Friday Round Up! 10/13/23
If only the Framers had used a thesaurus when drafting the Constitution.
You often think that you have heard it all from Trump, or his lawyers, and then you realize you actually haven’t. A lawsuit filed in Colorado challenging Trump’s eligibility to be on the state’s presidential ballot under the Fourteenth Amendment goes to trial on October 30. The case centers around whether the events of January 6 constitute an “insurrection” for purposes of Section 3 of the amendment, which 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.
But Trump’s lawyers are arguing that Section 3 doesn’t apply to Trump, because the presidential oath of office only required him to “protect, preserve, and defend” the Constitution, not “support” it. To quote the movie Dodgeball, it’s a bold strategy, Donnie, let’s see how this plays out.
The argument that Section 3 doesn’t apply to the president has been made before, but typically it’s focused on whether the President is an “officer” for purposes of the amendment, not the wording of the presidential oath. The lawyers who argue that he isn’t an “officer” are in the minority; most constitutional scholars agree that the President is covered by the amendment. As far as the semantic argument, it seems like an uphill battle to me to argue that “protecting,” “preserving,” and “defending” are not forms of “support.” It would be also be absurd to suggest that the President could not support the Constitution and not be in violation of his oath (or, conversely, that he has license to not support it…what?).
But another compelling interpretive argument by analogy might lie in the oath administered to military officers, which was separated from the oath administered to enlisted member in 1862. Specifically, the word “defend” was added to the officer oath (which already required “support”) as a way to verify their loyalty to the republic. It would seem to me if the word “defend” was added as a way to ensure that these officers would not sympathize with or participate in the insurrection during Civil War, any oath using that word would be encompassed by Fourteenth Amendment, which was passed right after the war was over to cover the people who engaged in that same insurrection. In other words, swearing to “defend” the Constitution is, as far as the Fourteenth Amendment is concerned, the same as swearing to not engage in (or support) an insurrection. Duh.
I can’t believe this is an argument that needs to be spelled out, but, here we are. I’m sure we’ll be hearing more, er, “creative” arguments from Trump’s lawyers in the coming months. This week, Renato and I cover some of the current arguments going on in various cases in our Trump Trial Motions Grab Bag, after we discussed the Special Counsel Where Are They Now file:
Articles worth reading:
Stop what you are doing and read this (long) ProPublica piece on Leonard Leo. It’s important context for our discussion next week with Steve Vladeck about the machinations on the Supreme Court, and the the cases they are hearing are getting in front of them.
Upcoming events:
NEXT WEEK! Freedom Academy Book Club discussion with Steve Vladeck, author of The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, Tuesday, October 17, 3 p.m. EDT. Zoom link will be sent to paid subscribers at noon, and a recording of the discussion will be posting the following day. (Please check out the new Freedom Academy Book Club tab, where I will collate our book club discussions!). Zoom link will be sent to paid subscribers at noon.
Zoom Office Hours, Friday, October 27 at 9 a.m. Zoom link will be sent to paid subscribers at 6 a.m.
November 14, 2 p.m. EST: Class guest speaker Colin Clarke, Director of Research for The Soufan Group. I thought of Colin as I was writing my last post on Yevgeny Prigozhin, as he has followed and written about Prigozhin’s The Wagner Group over the last several years. He will offer some great insight connecting what we are covering in class with the war in Ukraine and Russia’s global operations.
See you all at Book Club next week!
Re Trump's lawyers creative arguments, Elie Honig said yesterday that the lawyers' motion to dismiss Smith’s federal election interference indictment on the basis of presidential immunity contains "merit and nuance. At a minimum, it raises thorny issues that will require courts to break new ground. And, while I wouldn’t quite say it’s more likely than not that Trump wins, he’s got a realistic, material chance of success. If he does prevail here, DOJ’s 2020 election fraud case is toast, and Fani Willis’s likely will be, too."
I found this persuasive. My thought was THIS is why Todd Blanche, a former AUSA in the Southern District of NY who Preet Bharara considers smart and competent, left his law firm to represent Trump. To argue this very thing.
Your thoughts?
isn't the crucial word in the amendment "engages?"