances and state laws.
Implications of the 14th Amendment for insurrection and rebellion: The 14th Amendment's vague language on insurrection and rebellion raises concerns and potential remedies include legislative action or constitutional amendment. The Supreme Court's role as a stabilizing force is debated, with historical precedents providing context.
The 14th Amendment's broadly worded section regarding insurrection and rebellion raises valid policy questions and potential alarming implications, but remedies include getting Congress to specify a process or amending the constitution. The Supreme Court's role as a potential stabilizing force in the country is debated, and while it's a heavy ask, the text and history of the constitution may not permit the current situation, as seen in precedents like Brown v. Board of Education and Dobbs. However, the court's response is uncertain and depends on its interpretation of its role and the specific circumstances.
The Supreme Court's Role in Presidential Contests: Complex and Nuanced: The Supreme Court's decisions in presidential contests are influenced by justices' personal connections and legal philosophies. Trump's behavior and criminal charges have created a dilemma for the rule of law, with some viewing it as persecution and others as a result of unlawful actions.
The Supreme Court's role in presidential contests is complex and nuanced. While it has intervened in decisive ways, such as in Bush v. Gore, it has also declined to do so in other instances. The court's decisions are influenced by the justices' personal connections and legal philosophies. Trump's unique behavior and criminal charges have created a dilemma for the rule of law in the United States. While some may view his treatment as persecution, others argue that it is a result of his own unlawful actions. Trump's behavior has led institutions to act in ways they may not have preferred, fueling the MAGA mindset that sees these institutions as politicized and against them.
Political instability due to disruptive tactics: Political instability arises when disruptive tactics, such as rule-breaking and intimidation, are used. Allowing such behavior can lead to deeper destabilization, while disqualifying disruptive figures may be necessary to maintain stability.
The current political climate, particularly surrounding the actions and beliefs of certain individuals and groups, presents a significant challenge to maintaining stability and adhering to established norms. The use of disruptive tactics, including breaking rules and engaging in intimidation, has become a common dynamic in politics. This creates an asymmetric situation where those engaging in such behavior are granted immense freedom, while those holding them accountable are expected to adhere to standard treatment. The potential consequences of this dynamic are deeply destabilizing, whether it involves a contested disqualification of a candidate or their refusal to accept election results. Ultimately, the most stabilizing option may be to disqualify a disruptive figure from office, despite the potential for outrage and backlash. However, this decision must be weighed against the potential destabilization that could result from allowing such a figure to remain in power or to win an election despite losing legitimately.
Potential dangers of a second Trump term: A second Trump term could result in an authoritarian regime due to his potential use of military power and lack of checks and balances
If Donald Trump were to return to the White House, we could be dealing with a very different kind of administration. Unlike his first term, he would not have the same establishment figures, such as Republicans in his cabinet or the Federalist Society, to keep him in check. Trump is also reportedly considering invoking the Insurrection Act on day one of his presidency, which gives him the power to call up military forces to restore order. This is a dangerous scenario, as the president would have significant military power at his disposal, potentially leading to a more authoritarian regime. The lack of safeguards around this discretion is a concern, especially given Trump's history of disregarding norms and institutions. It's essential to understand the potential dangers of a second Trump term and the significant shift in power dynamics that could come with it.
Republican Party's Shift from Coalition to Unified Government under Trump: The Republican Party under Trump has become a unified, non-coalition government controlled by the MAGA faction, leading to more radicalized and rule-breaking behavior from supporters and a weakening of political norms.
The Republican Party under Trump's leadership has shifted from a coalition government with various factions to a unified, non-coalition government controlled by the MAGA faction. This change has resulted in an even more radicalized and angry version of MAGA, with Trump's supporters increasingly disregarding political norms and rules. Trump's legal team is currently arguing for presidential immunity, claiming that the president cannot be prosecuted for misconduct while acting in his capacity as president. However, the odds of this argument succeeding are extremely low. The implications of these developments are significant, as the Republican Party continues to move away from traditional political norms and towards a more authoritarian stance.
Exploring alternatives to impeachment for addressing Trump's legal issues: Despite the potential for impeachment and conviction, there are other ways to address Trump's legal issues, such as the presidential immunity argument and ongoing criminal cases. These cases could have destabilizing outcomes, but it's important not to overlook the potential for disqualifying Trump from office as a solution.
While impeachment and conviction may be a remedy for addressing potential legal issues involving Donald Trump, it's not the only solution. The presidential immunity argument is more of a delay tactic than a material threat to dismiss prosecution. The number of charges against Trump can be overwhelming, but there are actually four criminal cases with internal indictments: the Stormy Daniels hush money case, the classified documents case, the Georgia case, and the January 6th case led by special prosecutor Jack Smith. The potential outcomes of these cases create a branching tree of possibilities, all of which could be destabilizing due to Trump's inherent instability as a central figure. It's crucial not to concede that disqualifying him from office is more destabilizing than the other possibilities. I recommend three books for further reading: "Operation Pedestal" by Max Hastings, "Into the Heart of Romans" by NT Wright, and a new book by Ezra Klein himself, "Why We're Polarized."
A fresh perspective on the book of Romans and Lincoln's assassination: The book of Romans and Lincoln's assassination offer new interpretations, challenging conventional wisdom and shedding light on their historical significance.
The book of Romans in the New Testament has been misunderstood, and a more proper interpretation suggests a more radical call to virtue. Another intriguing read is "Manhunt: 12 Day Chase for Lincoln's Killer" by James Swanson, which presents the assassination of Abraham Lincoln as a modern criminal procedural, making for a gripping historical account. With Lincoln's assassination being the most consequential in American history, it's worth pondering the implications of these fresh perspectives on well-known stories. David French shared these insights on a recent episode of "The Ezra Klein Show," which is produced by Roland Hu, fact-checked by Michelle Harris, Kate Sinclair, and Mary March Locker, and engineered by Jeff Geld and Efemie Shapiro. The show's senior editor is Claire Gordon, and the production team includes Annie Galvin, Kristen Lynn, Isaac Jones, Kristina Szymalewski, and Shannon Busta. The executive producer of New York Times opinion audio is Annie Rose Strasser.
