prior probability

Is former president Donald J. Trump automatically disqualified from holding any federal office under Section 3 of the 14th Amendment? I wrote up a short but formal academic reply to Professors Michael Stokes Paulsen and William Baude (pictured below) and posted it here (via SSRN).

Update (7 September): Although a federal judge in South Florida ruled last week that private parties lack “standing” to enforce the 14th Amendment’s disqualification clause (a case I blogged about the other day; see below), another cohort of progressive plaintiffs — this one in Colorado — has now filed a 105-page complaint in a local court (not federal) in Denver demanding that Trump be kept off the ballot in their home State. Here is a copy of their complaint. Will this new case be dismissed for lack of standing like the Florida case was? Either way, I will be following the Colorado case closely and will report back as soon as any new developments occur.

See here; hat tip: Kottke.

Alternate Title: Critique of Baude & Paulsen (2023), Part 3

As you may have heard by now (see here, for example), multiple efforts are afoot in various States to disqualify Donald Trump from the ballot box under the disqualification clause of the 14th Amendment. This dangerous and misguided movement has been bolstered by a 126-page law review article (see here), which mistakenly claims, among other things, that the disqualification clause is “self-executing” and that due process rights are somehow inapplicable to disqualification cases. For my part, I have already debunked the completely bogus “self-execution” argument here and here. Today, by contrast, I will explain why due process of law is never optional and why the disqualification clause cannot be self-executing without violating the right to due process. Simply put, before someone can be disqualified from running for federal office, that someone (even Mr Trump) is entitled to a fair hearing before a regular court of law.

Recall what the disqualification clause does: it disqualifies from federal office anyone “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.” In other words, this provision poses several novel questions of law and fact, and these questions must at some point be adjudicated by a regular court of law. Among these novel legal questions are:

1. Is the president an “officer of the United States”?
2. What state of affairs constitutes an “insurrection or rebellion”?
3. Who decides who the “enemies” of the United States are?
4. And what constitutes the giving of “aid or comfort” to those enemies?

In addition to these questions of law, a court would also have to apply the law to the facts. But what are the facts? In the case of Trump, a court would have to decide whether the riot at the U.S. Capitol on January 6, 2021 constituted an insurrection or rebellion and whether any of the former president’s actions or omissions on that fateful day could be construed as giving aid or comfort to the enemies of democracy under the 14th Amendment.

Frankly, a strong case can be that Trump deserves to be disqualified for his provocative tweets on J-6 or for his extended “radio-silence” on that fateful day, when he refused to address the nation until after the riot was over. But the point I am trying to make here is that it does not matter what I think — or what pundits like William Baude or Larry Tribe think — about J-6. What matters here is what the courts decide, and a court cannot decide these questions of law and fact without complying with the rudiments of due process, i.e. without at a minimum giving Trump a fair hearing.

Suffice it to say, due process is not some minor detail that we can dispense with whenever we don’t like a person or his alleged actions, no matter how heinous or evil. Why not? Because due process is the bedrock of our Anglo-American legal system. Period, full stop. Even the Nazi war criminals were entitled to due process during the Nuremberg trials.

At the end of my previous post, I mentioned that I had just finished reading Travels with Tocqueville by Jeremy Jennings. Before I had read Professor Jennings’s intellectual biography of Alexis de Tocqueville (1805–1859), I did not know much about the life or work of this 19th-century French aristocrat beyond his great treatise Democracy in America, which is available here via Project Gutenberg. I knew about this book in particular because I had attended many political philosophy and constitutional law lectures in college and law school, and many of my professors would show off their erudition by quoting often from Democracy in America. (In fact, de Tocqueville’s classic work is to this day still considered to be one of the best-ever books written on democracy, if not the best-ever written on North America.)

But what I did not know is that the United States was not the only place de Tocqueville visited or wrote about. He also visited many other places for prolonged periods of time, including Algeria (twice), England (twice), Germany, Ireland, Italy, and Switzerland, and during each of these extended visits de Tocqueville kept extensive notes of the people he met and the things he learned. I also did not know that de Tocqueville did not travel alone when he visited the United States. He was accompanied by his best friend and trusted companion Gustave de Beaumont, who is deserving of his own biography. (Among other things, Beaumont wrote a fascinating romance novel about a forbidden love affair between an idealistic young Frenchman and an apparently white American woman with African ancestry: Marie, or Slavery in the United States, which is available here (in French).)

So, how can I describe in just a few words all the things I learned from Jennings’s beautiful biography about de Tocqueville’s short life and his various voyages? One of the things I loved the most about de Tocqueville was the meticulous research he would undertake before embarking on a journey, especially his willingness to learn the language of the countries he was about to visit, but I will sum up my admiration of this remarkable French nomad by sharing my favorite de Tocqueville quote, which appears on page 234 of Travels with Tocqueville: “It is a mistake to suppose that events stay in the memory simply because of their importance or greatness: it is more often the little things that make a deep impression on the mind and stay in memory.”

Last Friday (1 Sept. 2023), a federal judge in South Florida decided that she lacks “subject matter jurisdiction” (i.e. judicial power) to decide whether Donald J. Trump is disqualified from running for president under the disqualification clause of the 14th Amendment because the plaintiffs supposedly lack “standing” to sue. (FYI: here is the court’s ruling.) But isn’t it the duty of the courts to say what the law is? Alas, the standing doctrine has become a veritable shitshow: courts have historically applied this controversial doctrine in a selective and inconsistent fashion. Be that as it may, the nationwide effort by some shadowy progressive groups to keep the former president off the ballot (see here, for example) continues to receive a lot of media attention; below are just a few of the most recent prominent examples I could find:

1. This report from today (5 September) by Maegan Vazquez (via the Washington Post).
2. Another report from yesterday (4 Sept.) by Houston Keene (via Fox News).
3. Yet another report from Friday (1 Sept.) by Erica Orden (via Politico).
4. And this report from Thursday (31 August) by Nicholas Riccardi (via the Associated Press).

So, will the metaphorical “Trump Train” even be able to leave the station? As it happens, I have been blogging about this fascinating topic since the end of last month (see here, here, and here), but I still have much more to say. Among other things, I want to explain why it must be a regular court of law or a duly-elected legislature that gets to decide whether Trump is disqualified from running for federal office. Stay tuned! I will resume my analysis of the disqualification clause in the next day or two.

PS: I also just finished reading Travels with Tocqueville this weekend and will have a few things to say about this beautiful book soon.

Via Thomas Kole, check out this reconstruction of Tenochtitlan, the awe-inspiring island-metropolis of the Aztecs: “The year is 1518. Mexico-Tenochtitlan, once an unassuming settlement in the middle of Lake Texcoco, now a bustling metropolis. It is the capital of an empire ruling over, and receiving tribute from, more than 5 million people. Tenochtitlan is home to 200.000 farmers, artisans, merchants, soldiers, priests and aristocrats. At this time, it is one of the largest cities in the world.” If I could borrow a time machine, this is the first place I would visit! Hat tip: Marginal Revolution.

I floated this idea once before: instead of celebrating just one measly day in honor of the working man, why can’t the most properous country in the world give all her workers two full weeks of paid time-off, say between Juneteenth and the Fourth of July? If necessary, we could move Columbus Day, Memorial Day, Veterans Day, and/or MLK Day into that two-week window from 19 June to 4 July to ameliorate the financial consequences of my modest proposal. Is that too much to ask?

I am sharing this particular video of Jimmy Buffet performing one of his lesser-known ballads because the first part of this film clip shows the legendary artist explaining the colorful origins of his tropical-rock composition “Cuban Crime of Passion”.