Sunday, August 20, 2023

Put a pin in this.

First: My thoughts are with my friends and readers in southern California who, as I write this post, are weathering an earthquake and Tropical Storm Hilary at the same time. What a bunch of overachievers. But seriously, you guys -- hang in there.


I don't often go out on a limb with predictions -- my track record isn't great, plus it sets me up for derision when proven wrong -- but I'm going to make a political prediction today:

Donald Trump will never be president of the United States again.

newb1 | Deposit Photos

It's not just because of his many legal troubles -- which are substantial, don't get me wrong: indicted four times, for a total of 91 criminal counts against him, with three of the cases related to his actions while in office. Of the four, the most egregious abuse of power is the one related to the January 6th insurrection.

But it's not only because of those charges. And it's not only because of the conclusions some conservative constitutional scholars are drawing because of it. I'm talking about William Baude and Michael Stokes Paulsen, lawyers, and members of the Federalist Society (the one famous for promoting several Supreme Court nominees approved by the Senate under Mitch McConnell's leadership and led to decisions like the upending of Roe v. Wade). Baude and Paulsen have written a paper for the University of Pennsylvania Law Review that contends that Section Three of the Fourteenth Amendment simply disqualifies Trump from holding office again. 

There's a pre-release version available for free, but it's 124 pages long and, to be honest, I haven't read it. I have, however, read a review and endorsement of the piece published in The Atlantic this weekend. The Atlantic article was written by Laurence Tribe, an emeritus professor of constitutional law at Harvard, and J. Michael Luttig, a retired federal appellate judge. If you watched the January 6th committee's hearings last summer, you'll remember Luttig -- he's the one who enunciated, slowly and carefully, his legal takedown of Trump's efforts to stay in the White House after losing the 2020 election to Joe Biden. Luttig is a conservative; Tribe is a liberal. They both agree with the Federalist Society lawyers that Trump is constitutionally barred from being president again. And they contend that's so even if Trump is never convicted; the mere fact that he exhorted his followers to attack the Capitol -- and sat, watching the mayhem unfold, for hours without trying to stop it -- is evidence enough.

The Fourteenth Amendment was ratified in 1868, as the direct result of the efforts of President Andrew Jackson (who took over after Lincoln was assassinated) to allow back into Washington the very architects of the Southern states' succession that precipitated the Civil War. Heather Cox Richardson, a history professor at Boston College, has a terrific piece at Substack that explains this history behind the this amendment -- how President Jackson made his moves to reseat Confederate members of Congress while Congress was in recess, and how immediately upon returning to Washington, members of Congress enacted the Fourteenth Amendment to keep the traitors out. Keep in mind that none of the traitors had been convicted of anything; it was enough that everybody knew of their traitorous acts. Just like in the case of Trump.

Baude and Paulsen basically say it's going to be up to local election officials to make this stick. Secretaries of state around the country could declare Trump disqualified and refuse to put his name on the ballot. If the Republican Party nominates him as its candidate anyway, it would mean there would be no GOP candidate for president on the ballot in those states. If enough states refuse to put him on the ballot, it could bar him from gathering enough Electoral College votes to win. If his supporters write him in, it would be effectively the same as their casting a ballot for Mickey Mouse; he's not eligible to hold office, either, although obviously for a different reason.

Of course there would be a legal challenge. But the conservatives on the Supreme Court claim to be originalists -- and the originalist reading of the Fourteenth Amendment is the one put forth by Baude and Paulsen: if you swear an oath to the Constitution and then act to overthrow it, you can't hold office again.

But even that's not the whole reason I say that Trump will never be president again. I'm reading the tea leaves, and I believe his support is eroding -- not among his rabid faithful, but among the GOP's big donors. The Koch-financed Americans for Prosperity has raised more than $70 million for political ads, and internal documents indicate they aim to tank Trump's candidacy. Some other big donors have also pulled their support from Trump. And the cash he has raised is largely going to pay for lawyers -- not just for his own representation in those many lawsuits I mentioned above, but for his co-defendants, too.

Granted, he's going to get a ton of free publicity every time he shows up at court for a hearing. But is that really his best option? And too, there's the threat hanging over him that a judge in one or another of his cases gets fed up with Trump bad-mouthing them and tainting the jury pool with a rant on Truth Social, and issues a gag order.

Republicans have been quiet for years while Trump has wreaked havoc on the country -- because he helped them get what they wanted: to stay in power and stack the judiciary with a bunch of conservative appointments. Now that they've achieved the latter, and now that Trump has cost them the last three elections, the powers-that-be appear to be ready to move on. 

He has been their useful idiot; now he's still an idiot, but he's no longer useful. That could explain why Federalist Society members are lining up behind Section Three of the Fourteenth Amendment.

Put a pin in this. We'll see how this election season plays out. But I think Trump is toast, one way or another. If I'm wrong, feel free to make fun of me in November of next year.


These moments of bloggy political prognostication have been brought to you, as a public service, by Lynne Cantwell. Stay safe!


Anonymous said...

That certainly makes sense which makes me think it can’t be true. but we do need some hope.

Candace Williams said...

I’ve worried about the conviction part, that he’d have to be convicted of insurrection before he could be barred from serving again. This article gives me a great deal of hope!