OA836: Yes, A Court Found That Trump "Incited An Insurrection" - Now What? (feat. Seth Barrett Tillman)
Added 2023-11-23 20:29:10 +0000 UTCWith Liz sidelined, Andrew welcomes back friend of the show Seth Barrett Tillman for an in-depth discussion of Anderson v. Griswold, a Colorado state court opinion that found by clear and convincing evidence that Donald Trump incited an insurrection on January 6, 2021.
What implications does that have? Listen and find out!
This episode was released early for our Patrons and is a paid post on Patreon.
Notes
Anderson v. Griswold
https://www.courts.state.co.us/userfiles/file/Court_Probation/02nd_Judicial_District/Denver_District_Court/11_17_2023%20Final%20Order.pdf
Comments
I’m commenting hella late ( family emergency just catching up) but had to say I had this very discussion with a trumpy family member ( without the erudite legal aspects)…. Who insists in the face of everything, conviction in a court of law is all he will believe when it comes to seeing Trump as an insurrectionist … so you are both on the money to say this really, really matters! So thankful for the legal insight you guys provide 😎😎
C’mon
2023-12-05 00:04:58 +0000 UTCThe shorter version of the whole argument is that the appointments clause applies to (a list) and "all other Officers of the United States." That language pretty clearly uses "Officer of the United States" as a term of art, and "all" means "all." Since the President is (obviously) not a subject of the Appointments Clause, which applies to all "Officers," he is not one, and it seems that this is how the term has been historically understood. It means a different thing than the common usage of "federal official." The earlier versions of Section 3, that were not passed, make it pretty clear. The language making the disability apply to everyone, or anyone "having previously taken an oath to support the Constitution" didn't end up in the amendment. They actively chose the exact language that actually ended up adopted, and chose NOT to make it apply to the President. Not saying I agree with that decision, but the law is what it is.
To sit in solemn silence in a dim dark dock in a pestilential prison with a life long lock awaiting the sensation of a short sha
2023-11-27 20:16:04 +0000 UTCYep.
To sit in solemn silence in a dim dark dock in a pestilential prison with a life long lock awaiting the sensation of a short sha
2023-11-27 20:08:57 +0000 UTCThe only thing I’m certain of is that Seth is so enthralled with his own legal analytical capabilities that he’s close to unlistenable. By all means, bring on an expert. But how about one who isn’t so masturbatory?
patchybeard
2023-11-27 06:38:40 +0000 UTCTo sit in solemn silence in a dull, dark, dock, In a pestilential prison, with a life-long lock, Awaiting the sensation of a short, sharp, shock, From a cheap and chippy chopper on a big black block!
Ann Sharp
2023-11-26 18:40:12 +0000 UTCThe other way that some discussions of "self executing" miss, IMO, is in regards to if the law/amendment itself "applies" the disability, simply by existing as law. The answer should be no... a law that simply applied a penalty to a "class" of people, instead of to specific individuals, would be a bill of attainder and unconstitional. Due process means that a competent authority must determine that the penalty applies to the individual person.
To sit in solemn silence in a dim dark dock in a pestilential prison with a life long lock awaiting the sensation of a short sha
2023-11-26 02:33:21 +0000 UTCI think this just gives further weight to the argument that an officer of/under the United States simply does not apply to elective positions, and was never understood that way.
To sit in solemn silence in a dim dark dock in a pestilential prison with a life long lock awaiting the sensation of a short sha
2023-11-26 01:24:49 +0000 UTCThat section of US Code goes all the way back to the Confiscation Act of 1862.... in other words, at the time of the passage of the 14th Amendment, it was already the law that ANY traitor, rebel, or insurrectionist was disqualified, regardless of "former oath" or not.
To sit in solemn silence in a dim dark dock in a pestilential prison with a life long lock awaiting the sensation of a short sha
2023-11-26 01:20:52 +0000 UTCI think a fair amount of the debate about Section 3, if it is "self-executing," specifically, is irrelevant. 18 USC 2383 ( https://www.law.cornell.edu/uscode/text/18/2383 ) does so, in terms much broader than the 14th Amendment ... "Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States." This law might, however, be unconstitutionally broad... if "any office under the United States" applies to (elective) officials and not just (appointed) officers, it could be taken as altering the qualifications for those elective offices since it applies to everyone, and not just those who formerly swore an oath. Regardless, this law pretty clearly applies to anyone disabled by Section 3.
To sit in solemn silence in a dim dark dock in a pestilential prison with a life long lock awaiting the sensation of a short sha
2023-11-26 00:58:42 +0000 UTCIt looks (to me, I'm not a expert) that this was all them mangled into the final form without being recorded in the Globe (which was essentially a newspaper).
To sit in solemn silence in a dim dark dock in a pestilential prison with a life long lock awaiting the sensation of a short sha
2023-11-25 22:26:03 +0000 UTCIn the Senate (on May 23rd) it was proposed to amend this to "No person shall be a Senator or Representative in Congress or permitted to hold any office under the Government of the United States who, having previously taken an oath to support the Constitution thereof, shall have voluntarily engaged in any insurrection or rebellion against the United States, or given aid or comfort thereto." Another proposal the same day was "That no person who has resigned or may resign or abandon any office under the United States, and has taken or may take part in rebellion against the Government thereof, shall be eligible to any office under the United States or of any State."
To sit in solemn silence in a dim dark dock in a pestilential prison with a life long lock awaiting the sensation of a short sha
2023-11-25 22:22:17 +0000 UTCOn May 10th, it was moved to change this to "All persons who voluntarily adhered to the late insurrection, giving aid and comfort to the so-called southern confederacy, are forever excluded from holding any office of trust or profit under the Government of the United States." This didn't pass, and the House approved the proposed amendment with the original Section 3 (that instead removed the right to vote).
To sit in solemn silence in a dim dark dock in a pestilential prison with a life long lock awaiting the sensation of a short sha
2023-11-25 22:07:18 +0000 UTCWhen originally read into the record (May 8, 1866) the text of section 3 was... "Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States."
To sit in solemn silence in a dim dark dock in a pestilential prison with a life long lock awaiting the sensation of a short sha
2023-11-25 21:48:09 +0000 UTCThe citation for the actual debates is "Congressional Globe, 39th Congress, 1st Session, pp. 1083, 1095, 2459, 2462, 2542, 2765." These can be found at https://memory.loc.gov/ammem/amlaw/lwcglink.html#anchor39
To sit in solemn silence in a dim dark dock in a pestilential prison with a life long lock awaiting the sensation of a short sha
2023-11-25 21:27:21 +0000 UTCIs there any reconstruction historians, specifically someone who can give the history to the wording and how it changed before the adopting the 14th Amendment? When I argue the 2nd I have people look at other states statements reference arms, the wording when it was first introduced and wording prior to going to the Senate.
Bill Gaskins
2023-11-24 16:43:17 +0000 UTCBest wishes to Liz for a speedy recovery ❤️🩹
Aran Jackson
2023-11-24 13:54:59 +0000 UTCHow can Trump swear an oath to protect the constitution if he's already said he'll destroy it??
Heidi Robertson
2023-11-24 11:50:32 +0000 UTCAlternative interpretation: anyone whom the 14A disqualifies can run and be elected but they may not take office meaning they may not be sworn in. 14A does not discuss running for office it only discusses taking office.
Lawrence Frank
2023-11-24 11:23:27 +0000 UTCAs to the question of if a military officer is disqualified from the listed offices, wouldn’t the operative phrase be ‘taken an oath … to support the Constitution’? The only authority I have sworn my loyalty to (support and defense) is the Constitution. Civil isn’t particularly called out in that second clause either, so the absence of the qualifier ‘military’ strikes me as overly-limited.
“Well, it depends…” is the right answer
2023-11-23 22:23:32 +0000 UTC
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