More Ketchup On The Walls
This newsletter has been loath to discuss national politics for a couple of reasons. First of all, there are plenty of other outlets for that nonsense. Second, we throw up in our mouths a little when we have to discuss anything to do with (insert defeated ex-President’s name here). Thus the focus has been more keenly on the high jinks at home, trusting that when our State Assembly is in session, there is plenty of fodder for hilarity.
In keeping with that still-nascent tradition, today the subject will be Colorado politics, the afore-mentioned ex-President, and what happened behind the scenes in Sweet Home Carolina.
So, as you probably heard, Colorado made headlines for being the first state in the nation to declare that What’s-His-Name is a treasonous thug, and unfit to be on a Colorado ballot for any federal office. It turns out that there’s some history attached to that decision, going back to the Civil War, and more recently, a publication by two dyed-in-the-wool Republican “originalists.”
It seems that the Fourteenth Amendment to the Constitution has a section (Section Three) devoted to the seditionists and insurrectionists – traitors all, aka Confederates. That section addresses people who took an oath to support the Constitution and then engaged in insurrection against the U.S. Government. Section Three prohibits those seditionists from coming BACK TO WORK for the U.S. Government. It is noteworthy that North Carolina, in rejoining the Union, specifically adopted the terms of Section Three to be applied to the people of this state. A fair amount of significant case law surrounding Section Three was generated in NC courts. That’s all pretty much old news.
In 2022, some well-known and highly-regarded North Carolina lawyers, backed up by a national non-profit, went after Madison Cawthorn (remember him?) using Section Three to argue that through his participation in the events of Jan. 6, 2021, he was disqualified from holding public office. The approach that Section Three takes is that the person is “disabled” – just as if they are too young, or not a proper resident of the jurisdiction, or term-limited, any of the other reasons why someone might not be qualified for office. Disabilities are automatic – you don’t need to prove them in court, merely to the satisfaction of the whomever decides on candidates’ qualifications.
The lawyers almost had our boy Maddie. At least, they won on appeal. The matter was headed back to District Court when Cawthorn snatched to ball from their hands by losing his primary and making the matter moot.
Then, in August of this year, two guys who are reported to be members of the Federalist Society – Wiilliam Baude and Michael Stokes Paulsen – pre-published a lengthy law journal article entitled The Sweep and Force of Section Three.[1]
The article caught a lot of attention, because it clearly provided a legal way forward to deal with the Congressional insurrectionists who participated in the events of 1/6/21, not to mention He-Who-Shall-Not-Be-Named. Imagine lawyers in their jammies, hiding under bedcovers with flashlights, pouring over The Sweep etc. while their spouses and mommies shout at them to go to sleep.
At least, that’s what I did. I was sold. So I made an important error. First, I set out to research the matter, and second, I started to write a motion, asserting the claim that ex-Presidents who engage in insurrections are disabled. I wrote for days and days. Literally weeks. I wrote the whole thing In time for it to be filed this month, because this is when primary candidates have to file with the NC Board of Elections. And when I was done writing, I started doing the thing I should have done in the first place: searching for allies. Don Quixote had Sancho Panza, and I needed a few Sanchos of my own. The response was underwhelming. Those who were not familiar with Section Three rightly viewed the idea with considerable skepticism, and those who understood the proposition considered it undoable for procedural reasons, among others.
Eventually, I reached out to the same people who have filed these claims in various other states (not Colorado) – there are now 16 states in which Section Three motions have been filed. I received a surprisingly swift and terse response. “Don’t do it,” they said. “given the state of politics in North Carolina, all you’ll accomplish is bad law and undesirable precedent.” They were referring, of course, to the 5 Republicans out of 7 on the State Supreme Court, along with concerns about the Federal District Court, not to mention the State Assembly’s attempt to fiddle with the composition of the Board of Elections. I rapidly calculated that they were probably right. I dropped it.
Someone made of sterner stuff (or, maybe, even less common sense) might have gone ahead to tilt at this windmill. I was tempted, I admit. I would not be surprised to learn that the folks at the Board of Elections were on tenter hooks waiting to see if someone would file a Section Three claim – particularly because I communicated with their counsel regarding the issue. Ha! – fooled them. Now, here’s your homework: Consider the implications of deciding not to file a lawsuit with a legitimate claim because of evident bias in the judiciary. I suspect the more cynical among you would say, “So? What’s new?”
What are the odds Colorado will prevail? There are two potential decisions before the U.S. Supreme Court. The first one will answer the question of whether or not a former President is immune from prosecution for anything he does in office. The second issue is the viability of Section Three as applied to ex-presidents or pretty much anyone in the Federal Government. I’m thinking that SCOTUS will not go along with blanket immunity for former Presidents, just on the slim possibility that we might ever have another Democrat in that office (or democracy in America). As for Section Three, I believe it’s DOA. Scotus will find a way. There are too many people currently seated in government buildings who might be subject to a Section Three claims, not to mention a variety of low-lifers who would love to come back with a wrecking ball.
All my work was not in vain, however. For a low low one-time fee you can own your own (30-odd page) articulate and extremely well-reasoned treatise on why Whosit should condemned to live a long and sad life away from the halls of power, sucking up Big Macs and cheating at golf. Suitable for binding. Credit cards accepted. Order today.
[1] https://ssrn.com/abstract=4532751
Thanks!