2024 Election: The Conservative Legal Argument to Keep Trump Out of Office
Sunday, August 20th, 2023
This week’s core story is about: The Constitution v. Trump.
KNEAD TO KNOW
A first-of-its-kind climate case was decided in favor of young environmental activists who sued the state of Montana for violating their constitutional right to a “clean and healthful environment.” The landmark decision made use of so-called “green amendments” to state constitutions, which recognize people’s right to a clean environment. Five states already have green amendments to their constitutions (including Montana), with 13 other states reportedly considering adopting their own. Montana state officials say they’ll seek to overturn the decision on appeal.
A new report by Reuters found political violence in the U.S. is at its worst since the 1970s, identifying 213 cases of politically motivated violence since the January 6 attack on the Capitol, including 140 physical attacks involving guns, knives, pepper spray, and cars. The report found the attacks since January 6 have resulted in at least 39 deaths, with most of the deadly incidents coming from people on the political right. Of the fatal incidents, 13 involved right-wing attackers, compared to one by a person on the political left.
A new study by researchers at the National University of Singapore found early-onset cancer diagnoses are up among young Americans, led by diagnoses of gastrointestinal and breast cancers. The researchers analyzed data from more than 560,000 U.S. patients diagnosed between 2010 and 2019 with early-onset cancer (defined as cancers affecting people younger than 50), finding diagnoses rose by almost 1% over the study period, led by a massive 19% increase among Americans aged 30 to 39.
A new survey by Nature found 54% of scientists say they’ve reduced the time they spend on Twitter in the past six months, citing reasons ranging from Elon Musk’s management of the platform to an increase in fake accounts and hate speech. The survey also found 46% of scientists reported opening a new account on another social media platform in the past year, led by Mastodon (47%), LinkedIn (35%), Instagram (28%), and Threads (25%).
2024 Election: The Conservative Legal Argument to Keep Trump Out of Office
Donald Trump appears primed to be the Republican nominee in 2024, despite the mounting criminal charges against him. Anything can happen over the 14 months until Election Day 2024, but an often-overlooked constitutional provision may already decide Trump’s fate.
So, what does the research say about the Constitution’s impact on Trump’s eligibility in 2024? And what’s at stake if he returns for a second term?
Whether any of us like it or not, it appears the 2024 election for the U.S. presidency will be a familiar race, likely pitting incumbent Democratic President Joe Biden against Republican former President Donald Trump.
A new survey by AP-NORC underscores just how stuck Republicans are on the former president, finding nearly two-thirds (63%) want him to run for reelection and three-quarters (74%) would support him if indeed becomes their party’s nominee. For comparison, less than half (45%) of Democrats want Biden to run again, but 82% would support him as the nominee.
The AP-NORC findings are in line with a new survey by Quinnipiac University showing Trump remains far ahead of the 11 other listed candidates in the Republican primary, garnering 57% support among Republicans and Republican learners. Florida Gov. Ron DeSantis came in second at 18% support (his lowest level of support in any Quinnipiac poll this year).
That isn’t to say Trump will definitely become the Republican nominee, since he faces a staggering 91 felony charges across four separate criminal cases and anything can happen between now and the election.
As a refresher, here’s what Trump’s currently facing:
Federal - January 6 Capitol Attack: Trump and his associates are accused of mounting a wide-ranging campaign to subvert Biden’s victory in the 2020 election and illegally remain in power. Between Election Day 2020 and January 6, Trump and his associates spread false information about the integrity of the election, assembled fake slates of electors, and pressured then-Vice President Mike Pence to overturn the legitimate results. Federal prosecutors, led by special counsel Jack Smith, have charged Trump with four federal crimes, including conspiracy to defraud the U.S., corruptly obstructing an official proceeding, and attempting to deprive citizens of a right secured under federal law (i.e., the right to vote and have one’s vote counted).
Federal - Retaining Classified Documents: Federal prosecutors, again led by special counsel Jack Smith, say Trump illegally retained possession of highly sensitive national security documents after he left office, haphazardly storing the documents throughout his Mar-a-Lago resort and obstructing the government’s attempts to retrieve them. Trump is also accused of making false statements related to his possession of the documents and showing them to people who weren’t authorized to view the information.
Georgia - Election Interference: The most recent charges against the former president, Trump is accused of pressuring Georgia state officials and lawmakers to reverse Biden’s win and send a fake slate of electors to Washington, D.C. This case includes Trump’s infamous call to Georgia secretary of state, Brad Raffensperger, urging him to “find” 11,780 votes (the number needed to overcome Biden’s victory in the state). Fulton County District Attorney Fani Willis has charged Trump and 18 of his associates, alleging a wide-ranging criminal enterprise.
New York - Falsifying Business Records: Trump is accused of falsifying business records in connection with hush money paid to adult film star Stormy Daniels, who claimed she had sex with the former president. Michael Cohen, Trump’s former personal attorney and “fixer,” allegedly paid Daniels $130,000, which Trump reimbursed through his company with a series of payments to Cohen that were fraudulently disguised as corporate legal expenses in violation of New York law.
While the former president is certainly going through some stuff, it remains to be seen how the cases get decided (I’ll leave it to the legal experts to debate the merits) and whether any convictions will actually lead to him dropping out of the race.
But what if it doesn’t take any convictions? What if the former president doesn’t need to drop out, but is already constitutionally barred from running for the presidency or holding office? Two prominent conservative legal scholars argue that’s the case.
What the research says:
A new analysis by law professors and constitutional originalists William Baude at the University of Chicago and Michael Stokes Paulsen at the University of St. Thomas argues that, no matter the outcome of Trump’s mounting legal issues, he cannot run for the presidency, become president, or hold office, unless two-thirds of Congress grant him amnesty for his conduct on January 6.
Their contention rests on Section Three of the Fourteenth Amendment to the Constitution, arguing the fading Reconstruction-era provision that disqualifies participants in “insurrection or rebellion” against the U.S. from holding public office is still valid and properly applies to Trump and his allies.
Without getting lost in the weeds (the paper is 126 pages long), the authors argue Section Three is still an enforceable part of the Constitution, countering claims that its usage is limited to the Civil War or was somehow repealed by 19th century amnesty legislation.
They also argue the provision is self-executing, functioning as an “immediate disqualification from office, without the need for additional action by Congress.” This is an important point, as the authors believe the provision “can and should be enforced by every official, state or federal, who judges qualifications” for elections. That would, in theory, include every official who decides which candidates appear on their state’s ballot, many of which the authors say can act independently of other actors, including courts, in disqualifying Trump for office.
The paper also argues Section Three repeals, supersedes, or satisfies any potential conflict with prior constitutional rules, including the Due Process Clause or even the free speech principles of the First Amendment. This is also an important point, as Trump is expected to make free speech a central part of his defense in the federal January 6 case.
The authors believe there is “abundant evidence” that Trump engaged in an insurrection after the 2020 election, including by deliberately setting out to overturn the results, attempting to fraudulently alter the vote counts of several states, encouraging fake slates of competing electors, and pressuring Mike Pence to overturn the legitimate results. The authors also believe Trump gave “aid or comfort” to others engaged in insurrection, which again places his conduct within the scope of Section Three.
Why it matters:
What’s at stake in 2024 isn’t just the presidency, but the foundations of our democracy itself, as Trump is incredibly candid (almost stunningly so, really) about his promises of “retribution” for his political enemies (including several conservatives he believes haven’t sufficiently bent the knee) and plans to vastly expand executive power if he wins a second term.
Those plans include bringing independent agencies under direct presidential control, reviving the banned practice of “impounding” Congressional funding he doesn’t like, and altering the employment protections of civil servants to make it easier to fire ones he deems obstacles to his agenda. In other words, centralizing power at the expense of our system of checks and balances.
It should also be noted that whether or not Trump is convicted in any of the above-mentioned criminal cases against him is irrelevant to Baude’s and Paulsen’s argument. While the evidence may overlap, none of what they assert Section Three addresses is affected by any of the cases.
“The question of should Donald Trump go to jail is entrusted to the criminal process,” Baude told The New York Times. “The question of should he be allowed to take the constitutional oath again and be given constitutional power again is not a question given to any jury.”
I’ll leave you with the authors’ concluding words:
America’s Wealthiest 10% Are Responsible for 40% of Its Climate Emissions
A new study by researchers at the University of Massachusetts Amherst found the top 10% of U.S. earners are responsible for 40% of the country’s greenhouse gas emissions when also accounting for the climate impact of investment income rather than only looking at wages or consumption.
The team found the disparities in emissions to be even starker the higher up the income ladder the data went, finding 15 days of income for a top 0.1% household is equivalent to the lifetime carbon pollution generated by a household in the bottom 10%.
The authors argue for an income- or asset-based approach to carbon taxation, rather than one based on consumption alone, to highlight the outsized role the ultra-wealthy play in driving climate change through their personal financial interests.
Cannabis, Hallucinogens, and Binge Drinking Reached Record Highs Among U.S. Adults in 2022
A new study by researchers at the University of Michigan found 28% of U.S. adults aged 35 to 50 reported past-year cannabis use in 2022, up from 25% in 2021 and 17% in 2017 to mark an all-time high among the group. Past-year hallucinogen use (4% of respondents in 2022; up from 2% in 2021) also reached a record high. The results come from the robust Monitoring the Future study, an annual survey of substance use behaviors among adults aged 19 to 60.
The study found that while binge drinking declined over the past decade for adults aged 19 to 30, it reached a new high among adults aged 35 to 50 (29% in 2022), representing significant increases over the past year (26% in 2021), five years (25% in 2017), and 10 years (23% in 2012) for the group.
Nicotine vaping reached a record high among young adults aged 19 to 30 in 2022 (24%), representing a massive increase from the rate reported five years ago (14%), when the measure was first added to the annual study.
A “Mediterranean Lifestyle” May Lower Your Risk of Death
A new study by researchers at the Harvard T.H. Chan School of Public Health found people who follow a “Mediterranean lifestyle” have a 29% lower risk of all-cause mortality and a 28% lower cancer mortality risk. The analysis included more than 110,000 U.K. adults aged 45 to 70 tracked over a nine-year period.
Adherence to Mediterranean lifestyle habits included following a healthy, plant-based diet with limited salts and sugars, and ensuring you get adequate rest, exercise, and socialization.
The researchers say the study adds to the body of evidence establishing the health benefits of a Mediterranean diet, and suggests it’s possible for non-Mediterranean populations to adopt the diet and lifestyle by using locally available food products and experiences within their own cultural context.
18.2% - The percentage of highly vaccinated people (defined as having received three or more doses of COVID vaccines) who met the case definition for Long COVID 90 days after being infected with the Omicron variant, according to a new study posted on the preprint server medRxiv. Reminder: preprint studies have yet to be peer reviewed and accepted for publication by an academic journal.
32 days - How long a transplanted pig heart has performed optimally inside a brain-dead human recipient, according to surgeons at NYU Langone Health. The surgeons say the transplant “represents the longest period that a gene-edited pig kidney has functioned in a human, and the latest step toward the advent of an alternate, sustainable supply of organs for transplant.”
$87 per month - The cost of six popular streaming services without ads in the U.S., up from $73 a year ago and eclipsing the average monthly cable television package price of $83, according to new data compiled by The Financial Times. The six streaming services are: Hulu ($17.99/month), HBO Max ($15.99), Netflix ($15.49), Disney+ ($13.99), Paramount+ ($11.99), and Peacock ($11.99).
32% - The percentage of U.S. adults who say they currently have any tattoos, according to a new survey by the Pew Research Center. The survey found 38% of women reported having at least one tattoo, compared to 27% of men. Pew also found younger Americans are far more likely to be tatted than older generations: 41% of those aged 18-29 and 46% of those aged 30-49 reported having at least one tattoo, compared to 25% of those aged 50-64 and just 13% of those aged 65 or older.
Long Video. The CEOs of Microsoft and Open AI discuss the dawn of the upcoming AI wars and how their tech is changing online search. (24 min)
Short Video. What did ancient court jesters actually do? (5 min)
Fun Video. A sex educator explains orgasms and an exercise to get into the ideal “flow state.” (11 min)
Good Read. What exactly makes humans smart? (970 words; 5 min)
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Written by Ryan Wittler