Mastodawn

I moved to Mastodon.social Nov 18, 2023

Answering this question: https://law-and-politics.online/@short[email protected]/111429189190084052

Nobody really knows what is meant by "officer of the government." It might include the president. It might not. A president occupies a unique position under the Constitution.

Basically what the judge did was punt the issue to the appellate court.

The judge found that Trump incited an insurrection (a finding of fact) but didn't find that he was an officer of the federal government (a matter of law).

Here's why the distinction matters . . .

1/

shorty60 🇺🇸 (@[email protected])

@[email protected] Have you seen the Colorado decision on the 14th amendment case to keep Trump off the ballot there? If so, can you explain why they would hold that the President is not an officer of the government? Constitutional law may not be your thing but I value your thoughts. This one really perplexes me.

Mastodon @ SDF

I moved to Mastodon.social Nov 18, 2023

If an issue that goes to an appellate court is an issue of law, the appellate court reviews de novo, which means that no deference is given to the lower court.

See:

https://www.law.cornell.edu/wex/de_novo

With an issue of fact, appellate courts are more deferential to lower courts.

I didn't read the decision but this is from ABC⤵️

As far as what the judge was thinking, your guess is as good as mine, but from this, I'd guess that . . .

2/

de novo

LII / Legal Information Institute

I moved to Mastodon.social Nov 18, 2023

. . . the judge found more textual support for finding that the president is not an officer than for the finding that he is.

Picture a balance scale with slightly more weight on one side.

So now it goes to the appellate court, which might have more nerve than the trial court.

The important part of the finding, though, was that he incited an insurrection.

The appellate court can overturn that, but it unlikely and more difficult because of the greater deference to findings of facts.

3/

I moved to Mastodon.social Nov 18, 2023

Welcome to the world of constitutional and statutory interpretation.

Basically, the Constitution means whatever the Supreme Court says it means because the Supreme Court is the final arbiter and the Constitution is stuffed full of phrases and words that can be interpreted in different ways.

An interpretation of the word "reasonable" in the Fourth Amendment has literally filled books.

4/

I moved to Mastodon.social Nov 18, 2023

The Third Section of the Fourteenth Amendment was added to the Constitution after the Civil War to keep former Confederates out of the government.

The idea was to prevent backsliding.

It didn't work because, by the late 1890s, the government and Supreme Court were stuffed full of Confederate sympathizers who rolled back the advances made during Reconstruction and gave us racial segregation.

You can keep out the insurrectionists but not the insurrection sympathizers.

5/

I moved to Mastodon.social Nov 18, 2023

Judge Luttig offered a passionate critique of the Colorado judge's decision.

With most legal issues, it is possible to argue both sides.

People read these passionate critiques and think "The judge was wrong."

The only conclusion is "Luttig believes the judge was wrong."

Maybe my attitude comes from defense appellate work, which means mostly losing and rarely liking court decisions.

(My clients always lost at the trial level and the presumptions on appeal were against them.)

6/

Matt McMahon Nov 18, 2023

I moved to Mastodon.social

Adding one more comment:

The court left wide open the possibility that the appellate court may find that Trump was an officer.

Sort of humbly, the court didn't think it should be the one to make the call.

I think that Colorado certainly has the right to keep Trump off the ballot. I also think that these court proceedings would satisfy due process.

So we'll see.

7/

I moved to Mastodon.social Nov 18, 2023

If you all want to dissect the court's reasoning, the full decision is here:

https://s3.documentcloud.org/documents/24171350/109394065.pdf

The parts about whether Trump is an officer start at about page 100.

(Wasn't that nice of me to provide a Cliff Notes so you can you skim 100 pages to get to the controversial part?)

Here's the proper way to do legal analysis: Try to be neutral and objective. Don't think "I want Trump off the ballot" ask: "What are the arguments on both sides, and which is stronger?"

Not that . . .

8/

I moved to Mastodon.social Nov 18, 2023

. . . I haven't strongly suspected that judges often begin with the conclusion they want and then work backward to justify it.

But to do it right as a legal exercise, try to see it from both sides.

The court found "persuasive arguments on both sides" of this issue.

9/

plinth Nov 18, 2023

@Teri_Kanefield to me this feels like "A Miracle on 34th Street" where the judge is considering the consequences of declaring that there is no Santa Claus, except in this case they're looking for a way to not be a target. The phrase "scrape this off my shoe" comes to mind. At the same time, I remember my brother showed me a paper he had published in a philosophy book and after reading the opening paragraph, I pointed at a single phrase that looked simple but was jargon that you needed a PhD to get, so I'm willing to hold that the judge is making a reasonable interpretation of the wording based on their experience. What really raised my eyebrow was that they concluded that he has responsibility for the insurrection, so I assume that this ruling will show up in the DC case.

Eric J. Korpela Nov 18, 2023

@Teri_Kanefield It's another chink in the armor of democracy. The courts refuse to protect it. Congress refuses to protect it. Tuberville is certainly doing his best to ensure that the military won't protect it. The state courts it now seems just don't wanna go to the trouble of protecting it.

Aviva Gary Nov 18, 2023

@SETIEric @Teri_Kanefield This ^

It's like pass the buck but with death threats thrown in for funzies

(But thank you for your breakdown)

Matt Sicker Nov 18, 2023

@Teri_Kanefield I’m glad to hear that from a professional; I kind of assumed judges did something like that (we all have biases after all, but I’d expect judges to know about them and intentionally compensate), and this certainly puts them back on a human level! Always interesting to learn more about how appeals work, especially with the fifth circuit being batshit lately

Peter Bautista Nov 18, 2023

@Teri_Kanefield I don't have an opinion on the legal merits, but on the political/civic merits, I think it's important that Trump be on the ballot, and that he lose the election. If we're afraid he might win the election, yes that's a huge problem, but a legal "shortcut" doesn't solve that. The problem is that people might vote for Trump, and that's just not really something a legal ruling can solve IMO.

Michael Gemar Nov 18, 2023

@peterbautista @Teri_Kanefield Yes. And in any case, I’m not comfortable with one judge ruling on this without him formally being found guilty previously (ditto for Congress expelling members). Any precedent set for this kind of action will be weaponized by the GOP when they are in power.

Mirishuli Nov 18, 2023

@Teri_Kanefield That was very, very kind of you. Thank you.

Karl Schwartz, Artist advocate Nov 18, 2023

@Teri_Kanefield

There's no reasoning I can see where you mark insurrectionists as unfit for office in a democracy ... for all but the office of the presidency.

The ruling is a dumb, literal interpretation

=> analogy of the absurdity:

No, my children, you cannot go to the madman's house for a sleep-over. I wrote this rule last week - but your niece visiting for the weekend, she can go. My instructions did not specify your niece.

Joe Hill 🇵🇸🇺🇦Nov 18, 2023

@lymphomation @Teri_Kanefield
Pretty much where I stand as well. If the 14th amendment wasn’t created soecificall6 for someone like #trump, what’s the point?

Although I do see the judges point of letting a higher authority rule on it.

Kevin McKay Nov 18, 2023

@Teri_Kanefield I so appreciate your clear and balanced reporting and analysis! Thank you!!

@Teri_Kanefield reading your posts have given me a very different perspective. I don't pretend I like it all that much at times, but I do very much appreciate it. I have learned much.

kkeller Nov 18, 2023

@Teri_Kanefield it was very nice of you!

Paragraph 303 is most convincing. The authors had explicitly listed the Presidency, and subsequently removed it before ratification.

Footnote 18 is what Teri noted in an earlier post, that since insurrectionists couldn't be Electors, they wouldn't choose an insurrectionist. That's certainly extremely optimistic of them!

kkeller Nov 18, 2023

@Teri_Kanefield

Footnote 20 is interesting, it notes that Trump is the first President who had not previously taken the oath she describes in Section Three. It implies that Section Three is likely deficient, and that we should fix it. Unfortunately it's likely next to impossible for the US to ratify an amendment that says insurrectionists can't be President.

Fubaroque Nov 18, 2023

@Teri_Kanefield “… 298. Consequently, the Court finds that Petitioners have established that Trump engaged in an insurrection on January 6, 2021 through incitement, and that the First Amendment does not protect Trump’s speech...”

We knew that, but it’s still good to read it like that. 😘

GoNancyGo Nov 18, 2023

@Teri_Kanefield Is it blasphemy to say the founding fathers seemed to have messed up a bit? Could they have said "...and the entire executive branch, including the President"? I really really think it is a bad idea to have anyone in Executive branch having previously been accused of insurrection.

I moved to Mastodon.social Nov 18, 2023

The fourteenth Amendment wasn't written by the founders.

It was written after the Civil War to prevent confederates who left their government positions from returning.

GoNancyGo Nov 18, 2023

@Teri_Kanefield Oh duh, you even said that. So perfectly ok to say the writers screwed up. See why I need you?

Matt Sicker Nov 18, 2023

@Teri_Kanefield slightly off topic, but you know what this reminds me of? Social media arguments caused by differing opinions about what a word means. Here we have the courts arguing what an officer is while on social media we have people arguing that various crises are emergencies because they don’t understand the “emergent” part of emergencies. Seems to be a lot of debate over applying specific words to situations in order to summon the expected effects of the label despite that not being how things work. See also the last year of people trying to declare a recession. Almost like they’re cheat codes to life!

jeff Nov 18, 2023

@Teri_Kanefield para 299+ is the officer discussion

CaseyL Nov 18, 2023

@Teri_Kanefield

Anyone who issues any court decision regarding Trump must be constantly looking over their shoulder, knowing he will appeal any adverse decision to SCOTUS, and having no clue what the corrupt, bought-and-paid-for majority will decide.

Brian Dear Nov 18, 2023

@Teri_Kanefield

Just a random Mastodon user thanking you for sharing your many insights on the many threats the nation and law and the Constitution face. As always, your insights are appreciated . . . and much-needed.

Chuck Nov 18, 2023

@Teri_Kanefield
Personally, I see this as a great "hack" in that the Colorado judge finds that all the facts are true, and decides "no" based on something the appellate court could (and should) easily over turn. This makes it SAFE for the judge to walk the streets of crazy town because Right wingers KILL PEOPLE THEY DISLIKE. Seriously. So this punts it to a far away appellate court that makes the correct ruling and the judge stays safe.

Ponygirl Nov 18, 2023

@ChuckMcManis @Teri_Kanefield They are cowards.

JohnJWyatt Nov 18, 2023

@Teri_Kanefield why did God use such dumb language when He was writing the Constitution?

G. J. Goldberg Nov 18, 2023

@Teri_Kanefield The reasoning of the insurrection clause appears quite general: If a person has broken their oath of office, they cannot take that oath again. For it would be presumed they would break it again. An “officer” is then anyone who would take an oath of office. This reasoning applies to Presidents. Breaking their oath to the constitution through insurrection means they can never be trusted to take the oath again. What is so difficult about that?

I moved to Mastodon.social Nov 18, 2023

Did you read this list:

"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. . ."

See anything missing?

The idea is to try to understand the judge's reasoning.

Oregon Animal Lover Nov 18, 2023

@Teri_Kanefield @GJGoldberg

It seems that presidents and vice presidents are not "officers" under the 14th Amendment. A previous pres/vp would not be considered by the writers to be a future threat of insurrection, I assume.

Surely the writers assumed that any future pres or vp who attempted a coup would be impeached and convicted by Congress forthwith! Once convicted, they wouldn't be eligible for office again.

I moved to Mastodon.social Nov 18, 2023

@dswidow @GJGoldberg
@PennyG @kkeller

Another possibility: The president was deliberately left off the list.

It's easy to imagine a former Confederate state sending Senators who had been Confederate leaders. The House always had its crazies because they come from smaller districts. There have been other Marjorie Taylor Greenes.

But maybe there was more respect for how presidents are elected. They are not elected from a particular region but from electors from each state.

Oregon Animal Lover Nov 18, 2023

@Teri_Kanefield @GJGoldberg

That sounds quite right. I forgot about the original intent of the elector system.

Ironic that the same system that was intended to protect us from the crazies is now being used against us by the crazies.

All the Clever Names are Taken Nov 18, 2023

@Teri_Kanefield @GJGoldberg
This system wasn't intended to protect us from the crazies, it was intended to give deference to slave owning men. The electoral college was almost an after thought.

kkeller Nov 18, 2023

@Teri_Kanefield @dswidow @GJGoldberg but this is sort of my thinking: if the authors of the Amendment didn't want an insurrectionist President, then they could not have meant to exclude the office from their amendment. In that scenario, I feel like being an originalist is very justified.

Martijn Vos Nov 18, 2023

The relevant part of that looks like "no person shall hold any office having previously taken an oath as an officer of the US". To me it looks pretty obvious that "hold an office" and "officer" refer to the same thing. If they intended a specific exception for people who had been president or vice president, I would have expected that they would have made that explicit.

Mirishuli Nov 18, 2023

@mcv But, you know POTUS doesn’t take an oath, as he assumes his office. It’s just all a figment of our (collective) imagination. It’s why the Chief Justice can screw up the words and not worry about redoing it because it’s not real, this “oath of office”

Yes, this angry sarcasm. I’m sick of cowards, protecting themselves and not the country. But I’ll be sure to explain this reasoning the next time in Arlington Cemetery.

🍉 –Hans Bot– 🙃Nov 18, 2023

@GJGoldberg @Teri_Kanefield “The executive Power shall be vested in a President of the United States of America.
He shall hold his Office during the Term of four Years”
So, the court argues that holding an Office does not make you an officer 🤔

T.Wllms Nov 18, 2023

@hansbot @GJGoldberg

That was my thought as well.. Reading article II sec.1…

Alex P Roe - OLD ACCOUNT Nov 18, 2023

@hansbot @GJGoldberg Does anyone know of any past case in which the term "officer" has been clearly defined? Obviously there's the military context and holders of public office could be considered as officers too. Need case law and precedent though, I believe (Am not a lawyer but have studied law a little).

🍉 –Hans Bot– 🙃Nov 18, 2023

@alexproe @GJGoldberg Have a listen https://overcast.fm/+okoTsbYTg

The Two Experts on Section Three - Special Guests William Baude and Michael Stokes Paulsen — Amarica's Constitution

***CLE available*** In a special episode, the two distinguished authors of a recent major article, which dives deep into Section 3 of the Fourteenth Amendment and finds that Donald Trump is disqualified from the Presidency, join us for a thoughtful and rigorous examination of the tough questions about their conclusions. These are leading conservative scholars who have gone where their methodologies, and the law, has taken them. Reaction has been swift and impassioned around the country, and in this episode they respond for the first time to some of the critiques, explore the implications of their work, and in doing so, they bring an integrity to our civic conversation. This is an important discussion of important issues, by real experts. Note: Continuing Legal Education Credit available after listening by going to podcast.njsba.com.

Alex P Roe - OLD ACCOUNT Nov 18, 2023

@hansbot @GJGoldberg I will. Thanks 🙂

Alex P Roe - OLD ACCOUNT Nov 19, 2023

@hansbot Very interesting analysis and the Colaordo court is mentioned too. But no mention of the definition of the word "officer". Would love to hear a revised version analysing the recent decision. Eventually, though, this will end up in front of the Supreme Court @GJGoldberg

Alex P Roe - OLD ACCOUNT Nov 19, 2023

@hansbot @GJGoldberg This is well worth a read and is very up to date too. And exams why the president may not be an officer as such too: https://law-and-politics.online/@Teri_Kanefield/111434058041703416

Teri Kanefield (@[email protected])

I expanded the discussion about the Colorado court's decision regarding Trump and the Fourteenth Amendment, and I added it to yesterday's blog post. You can see it here: https://terikanefield.com/parchment-barriers-and-the-dangers-of-hope/ (If you get that error message, just wait a moment and try again)

Mastodon

emtee Nov 18, 2023

@Teri_Kanefield
Thank you

Artemis Nov 18, 2023

@Teri_Kanefield I've always had very mixed feelings about the CO case, and it helps to have someone rationally lay out the situation.

Also thanks for your general coverage. Previously my partner and I couldn't discuss politics without it turning into just getting upset, but the way you frame things provides us with a lot of interesting discussions.

Lulu Powerful Nov 18, 2023

@Teri_Kanefield I think people should brace themselves for a higher court upholding this ruling.

The President appoints officers. This, on its own, doesn't exclude the President from being an officer himself, but the fact that there are two kinds of officer - principal and inferior - and both kinds are appointed (not elected), makes it appear that it's not possible for the President to be an officer.

@Teri_Kanefield aren't there other areas of law where the courts have ruled that laws applying to federal officials don't apply to the president unless the president is explicitly stated in the statute? I feel like this isn't the first time something like this has come up, but I'm hazy on the details.

Mirishuli Nov 18, 2023

@Teri_Kanefield While Ido have respect for judges beings careful in their decisions and I love you for reporting all this to us, in plain language finding the the President is not an “officer” of the government is beyond bullshit, it’s cowardice.

He occupies the OFFCIE of POTUS. He is an OFFICER. I can make that linguistic argument in 4 sentences? To declare he is NOT an officer means absolutely no one is an officer of our government. It is all solipsistic nonsense.

PG1958WILLNOTCOMPLY 🇺🇸🇷🇴🇺🇦🇵🇸Nov 18, 2023

@Teri_Kanefield
Thank you Teri! Always appreciate you.

Scott Nov 18, 2023

@Teri_Kanefield thank you for clarifying all this. I really appreciate you making these issues understandable

Queen of Anxiety Nov 18, 2023

@Teri_Kanefield Thanks for this summary! I have been worried about the due process part. Since Trump hasn’t been criminally found guilty, I’ve been loathe to support the idea of suing someone off the ballot. The right would have no scruple in tying every ballot up in court forever. I hadn’t been following this closely because /angst/ so wasn’t aware the judge had ruled on the fact but not the officer part. Does make me a little more comfortable, but on the whole …

Queen of Anxiety Nov 18, 2023

@Teri_Kanefield … I’m glad there was a solid reason to punt it to the appellate court. I want Trump gone, but I don’t want the right using a similar approach as another brick in their attempts to end democracy.

Martin Vermeer FCD Nov 18, 2023

@queenofnewyork @Teri_Kanefield Criminal guilt, aka guilt beyond reasonable doubt, is way too heavy a standard of evidence for meting out what is *not* actually a punishment robbing someone of their liberty. Same as with impeachment: not a punishment, though the impeachee may feel that it is.
Not clear to me what the standard of evidence should be, but not that. And it applies to the finding of fact by this court.

Queen of Anxiety Nov 18, 2023

@martinvermeer @Teri_Kanefield A fair point. Impeachment is actually meant for serious crimes, though, and the GOP is still trying to impeach Biden for no crime they can articulate. So I don’t trust them to use the 14th any more properly than they do anything else.

Martin Vermeer FCD Nov 18, 2023

@queenofnewyork @Teri_Kanefield Yes, impeachment is meant for serious crimes, aka crimes of state ('high' crimes), but it doesn't punish. Conviction can only have the effect of removal from office - and possibly a block from future office. After successful impeachment (i.e., impeachment plus conviction), the option of criminal prosecution, a very different beast, still exists. Double jeopardy does not apply precisely because *impeachment is no punishment*.