Jenna Ellis was one of the 19 co-conspirators facing felony charges in Georgia. She was an attorney and Faux News face that helped in the plot to install fake electors in Georgia and other states that would challenge the certification of Joe Biden as president-elect on January 6. You may also remember her as the one who had to endure Rudy Giuliani's farts at a hearing in Michigan.
In August, she stated on Twitter or X, or whatever it was called in August, that she would "trust the Lord," but by October she decided to trust that the Georgia justice system would be lenient if she pled guilty and promised to testify against other of her co-defendants.
Ellis issued a tearful video statement after her conviction:
Her sentence: five years probation, $5000 in restitution, community service, a written apology to the citizens of Georgia, along with the pledge to testify truthfully in others' trials.
These early flippers – now numbering four – are getting pretty good deals. If I were a co-defendant, I'd want on that bus!
Mark Meadows, T****'s seemingly unshakable-in-his-loyalty chief of staff, finally broke with his boss and cooperated with the special counsel in exchange for immunity in the election interference case. He admitted he was "dishonest" with the public about the 2020 election. He stated that he told T**** multiple times that the claims of fraud were baseless.
He lied to the public in front of cameras, and he lied in his book, "The Chief's Chief." Shame on him.
So, he has immunity in the federal case, but not in the Georgia case, where he is charged with two felony counts, the over-reaching RICO charge, and one count of Solicitation of Violation of Oath by Public Officer, which stems from the call he arranged and took part in to Georgia Secretary of State Brad Raffensperger.
I wonder if he will end up pleading guilty there.
He's not a flipper per se, but Mike Pence dropped his candidacy for president. And this means he is "just" a witness again. T**** can't talk about him without violating his gag order. And if We the People were very lucky, he would testify in open court (he has already testified in front of the federal grand jury and does not face any charges).
Speaking of gag orders, Judge Tanya Chutkan, who had suspended the gag order while she considered a stay in light of T****'s attempts to appeal the decision, has reinstated the order. And in the New York civil fraud trial, T**** was fined an additional $10,000 for violating Judge Engoron's gag order there.
Other trial news:
The Federal election obstruction case: T**** and his team are throwing out the idea that his trial should be considered double jeopardy because he was acquitted in the impeachment trial. Yeah, no. I'm not a constitutional scholar by any means, but no. Double jeopardy does not apply. That "trial" was in name only.
The Federal classified documents case: there is a hearing scheduled for this week, on Wednesday, November 1. Judge Aileen Cannon will discuss scheduling of the trial. Currently, the trial is scheduled to begin on May 20, 2024. We will see if that holds.
The New York civil fraud trial: Ivanka Trump has been ordered to testify. She doesn't want to. But she's gonna. Ivanka had not been charged in the case, but prosecutor Leticia James states she has "knowledge of facts" and should talk about them. Sure, let's hear her!
Former T**** attorney Michael Cohen testified and got raked over the coals for his previous dishonesty. He's quite a scumbag, trying to rehabilitate by speaking out all over the place about his former boss, for whom he took a fall and served time in jail. He testified about his part in inflating the property values of T****'s properties to "what ever number Mr. Trump told us."
Nothing else to report tonight. I have a feeling though, that the Bus o' Guilty Pleas will be taking on more passengers this week.
I told you in my last post about former bail bondsman Scott Hall, who pleaded guilty a couple weeks ago and worked out a deal with the prosecutor. He was the first of the 19 co-defendants in the Georgia election interference case to flip. Since then, two of the major turncoats have also decided to plead guilty and cooperate. Now they are turncoat turncoats.
You may recall that two of the inner-circle defendants, attorneys Sidney Powell and Kenneth Chesebro, had asked for and received a speedy trial and were diverted from the consolidated trial of the other 18. Their trials were due to start this month, and both took a turn.
Look at you, Sidney Powell!
First, on Thursday, attorney Sidney Powell, evil mastermind of the plot to subvert the Dominion voting machines data, decided to plead guilty to six counts.
You'll remember Powell as the one promoting conspiracy theories about the election, such as the involvement of the (long-dead) Venezuelan President Hugo Chavez. She was at that infamous Oval Office meeting that almost devolved into fisticuffs. She is a bad lady.
According to the Washington Post, the terms of her plea deal are: "six years’ probation and agreed to pay a $6,000 fine and $2,700 in restitution to the state of Georgia, turn over documents and testify truthfully in her co-defendants’ trials."
Friday, just as jury selection was underway, Kenneth Chesebro, former T**** campaign attorney, also plead guilty.
You remember that Chesebro was the mastermind behind the plot to have fake electors "certify" a win for T****. Certify this, Kenny Boy!
The terms of his plea deal are similar to Powell's. According to the Washington Post: "Chesebro pleaded guilty to a single felony count of conspiracy to file false documents and accepted a sentence of three to five years of probation, a $1,000 fine, $5,000 in restitution to the state of Georgia, an apology letter, 100 hours of community service and a promise to testify truthfully against any other co-defendants in the case, should they go to trial."
Love those last bits of the plea terms! What co-defendants might they testify against? A few other co-defendants shared the charges that the Chese-man was facing. They are campaign operative Michael Roman, lawyers Ray Smith and Robert Cheeley, and! attorneys John Eastman and Rudy Giuliani, as well as the big guy, djt himself. Powell shares charges with some of the lower-level conspirators, such as Cathleen Latham, former GOP Chair of Coffee County, Georgia, and Misty Hampton, the former elections supervisor who did Very Bad things like letting T**** people in to access the voting machines and tamper with them.
But this. This is the best co-conspirator to testify against. A tremendous co-conspirator. The best. He must be tired of winning Bigly Co-conspirator:
Inmate #P01135809
Besides being a big win for D.A. Fani Willis in getting the convictions, with these two early trials off the table, she doesn't have to yet show her hand of the evidence she has.
Chesebro gets to keep his law license, gets to serve his probation in his home area of Puerto Rico, and if he is a good boy during probation, he will have his conviction expunged under the first-offender part of the deal.
Powell's fate is trickier. She has had numerous lawsuits filed against her regarding her election interference, as well a Texas state bar lawsuit. She may be able to hold on to her legal license, but she has a lot of legal problems separate from this conviction.
You can read all about Powell's path from quiet federal prosecutor and defense attorney to convicted felon in The Washington Post.
Three down, 16 to go!
The Gags
Judges now in two cases have issued gag orders on the primary defendant.
In the Federal election interference case, Judge Tanya Chutkan placed a limited gag order last Monday, prohibiting T**** from disparaging the prosecuting attorneys, court personnel, and potential witnesses. Judge Chutkan said, "Mr. Trump is facing felony charges, and he does not get to respond to every criticism if that response could affect a potential witness. He doesn’t get to use all the words."
By Friday, she had paused the gag order while she considers the defendant's intentions to appeal the decision. She will hear arguments about the gag order and then decide if it shall remain in place while it is being appealed.
It gets sticky, because one of the potential witnesses is also a competing presidential opponent, Mike Pence. T**** should have the right to talk about his opponent. Judge Chutkan ruled that, "If Mr. Trump wants to criticize his political rival, Mr. Pence, he may do so, but he cannot make statements about Mr. Pence’s role in the events in this case."
Nevertheless, T**** is loving the fight. He immediately took the issue to his followers as a donation pitch and issued his usual blustering statement.
This is the second gag order; you'll remember the first one stemmed from his behavior during his civil fraud trial. Judge Arthur Engoron prohibited him from posting about court personnel after he truth-socialed shit about the judge's clerk.
Well! It turns out that that mean tweet was left up on his campaign website for 17 days after the judge issued the gag order and the original truth social post had been deleted. Judge Engoron fined him $5000.
And some have cautioned that the gags are an overreach and a violation of T****'s First Amendment rights. Writers like Erwin Chemerinsky in the Los Angeles Times, who called it unconstitutional, and Jonathan Turley writing for The Hill, who called for it to be struck down.
As the American Civil Liberty Union notes, however, "freedom of speech does not prevent punishing conduct that intimidates, harasses, or threatens another person, even if words are used." Freedom of speech ends when the speech interferes with others' rights. We the People have a right to a fair trial as well! Gag orders are not uncommon, and his status as a candidate should not factor in to protecting his harassing speech.
Other Trial News
The Mar-a-lago case
Co-defendant Waltine Nauta had a Garcia hearing, which considers conflict of interest issues. Nauta has retained T**** organization attorney Stanley Woodword. Woodward would be resonsible for cross-examining the third co-conspirator in the case, Yuscil Taveras. The trouble is that Woodward represented Taveras before Taveras fired him and switched to a public defender and decided to tell the truth. Judge Aileen Cannon criticized prosecutor Jack Smith's timing in bringing about the conflict-of-interest concerns. In the end, the judge ruled that Nauta could continue with Woodward despite potential conflicts of interest, and Woodward stated that he would not question current or former clients.
The New York State campaign Fraud / Stormy Daniels case
No news at this time. It's been put on the back burner so that the other cases can move forward a little more easily.
Section Three Clarification
Last time I wrote, I said that the 14th Amendment, Section Three solution was dead in the water. That wasn't quite true. There are some lawsuits that are going ahead to force the issue, and no ban on T****'s candidacy will go forward without some court decisions. The groups who are pursuing a disqualification in some states face many challenges, however, and because of that I sort of prematurely called an "out" on that play. For accuracy's sake, I'll outline what the challenges at the state level are looking like.
Minnesota: A challenge has been mounted in Minnesota by a group called Free Speech for People. Minnesota's Secretary of State Steve Simon has asserted that the secretary "does not have authority to investigate a candidate’s ineligibility." This prompted the group to pursue the state's Supreme Court to weigh in. The court ruled against T****'s direct involvement in the suit, but is allowing a pathway to allow his and his campaign's participation. Oral arguments are set to begin on November 2.
Free Speech for People has also filed a lawsuit in Michigan. It is going ahead speedily.
In addition, Free Speech for People had written letters to the secretaries of state in several other states asking for a ban, including Florida, Ohio, Wisconsin, New Hampshire and New Mexico. The secretaries have pretty much all backed away, saying they don't want to appear partisan and that it's not in their scope to determine who is and isn't eligible.
The only other serious court case that I have found going ahead is in Colorado. A group called Citizens for Responsibility and Ethics in Washington (CREW) has filed a lawsuit to prevent T**** from appearing on the ballot there. The court has repeatedly rejected T****'s efforts to shut the lawsuit down. The trial in Colorado is set to begin on October 30.
A lot has happened in the few weeks since my last post. My thoughts have been otherwise consumed. I'll try to catch up with a quick digest!
Section Three of the 14th Amendment
My last post was all about Section Three of the 14th Amendment, which mandates that no one who "has engaged in insurrection or rebellion" may "hold any office, civil or military, under the United States." Seems that the Section Three boat is dead in the water as a solution to the Orange Problem. And I understand the reasoning. There is little precendent, and there are other legal questions to be answered before action barring him should be undertaken (for example, is he an "officer" of the United States?)
He may become a more dangerous beast if anything other than voting keeps him from office, and violence could erupt if any state official kept him off the ballot. True, voting barely worked the last time, and it didn't keep violence at bay. But it's our republic's weapon, and we must use it.
Here is a very good analysis from Ruth Marcus at the The Washington Post. And Politico describes how some Democrat secretaries of state are not keen on it either. So, as elegant, interesting, and correct the idea is, it has evolved to be just a thought experiment. We have to gear up for battle at the voting booth.
T**** endorsed the idea of executing General Mark Milley
Just another day in 'murkkka. Read in The Atlantic. Disgusting.
I don't know what scares me more. That he throws these kinds of ideas out there so casually, or that his worshippers not only not budge in their support, but they lap it up.
Jim Jordan's Mouth
Jim Jordan did his mouth thing again when he demanded that Georgia prosecutor Fani Willis turn over all her evidentiary documents to Congress. And Willis shot back. Hard.
In a scathing nine-page letter to Jordan, she took him to school. First class: Constitution 101. She wrote, “Your attempt to invoke congressional authority to intrude upon and interfere with an active criminal case in Georgia is flagrantly at odds with the Constitution ... There is absolutely no support for Congress purporting to second guess or somehow supervise an ongoing Georgia criminal investigation and prosecution. That violation of Georgia’s sovereignty is offensive and will not stand." She pointedly wrote, "Your notion that different standards of justice should apply to a select group of people is offensive." And added, "those who wish to avoid felony charges in Fulton County, Georgia ... should not commit felonies in Fulton County, Georgia” and suggested that Jordan "consider directing the USDOJ to investigate the racist threats that have come to my staff and me because of this investigation." She went on to say that she will not "be bullied and threatened by Members of Congress, local elected officials, or others who believe lady justice should not be blind and that America has different laws for different citizens." Butthead. (Ok, so that was mine)
Cassidy Hutchison, former aide to T**** Chief of Staff Mark Meadows and star witness in the January 6 Congressional hearings, came out with a new tell-all book. And tell all she did! My goodness, lots of disturbing things within. I haven't read it, but the press has described a few concerning things.
Rudy Giuliani groped her at the January 6 rally.
Mark Meadows's clothing smelled like a "bonfire" after burning so many documents in his Whitewash office fireplace.
Meadows got accidentally drunk when he downed three and a half White Claws, not knowing they contained alcohol (Meadows doesn't drink).
Meadows admitted that he helped to "kill Herman Cain" by going ahead with the superspreader event held indoors in Tulsa in June, 2020.
T**** didn't like to wear masks because it smeared his bronzer. So, how many lives were lost based on that one vanity?
And speaking of Covid, after the election, precautions went out the window and visitors were allowed in the Whitewash House even if they tested positive.
T**** admitted to Meadows that he had lost the election.
The leader of the Odious Eight, Matt Gaetz, hit on her numerous times. Ewwwwww!
You can read about all that and more from Yahoo News or NY Magazineor scurry down to your local independent bookstore, buy her book, and see for yourself!
Speaking of the Odious Eight...
I don't usually address all the myriad aspects of the monkey circus that is today's Republican Party, but Matty G and his band of gormless grubs threw the House in disarray when they ousted Kevin McCarthy as Speaker. Again, another first in history.
And yet, it's not so surprising. The Odious Eight set the stage for chaos. They forced McCarthy into making tons of concessions just to get elected to the speakership after a historic 15 rounds of voting. One concession was that a single member could force a vote to remove the Speaker. And not-so-surprisingly, Kevin is blaming the Democrats for the dysfunction.
It is not clear who will take the speakership. Steve Scalise and Jim Jordan are running for the position, but it's not clear that either has the votes.
T**** has made it known that he would like the position himself, and there is nothing in the Constitution that says he can't. At least one writer, Rex Huppke from USA Today, suggests that T**** go ahead and take it. I mean, why not? It would skip a few steps. As it stands today, though, he has endorsed Mr. Sweaty himself, the foaming-mouth Jim Jordan.
And remember this about Matt Gaetz
Emma Specter in Vogue (I love that hard journalism sometimes comes from fashion magazines. Strong women, strong country!) wants us not to forget what Gaetz is all about. He is a vile, vile man.
"Word salad"
T**** has been stumping on the campaign trail, though he has skipped both of the Repug debates VP auditions.
And it hasn't gone well.
A campaign rally in the middle of last month had him fretting about Biden starting World War II, and suggested that he beat Barack Obama in the last election and is besting him in the latest polls as well.
“We would be in World War II.” Trump has lost it, he’s demonstrating how cognitively impaired he is. Watch him ramble, stumble on his words, blank out, then turn to reading the teleprompter to save himself, reading it intently. And he still misspeaks. (Video: Newsmax) pic.twitter.com/cS1GLrPHL3
And in another campaign stop, he blathered these things. Not only is it bizarre, but his speech seems dysarthric to me.
There 👏🏼 is 👏🏼 something 👏🏼 neurological 👏🏼 going 👏🏼 on 👏🏼 with 👏🏼 this 👏🏼 man.
And in the court cases:
Judge Chutkan in Washington declined to recuse herself
The tangerine turd made a bid for Judge Tanya Chutkan, who is overseeing the Federal January 6 case against him, to recuse herself. She declined.
Judge Cannon in Florida has paused the case
Judge Aileen "Loose" Cannon, overseeing the classified documents case in Florida federal court, has put a pause on proceedings while she thinks about T****'s request to extend some deadlines.
Judge McAfee in Georgia will continue to preside over the case
Judge Scott McAfee, who is overseeing the Georgia election interference case, won't need to consider a motion to move T****'s trial to federal court because T**** withdrew his bid to move it. There is speculation why he changed his mind, and Harry Litman writing in the Los Angeles Times, surmises that it's because the judge is a white former member of the Federalist Society, and T**** "may have better prospects for charming and cajoling McAfee" than Judge Steve C. Jones, who would be the one to preside in federal court, and who last month shut down Mark Meadows's bid to move his trial there.
Judge Merchan in Manhattan is mulling a motion
Judge Juan Merchan, who is overseeing the hush-money case in Manhattan, has a motion in front of him to dismiss the case. Ain't gonna happen.
Judge Engoron in New York found "overwhelming fraud"
The civil fraud case is heating up. T**** is finding himself in quite the hot soup in New York.
Judge Arthur Engoron found that the evidence of fraud by T**** and the T**** Organization was so overwhelming that he made a summary judgement that there was fraud before the trial even started. The fraudster had inflated the worth of his properties massively (for example, Mar-a-Lago's value was inflated by 2300%, and the square footage in his apartment in T**** Tower was inflated from about 11,000 square feet to 30,000 square feet) to garner improved terms from lending institutions. He lived in a "fantasy world" according to the judge.
The trial, which was lost before it started, will simply determine how much the Ochre Ogre will have to pay in fines. It could be in the hundreds of millions of dollars. He may also lose several properties. The trial started last week.
You can watch Lisa Rubin on MSNBC to get the latest developments in that trial.
Judge Engoron issued a gag order based on the egregious truth social posts. Finally! His actionopens the door to other judges deciding the same. Judge Tanya Chutkan is also contemplating a gag order.
Co-defendants in the Georgia case are starting to plead. Scott Hall, the Georgia bail bondsman who was accused of breaching voting equipment, was first. Hall pled guilty to five misdemeanor counts of conspiracy and will receive probation in exchange for his cooperation.
Since then, "a handful" of other co-defendants have been working with prosecutor Fani Willis to make deals.
Let's get that tiny-handed turncoat to the stockade -- STAT!
Thank goodness for low water pressure and strong Constitutional pipes!
It's Constitution Time!
You have seen news pop up about the Fourteenth Amendment's Section Three, which legal scholars William Baude of University of Chicago - Law School and Michael Stokes Paulsen of the University of St. Thomas School of Law have anaylzed in a brief to be published in The Pennsylvania Law Review, and which has been widely distributed. I first brought it to your attention to their brief entitled, "The Sweep and Force of Section Three" in my post of August 16, 2023 titled "⭐⭐⭐⭐." Since then, the issue has really taken off.
Today we shall dive deeper into Section Three and look at the ramifications so far.
First, a little bit about the authors William Baude and Michael Stokes Paulsen. Both are conservative constitutional scholars, and in fact both are members of The Federalist Society. Most members of The Federalist Society have major cooties, and these two may, but today they are our friends. In fact, they are quite possibly the saviors of our republic.
Baude is quoted in the New York Times about their work on Section Three, "When we started out, neither of us was sure what the answer was. People were talking about this provision of the Constitution. We thought: 'We’re constitutional scholars, and this is an important constitutional question. We ought to figure out what’s really going on here.' And the more we dug into it, the more we realized that we had something to add."
As we will see, this issue may very well reach the halls of the United States Supreme Court, and we shall see if fellow Federalist Society members Supreme Court Justice Samuel Alito, Supreme Court Justice Clarence Thomas, Supreme Court Justice Neil Gorsuch, Supreme Court Justice Brett Kavanaugh and Supreme Court Justice Amy Coney Barrett, along with Chief Justice of the United States John Roberts, who is possibly a member, agree with the pair.
Section Three of the Fourteenth Amendment reads:
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.
The authors wrote a brief 126 pages long about these 111 words. I read the whole thing – and other stuff – so you don't have to!
The brief is elegant in its simplicity and not really difficult to understand. Their analysis is broad and deep, and as far as legal writings go, it's pretty readable! I encourage you to read it here.
Let's dive in!
The authors make four points about Section Three:
1. Section Three is valid and not expired. The Constitution cannot change on a whim, nor if the circumstances prompting the adoption of the section has been resolved. In this case, Section Three was enacted as a result of the Civil War to prevent those who actively sought to tear apart the United States from gaining federal office. Though that threat has passed, the spirit of preventing people who attempt to subvert our republic from holding office lives forever. In short, the Constitution is binding.
They state, that "it is (or should be) basic constitutional law that it is the enduring text of the Constitution that supplies the governing rule, not the ostensible “purpose” or specific historical situation for which the text was written." They further point out that the Constitution does not expire. "The First Amendment is old too, as is the entire original Constitution. But both remain in force. This is true even if the purpose for which a constitutional provision was originally written has ceased to be relevant, or even if the constitutional provision at issue might be thought in today’s society to be something of an anachronism."
2. Section Three is self-executing. There is no need for Congressional action or court order. It is elegant in its simplicity. If you engaged in insurrection or given aid to those who have, then you can't hold office. Boom. Done.
The authors remind us that the Constitution is "supreme law of the land." And as such, it is there is no further legislation needed. The lawmakers that come along interpret the law according to the Constitution, not the other way around.
They also give examples of other self-executing clauses within the Constitution, such as "No person shall be ... compelled in any criminal case to be a witness against himself" or "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President."
And in fact, Section Three has been used to remove a person from office after the January 6 insurrection. The authors describe the case of Otero County, New Mexico County Commissioner Couy Griffin, the leader of "Cowboys for Trump." He was convicted of misdemeanor trespassing on January 6. He had also refused to certify the election results in his county. After his conviction he was barred from state office in New Mexico under Section Three, and the state Supreme Court upheld that decision. Side note: a Los Alamos resident was one of the three who filed suit to have him removed.
The authors note:
[Griffin] promoted, assisted, and ultimately joined in the January 6 insurrection against the Capitol. A group of New Mexico citizens filed a quo warranto action against Griffin under New Mexico law, seeking his removal from office. The New Mexico district court took evidence, received legal arguments, and then concluded that Griffin was disqualified under Section Three. More precisely, and quite correctly, it held that Griffin had been disqualified since the day of the January 6 insurrection, and ordered his immediate ejection from office, and permanently enjoined him from seeking or holding any other covered position.
They assert that those who decide such things, such as state secretaries of state and elections officials, must invalidate the candidacy of an insurrectionist. They write, "state election officials around the country would be bound by Section Three in deciding whether to put him on the ballot, even in the primary." And they conclude, "Section Three thus functions as a sort of constitutional immune system, mobilizing every official charged with constitutional application to keep those who have fundamentally betrayed the constitutional order from keeping or reassuming power."
3. Section Three supersedes any previous provisions in the Constitution that conflict with it. (I love this point; it throws a stick into the wheels of the first argument the Chief Insurrectionist will make). In other words, it supersedes the First Amendment guarantee of free speech when that speech was used in the commission of an insurrection. All the rest of the speech? Still free.
The authors quote Alexander Hamilton who wrote in Federalist Number 78. They write:
It not uncommonly happens that there are two statutes existing at one time, clashing in whole or in part with each other and neither of them containing any repealing clause or expression,” Hamilton wrote. When this occurs, the courts must determine the “meaning and operation” of the two provisions.
Hamilton articulated two principles for doing so, which work as a complementary pair. “So far as they can, by fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done”—there’s the first of the pair, but Hamilton’s sentence does not end there, but instead pauses only ever-so-briefly, with a semi-colon, before proceeding to the second rule of the pair: “where this is impracticable, it becomes a matter of necessity to give effect to one in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is that the last in order of time shall be preferred to the first.” This was, Hamilton continued, “a mere rule of construction,” but it was an appropriate one, “consonant to truth and propriety,” consistently recognized by courts as interpreters of law: that, as “between the interfering acts of an equal authority that which was the last indication of its will should have the preference.”
Hamilton went on, more famously, to explain that a different interpretive principle governed the interfering acts of a superior and a subordinate authority—and proceeded to derive the proposition customarily called “judicial review.”
But that is not the interpretive question here. Here, the key point is precisely Hamilton’s lead-in proposition: that, as between “interfering” acts of equal legal stature—the paradigm being two statutes, adopted by the same legislature, at different times—the last in time prevails to the extent of any true, irreconcilable conflict. As with statutes adopted by the same legislative authority at different times, so with constitutional provisions adopted by the same authority at different times and possessing the same legal status: By the terms of Article V, constitutional amendments are “valid to all Intents and Purposes, as Part of this Constitution,” when adopted. Thus, where We, the People, have adopted a new constitutional text “interfering” with or departing from prior constitutional provisions, the last-in-time enacted prevails to the extent of any conflict. That is the interpretive principle that governs the relationship between new constitutional language and old language from which it departs.
They give the example of the Thirteenth Amendment's ban on slavery conflicts with the Fugitive Slave Clause and therefore supersedes that part of the Constitution. Similarly, Section Two of the Fourteenth Amendment conflicts with the Three-Fifths Clause, and so the Fourteen Amendment supersedes.
"And furthermore, regarding Section Three's apparent conflicts with the First Amendment, "to the extent of any inconsistency between them, Section Three overrides, supersedes, or satisfies the free speech principles reflected in the First Amendment. That is: Whatever the correct meaning of Section Three as applied to conspiracies, attempts, incitements, and advocacy that meet the description of 'engag[ing] in insurrection or rebellion' or of giving of 'aid or comfort' to enemies of the constitutional government of the United States, the constitutional meaning of Section Three of the Fourteenth Amendment modifies or qualifies what otherwise might have been thought the dictates of the First Amendment." (italics theirs)
They give good arguments about the apparent conflicts with the First Amendment, and conclude by saying:
For those (like us) who value First Amendment liberties of speech, press, assembly, religion, and the right to dissent generally, might Section Three therefore be thought a little dangerous? Might Section Three, in the wrong hands or applied improperly, be used to suppress dissent in the name of excluding insurrectionists from office? Perhaps. We do not shy away from the point. But the supposed danger of a constitutional provision is not really an argument against its meaning. And the potential abuse of a constitutional power, privilege, or disqualification is not really a good legal argument against its existence. Section Three’s exclusion could be thought to pose a danger; but insurrection and rebellion are dangers too—all too real dangers, as recent events have shown.
4. The disqualifications are sweeping. The language is simple and clear, and allows "no person" who has "engaged" in an insurrection "or" given "aid or comfort" to others. As the authors state, "Section Three is harsh. It is categorical. It is insistent." Just what we need!
As Constitutional scholars do, they look at the dictionaries of the times, the Constitution itself, and contemporaneous usage for help in definitions, as well as a Supreme Court case and cases brought under Section Three itself. The authors break down the meanings of the words that define Section Three's disqualifications.
You will get a good history lesson reading this section of the brief, especially their analysis of the language and the previous insurrections and rebellions that the United States has endured.
The authors purport that these definitions apply to Section Three:
insurrection: concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect.
They discuss the differences between insurrection and rebellion, defining rebellion as basically a form of insurrection, where rebellion is an effort to overturn or displace lawful government authority by unlawful means.
engage in: actively involved in the planning or execution of intentional acts of insurrection or rebellion; or when one has knowingly provided active, meaningful, voluntary, direct support for, material assistance to, or specific encouragement of such actions in either words or deeds.
aid or comfort:indirect but material assistance. Such material assistance—possibly including expression supporting, encouraging, counseling, or promoting the enemy
the enemies thereof: We believe that “enemies” as employed in Section Three, embraces enemies both foreign and domestic.
The people disqualified by Section Three: looking closely at the words, the authors summarize that anyone who previously held an office that needed an oath to support the Constitution (ie, all of them) are disqualified from holding office again under Section Three if they engaged in the prohibited behaviors outlined in the Section.
I had not known about the Ironclad Oath that office holders took during 1862 to 1884. It is a list of "never-have-I-evers" that was required to be sworn to upon taking office. The authors point out that it is essentially Section Three's sentiments in a retrospective oath. Before assuming office, government officials had to swear:
I . . . do solemnly swear (or affirm) that I have never [1] voluntarily borne arms against the United States since I have been a citizen thereof; that I have [2] voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have [3] neither sought nor accepted nor attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States; that I have [4] not yielded a voluntary support to any pretended government, authority, power or constitution within the United States, hostile or inimical thereto.
Section Three seems to be this, but in a prospective form.
Finally, the authors look closely at the events surrounding January 6, and conclude, yes, it was an insurrection, maybe even a rebellion; and yes, the former president not only "engaged in" but "aided and gave comfort" to others, so it follows that Section Three of the Fourteenth Amendment of the United States Constitution explicitly disqualifies him – and many others – from holding office again. And furthermore, it's up to numerous people, from state elections officials, to presidential electors, to members of the judiciary (including the Supreme Court) to ensure that he never hold office again. It's an imperative. After all, they are all sworn to support the Constitution. The whole Constitution.
In summary, the authors conclude:
It is enforceable by anybody whose duties provide occasion for judging legal eligibility for office. Indeed, each of these actors has a duty to faithfully apply Section Three. All possess legitimate constitutional interpretive authority to construe and apply this constitutional prohibition, many of them independently of other actors, including courts. ...
No official should shrink from these duties. It would be wrong – indeed, arguably itself a breach of one’s constitutional oath of office—to abandon one’s responsibilities of faithful interpretation, application, and enforcement of Section Three. It is wrong to shrink on the pretext that some other officials may or should exercise their authority—as if one’s own constitutional obligations cease to exist if others fail to act. And it is wrong to shrink from observing, and enforcing, the Constitution’s commands on the premise that doing so might be unpopular in some quarters, or fuel political anger, or resentment, or opposition, or retaliation. The Constitution is not optional and Section Three is not an optional part of the Constitution.
Yes, it's all so obvious, but it's delightful to read it laid out so cuttingly in this legal brief.
So, what to do with this news?
Run with it!
Soon after the brief appeared online, an attorney in Florida filed a lawsuit to disqualify him from the ballot.
In Colorado, watchdog group Citizens for Responsibility and Ethics (CREW) filed a lawsuit on behalf of some voters this week seeking to bar T**** from appearing on their ballot. T**** wasted no time in responding, asking the courts to move the case to federal court.
It will take only a couple swing states to keep him off the ballot to keep him out of our hair. And bonus: more lawsuits mean more of the orange one's resources are being eaten up. On second thought, that's not a bonus. Much of his legal money comes from people who can't afford to bankroll his legal woes but they do so anyway. If it meant T**** was selling off gold toilets, then I would rejoice that aspect.
So what about practically in the 21st Century, in a divided nation, and a bonkers right wing? This is the wild card. T****'s cult will not be happy with secretaries of state and others deciding to leave him off the ballot. Cases will be filed in court, and it will go to SCOTUS to decide. It's glaringly obvious that this constitutional mandate must be honored. What the MAGAts do once it's decided? We shall see.
Other Tidbits in the News this Week
Mark Meadows's bid to move his case to federal court was denied. Nyahh-nyaaah!
Lindsey Graham and a couple state senators were recommended to be charged by the Georgia grand jury. Save your tears, Miss Lindsey!
The grand jury for the January 6 charges has reconvened in Washington. Will new charges be brought?
Former T**** adviser Peter Navarro was found guilty of contempt of Congress after refusing to comply with a subpoena to appear before the January 6 committee. His former boss is reportedly "really really upset" at the news. Awwww pobrecito!
Remember that video tech guy who monitored the cameras at Mar-a-Lago? You'll recall that Yuscil Taveras, aka “Trump Employee 4” was asked by his boss to "delete the server." Well, he changed attorney from a T**** PAC-paid-for lawyer to a public defender, and he decided to change his testimony and implicate T**** in the scheme. Flipper strikes again!
It has been a legalrrific week! There have been developments in multiple areas in the cases against djt and his co-conspirators.
Monday August 28 was a busy day for parallel court hearings.
Judge Tanya Chutkan set the federal trial for the attempted coup for March 4, 2024.
There was quite a bit of yelling and faux outrage from T****'s lawyer John Lauro, prompting the judge at one point to admonish him to "take the temperature down."
Lauro wanted the trial date to be moved to 2026, which she found was "absurd." Despite her asking Lauro numerous times to provide a suggestion for an alternate date, he refused to do so, insisting that the 2026 date was the only acceptable time. In the absence of any other suggestion from him, Chutkan gave him two additional months, moving the start date from January to March 4, 2023. This is the day before Super Tuesday.
Lauro's outrage stemmed from the "massive amounts" of discovery in the case. The prosecution countered with the fact that much of the evidence has been in the public record for more than a year (such as that from the January 6 Congressional hearings), and that the defendant lived through the events, so there is little discovery per-se. Besides that, the prosecution has provided the defense with the evidence in an organized, searchable database. It's not like on the Cold Case Files where there are boxes and boxes of evidence to sort through. Perhaps T****'s only point of reference is the boxes in his bathroom.
The prosecution has also shown how they'll use the defendant's and his team's words against them. It came out that Lauro has said in TV interviews that the evidence is "a regurgitation of the J6 committee report" and, "we are not starting fresh from indictment in this case." Lauro has also said publicly that he has read former Vice President Mike Pence's book twice. No time to prepare, huh?
Lauro tried to convince the judge that his client would be much too busy campaigning to take part in such a little thing as a criminal trial. But she pushed back: all defendants are busy, and their schedules are irrelevant. Be here on March 4.
One super-duper offensive, gross, inappropriate, and effed-up citation that Lauro made in his bid to delay the trial, was comparing T****'s case to that of the "Scottsboro Boys." This 1930s case surrounded the false rape allegations and railroading trial against black teenagers in Scottsboro, Alabama. Within two weeks of arrest they were put on trial and sentenced to death. The Supreme Court later reversed their convictions.
The audacity to cite this case to Judge Chutkan! She was not pleased, and shoved back, pointing out (from MSNBC):
The young Black defendants in that case “were met at Scottsboro by a large crowd and that the attitude of the community was one of great hostility.”
Their trials “began six days after indictments.”
The Supreme Court found “a clear denial of due process because the trial court failed to give the defendants reasonable time and opportunity to secure counsel and the defendants were incapable of adequately making their own defense.”
That Trump’s case, “for any number of reasons, is profoundly different from Powell.”
Chutkan also talked to Judge Juan Merchan, who is overseeing the New York case that surrounds his false business reporting of payments to Stormy Daniels, about the schedule. That trial has been set for March 25, 2024. March will be busy for us!
By the way, Judge Merchan is another immigrant judge. Go, Melting Pot!
Meadows made a bid to move his case to federal court.
Also Monday, U.S. District Court Judge Steve Jones in the Northern District of Georgia heard arguments about Meadows's desire to move his case from the state of Georgia to the federal court.
Meadows waived his Fifth Amendment rights and testified in this hearing. He was on the stand for four hours! It was an unusual move for him to testify, and his assertion was that his actions in "questioning" the results in Georgia were "official capacity as chief of staff."
To rebut this, the judge asked the question of what actions would test the limits of this capacity. Meadows lawyer George Terwilliger admitted, "But if he shot a demonstrator in Lafayette Park, that would obviously be outside the scope of his duties."
Yeah no.You can't break the law under color of your job.
Georgia Secretary of State Brad Raffensperger testified as well. He characterized the telephone call as "a campaign call," and stated that he didn't return an earlier call from Meadows because he felt it was inappropriate to talk about the Georgia election with the Whitewash House.
Why does Meadows want to move his case? According to CNN, moving the case to federal court is "where he hopes to get the charges dismissed under a federal immunity claim extended, in certain contexts, to individuals who are prosecuted or sued for alleged conduct that was done on behalf of the U.S. government or was tied to their federal position." He also is possibly angling for a better jury – he needs just one MAGAt – from the jury pool in the more conservative federal district court.
Jennifer Rubin of the Washington Post opines that Meadows has made a risky move and that it may backfire. He outright said under oath that it was his duty as chief of staff to "make sure those campaign goals and objectives are implemented at the federal level." Which is, actually, opposite of what the Hatch Act says. He is not allowed to take part in the campaign. Furthermore, he admitted to sending "a text message to a Georgia election official asking if the state could speed up the ballot signature-matching process if the Trump campaign paid for it." No, no. Not allowed! There is also evidence that he was involved in the phony elector scheme. Not part of any chief of staff's duties.
Why do we care about the Hatch Act? Read AP's Q&A.
Rubin points out that his testimony not only will not help him get his case moved, but gave D.A. Fani Willis more ammo to convict him, home court or not.
The judge did not making a ruling on the motion, and Meadows – along with the rest of the co-conspirators – is due to be arraigned on Tuesday, September 6. We'll see if the ruling comes before then.
Other Court Stuff.
Defendant Kenneth Chesebro, whose trial got moved to October 23 per his request for a speedy trial, made a motion for records to be unsealed.
Rudolph Giuliani was found liable for defaming Georgia elections workers Ruby Freeman and Shaye Moss. A judge decided the case, because Giuliani did not comply with orders to submit evidence. A jury will now decide how much he is to pay them.
Georgia defendants Sidney Powell, Trevian Kutti, and Ray Smith have waived arraignment and pled not guilty to all charges.
What to watch next? Arraignment in the Georgia case for the ringleader and the rest of the co-conspirators will be in just a few days, on Tuesday, September 5.
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