Let’s Fisk The Hill’s Garbage Column Claiming that Trump Could Still Be Disqualified by Congress

The other day, we covered The Hill’s garbage column on how allegedly Congress can still disqualify Trump under the Fourteenth Amendment and prevent him from becoming President, again. And I was annoyed enough with all the bad legal arguments they made, that I wanted to cook up a good old fashioned Fisking, just like Mom used to make.

So, let’s set the table a little bit, shall we?

To review, Section 3 of the Fourteenth Amendment says the following:

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 Congress may by a vote of two-thirds of each House, remove such disability.

So, if you have previously taken the oath of office for certain offices (and it is not clear that the presidency counts), and you commit insurrection (more or less), you cannot take various offices in the future (which also might not include the presidency), unless Congress removes the disability by a vote of two-thirds of both houses.

As regular readers know, the Colorado Supreme Court ruled that Trump was disqualified under this provision, but the United States Supreme Court intervened and ruled that no mere state official has the power to disqualify people from holding federal office, and only Congress can disqualify such persons, by passing a law. I dove deep into that decision, here.

First, editor-in-chief of the Yale Law Journal isn’t terribly impressive in my book. I am a graduate of Yale Law School, and one gets into the Yale Law Journal primarily by being good at spotting typos and knowing how to use proper proofreading marks. Those are useful skills, but don’t reflect very strongly on your legal acumen. And getting to be the editor-in-chief is mainly politics which in college means mainly popularity. I think some people think that this reflects on their academic credentials, but most students don’t know anything about each others’ credentials—especially at Yale Law, where all courses are graded pass/fail.

So, a thing like being editor-in-chief of the Yale Law Journal looks great on a resume to people who don’t know how it actually works, but it means little to me. And I don’t have any direct knowledge of the Columbia Law Review, but I wouldn’t be surprised if they operate in a similar manner. Bluntly, this kind of credential never impressed me. I take a similar attitude about being president of the New York City Bar: It’s politics. Clerking for a Supreme Court justice is more impressive, but I find it the most telling that Davis still sees himself as a lawyer, and Schulte doesn’t.

But then again, even a complete layperson with no official legal training can make a good and cogent legal argument. So, let’s get down to Fisking this argument:

First, they start out telling you how truly insurrectiony an insurrectionist Trump is:

The evidence of Donald Trump’s engaging in such insurrection is overwhelming. The matter has been decided in three separate forums, two of which were fully contested with the active participation of Trump’s counsel.

Wow, three forums? Well, I am sure those decisions are going to be incredibly impressive. Let’s see what they say next:

The first fully contested proceeding was Trump’s second impeachment trial. On Jan. 13, 2021, then-President Trump was impeached for ‘incitement of insurrection.’

That’s right, they are bringing up the impeachment trial … when they lost. And that was at a point in time when tempers were still pretty hot about the whole thing. We all know that many Republican Congressmen who were furious at Trump immediately after January 6, 2021, have gained more perspective since then.

And the fact that a majority of senators voted to remove Trump at his second impeachment trial isn’t relevant, either. As you probably know, you need two-thirds of the senators to remove a president and you always have to wonder if some of the people voted to convict, not because they actually believed he deserved to be convicted but because they knew Trump wasn’t going to be convicted and wanted to seem more ‘anti-Trump’ or ‘anti-insurrection’ for various political reasons.

And let me tell you something most good lawyers know about making an argument. Investment bankers might not know about this, but good lawyers know that you always try to put your best argument first. So, they seem to think their best argument is a trial where they lost.

And in the same spirit, I will take the decisions they cite out of order and jump to the third one next:

Finally, there is the bipartisan inquiry of the House Select Committee to Investigate the January 6th attack on the United States Capitol.

That’s right, they are citing the inquiry of the House Select Committee, where Trump had essentially no power to defend himself and everything was run by Trump haters. What a joke.

And the final forum (still taking things out of order from the column) where Trump was found to be a insurrectionist is the closest to a serious citation: The decision of the Colorado Supreme Court. Except as I showed you, the Colorado Supreme Court had to engage in outright deception in order to make its case.

Furthermore, while Trump was given an official right to be heard in Colorado, Trump’s team argued that he was not given a meaningful opportunity to be heard and that the lower court allowed for evidence to be admitted that they shouldn’t have. In other words, he claimed that the Colorado courts violated his rights under the Due Process Clause. Now, all of those arguments were rendered irrelevant when the (U.S.) Supreme Court ruled in his favor on the more basic issue of whether or not a state could do this at all, but the legal effect is that all of the proceedings in Colorado were rendered a nullity. As far as the law is concerned, the Colorado state court decisions never happened, including that of their state supreme court.

You see, what this lawyer and investment banker are trying to do is invoke a doctrine called ‘collateral estoppel.’ It basically means that when a specific factual question is decided by one court, it can’t be re-litigated in another one (with them pretending that Congress is another court). Let me give you a hypothetical example of this.

Let’s say for instance I referred to Dzhokhar Tsarnaev as a murderer, and the perpetrator of the Boston Marathon bombing. Then imagine Tsarnaev sues me for defamation. Well, what I can do is I can cite his conviction for crimes related to that bombing to establish that in fact he carried out this fatal attack. Because he was convicted of this, he would no longer be allowed to claim he was not the Boston Marathon bomber, and, based on that ruling, the judge would dismiss the case because I would have absolutely established the defense of truth. That’s how collateral estoppel works: Tsarnaev doesn’t get to re-litigate whether or not he committed that horrific bombing. As long as his conviction stands, the law will always see him as the Boston Marathon bomber.

(And it doesn't have to be a conviction, but it would have to at last be a civil case, decided by the usual preponderance of the evidence standards.)

These two writers seem to be trying to say that since Trump was ruled an insurrectionist in Colorado, that collateral estoppel should apply in Congress: Trump can’t deny he is an insurrectionist. But any lawyer—but maybe not an investment banker—would know that the Colorado decision cannot be used for collateral estoppel purposes because the decision was vacated. And this is not merely a technicality. As I mentioned, Trump had meritorious due process challenges to the finding that he committed insurrection. Indeed, I think the Colorado Supreme Court violated Trump’s First Amendment rights. The Supreme Court didn’t need to rule on those issues, because it decided that Colorado had no right to decide these questions at all. But if the (U.S.) Supreme Court had reached those issues, they might have ruled in Trump’s favor. That is why the decision cannot be used for collateral estoppel.

So, their claim that he was already found to be an insurrectionist was itself garbage.

Still, they go on, trying to explain what exactly Trump did that was so insurrectiony:

The inescapable conclusion of this evidence...

Except I found it very easy to escape from, but do go on:

...is that Trump engaged in insurrection against the Constitution. In particular, Trump unlawfully demanded that his vice president, Mike Pence, throw out votes in the Electoral College for political opponent Joe Biden, a power he did not have.

Yes, that’s right, Trump committed insurrection … by making a legal argument that they think was wrong. Again, they seem to think this is the strongest argument, which is why they put it first.

Of course, since they are making several legal arguments that are also wrong, to try to overturn an election, I suppose this lawyer and investment banker are also insurrectionists by their own dumb logic. The funny thing is when I was growing up, I thought the right to obtain counsel who would make your case was vital to democracy. Yes, there were some ethical limitations on the arguments you could make but Democrats seem to have given up this belief entirely, believing certain people or certain causes have no right to be represented.

But it gets worse! They have more evidence of how insurrectiony an insurrectionist Trump is. Get your fainting couches ready, because this is a doozy:

While the riot was in progress, Trump used Pence’s rejection of his demand to further enflame the crowd and cause them to chant ‘Hang Mike Pence!’

To prove Trump did this, they cite a Tweet Trump allegedly posted on Twitter saying:

Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!

I haven’t been able to independently verify this Tweet is genuine. But, as you remember Twitter pulled some shenanigans at this time, ultimately suspending Trump’s account, so it is possible that he wrote it and Twitter removed it or forced it to be removed. Still … it sounds like the sort of thing Trump would post and more importantly, even if he wrote this, this is not a crime let alone insurrection.

I won’t go over the law of incitement again. Feel free to go here if you are inclined, where I talked about whether or not Trump committed incitement on January 6, 2021. But the most basic requirement in the law is that Trump has to advocate for violence or lawlessness, and that doesn't come close to cutting it. That is petitioning a member of the government for a redress of grievances, which is something the First Amendment specifically allows for.

Alas, they go on:

Some will argue that the Supreme Court decision in the Colorado case, Trump v. Anderson, precludes Congress from rejecting electoral votes when they convene on Jan. 6, on the basis of 14th Amendment disqualification.

If by ‘some people’ they mean every level-headed and rational lawyer who has read the decision, they would be correct.

This view lacks merit for three reasons.

Do tell. I’m sure this will be good.

First the majority’s suggestion that there must be new implementing federal legislation passed pursuant to the enforcement power specified in the 14th Amendment is what lawyers call dicta. Dicta are the musings of an opinion that are not required to decide the case. The holding that Section 3 is not self-executing may be an alternate holding, but thoughts about the kind of implementing statute required are plain dicta. Dicta are not precedential. The four dissenters strenuously objected to this part of the opinion as overreach to decide a question not presented. This overreach is a power grab which Congress is not required to credit.

First, that is mostly, arguably true … if you assume that the courts won’t get involved in this controversy and they most certainly will. I wouldn’t be surprised if someone in Team Trump has already drafted the bones of a complaint if anyone tries anything during the process of certification.

But let’s dig deeper into what I mean:

First, I say it is only mostly arguably true because they misrepresented the decision, though I tend to think this was just an oversight. The Supreme Court didn’t say that ‘there must be new implementing federal legislation’ (emphasis added). In fact, the Supreme Court cited old legislation that requires a criminal conviction for, more or less, rebellion.

Now, as a practical matter, they would need new legislation, because … Trump wasn’t even indicted for rebellion, let alone convicted and any lawyer who knows the law of incitement knows that Trump is innocent as a matter of law. So the ship has said on using any current law.

Second, while dicta is not binding on a future court of equal power, this lawyer and investment banker will still find themselves in the position of hoping that the five justices who already told us how they would rule in the future will change their minds. They won’t. Indeed, Barrett didn’t want to tell us how she would vote in the future, but she might very well vote with the majority. Furthermore, lower courts acting in good faith (or just seeing the writing on the wall) will not pretend that they shouldn’t follow this dicta. And if the lower courts don’t fall in line, the Supreme Court can intervene very quickly—especially since they have basically already ruled on the subject.

Then we get to the second argument for why they claim that the Supreme Court ruling isn’t binding:

Second, counting the Electoral College votes is a matter uniquely assigned to Congress by the Constitution. Under well-settled law this fact deprives the Supreme Court of a voice in the matter, because the rejection of the vote on constitutionally specified grounds is a nonreviewable political question.

Except that’s not entirely true. Congress has to at least cite the proper reason, and the Supreme Court has already told them they can’t enforce Section 3 of the Fourteenth Amendment, except by legislation.

What they are trying to do is do a bit of a head fake on you. First, they are trying to confuse you on what the term ‘political question’ means. There is a doctrine that says that certain question are dedicated to the other branches, but it takes more than the issue merely being political—because arguably every great constitutional question is ‘political’ in some sense of the word. What the Supreme Court means is that specific issues are assigned to another, ‘political’ branch of the government (the Supreme Court pretending that the courts aren’t political). A classic example of this, is determining when a war starts—the courts don’t make that determination, the other ‘political’ branches do.

And the question of whether or not a person has committed insurrection is unlikely to be held to be a political question. One of the leading cases discussing this doctrine is Baker v. Carr, 369 U.S. 186 (1962), where the Court wrote that:

We have said that ‘In determining whether a question falls within [the political question] category, the approriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.’

First, there is easily satisfactory criteria for judicial determination and Congress clearly thought there was, because Congress has passed laws making insurrection a crime and requiring the Courts to figure out whether or not a person has committed that crime. Second, nothing in the language of the Fourteenth Amendment suggests that Congress must have the final say on that factual question. So, the political question doctrine doesn’t apply.

Next, they try to claim that there is in fact implementing legislation:

Third, specific legislation designed for this situation already exists. The Electoral Count Act was first enacted in 1887 and later amended and restated in 2022. That statute provides a detailed mechanism for resolving disputes as to the validity of Electoral College votes.

The act specifies two grounds for objection to an electoral vote: If the electors from a state were not lawfully certified or if the vote of one or more electors was not ‘regularly given.’

So, they go on to claim that since no elector can vote for a disqualified candidate for president, that this means that the results were not lawfully certified or that the votes were not regularly given.

Except the Fourteenth Amendment doesn’t say you can’t vote for a disqualified individual, even as a member of the electoral college. What it says is that the insurrectionist can’t hold office. If Jefferson Davis himself had attempted to run for President of the United States, the Constitution wouldn’t say he can’t even run for federal or state office: He just can’t take office, even if he wins, unless Congress removes that disability. That makes disqualification based on insurrection different than, say, disqualification based on age or not being a naturally born citizen.

Indeed, it is the fact Congress can make an exception that makes it clear that they can’t disqualify Trump using this procedure. The Constitution specifically imagines a scenario where an insurrectionist wins the presidency, and is allowed to take office anyway, because Congress voted to wave the constitutional rule. I mean, fat chance of this happening for Trump, if he was determined to be an insurrectionist, but the rule obviously contemplates that possibility. After all, even the Founders of the Fourteenth Amendment recognized that sometimes insurrection was fully justified: Our country was literally founded by insurrectionists and the Fourteenth Amendment's authors had a soft spot for slave revolts, too.

But here’s also the big picture problem Democrats have in trying to use the Courts to try to go after Trump: Trump is the salvation of the Courts. I have talked a lot about how Democrats are out to bully the Supreme Court by threats of ‘reforms’ such as court-packing. When I made a ‘free VIP’ post arguing against the election of Kamala Harris, I pointed out that if she won the election, the Supreme Court could at least look forward to four more years of the president using the threat of court packing to try to bully them. So as an institution, the Supreme Court—particularly the most conservative members of it, including Roberts—has a vested interest in making sure Trump is president.

‘But Aaron!’ you might say, ‘are you saying the Supreme Court would be biased in favor of Trump?’ What I am saying is that every conservative justice and any justice who cares about the institution of the Supreme Court as an independent check on the other two branches has a vested interest in Trump’s election. And if any justice is 1) not conservative and 2) not interested in protecting the Supreme Court as an institution, she has a vested interest in the election of Harris. In other words, all 9 justices have a bias of some kind, either for Trump or for Harris. When a Supreme Court justice has a bias, it is their ethical duty to recuse themselves… but there is a big exception: When the entire Court has a bias—which is what they have, here—none of them have to recuse themselves.

So, it doesn’t mean they have to recuse themselves, but the bias is still there. Democrats have made themselves the enemies of every Supreme Court justice who believes the Supreme Court should be a check and/or balance on the excesses of the other two branches—and every justice who just wants the Supreme Court to remain conservative. And so if Congress truly attempted to rule that Trump was disqualified, then there would be a Supreme Court all too eager to overrule them and make Trump president. And I don’t think Americans would see that decision was nakedly political, because the American people have clearly rejected the claim that Trump is disqualified from holding office, by giving him a victory in the popular vote, too. The American people would see this as the Supreme Court stopping so-called Democrats from overturning an election.

And then finally, all of this reaches its dumb end:

The unlikelihood of congressional Republicans doing anything that might elect Harris as president is obvious. But Democrats need to take a stand against Electoral College votes for a person disqualified by the Constitution from holding office unless and until this disability is removed. No less is required by their oath to support and defend the Constitution.

So, after all of this, they are admitting that they have no chance to actually win on this issue. So, they want Congresscritters to take a ‘moral’ but meaningless stance. Sure, go ahead Democrats. Show us again just how hypocritical you are, claiming Trump’s election challenges were insurrections, but yours are somehow saintly. Go on telling us you believe in democracy, while denying the presidency to the man who won the popular vote. I can’t wait.

Still, I wouldn’t be surprised if some Democrats, encouraged by this column in The Hill or operating on some other dumb theory, makes a futile attempt to disqualify Trump. So … I suppose I should say tune in to Twitchy for coverage of whatever dumb thing they try. I honestly feel almost certain that they will try something.

And it is worth noting that while Kamala Harris is the one to certify the election, the same statute doesn’t give her the power to contest it. From the statute:

The President of the Senate shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors.

In this context, the President of the Senate is the Vice President, meaning Harris in 2024, and Pence in 2021. This was added after the 2020 election, to make it clear that the Vice President can’t do … basically what Trump wanted Pence to do.

Which to circle back, undermines the claim that Pence couldn’t have done it on January 6, 2021. If the law was clear on this point, then they wouldn’t need to ‘clarify’ it?

But the upshot is that Harris will have to certify that Trump is the President of the United States. I have no idea if she will do so while sober, so that might be another reason to tune in to Twitchy on January 6.

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