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Notes -
I do think that the historical evidence is strong that the original public meaning of "engaging in insurrection" was broad at the time that the 14th Amendment was adopted. E.g. Andrew Johnson's Attorney General issued an opinion on section 3 that said "...where a person has by speech or by writing, incited others to engage in rebellion, he must come under the disqualification". And Johnson was of course an opponent of the 14th Amendment.
[apologies for the renotification on this]
ymeskhout and I discussed a possible debate on this matter, and it didn't work out in a "we wouldn't really be adding anything new" way, but I understand you suggested the topic and recommended me, so I think you deserve a more serious response here. My expectations at this point is that we see a more procedurally-focused overturn of the Colorado Supreme Court, without much engagement in defining insurrection, but I think it is important to actually engage with.
Most immediately, it's worth spelling out the ellipses from that source: "Disloyal sentiments, opinions, or sympathies would not disqualify, but where a person has by speech or writing, incited others to engage in rebellion, he must come under the disqualification." This wasn't exactly about the 14th Amendment -- that wouldn't be ratified until just over a year later; Stanbery was discussing the First Reconstruction Act that referenced the 14th amendment but did so in a context where those state governments were "in all respects subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede" -- but it is meaningful as contemporaneous evaluation.
But it leaves a complex alignment between speech, opinion, or sympathy, from incitement, and very little exploration to distinguish one from the other.
Which we don't really have that much actual evaluation and especially action on, especially contemporaneously. Baude/Paulsen bring John Floyd as the prototype of a disqualifiable traitor, as does the amici brief from the Amar Brothers, and in many ways their list -- a major advocate of the South and Confederacy, weakening soon-to-be-Union forces, ordering arms to be delivered to soon-to-be-Confederate camps -- is underselling things, so the unfortunate fact that he died before the 14th Amendment was ratified (or even passed Congress) seems almost superfluous. But they are underselling things: Floyd joined and served in the Confederacy, and contra Baude/Paulsen was infamous for it. Philip Francis Thomas didn't join, but he gave money to his son to do so (also, another one that technically was before the 14th Amendment was ratified but used other powers). ((The Amar brothers throw in Benjamin Stark, which is a remarkable non-sequitor since he was not disqualified, was only alleged to have given disloyal speeches, and had the whole debate long before the 14th Amendment's ratification.))
And that's the contemporaneous examples Baude/Paulsen, or numerous other advocates of the Section 3 theory, find closest to simple advocacy. This list offers a handful of Confederate soldiers, a governor, and then tries to draw Kenneth Worthy merely holding local office. But Worthy held a local sheriff's office sworn to the Confederate cause. Especially in that era, the sheriff's office was a role with significant tactical and logistic ties to the confederate military.
The one clearly-speech example we have is Victor Berger, in the WWI-era. Which seems to fail Stanbery's test the other direction -- I've had a hell of a time trying to find exactly what Berger actually published, precisely, but most sources and the court records describe it as a generally anti-war (socialist) position, rather than incitement by even the broadest definition. And Berger was convicted before he was disqualified, albeit by a biased judge, disqualified by Congressional vote, and after SCOTUS overturned that conviction because of that judge's bias, the charge was dropped, and Berger was later seated. This seems far more an example of the nadir of First Amendment protections than good law. And outside of the whole Brandenberg/Hess swaperoo caselaw since, there's also just the bit where accepting it would allow disqualification of wide varieties of political actor, including the oft-cited bizarity of the Iran Deal 'counting'.
The contemporaneous example, Couy Griffin, involves clear and unambiguous evidence direct instruction to violent crime and (indeed, plea to) of trespassing.
The only other good source we have are the people who weren't disqualified. Baude/Paulsen bring up Clement Vallandigham, a pro-Confederate Northerner who was so obnoxious that Lincoln ejected him from the Union, gave advice to Confederate leadership (and was claimed to give advise encouraging Confederate invasion of Pennsylvania!), and was just in general involved at a distance with an absolute ton of Southern chicanery (planning a prisoner of war camp prison break!). He ran for election multiple times after the ratification of the Reconstruction amendments -- while he never won, neither was he ever disqualified from the ballot. If he were a one-off, perhaps that'd be a matter of missing him, or maybe just not wanting to validate his complaints, but I pick him because he's Baude/Paulsen's example: at least a few other prominent Confederate sympathizers and political advocates were similarly allowed to run unblocked.
Okay, so there's clearly a speech/non-speech divide -- perhaps some messiness about speech that gets close to or becomes action, or if someone had purely expressively associated with the Confederacy. Clearly the January 6th rioters were not just giving speeches!
But Section 3 isn't about if Trump talked to insurrectionists, or his speech motivating insurrectionists; Trump must himself had engaged in insurrection against the United States, or given aid or comfort to the enemies thereof. Even Stanbery's analysis divides advocacy from incitement, and the standard for incitement has only tightened in the intervening century. The only purely-speech disqualification was done by Congress, and involves facts that any advocate should run away from screaming. The other available cases point overwhelmingly to personal (usually violent) action, material support of the confederacy, or sworn membership in a conspiracy or confederacy. There are certainly ways that might have happened, such as if Trump had ordered capitol police to stand down or directed arms shipments to them (Floyd), or given Proud Boys his credit card and said to buy guns (Thomas), or had he won a kung-fu battle with the Secret Service and driven the Beast through barriers surrounding Congress. I actually have a lot of deep questions I'd like to have answered about the original Capitol Police response.
At least so far, no one has provided serious evidence of any of these things. I can't cordon them off entirely, since the only really implausible bit is Trump giving out his own credit card, but we at least don't have proof or even particularly serious allegations of any of them. Trump is alleged to have a) given a bad speech, b) asked or ordered the removal of metal detectors at the crowd near the Ellipse, c) not quickly or sufficiently enough told rioters to stand down, and d) wanted to go to the Capitol.
A, C, and D are not compelling, without more than present here. There is not some special exception to First Amendment protections for speech alleging election fraud, even knowingly falsely alleging election fraud, contra a large number of commentators; that a matter is so critical people care about it enough to become violent has historically been cause for greater First Amendment scrutiny, not less. That speech preceded a riot; that it preceded long enough that police were already on scene before it started does not always break the 'immanent' prong, but raises its eyebrows and waggles heavily -- even pre-Brandenburg, SCOTUS was widely skeptical of convictions based on a rowdy speech preceding a riot. That Trump wanted to march with the proto-rioters toward the Capitol is damning of his person, and everyone highlighting it is certain that he would have then ordered his team of morons to break down the Capitol's doors -- I'm certainly skeptical of his claim that he would have intentionally damped down the rioters..But he did not actually do so, and the evidence everyone brings of specific intent from that demand is a joke.
The Colorado courts provided little serious consideration of this matter, or even much of a pretense, trying to read tea leaves about how any past criminal behavior by any Trump supporter must demonstrate that Trump 'knew' his language would be read as not merely encouragement toward violence, but directions to do so. But Brandenburg requires, at its core, intent, and Colorado brought (and Colorado SCOTUS emphasized) experts that disclaimed any serious insight toward intent. And the First Amendment's broader protections against vague laws that impact speech way heavily, here.
I prepped other citations to talk through with Meskhout -- along with discussions on the Baude/Paulsen claims that the 14th amendment overrides the 1st, or that there is no 14th amendment interest in ballot access such that the 1st amendment applies -- and I expect that this would have ended up the bigger part of our discussion, but it's a space with an absolute ton of broader caselaw and little of it in the modern day caselaw makes for an easy disqualification. Can draw it in more detail if requested.
B sounds more meaningful at first glance, but it runs into the problem where the Ellipse is the front lawn to the White House, almost two miles away from the Capitol, not a point at the Capitol building itself or even the infrastructure guarding it. More honest authors (note; the overt acts rule proposed here is a new one in this context) try to take this as evidence that Trump knew that the rioters were armed, rather than just wanting, but even supposing that was true and Trump believed at the time it was true, it is not an act that would have or could have furthered rioter efforts, given that they would have had to turn around and exit the magnetometer-covered area to head to the Capitol.
None of these proven or seriously alleged behaviors are close to John Floyd, Cousy Griffin, Phillip Thomas. Hell, they’re closer to Stark than Vallandagham.
I think the Republican party and the country as a whole would be better off had Trump been impeached, convicted, and prohibited from further office in 2021, especially if it could have been accompanied by serious evidence of direct crime or support of the rioters. We don't have that; the second impeachment was more interested in politics as usual, and perhaps that more serious evidence does not exist.
This approach can't get us there from here, and in trying it, advocates have opened up a wide number of absolutely terrifying problems spaces -- Gorsuch's parade of horrible where a self-executing 14th Amendment requires military officers to consider if the President has disqualified himself is not even far on the scale of awful and community-destroying fault.
[following from Ashlael originally]
There's a lot of damning things, at a pretty wide variety of levels. Again, if you want to make the argument that Trump's behavior was bad, indefensible, or impeachable, I'm right there with you. But incitement is not 'this is bad++'. It is not even the category of 'this speech is illegal++'.
Under modern jurisprudence, the speech must be intended to cause imminent lawless action, and be likely to do so. Pointing at things he said after already starting a riot is kinda missing the test; him "fanning the flames" is not just insufficient but has been insufficient for seventy-plus years. ((This gets even harder if you must prove that Trump intended them to commit insurrection, rather than inciting mere riot or threatening speech by others, though I make no assessment of whether this would be required for the 14th Amendment.)) And as bad as Trump's behavior was, or how useful his disqualification might seem in the moment, there are good pragmatic reasons to want to keep this rule here; even outside of the question of other politicians who've 'summoned' rioters, the extent protest leaders or organizers can be held responsible for the violence of people attributed to their movement is not some theoretical question.
There’s reason that Baude/Paulsen start channeling the wacko sides of the alt-right when they talk about the First Amendment being overridden by the Fourteenth.
That sounds like fifteen or sixteen thousand examples. The problem is that I can't find any serious breakdown of every or even a large number of those petitions, even ones giving higher numbers of the total disqualified ("twenty thousand men scattered throughout this country who are under the disability of the fourteenth amendment", from someone who might know). What I can find overwhelmingly points to Confederate officers and soldiers, suppliers and politicians. They look and sound more like evidence, if individually weak evidence, of disqualification focusing on its stricter terms.
That doesn't always mean those disqualified did things that were worse than Trump, or even that what they were disqualified for was even bad -- Senter and Nelson weren't great men during Reconstruction, but were anti-Succession and only held office in the Confederacy as a quirk of fate. But I can't find an example of, say, a propaganda writer or chickenhawk Fire-Eater; when I go looking, I tend to find people who probably should have been disqualified and were not instead (tbf, in Brown's case, likely for political reasons, as Georgia was a particular clusterfuck, and I haven't been able to confirm he was not given amnesty or un-disqualified by Congress). And you'd think that the advocates of the more expansive takes of Section 3 would be quick to highlight one, if such evidence existed.
Meanwhile, large as these numbers are, they're tiny compared to the number of sworn (surviving) soldiers and political officers of the Confederacy, the clear and central condition for disqualification. Not all of them would be disqualified to start with, if only for lack of previous oath, but you could probably fill almost that entire roster just those who surrendered at a handful of battles.
And from the other direction, while I've not seen any provide 'fanning the flames'-level incitement as cause for disqualification, I can point to Vallandigham, who was far more closely tied to specific actions, had clearly-covered past offices, and was neither challenged nor as far as I can tell felt he needed to apply to Congress to try for office. And that was one of the examples Baude/Paulsen and the Amar brothers picked out!
I'm not denying Stanbery's analysis; he clearly finds incitement to be cause for disqualification. And it's certainly possible that Stanbery's analysis was broader than the modern-day understanding of the term. Indeed, likely it was at least a little broader, though Confederate abuses of the term against Union officers had lead to serious skepticism.
But it's not like there was some shortage of Southern Confederate blowhards and other Cavaliers who ran their mouths more than their feet or money; the paucity of even attempts or arguments about such cases seem to be a mark against modern-day efforts to read Stanbery's incitement to far more maximalist and sweeping breadths than he or his compatriots every used.
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Unless you are willing to grapple with the likely meaning of "rebellion" in this quote (given the specific historical context), you're still not engaging with the meat of what "insurrection" means - this quote simply says that speech or writing could qualify, but only where they were connecting to "inciting others to engage in rebellion." Given that the antecedent was the actual Civil War, you're skipping the hard part, which is analogizing actual, immediate, and realizable secession from the Union to the facts of January 6th. I'm not saying that's impossible, but just saying that speech or writing could qualify under certain circumstances doesn't really help, because the circumstances are the biggest part of the dispute.
Trump's Supreme Court brief does not dispute that Jan 6 was an insurrection, he merely argues that his conduct did not constitute "engaging in" that insurrection.
That's with good reason - an attempt to prevent the rightfully elected President from taking office through the use of force is an absolutely central example of insurrection, and it's sensible for Trump's lawyers to focus on more plausible arguments. Imagine if a mob of angry Virginians had stormed the Capitol in an attempt to prevent the certification of Lincoln's election - would anyone be claiming that the South's rebellion didn't begin until Fort Sumter?
It doesn't dispute that because it isn't actually a meaningful issue to address and it isn't necessary to defend their side of the case (and it deals with lots of facts not relevant), not because there's no case to be made - if you read the brief carefully, the whole point is that whether or not what others did that day could qualify, the argument is that nothing Trump did would. At most, his brief simply characterizes what the Colorado Supreme Court held, and does not admit its correctness or otherwise opine.
Your second paragraph just assumes the conclusion to be proved - while that's one interpretation of the results, it's not the only reasonable one, nor indisputably correct. And your Virginians hypothetical, while useful to think about, hides more than it illuminates because it only seems particularly bad if you also allow all the subsequent Civil War context in, and assume that their motive is exactly as described. If, for example, their motive was plausibly "wanted to confirm that all electors had an opportunity to cast their votes uninfluenced by outside pressures" and the result after what they did wasn't the Civil War but a peaceful transition to the next administration, I don't think we end up with the 14th Amendment in its current form.
It's absolutely a meaningful issue to address - if there was no insurrection, Trump cannot have engaged in one, and the case fails. It's also not a redundant question - it's possible to incite a riot that is not an insurrection, and it is possible for an insurrection to occur without you engaging in it. If there was a strong case to be made that Jan 6 was not an insurrection, it would manifestly be in Trump's interest to make it.
I disagree entirely. An attempted coup is very bad even if it doesn't lead to civil war. Hitler's Beer Hall Putsch did not lead to civil war, but it would be silly to claim that it wasn't "particularly bad".
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Note that, to the extent that this does qualify, it is still an active thing. The argument I referred to wasn't even this; it is purely about inaction, that Trump is culpable for not doing anything about it. A test concerning incitement does not seem to rest on mere inaction. Instead, it would look a lot more like Brandenberg, which most folks are trying to run away from as fast as possible.
Which argument were you referring to exactly? I've seen people argue that Trump's inaction is evidence that he wanted the insurrection to happen (which obviously goes to intent), but those same arguments say that it was Trumps words and actions that incited the insurrection. I haven't seen any briefs claiming that he is guilty of engaging in insurrection purely because of his inaction. Could you link me whatever brief it was that I missed?
The Amar Bros. Now, of course they also say that they think his words/actions incited the insurrection, but you know the old joke about, "I don't know anything about whatever it is you're talking about, and if I did know something, which I vehemently deny, it would be that I couldn't have done it, because I don't have the specific tools needed to open that sort of safe, and if I did have the specific tools needed to open that sort of safe, ......"
They clearly want to give the Court as many options as possible, to say that a combination of words/actions/inactions is enough, and if words aren't good because 1A or something, then they can say that a combination of actions/inactions is enough, and if that's not good because he took basically no actual actions that they can stomach making precedent for disqualification-by-insurrection, then they can say that just inaction is enough.
And egads, I forgot how incredible their run from Brandenberg was. They throw the entire thing in the trash heap in like one sentence, saying that it's "super-strict" and doesn't "automatically" carry over from criminal law to ballot eligibility. Ok, so just because something might not be "automatic" doesn't actually provide an argument either way. But what they propose is hilariously bad. Since you can be denied from office by refusing to say the Oath, somehow, that "automatically" means that there are no free speech protections whatsoever when it comes to the question of ballot eligibility. Just wow. I would normally lol at the folks who point to the speech of Dems around the BLM riots and say that they could get to disqualification from there, but if these people have their way, there really is nothing stopping such a result.
I don't believe you are representing the Amar brief fairly. I do not find anything in there that can be construed as saying inaction alone can be enough to constitute engagement in an insurrection, even hypothetically.
Having said that, I don't think it's a good brief. I'm pretty sceptical of their "First Insurrection" narrative. Taking their account at face value, there may have been a conspiracy to prevent the certification of Lincoln's election, but it seems to me that if the attempt was deterred before it ever started it can't count as an insurrection. They certainly try to give the impression that the "First Insurrection" was understood as such at the time, but they don't really establish this anywhere. And as you say, they give pretty short shrift to some complex issues.
See their questions 5 and 12, in particular. Again, they still obviously want to keep the option of 'action and inaction together' open as their primary argument, but they directly and affirmatively claim that yes, they think that inaction alone can be "giving aid and comfort" within their reading of Section 3. Of course, this is divorced from the distinction in Section 3 between "engaging in insurrection" and "giving aid and comfort to enemies", which other briefs think are distinct things. I.e., others think that "enemies" must mean "foreign enemies", given whatever history/definitions, whereas the Amar bros do the sort of smashing together of the two parts to get an idea of "giving aid and comfort to people who are engaging in insurrection" rather than "engaging in insurrection" being separate from "giving aid and comfort to enemies".
At best, one could say that they're implicitly claiming that anyone who engages in insurrection is an "enemy", but a Ctrl+F for "enemies" and "enemy" shows only one result for each, neither of which engages with this thorny question. Therefore, I think my reading is a fair representation of what they have actually written in their brief. They might have some other nuanced view that isn't actually in the text of what they wrote, but that's what they wrote. I'll remind you that these are the statements I've made concerning their brief on this question:
I really cannot see how that is not a fair reading of what they wrote.
My bad, I skimmed over question 5 (assuming, given the heading, that it would focus narrowly on the question of whether the presidential oath fits within the oaths described in section 3). You are right, they do seem to say here (though not elsewhere) that inaction can be enough to constitute "giving aid or comfort". I think that's a bad argument (and if you're going to make it you should do so properly rather than in a brief aside while addressing a different issue) - I accept that the Presidential oath confers specific duties on the President and that by inaction he can break his oath. However, section 3 does not address all forms of oathbreaking. It addresses a specific type, which by its verbiage demands action.
All I can say I guess is that this is a very bad brief and while I hope the court rules to disqualify Trump, I also hope they don't rely on the Amars' reasoning.
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