The Week Ahead

Looking out to the coming days, there are five stories I have my eye on that are shaking our legal and political tree, with the promise of more fruit to fall.

Trump disqualification?

For months, progressive organizations and activists have argued that Trump’s candidacy for president is barred by the Constitution itself under the 14th Amendment’s Section 3. They have pointed to the plain text of the Constitution as support for this proposition:

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.

There has been much skepticism around whether this clause, on its own, could simply knock Trump out of the running. And no one on the right was talking much about it. That is, until early last week.

Two conservative scholars, William Baude and Michael Stokes Paulsen, who are Federalist Society members, released a preprint version of an important article to be published by the University of Pennsylvania Law Review. Their piece exhaustively examines the legislative history, intent, and application of Section 3. The scholars conclude that, based on the public record of what Trump did on January 6, this is not even a close case. Trump is simply ineligible to hold federal public office.

Later in the week, two legal giants—Professor Lawrence Tribe, who specializes in constitutional law at Harvard Law School, and Judge J, Michael Luttig, a venerated conservative voice on the Fourth Circuit, added their significant concurrence in a joint piece in The Atlantic. They arrive at the same conclusion: Because Trump engaged in insurrection or gave aid and comfort to the enemies of the U.S., Section 3 is a bar to Trump ever holding federal public office again. They are now making the talk show rounds to make their case to the public.

This adds a new twist to Trump’s presidential ambitions. And ultimately, this is likely a question that will need to be settled by the Supreme Court, which means we may not have an answer until possibly the summer of 2024. In the meantime, a big question arises, one which I have had from the outset but which legal experts are now gaming out: If Section 3 is a bar to Trump ever regaining the presidency, who will actually act to bar him? Is it a lawsuit by voters? A Secretary of State who refuses to add Trump’s name to the ballot? A state legislature that passes a law, signed by the state’s governor, prohibiting state officials from adding anyone barred by Section 3 to the ballot? There are many scenarios here.

Once I’ve seen and heard enough, I intend to summarize these in a longer thought piece in The Big Picture (the other substack I write for). See information at the end of today’s piece for how to sign up to receive it!

The GOP without Trump?

This week, the GOP presidential hopefuls, or at least all who met the qualification requirements to be up on stage, will gather in Milwaukee at a Fox-sponsored and broadcast debate, the first for the 2024 election cycle. But as of now, the candidate with a commanding lead in the polls over all the others—Donald J. Trump—does not intend to appear.

Trump’s reasoning is fairly basic. Why should he have to attend a debate with a bunch of people who are so far behind him in the polls? Another way to think of this is, he has not much to gain, but could stand to lose support if he takes fire from many opponents. For now, Trump has chosen instead to grant an exclusive interview to Tucker Carlson, that bastion of light and truth. It isn’t clear exactly when Carlson will air the interview, but it could overlap directly with the debate. (And I wouldn’t be surprised if Trump chose to turn himself in on Wednesday for fingerprinting and a mug shot in Fulton County around the same time, if only to steal thunder from this rivals.)

Even if Trump doesn’t show up on the Milwaukee debate stage, his presence will loom large there. Whether candidates stand with or against Trump is a gigantic wedge question within the GOP. To date, candidates have been issuing condemnations of the prosecutions but for the most part have not commented on whether they actually think Trump is guilty or not. Will any proclaim he is absolutely innocent? Will they weave and duck and try to dodge the heat from the dumpster fire now burning in four jurisdictions?

Threats and violence against judges, jurors and communities

It is horrifying, but sadly unsurprising, that following the grand jury indictment of Trump and 18 others for election interference in Georgia, extremists immediately began to target members of the grand jury as retribution. In Georgia, the names of grand jurors are a matter of public record—something the state should consider changing in light of what has happened. Trump-aligned sites have now publicly doxed these jurors, putting their safety at risk from radical MAGA elements. The FBI and local law enforcement have launched investigations into the matter.

The threats against the Georgia grand jurors wasn’t the only danger on the radar of security officials. A disturbed woman named Abigail Jo Shry, 43, of Alvin, Texas called the chambers of Judge Tanya Chutkan in D.C. and threatened Chutkan’s life. Specifically, Shry threatened to “kill anyone who went after former President Trump,” according to an affidavit. “You are in our sights, we want to kill you,” she said. “Trump doesn't get elected in 2024, we are coming to kill you, so tread lightly, b****.”

Shry added, “You will be targeted personally, publicly, your family, all of it,” She used both the N-word and “slave” to refer to Judge Chutkan, who was born in Jamaica. For good measure, she also made a direct threat to murder Congresswoman Sheila Jackson Lee, who is a Texas Democrat, as well all Washington Democrats and all members of the LGBTQ+ community.

If the last part seems unrelated to the indictments, it’s because most Americans don’t yet see how the right has ginned up hate against gay and trans people in order to radicalize those who would commit terror on its behalf. Fascists need their followers to hate someone enough so they are wound up enough to do other horrific things. Yesterday, for example, a clothing store owner in Los Ángeles, Laurie Carelton, was shot and killed by a man who, according to law enforcement, didn’t like the rainbow flag outside her store.

In The Big Picture this Thursday, barring any other major developments, I will be writing a follow-up piece on what experts call “stochastic terrorism” and how Trump and the far-right are weaponizing MAGA extremism and hate.

Mark Meadows comes out swinging

The biggest legal surprise out of Georgia was the indictment of former chief of staff Mark Meadows. Many had assumed that his absence in the federal indictment meant he was cooperating with authorities. And he may well still be—just apparently not the DA’s office in Fulton County.

Instead, Meadows has taken a very aggressive stance, being the first out the gate with a motion to transfer the case to federal court on the ground he was acting in his capacity as Chief of Staff to President Trump with respect to all of the acts alleged against him, and therefore removal is appropriate under federal law.

Meadows also filed a motion to dismiss the case against him entirely on grounds that the charges violate the Supremacy Clause and his rights under the First and Fourteenth Amendments.

It isn’t at all clear that his motions will succeed, but Meadows has a somewhat stronger argument than the ex-president himself, who more clearly was not acting in his official capacity as president when he did things like call Brad Raffensperger and ask him to violate state election law. Whether Meadows can claim he was “just doing his job” and “setting up appointments” remains to be seen.

The federal courts strike down voter suppression laws

I’ll end with two more pieces of good news for our democracy. Federal courts in Georgia and Texas independently struck down provisions of new laws in those states that had sought to limit access to the ballot box.

In Georgia, U.S. District Judge J.P. Boulee temporarily blocked officials from enforcing penalties for providing food and water to voters waiting in line more than 150 feet from the voting booth, and he has temporarily blocked a rule requiring voters to provide their birthdate on absentee ballot envelopes. Both of these provisions were meant to impose unnecessary, even cruel, hurdles on voters. They also were meant to send a message that the state wasn’t keen on making things easy for voters, particularly underrepresented racial minorities. (Judge Boulee upheld other parts of the law, however, prohibiting third party gathering of ballots and around dropbox security.)

In Texas, a biggie. District court judge Xavier Rodriguez ruled that a law requiring mail-in voters to provide the same identification number they had used when they first registered to vote was a violation of the U.S. Civil Rights Act. The rule had resulted in a huge number of mail-in ballots being rejected because of mismatches. Who even still necessarily has the same ID from so many years ago, after all? The Department of Justice under Civil Rights Division Head Kristen Clarke had brought the suit against the law.

Appeals are expected, and the Texas matter especially could go all the way up again to SCOTUS.

Have a great rest of your Sunday, and I’ll see you back here tomorrow.

Jay

P.S. In you haven’t noticed, this week I am strongly encouraging subscriptions to The Big Picture substack, where due to layoffs I now write half of our team’s regular content! If you enjoy the daily, detailed analysis of The Status Kuo, my work at The Big Picture, where we take a twice weekly, broader view of how events fit within larger themes, provides a nice complement and a helpful foundational framework. Sign up here as a free subscriber, or even better become a paid supporter of our efforts: thinkbigpicture.substack.com/subscribe