Original Meaning of the Disqualification Clause

Steven Portnoy at ABC:

In 2024, the originalists on the Supreme Court will likely seek to determine whether the ratifiers could have had it in mind 158 years ago that Sec. 3 might not only be applied to the "late insurrection," as the House-passed version originally had it, but also to any other rebellion that might later take place.

But originalists might take note of what Sen. Peter Van Winkle of West Virginia said as he sought to have the threshold for congressional amnesty in Howard's version lowered to a simple majority, rather than two-thirds.

"This is to go into our Constitution and to stand to govern future insurrection as well as the present; and I should like to have that point definitely understood," Van Winkle said at the time.

It's also worth noting that there was just a single reference in the Senate debate to the fact that the president and vice president were not explicitly mentioned in Howard's draft as "officer(s) of the United States," the way members of Congress and state officials had been itemized in the text. Would the disqualification clause of the amendment not cover the top posts in the executive branch?

"Why did you omit to exclude them?" asked Maryland Democratic Sen. Reverdy Johnson.

Maine's Lot Morrill jumped in to clarify.

"Let me call the Senator's attention to the words 'or hold any office, civil or military, under the United States,'" Morrill said, ending the discussion on that point.

Withdrawing from a Treaty

 Gary J. Schmitt at AEI:

Arguments have been made that Congress must approve such a decision or that the Senate, given its role in sanctioning a treaty, should also have a say in terminating that pact. Yet presidents acted on their own in the two most recent decisions to end America’s adherence to a security-related treaty. In late 1979, President Jimmy Carter announced that the 1954 security accord with the Republic of China (Taiwan) would end on January 1, 1980. And then, in December 2001, not long after 9/11, George W. Bush announced that the U.S. was pulling out of the Anti-Ballistic Missile Treaty.

Carter’s decision did not go unchallenged. Republican Sen. Barry Goldwater filed a lawsuit in federal court arguing that treaty termination required Senate concurrence. Eventually, the case made it to the Supreme Court, where six of the nine justices ruled that it should be dismissed, with no hearing or oral arguments required. Justice William Rehnquist, concurring with that judgment, issued a statement along with three other justices that said the issue at hand was a political question—a dispute between Congress and the president over how foreign affairs should be conducted—and, therefore, not something for the court to decide. It was up to Congress to defend its claimed prerogatives. Justice Lewis Powell also concurred in the decision, but argued in a separate statement that the case might in fact have been one for the court to hear if the Congress had acted as a whole by passing a resolution formally opposing Carter’s decision.

Goldwater v. Carter (1979) undoubtedly influenced how Congress reacted to Bush’s decision to pull out of the ABM Treaty two decades later. While there were certainly Democrats who criticized the decision, the party itself was in the minority in the House and held a slim, one-vote margin in the Senate. With the precedent of Goldwater v. Carter, individual members stood no chance of contesting the White House in court and, just as importantly, they lacked the political wherewithal to challenge the decision by passing a resolution that the court might have then taken cognizance of.

J6 Was an Insurrection

 The Colorado Supreme Court ruled that, under section 3 of the 14th Amendment, Trump is ineligible to be on the Colorado presidential primary ballot.  

Although we acknowledge that these definitions vary and some are arguably broader than others, for purposes of deciding this case, we need not adopt a single, all-encompassing definition of the word “insurrection.” Rather, it suffices for us to conclude that any definition of “insurrection” for purposes ofSection Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country. 100 The required force or threat of force need not involve bloodshed, nor must the dimensions of the effort be so substantial as to ensure probable success. In re Charge to Grand Jury, 62 F. 828, 830 (N.D. Ill. 1894). Moreover, although those involved must act in a concerted way, they need not be highly organized at the insurrection’s inception. See Home Ins. Co. of N.Y. v. Davila, 212 F.2d 731, 736 (1st Cir. 1954) (“[A]t its inception an insurrection may be a pretty loosely organized affair. . . . It may start as a sudden surprise attack upon the civil authorities of a community with incidental destruction of property by fire or pillage, even before the military forces of the constituted government have been alerted and mobilized into action to suppress the insurrection.”). 

¶185 The question thus becomes whether the evidence before the district court sufficiently established that the events of January 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country. We have little difficulty concluding that substantial evidence in the record supported each of these elements and that, as the district court found, the events of January 6 constituted an insurrection. 

¶186 It is undisputed that a large group of people forcibly entered the Capitol and that this action was so formidable that the law enforcement officers onsite could not control it. Moreover, contrary to President Trump’s assertion that no evidence 101 in the record showed that the mob was armed with deadly weapons or that it attacked law enforcement officers in a manner consistent with a violent insurrection, the district court found—and millions of people saw on live television, recordings of which were introduced into evidence in this case—thatthe mob was armed with a wide array of weapons. See Anderson, ¶ 155. The court also found that many in the mob stole objects from the Capitol’s premises or from law enforcement officers to use as weapons, including metal bars from the police barricades and officers’ batons and riot shields and that throughout the day, the mob repeatedly and violently assaulted police officers who were trying to defend the Capitol. Id. at ¶¶ 156–57. The fact that actual and threatened force was usedthat day cannot reasonably be denied. 

¶187 Substantial evidence in the record further established that this use of force was concerted and public. As the district court found, with ample record support, “The mob was coordinated and demonstrated a unity of purpose . . . . They marched through the [Capitol] building chanting in a manner that made clear they were seeking to inflict violence against members of Congress and Vice President Pence.” Id. at ¶ 243. And upon breaching the Capitol, the mob immediately pursued its intended target—the certification of the presidential election—and reached the House and Senate chambers within minutes of entering the building. Id. at ¶ 153. 102 

¶188 Finally, substantial evidence in the record showed that the mob’s unified purpose was to hinder or prevent Congress from counting the electoral votes as required by the Twelfth Amendment and from certifying the 2020 presidential election; that is, to preclude Congress from taking the actions necessary to accomplish a peaceful transfer of power. As noted above, soon after breaching the Capitol, the mob reached the House and Senate chambers, where the certification process was ongoing. Id. This breach caused both the House and the Senate to adjourn, halting the electoral certification process. In addition, much of the mob’s ire—which included threats of physical violence—was directed at Vice President Pence, who, in his role as President of the Senate, was constitutionally tasked with carrying out the electoral count. Id. at ¶¶ 163, 179–80; see U.S. Const. art. I, § 3, cl. 4; id. at art. II, § 1, cl. 3. As discussed more fully below, these actions were the product of President Trump’s conduct in singling out Vice President Pence for refusing President Trump’s demand that the Vice President decline to carry out his constitutional duties. Anderson, ¶¶ 148, 170, 172–73. ¶189 In short, the record amply established that the events of January 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country. Under any viable 103 definition, this constituted an insurrection, and thus we will proceed to consider whether President Trump “engaged in” this insurrection. 

Historical Figures Who Outlived JFK

Today is the 60th anniversary of the assassination of John F. Kennedy. It is fascinating to consider some of the historical figures who outlived him.  The point here is not to satisfy a morbid curiosity, but to make a point about history.  "The past is never dead," William Faulkner wrote, "It's not even past."  Memories of the past shape current events, and people who took part in historic events often live long enough to reshape those memories.

Just hours before he died, Kennedy called former vice president John Nance Garner (who served under Franklin Roosevelt from 1933 to 1941) to wish him a happy 95th birthday.  Here are other major figures who were still alive on the fateful day:

• Winston Churchill (d. 1965)
• Charles deGaulle (d. 1970)
• Herbert Hoover  (d. 1964)
• Harry Truman  (d. 1972)
• Dwight Eisenhower (d. 1969)
• Douglas MacArthur (d. 1964)
• Gen. Bernard Montgomery (d. 1976)
• Adm. Chester Nimitz (d. 1966)
• Hellen Keller (d. 1968)
• Margaret Sanger (d. 1966)
• Upton Sinclair (d. 1968)
• Norman Thomas (d. 1968)
• John Steinbeck (d. 1968)
• Bernard Baruch (d. 1965)
• Joseph P. Kennedy (d. 1969)chu

Debate on the Pardon Power

DW Buffa at Brookings, 2018:

On the afternoon of Wednesday, June 18, 1788, George Mason rose from his chair on the floor of the Virginia Ratifying Convention deeply troubled by what he thought of the convention’s failure to understand—the president of the United States might not always be someone of sound character and high intelligence. There would rarely, if ever, he reminded the delegates, be a commander in chief with the courage and rectitude displayed by George Washington during the War of Independence. There might even be a president who would try to change our form of government. The president, argued Mason,

“ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection? The case of treason ought, at least, to be excepted. This is a weighty objection with me.”

Some of the most famous men in American history were there that day as delegates to the Virginia convention. Patrick Henry, afraid that a national government would destroy the states, was leading the fight to reject the Constitution. John Marshall, who, as Chief Justice of the Supreme Court, would do more than anyone to make the Constitution the foundation for the kind of strong national government Henry feared, was one of the leaders in the fight to ratify it. But there was no one—no one in Virginia, nor in the country—with a deeper understanding of the Constitution and what it meant than James Madison.

Madison understood immediately the force of Mason’s objection, but he had a response—a response in which he described limitations on presidential power that, to our great misfortune, have for too long been forgotten. Was there a danger in giving the president the power to pardon? “Yes,” replied Madison, but there was a remedy for the danger in the Constitution as drafted.

“There is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty.”

The Presidential Oath and Supporting the Constitution

Asha Rangappa:

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?).

Shutdowns

 Previous posts have discussed government shutdowns.  Another one looms.

The U.S. is on the verge of a 22nd government shutdown in five decades, with Congress facing a Sept. 30 deadline to pass appropriations bills to fund the government. https://t.co/nw6ktYazQX

— Axios (@axios) September 24, 2023

Biden on Executive Power

Miles's Law: where you stand depends on where you sit.  

Charlie Savage,   Maggie Haberman and Jonathan Swan at NYT:

If he is elected to a second term, President Biden pledged that he will go to Congress to start any major war but said he believed he was empowered “to direct limited U.S. military operations abroad” without such approval when such strikes served critical American interests.

“As president, I have taken great care to ensure that military actions carried out under my command comply with this constitutional framework and that my administration consults with Congress to the greatest extent possible,” he wrote in response to a New York Times survey of presidential candidates about executive power.

“I will continue to rigorously apply this framework to any potential actions in the future,” he added.

The reply stood in contrast to his answer in 2007, when he was also running for president and, as a senator, adopted a narrower view: “The Constitution is clear: Except in response to an attack or the imminent threat of attack, only Congress may authorize war and the use of force.”

Not just war powers. 

In 2019, for example, Mr. Biden said that if elected, he would order the Justice Department to review and potentially replace a legal policy memo that says sitting presidents are temporarily immune from indictment. He strongly criticized the department’s interpretation of the Constitution, which limited the special counsel investigating the Trump campaign’s ties to Russia and Mr. Trump’s attempts to impede that inquiry, Robert S. Mueller III.

But Mr. Biden never followed through on that pledge. He is now protected himself by the Justice Department’s theory since a special counsel, Robert Hur, is investigating how several classified documents were in his possession when he left the vice presidency.

Hatch Act

Trump's former chief of staff Mark Meadows argued that his case should go to federal court because he was acting in an official capacity.  They were not.  Claire O. Finkelstein at Slare:

[The] activities Meadows was engaging in were highly political in nature, and such activities are strictly forbidden under 5 U.S.C. § 7323(a)(1), otherwise known as the “Hatch Act.” This statute forbids executive branch employees from “us[ing] [their] official authority or influence for the purpose of interfering with or affecting the result of an election.” It is designed to prohibit executive branch employees from using their official positions to engage in partisan political activities.

In August of 2020, Richard Painter and I filed a complaint against Secretary of State Mike Pompeo, for example, for the speech Pompeo gave at the Republican National Convention while on a diplomatic mission to Israel. This was a “personal capacity” speech delivered during an official business trip as secretary of state, while Pompeo was representing the United States in his official capacity—a clear Hatch Act violation. While the president and vice president are not subject to the Hatch Act, they are subject to a parallel criminal Hatch Act statute that makes it a crime to coerce political activity on the part of any federal executive branch official. Believing as we did that Trump was indeed attempting to pressure members of the executive branch into engaging in Hatch Act violations themselves, Richard Painter and I filed a criminal Hatch Act complaint under 18 U.S.C. §610 against Trump during the 2020 campaign, alleging that he was coercing political activity on the part of employees in the executive branch by attempting to “intimidate or coerce” them into supporting his aims.

In the Georgia indictment, the Hatch Act plays a critical role: The activities Meadows performed in the run-up to the Jan. 6 attack on the Capitol building constituted a contribution to a partisan political effort to ensure that Trump was declared the winner of the 2020 election, despite having lost that election completely. Such naked political activities cannot be official duties for anyone who is a federal executive branch office holder. The entire Georgia campaign reads like one big Hatch Act violation—a civil Hatch Act violation for federal officeholders like Meadows and a criminal Hatch Act violation for Trump for pressuring his subordinates into civil Hatch Act violations.

It is striking how similar Trump’s behavior in Georgia in 2020 is to the criminal Hatch Act complaint we filed against Trump. The “perfect” phone call with Georgia Secretary of State Brad Raffensperger in which Trump attempted to coerce Raffensperger into coming up with 11,780 votes in order to reverse the results of the election in Georgia was an attempt to intimidate state officers into supporting Trump’s personal political aims—conduct that is precisely what the criminal Hatch Act provision was meant to address in the case of federal officers. In this case, the officers just happened to be state officials for the most part, with the possible exception of Meadows and other federal officials Trump tried to rope into his campaign.

The Sit Room

 

Section Three

  Adam Liptak at NYT:

Two prominent conservative law professors have concluded that Donald J. Trump is ineligible to be president under a provision of the Constitution that bars people who have engaged in an insurrection from holding government office. The professors are active members of the Federalist Society, the conservative legal group, and proponents of originalism, the method of interpretation that seeks to determine the Constitution’s original meaning.

The professors — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — studied the question for more than a year and detailed their findings in a long article to be published next year in The University of Pennsylvania Law Review.

“When we started out, neither of us was sure what the answer was,” Professor Baude said. “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.”

He summarized the article’s conclusion: “Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.”

 The Sweep and Force of Section Three

University of Pennsylvania Law Review, Vol. 172, 2024
William Baude
University of Chicago - Law School
Michael Stokes Paulsen
University of St. Thomas School of Law

Date Written: August 9, 2023

Abstract

Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.

First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.

Keywords: Constitution, Fourteenth Amendment, Section Three, Insurrection, Rebellion

Suggested Citation: Baude, William and Paulsen, Michael Stokes, The Sweep and Force of Section Three (August 9, 2023). University of Pennsylvania Law Review, Vol. 172, 2024, Available at SSRN: https://ssrn.com/abstract=

How Close We Came to an Unthinkable Moment

Kevin Carroll at The Dispatch:

Former President Donald Trump has been charged with four felonies for his efforts to overturn the results of the 2020 election. As a veteran, my blood ran cold reading two particular passages in special counsel Jack Smith’s indictment. They suggest that part of the former president and his co-conspirators’ autocratic plan to remain in power, despite knowing that they lost the 2020 election, was to make the U.S. military choose between subservience to civilian control or refusing to undertake an anti-democratic domestic political role.

In the first passage, it appears that when a deputy White House counsel warned Assistant Attorney General Jeffrey Clark that if Trump remained in office despite the absence of any evidence of outcome-determinative election fraud, riots would break out in U.S. cities, Clark responded, “That’s why there’s an Insurrection Act.” In the second, the indictment reports that when similarly warned of the risk of riots, Trump’s outside counsel John Eastman responded that there were points in American history when violence was necessary to protect the republic.

At the time of these statements, Trump planned to name Clark acting attorney general—the nation’s chief law enforcement officer—and Eastman had authored a memorandum advancing an argument, which he privately admitted was without legal merit, that Vice President Mike Pence could unilaterally reject slates of electors pledged to Joe Biden.

Taken together, these statements suggest that Clark and Eastman sought to have the vice president nullify the results of the 2020 election in bad faith, anticipated that this unconstitutional act might lead to widespread unrest, and that they planned for the commander-in-chief to order federal troops (or federalized National Guardsmen) to put down those riots.The armed services were to be told to use force against Americans to keep Trump in office, despite the objective fact, as established in more than 60 judicial proceedings, that Biden won the 2020 election.

...

The presidential demand anticipated by Clark and Eastman would place military leaders in the excruciating position of responding to an order facially legal under relevant statutes, but given for a purpose inimical to the ideals of the framers of the Constitution to which they swore an oath. Generals would be forced to choose whether to abandon an unbroken tradition of American military obedience to civilian control, or turn their guns on civilians to facilitate a losing candidate remaining in the White House beyond Inauguration Day.

The Doomsday Book

 Miles Taylor at Vanity Fair:

Inside the White House complex, an instruction manual is hidden in a secure location for use only in national emergencies. Few people know where it is, and even fewer people are allowed to access it. Informally dubbed the “Doomsday Book,” the manual contains the president’s break-glass options for keeping the country running in situations ranging from global nuclear war to an armed foreign invasion of the United States.

The options are known by an anodyne name—PEADs—or “presidential emergency action documents.” Recently declassified records suggest that the PEADs allow the president to invoke extraordinary powers. The records hint at draft authorizations to enable the White House to unilaterally detain “dangerous persons,” censor the news media, flip an internet “kill switch,” take over social media, and suspend Americans from traveling. These might be the type of actions a president would take if the nation’s capital was destroyed, enemy forces were hunting down U.S. leaders, or the survival of U.S. democracy was in doubt.

Mark Harvey was once the keeper of the book. He served on the NSC during the Trump administration and referred to the manual as “the Mad Libs for the most extreme measures of government.” While Harvey wouldn’t confirm or deny the PEAD contents, his job was “to advise whether to pull out that book and go through these extraordinary decisions,” which he said could be implemented by the nation’s chief executive “with the stroke of a pen.” He was always on hair-trigger alert.

When Donald Trump was in office, senior aides like Harvey were concerned about protecting access to the PEAD documents. Inexperienced MAGA types roamed the White House halls daily, and NSC experts knew that, in the wrong hands, the special powers could be dangerous. Would someone suggest that Trump try to use the documents for non-emergency situations? Would they try to manufacture a crisis so that he could invoke presidential emergency actions?

Adams and the Executive

John Adams: Executive Power and His Presidency
By Gary J. Schmitt  and Joseph M. Bessette
Social Science Research Network

This essay analyzes John Adams’s understanding of executive power and Adams’s practice as president. Its principal focus is the constitutional issues surrounding Adams’s handling of the national security crisis with France and the resulting Quasi-War. It examines Adams’s views on executive leadership, his administration’s relationship with Congress, and Adams’s relationship with his own cabinet–all within the context of the rise of national partisan politics and the emergence of the Republican Party.

Download Working Paper PDF

...

 In his writings Adams had advocated that a nation’s chief executive should provide balance to the political order by standing above and, when needed, resolving disputes between the lower and upper legislative chambers—and more deeply, the classes they would represent. The problem was, this was not really America where the real political divide had become one of parties, not social class.Adams’s desire to stand above this political divide meant that he never considered the possibility of using his leadership position to balance the growth of the Republican party with a coherent, more populist Federalist party agenda of its own. Instead, the High Federalists, who believed that the government’s design and practice was to minimize its republican character as much as was feasible, were free to drive the Federalist persuasion into a political dead end. Yet, not to be forgotten, it was also Adams’s sense of independence, when combined with the  constitutional and institutional tools at the president’s disposal, which allowed him to bring the crisis with France to a successful conclusion.

Indictment of a Former President

 Trump is under indictment.  Austin Sarat:

The Constitution’s authors contemplated the arrest of a current or former president. At several points since the nation’s founding, our leaders have been called before the bar of justice.

Article I, Section 3 of the Constitution says that when a federal government official is impeached and removed from office, they “shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”Tench Coxe Public domain via Wikimedia Commons

In his 1788 defense of this constitutional provision, Alexander Hamilton noted that, unlike the British king, for whom “there is no constitutional tribunal to which he is amenable, no punishment to which he can be subjected without involving the crisis of a national revolution,” a president once removed from office would “be liable to prosecution and punishment in the ordinary course of law.” Trump has been impeached twice but not removed from office.

As a scholar with expertise in legal history and criminal law, I believe the punishment our nation’s founders envisioned for government leaders removed from office would also apply to those who left office in other ways.

Tench Coxe, a Pennsylvania delegate to the Continental Congress from 1788 to 1789, echoed Hamilton. He explained that while the Constitution’s speech or debate clause permanently immunized members of Congress from liability for anything they might do or say as part of their official duties, the president “is not so much protected as that of a member of the House of Representatives, for he may be proceeded against like any other man in the ordinary course of law.”

In Coxe’s view, even a sitting president could be arrested, tried and punished for violating the law. Though Coxe didn’t say it explicitly, I’d argue that it follows that if presidents can be charged with a crime while in office, once out of office, they can be held responsible like anyone else.

Contingent Election and the Death of a Candidate

In response to the insurrection, Congress has fixed problems with the Electoral Count Act. But the system still has dangers. Suppose that no candidate wins a majority. At The Hill, Kevin Kosar writes:

But wait, in an additional twist, let’s imagine one of the candidates dies (naturally or by assassination) or is incapacitated by a medical condition before the House convenes to select the president. What is the House of Representatives supposed to do?

It is not clear, as Michigan State University Professor Brian Kalt has been warning America since 2016. “The Constitution limits the House of Representatives to choosing from among the top three electoral-vote winners,” he explains. “If one of the finalists dies, no replacement can meet the qualification of having finished in the top three.”

Fortunately, Congress can fix this problem. Section 4 of the 20th Amendment states, “The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.”

Indeed, Congress expected a statutory fix to be made for this “dead candidate” problem when it ratified this amendment in 1933. But as with the Electoral Count Act, our national legislature has failed to act proactively.

Professor Kalt lies out a few ways that Congress could tackle this problem in a 2017 law article, as does the Commission of Continuity of Government in a recent report. The simplest remedy would be to authorize electors to vote for the deceased candidate’s running mate.

The Peaceful Transfer of Power

 Liz Cheney in the 1/6 report:

At the heart of our Republic is the guarantee of the peaceful transfer of power. Members of Congress are reminded of this every day as we pass through the Capitol Rotunda. There, eight magnificent paintings detail theearliest days of our Republic. Four were painted by John Trumbull, including one depicting the moment in 1793 when George Washington resigned his commission, handing control of the Continental Army back to Congress. Trumbull called this, “one of the highest moral lessons ever given the world.” With this noble act, George Washington established the indispensable example of the peaceful transfer of power in our nation. 

Standing on the West Front of the Capitol in 1981, President Ronald Reagan described it this way: 

To a few of us here today, this is a solemn and most momentous occasion, and yet in the history of our nation it is a commonplace occurrence. The orderly transfer of authority as called for in the Constitution routinely takes place, as it has for almost two centuries, and few of us stop to think how unique we really are. In the eyes of many in the world, this every-4-year ceremony we accept as normal is nothing less than a miracle.

Every President in our history has defended this orderly transfer of authority, except one. January 6, 2021 was the first time one American President refused his Constitutional duty to transfer power peacefully to the next.

Continuity of Government and Presidential Succession

 John C. Fortier and Norman Ornstein at AEI:

• The Continuity of Government Commission makes recommendations to ensure the continuity of the presidency after a catastrophic event.
• The core recommendation is that Congress amend the Presidential Succession Act to remove congressional leaders from the presidential line of succession, providing instead for succession solely by members of the president’s cabinet.
• This change would address constitutional problems inherent in the current framework and provide clarity and stability amid a crisis.
• Other recommendations deal with presidential incapacity and continuity issues arising during the period between a presidential election and Inauguration Day.

...

There are serious policy and constitutional objections to having congressional leaders in the line of succession. The Constitution allows Congress to specify which “Officer” shall be in the line of succession, a term that many commentators believe refers to executive and judicial officers, not congressional ones. More broadly, structural considerations make it difficult for legislative leaders to assume a position in the executive branch. 

Congressional leaders cannot easily step in for an incapacitated president, and they may have conflicts of interest in an impeachment and removal scenario. Congressional leaders may be members of a different political party than the president. A political zealot might seek to change the party in the executive branch with a single attack. A freak accident might lead to a sudden change in party; the death of President Ronald Reagan and Vice President George H. W. Bush could have led to President Thomas “Tip” O’Neill. The death of President Bill Clinton and Vice President Al Gore might have led to President Newt Gingrich. The situation becomes more tenuous if the vice presidency has been vacant for a time

Thwarting Ambition: A Feature, Not a Bug

 Wesley Lowery at GQ writes about Congresswoman Alexandria Ocasio-Cortez

There would be other impediments—obstacles about which Ocasio-Cortez is practical, if not exactly optimistic. “Could Obama have gotten elected without the kind of financial support that he had?” she asked, noting that her opposition to Wall Street would be a major hurdle to any further rise. “I don’t know.” Even were she theoretically to become president, then what? She’d face a system—from the Senate to the Supreme Court—both empowered and inclined to thwart her most sweeping ambitions. “There are still plenty of limitations,” she said, playing out the hypothetical. “It’s tough, it’s really tough.”

Federalist 51:

 Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself

National Archives and Presidential Records

 

Jacqueline Alemany, Isaac Arnsdorf and Josh Dawsey at WP:

For most of American history, presidents kept their own papers and their personal ownership had never been challenged, according to a 2006 article co-written by Stern, NARA’s general counsel since 1998.

When Nixon resigned, he made plans to destroy White House records, including the Oval Office tapes that had become central to the Watergate scandal. Congress stepped in and passed the Presidential Records Act, which requires the White House to preserve all written communication related to a president’s official duties — memos, letters, notes, emails, faxes and other material — and turn it over to the Archives.

Disputes over the Nixon tapes continued into the 1990s, with lawsuits by former aides and Cabinet members seeking to block disclosure and from public-interest groups demanding access, according to the article. At the end of the Reagan administration, Stern, then with the American Civil Liberties Union, led a groundbreaking lawsuit seeking to preserve White House records related to the Iran-contra scandal.

People wait for a moving van after boxes were moved out of the Eisenhower Executive Office building inside the White House complex on Jan. 14, 2021. (Gerald Herbert/AP)

Research by presidential representatives have in the past raised security risks. In 2005, former Clinton administration national security adviser Sandy Berger pleaded guilty to removing and destroying classified documents from the Archives related to the 9/11 Commission’s investigation. That case was overseen by Christopher A. Wray, then head of the Justice Department’s Criminal Division and now the Trump-appointed director of the FBI.

“This is not a sleepy agency — NARA staff are used to records-related controversies,” said Jason R. Baron, a professor at the University of Maryland and former director of litigation at NARA. “This matter, however, is unique. No piece of paper that’s a presidential record should be at Mar-a-Lago. It is clear that NARA staff made extraordinary efforts to recover presidential records and was rebuffed on numerous occasions.”

Trump’s disdain and disregard for the presidential record-keeping system he was legally bound to adhere to is well-documented. And while advisers repeatedly warned him about needing to follow the Presidential Records Act early in his presidency, his chaotic handling of the documents prevailed.

NARA’s motto, Littera Scripta Manet, translates from Latin to “the written word remains.” But in Trump’s White House, the written word was often torn, destroyed, misplaced or hoarded.