The only path forward . . . .

August 15, 2023

          [Because of limited internet availability and bandwidth, I am not able to provide audio recordings. I will return to audio recordings on Thursday.]

          In a development that should give hope to all Americans, a group of Montana youth secured a court victory that invalidated a state law prohibiting the consideration of climate effects in the approval process for new energy projects. The victory is a watershed moment, even though the ruling is narrow. The Montana constitution guarantees its citizens the right to a “clean and healthful environment.” Prohibiting the consideration of climate effects of new energy projects is plainly antagonistic to that guarantee. A state court judge correctly granted judgment in favor of the young people of Montana. See Washington Post, Judge rules in favor of Montana youths in landmark climate decision.

          The decision faces ongoing opposition from Montana’s attorney general, who called the decision “absurd” and promised an appeal that will end up in the Montana Supreme Court. No matter. The dam has broken and the victory by sixteen young citizens of Montana will inspire hundreds (or thousands) of additional suits. Some of those suits will succeed, encouraging more such suits. Fossil fuel lobbyists have ruled supreme in state legislatures for more than a century. The victory today is a very small step forward, but it is significant, nonetheless. It is particularly impactful because the plaintiffs were youths ranging in age from 5 to 22 years old.

          The Montana litigation is part of a global litigation strategy to challenge climate change. The Sabin Center for Climate Change Law at Columbia Law School has published a report on climate change litigation across the world.  See Global Climate  Litigation Report | 2023 Review. Amidst the noise of the Trump indictment watch, good things are happening in the background.

Accept this fact: Trump will be imprisoned awaiting his J6 trial.

          After receiving an explicit warning at his arraignment not to intimidate or influence witnesses, Trump urged a witness not to appear before the Georgia grand jury on Monday. That is witness tampering. Any other American on release from pretrial detention would be in prison tonight. Trump may not be imprisoned this week, but he will continue to violate the conditions of his pretrial release. It is only a matter of time before his pretrial release is revoked and he is put in detention pending his trial.

We should accept the fact that Trump will be imprisoned before trial while he is running for president. He won’t be the first candidate to run for president from prison.  Eugene V. Debs did so.

          Despite widespread feelings that Trump should be held to account, imprisoning a former president will be a risky and divisive step. We should cross that line reluctantly and carefully. But Judge Chutkan will arrive at a point where she has no choice. Doing so will test our Constitution and our national character. That is a test we must not fail.

A reality check on the Section 3 argument that Trump is disqualified from holding office.

          Well, I can no longer ignore the steady stream of emails from readers urging me to promote the notion that Trump is automatically disqualified from holding the presidency (again) by virtue of the “self-enforcing” provisions of Section 3 of the 14th Amendment. Section 3 disqualifies a person from holding federal office who engages in rebellion after taking an oath to support the Constitution.

          The most recent wave of such emails comes in response to a law review article by two conservative scholars who argue that election officials can simply disqualify Trump from the ballot without any process, proceeding, hearing, or judicial review. As the authors repeatedly assert, Section 3 is self-enforcing and self-executing without regard to the Due Process Clause, enabling legislation, or judicial review. See The Sweep and Force of Section Three by William Baude, Michael Stokes Paulsen

          Before I go any further—and to cut down on the hundreds of objections I will undoubtedly receive—let me say that I believe Trump engaged in insurrection and should be barred from office. If you send me an email that tries to convince me that Trump engaged in insurrection and should be barred from office, you either did not read or appreciate the import of my comments below. Again, I believe Trump engaged in insurrection and should be barred from office.

          I have read the article by Paulsen and Baude. Under their theory, hundreds (or thousands) of election officials have an independent duty to remove Donald Trump's name from any ballot over which they have control. The author’s premise is, (a) it is incontestable that Trump engaged in insurrection, and (b) Section 3 of the 14th Amendment can be unilaterally enforced by anyone with control over the names appearing on a ballot.

          However attractive that idea is as applied to Donald Trump, do we really want hundreds of election officials unilaterally deciding to omit candidates from the ballot under the Disqualification Clause? Suppose, for example, that the Alabama Secretary of State decides that Joe Biden engaged in insurrection because he did not sufficiently condemn the violence that followed the murder of George Floyd. Under Paulsen’s and Baude’s theory, the bad-faith decision by the Alabama Secretary of State is not constrained by due process, enabling legislation by Congress, or judicial review. That is the logical application of the theory by Baude and Paulsen.

          The obvious point is that someone must decide whether a candidate engaged in insurrection. In a nation of laws, that determination should be subject to the Due Process Clause, judicial review, and congressional enabling legislation.

          Indeed, Section 5 of the 14th Amendment says, “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” Paulsen and Baude claim that Section 5 does not mean that Congress must pass enabling legislation to give effect to Section 3. But the only court to consider that question, the Arizona Supreme Court, concluded that there was no private right of action under Section 3 because Congress must enact enabling legislation. (“Section 5 of the Fourteenth Amendment appears to expressly delegate to Congress the authority to devise the method to enforce the Disqualification Clause . . .”)

          Paulsen and Baude reject the only authority on the point of enabling legislation by saying simply that the Arizona Supreme Court is wrong. Okay, accepting for purposes of argument they have the ability to dismiss contrary authority by fiat, at the very least there is a disagreement about whether their theory is correct. Caution is therefore warranted.

          Moreover, despite assertions that it is incontestable that Trump is guilty of insurrection, there has been one official determination on that question: The second impeachment trial of Trump. The Senate ACQUITTED Trump of the single charge against him—“Incitement of Insurrection.” However passionately you and I believe that Trump engaged in insurrection, there has been no criminal, judicial, or congressional determination to support our view.

As with the need for enabling legislation, there is at least a dispute about whether Trump engaged in insurrection. (Please don’t send emails telling me all the problems with the second impeachment trial; I am well aware of them.)

Readers frequently tell me that the January 6th Committee hearings proved that Trump engaged in insurrection. That is not correct. The jurisdiction of the J6 Committee was to decide whether Congress should enact new legislation. In making that determination, the J6 Committee made a referral to the DOJ that it consider indicting Trump for several crimes—including incitement of insurrection. Although the DOJ has twice indicted Trump, the DOJ has NOT indicted Trump for insurrection. What do we do with the DOJ's refusal—so far—to indict Trump for insurrection? Ignore it? Give it deference?

          Thus, at the very least, we have two disputes about whether the authors’ views of Section 3 of the 14th Amendment are incontestably true. Whether it is therefore wise for election officials to unilaterally claim for themselves the right to bar candidates from the ballot is a question that should be approached with caution and sobriety, not passion and unyielding certitude. Entrusting direct enforcement of the Disqualification Clause to hundreds—thousands?—of election officials with no due process limitation is a dangerous proposition that we may live to regret.

          Here is the point: There is only one way to ensure that Trump does not hold the office of the presidency again: We must beat him decisively at the ballot box. I worry that the emotional energy that readers are investing in a contested legal theory is a distraction and a setup for disappointment.

The argument regarding the “self-enforcing” feature of Section 3 is contested and, in my view, bristling with unintended consequences. Defeat Trump at the ballot box. Keeping him off the ballot is not going to work; and if it does, it will result in retaliatory actions by MAGA secretaries of state. Let’s not go there. Let’s beat Trump at the ballot box. That is the only path forward . . .

Please Join Me on Tuesday to Support the 907 Initiative in Alaska

            A quick reminder, please join me for a Zoom event tonight on August 15 to support Alaska's new communications hub, the 907 Initiative. I will moderate the discussion about Alaska's shifting political landscape and growing progressive infrastructure. As a special bonus for interested attendees, I will present a slideshow from Jill's and my Alaska “Northern Lights” tour from earlier this year.  While on the tour, we met with a dozen readers of this newsletter in Anchorage. We were astounded at the commitment of those readers to helping the people of Alaska, a commitment that is tied to building a base of center-left power. Jill and I still talk about our meeting with the Alaskans who by changing Alaska have the capacity to change our country.

          When Senate Circle invited me to moderate a discussion of Alaska’s “907 Initiative,” I jumped at the chance. (“907” refers to Alaska’s telephone area code.)  The 907 Initiative is an independent, state-based “communications hub” that invests in year-round messaging, making sure every Alaskan knows what their elected officials are doing. 

          For two terms, GOP US Senator Dan Sullivan has been able to fly under the radar, furthering a national MAGA agenda rather than working for Alaskans. Sullivan routinely ducks local media in favor of Fox News appearances, which allows him to avoid hard questions about his stance on abortion and other issues where he does not represent the majority of Alaskans. The 907 Initiative wants to ensure all Alaskans know what Sullivan is doing in DC. Your early money will help them hold Sullivan accountable.

I hope you'll join me tonight at 7pm ET/6pm CT/5pm MT/4pm PT/3pm AK. You can donate to register here and please email David@senatecircle.org with any questions.

Concluding Thoughts.

          I must post this edition of the newsletter before I lose access to the internet. The Georgia grand jury has not (yet) returned an indictment against Trump. If an indictment is issued, it will be a validation of the truth that we heard with our own ears: Trump attempted to overturn the 2020 Georgia election. Slowly but surely, reality and the justice system are aligning—notwithstanding the disinformation campaign by Trump and the GOP. Our faith in the rule of law is being rewarded with each new day. It doesn’t get any better than that.

          Talk to you tomorrow!

On a personal note, my wife and I are celebrating our 42nd wedding anniversary on August 15. Everything I am, I owe to her.