The Weekly Sift

As always, a lot of news during the last three weeks centered on Donald Trump. The main themes were

• whether the 14th Amendment bans him from holding office again,
• the partial report on the millions he received from foreign governments while he was president
• mainstream media still hasn’t figured out how to cover Trump
• campaign odds and ends

Let’s take those in order.

The disqualification argument. So far, Trump has been ruled off the primary ballot in two states: Colorado and Maine. The Colorado Supreme Court ruled him ineligible, as did the Maine Secretary of State. Trump is appealing those rulings and the Supreme Court will ultimately have to decide whether he is qualified to be president again. They plan to hear arguments in February.

The basis of his disqualification is Section 3 of the 14th Amendment, which reads:

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.

The key legal questions to answer are:

• Does the attack on the Capitol on January 6, 2021 qualify as an “insurrection”?
• Did then-President Trump “engage” in this insurrection or “give aid and comfort” to the people who did?
• Since the presidential oath does not include the word “support”, but does give the president the (arguably stronger) obligation to “preserve, protect, and defend the Constitution”, is an insurrectionist president disqualified?
• Since the 14th Amendment does not specifically name the president, is the presidency covered by “any office … under the United States”?
• What kind of legal process is needed to enforce disqualification? Both Colorado and Maine held evidentiary hearings where Trump was allowed to produce evidence that he is qualified. Is that good enough?

When I first heard the disqualification theory raised by retired Judge Michael Luttig and Harvard Law Professor Lawrence Tribe in an Atlantic article in August, I was ambivalent about it, largely because I wasn’t sure what the people who wrote, passed, and ratified the 14th Amendment intended insurrection to mean. All I would say then was:

disqualification is a serious question, and our legal system owes the country a serious answer.

Since then, both the Colorado Supreme Court’s decision and the Maine Secretary of State’s statement have addressed the legal questions with some fairly convincing arguments. The historical context of the term insurrection — remember, conservatives on the Supreme Court claim to be originalists — has been well covered by Ilya Somin, and covered in eye-glazing detail by Mark Graber. So my current opinion is that January 6 was an insurrection, so Trump is not legally qualified to be president again.

I am still open to hearing convincing arguments in the other direction. But what I don’t want to hear are political arguments about whether disqualifying Trump or attempting to disqualify him is a wise course for the nation or for Democrats to take.

Trump frames all the legal proceedings against him — the indictments, the defamation suits, the challenges to his qualifications for office — as political. When we calculate the political advantages and disadvantages of those actions, we validate that frame.

But whether or not the Constitution bans him from holding office again is a question of law, not politics. The whole point of including things in the Constitution is to take them out of politics. If constitutional provisions are subject to politics, then all the rights the Constitution supposedly gives us are up for grabs. Your right to do any particular thing will depend not on the Constitution, but on whether your action is politically popular.

Those who argue that “the people should decide” whether Trump should return to power are advocating that we ignore the Constitution. We didn’t let the people decide whether Barack Obama should be elected to a third term in 2016, when he would probably have beaten Trump. But instead, Obama and the Democratic Party accepted that the 22nd Amendment disqualified him, independent of how much support he had.

Another bad argument is that disqualifying Trump will lead to Republicans trying to disqualify Democratic candidates. This is something we hear constantly: Democrats shouldn’t use a process in good faith because it will inspire Republicans to use the same process in bad faith. (That’s what we’re seeing now with the attempt to impeach Biden as a tit-for-tat response to the Trump impeachments. They can’t even formulate a charge, much less support one with evidence comparable to the evidence against Trump.) If Republicans have legitimate constitutional grounds to disqualify current or future Democratic candidates, they should go for it and let the courts sort it out. But courts are not going to be impressed by “they did it to us” as grounds for disqualification.

The worst argument of all is that disqualifying Trump will anger his supporters, who might respond with an even larger insurrection than January 6. Timothy Snyder, who has written books about how fascist movements take power, calls this a “pitchfork ruling“

How does the rule of law become something else? First comes the acceptance that one person is not subject to the rule of law, for whatever bad reason — that he was in office; that he has violent supporters; that he is charismatic; that we are cowards. Once that move is made, once that hole is opened, the person so sanctified as a Leader has been empowered to change the regime itself, and will predictably try to do so.

In short, I think disqualification is a legal question that deserves a legal answer. Personally, I don’t believe the Supreme Court will disqualify Trump. But I’m eager to find out how they will come to that conclusion: Will they find a plausible argument qualifying him, or will they simply make up an excuse to avoid doing something they don’t want to do? I have often accused the conservative justices of invoking originalism in bad faith, as sophistry that justifies whatever their prior opinions were. They have a chance to prove me wrong here.

Jay Kuo covers the current state of other Trump legal cases, including the second E. Jean Carroll defamation case, which starts a week from tomorrow. Final arguments in the New York civil fraud case, where the state has upped its ask to $370 million, start on Thursday.

Foreign emoluments. From the beginning of his administration — and maybe throughout his entire life — Donald Trump’s attitude towards his legal obligations has been: “Make me.” If a law has no effective enforcement mechanism, he sees no reason to follow it.

During his administration, that attitude showed up in many areas, such as the Hatch Act, which “prohibit[s] federal employees from using their official authority or influence for the purpose of interfering with or affecting elections”. A report issued in November, 2021 by the Office of the Special Counsel found repeated violations of the Hatch Act by 13 Trump administration officials.

[W]ith respect to an administration’s senior-most officials—whom only the president can discipline for violating the Hatch Act—the Hatch Act is only as effective in ensuring a depoliticized federal workforce as the president decides it will be. Where, as happened in the Trump administration, the White House chooses to ignore the Hatch Act’s requirements, there is currently no mechanism for holding senior administration officials accountable for violating the law.

Thursday, we found out about another example of Trump administration lawlessness: violations of the Foreign Emoluments Clause of the Constitution, which prohibits US public officials from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” … “without the Consent of Congress”.

With respect to the President, the Foreign Emoluments Clause is enforced only the impeachment. So a lawless president who can count on the unflinching support of 34 senators can violate it to his heart’s content, which apparently Trump did.

A partial account of the money Trump took from foreign governments while president — at least $7.8 million from China, Saudi Arabia, and others — is the subject of a new report “White House for Sale: How Princes, Prime Ministers, and Premiers paid off President Trump“, written by the Democrats on the House Oversight Committee. The story of how this report came to exist, and why it isn’t the complete accounting we might hope for, is as interesting as the report itself.

At the very beginning of his administration, ethics experts recommended that Trump divest his business interests, particularly the ones that had foreign customers and clients. He refused to do so, and instead made an arrangement for his two adult sons, Don Jr. and Eric, to manage the Trump Organization in his absence, while he retained ownership and ultimate control. So foreign governments could do business that benefited the President (like owning a floor of Trump Tower or running up a big bill at a Trump hotel), the President could know about that business, and the President might subsequently take actions that furthered the interests of those foreign governments (like shielding MBS from the consequences of murdering Jamal Khashoggi).

When the House Oversight Committee (controlled by the House’s Democratic majority from 2019-2023) began investigating his foreign emoluments, Trump fought them at every turn, refusing to turn over documents and fighting subpoenas served to his accounting firm (Mazars) all the way to the Supreme Court. The Court ruled in the Committee’s favor in 2020, and Trump continued to try to limit the scope of the subpoenas in lower courts until an agreement was reached in September, 2022.

This agreement remained in effect only until March 2023, by which time Republicans had regained control of the House. New Oversight Chair James Comer then released Mazars from the agreement and ended the full committee’s investigation. So ultimately, only a fraction of the subpoenaed documents were turned over, only a fraction of Trump’s foreign emoluments were revealed, and the report was issued by the committee’s Democrats alone.

All this raises a question Comer and the Republicans have never answered: Why shouldn’t the public know about the profits Trump made from foreign governments?

This question is particularly appropriate given Comer’s focus on Hunter Biden’s foreign dealings, which he hopes someday to tie to President Biden, but so far has not. Why is it important to determine whether Biden has profited from foreign governments like China, when we already know for a fact that Trump did, and Comer does not care?

Media coverage. Thursday, AP wrote a headline outrageous in its false equivalence: “One attack, two interpretations: Biden and Trump both make the Jan. 6 riot a political rallying cry“. James Fallows commented with this parody:

Abraham Lincoln, Jefferson Davis: Two leaders, two traditions; both making the South’s “peculiar institution” a rallying cry.

Josh Marshall added:

Some headlines, you should look at yourself as a journalist and think I should stop being a journalist.

CNN’s Phil Mattingly responds as a journalist should:

There aren’t in fact two interpretations here. There is what happened, and then there are lies.

AP isn’t alone here. A big chunk of the mainstream media is still covering Trump the way it did in 2016: He says something false, Biden says something true, and the headline is “Two interpretations”. Journalists hate to “take a side”, but a higher priority should be to follow the truth. If the truth has taken a side, you have to follow it.

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Promoting this kind of false equivalence is going to be a main thrust of the Trump campaign, and I was disappointed to see George Will — not normally a Trump puppet — echo it. “A Constitution-flouting ‘authoritarian’ is already in the White House” he wrote on Wednesday, citing Biden’s naming as acting head of the National Highway Traffic Safety Administration a woman whom he had been unable to get confirmed by the Senate, as if this were somehow comparable to Trump’s attempt to overturn the 2020 election or his plan to invoke the Insurrection Act on Day 1.

Other odds and ends. On the campaign trail, Trump has adjusted the famous “Are you better off than you were four years ago?” line that Ronald Reagan used against Jimmy Carter in 1980. Instead, he’s asking if you’re better off than you were five years ago. Apparently, his disastrous 2020 doesn’t count. (If you include 2020, Trump’s four-year job-creation total is negative. The economy lost 2.9 million jobs while he was in office.)

Now, I see the logic in giving Trump a mulligan for Covid-related job losses. (Up to a point. One reason the pandemic hit us as hard as it did was that Trump tried to happy-talk the virus away in the early months, and pushed disinformation about “cures” the whole time. Estimates vary wildly, but it’s easy to justify the claim that the cost of his mismanagement in lives-lost runs into the hundreds of thousands.) But if you give Trump a pandemic jobs mulligan, you also have to give Biden a post-pandemic inflation mulligan. Both the unemployment and the inflation were worldwide phenomena that were driven by external forces. As a Biden supporter, I don’t claim Biden would have created jobs during 2020. But Trump supporters almost universally assert — based on nothing — that Trump would have controlled inflation in 2022-23.

In general, dropping Trump’s fourth year down the memory hole allows him to ignore what crappy shape the country was in when the failure of his coup forced him to hand it over to Biden. And once you’ve ignored that fact, Biden’s performance in office doesn’t look nearly as impressive as it has actually been.

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Who could have guessed that the Civil War would turn out to be an issue in the Republican primary campaign? It started a few weeks ago with Nikki Haley’s strange inability to say the word “slavery” when some New Hampshire voter at a post-Christmas town hall meeting asked her about the cause of the war. After suffering a day of ridicule, she backtracked and said, “Of course the Civil War was about slavery.” But the damage was done.

Republicans used to ridicule Democrats about “political correctness” when they’d use some strange circumlocution to avoid saying something that would offend part of their base, or appeared not to know what the currently acceptable terminology was. But now the shoe is on the other foot. White supremacists and Confederate apologists are a key part of the Republican base, and candidates have to speak carefully to avoid offending them by hinting, say, that the Confederates were the bad guys in the Civil War. It’s a weird turn of events for the Party of Lincoln, but here we are.

Anyway, Trump got into the act Saturday, saying that he could have avoided the Civil War through “negotiation”. Now this is laughable in one way and downright hilarious in another. The suggestion of negotiation is itself laughable, because Americans as skilled as Henry Clay and Daniel Webster tried to negotiate the slavery issue, continuing efforts that had been going on since the Continental Congress assembled the Declaration of Independence. But slavery was at the center of Southern identity and was “a positive good” according to John Calhoun. All along, the South was clear that it would go to war rather than give up its slaves. Lincoln came into office offering to let Southern states keep their slaves, but to ban slavery only in the western territories. But that wasn’t good enough for the South. So what offer does Trump imagine they would have accepted?

CNN’s Dean Obeidallah looks at Trump’s record of praising Confederates and pandering to White supremacists, and asks a more interesting question:

The question for me is not whether Lincoln could have made a deal that would have made the slave-owning states happy enough to remain in the Union. What I wonder about is which side would’ve Trump sided with in the Civil War: The Confederacy or the United States of America? The track record of a president facing accusations of attempting his own insurrection, which he of course denies, would seem to readily answer that question.

What’s hilarious is the idea that Trump could have negotiated this. If we learned anything during his four years in office, it’s that Trump can’t negotiate anything. North Korea still has nukes, China is still running a huge trade surplus, ObamaCare hasn’t been replaced, he never got out of Afghanistan, he never got the “better deal” he claimed his rejection of the Iran nuclear agreement and the Paris climate accords would lead to, and the Dreamers still have no legal status, just to name a few issues that his mythical deal-making skill was supposed to take care of.

Trump played a great deal-maker on TV. But he’s a terrible deal-maker in reality.

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Thursday, a shooter killed one student and wounded several other people, including the principal, at Perry HIgh School in Perry, Iowa. Friday night at a campaign rally in Sioux City Donald Trump said, “It’s just horrible – so surprising to see it here. But we have to get over it. We have to move forward.”

In the immediate aftermath of a shooting, pro-gun people usually claim that it’s “too soon” to discuss doing something about America’s gun problem, or that using public sorrow and anger to promote solutions is “politicizing tragedy”. But in Trump’s new rhetoric, the very idea that something could be done is taken away. Somebody’s kid died needlessly? Get over it.

I did some googling to see how Fox News covered this quote, but I came up empty. Imagine the channel’s 24/7 focus if Biden had said something half this clueless.