Constitution
Imagine If Salvador Dali Painted A Surreal Supreme Court Appeal

That’s the way Donald Trump’s appeal to the Supreme Court reads, as his team of expert lawyers attempts to take on Colorado’s ban of Trump from the state’s presidential ballot based on the 14th Amendment. I mean, the word surreal will not suffice. Under Trump’s reading of the Constitution, the 14th Amendment’s ban on anyone who has violated their oath to the Constitution by committing insurrection applies only to those who already “hold” office, not to those seeking office. So, Donald Trump is telling the court that the 14th Amendment demands that a person who has committed insurrection must be elected to office before he can be disqualified.

Constitutional scholars such as Lawrence Tribe of Harvard and the distinguished conservative jurist J. Michael Luttig have argued that Section Three of the 14th Amendment is “self-executing,” that it “requires no legislation, criminal conviction, or other judicial action in order to effectuate its command.” Grounds are found for this interpretation in the amendment’s final sentence, which states that “Congress may by a vote of two-thirds of each House, remove such disability,” the disability, of course being the ban against holding office if you are an insurrectionist.

Trump’s legal eagles read this provision upside down and backwards, that the Constitution is requiring that an insurrectionist achieve office before the 14th Amendment kicks in. The amendment was written after the Civil War to ban former Confederates from holding elective office, not just in the Federal government, but “under any state” in the words of the amendment. Now, I guess you could make an argument that the Constitution is overstepping its powers in that demand. Under a so-called states' rights reading of the Constitution, it should be up to the individual states to decide who gets to serve in their legislatures or be elected governor, or even be appointed to any “office.”

But there it is. Not only does the 14th Amendment ban insurrectionists from serving in federal office, it bans them from election to office in their own states. That is how seriously the writers of the 14th Amendment took the crime committed by Confederates, who fought a war against the government of the United States and in so doing violated the oaths taken by anyone who had served in federal office or who had been soldiers in the army of the United States.

You are out, the 14th Amendment in effect says. It’s a lifetime ban.

But not Trump, says his appeal. “The Constitution requires that the President qualify under section 3 only during the time that he holds office,” reads the appeal. So, at the time that the 14th Amendment was written, what Trump and his lawyers are saying is that the writers meant for former Confederates to have to run for office and be elected in order for the provision banning them from office to take effect.

Hey, Jefferson Davis! Why don’t you run for governor of Mississippi so we can ban you from office? Or maybe what we’ll do, because we’ve decided that you have adequately made amends for having been the president of the Confederacy, we’ll decide to pass a law, by a vote of two-thirds in the House and the Senate, allowing you to serve. How about that, Jeff?

Absurdist enough for you? Trump’s appeal goes on to assert that the 14th Amendment does not apply to him for two more surreal reasons: because the president is not an “officer of the United States” under the 14th Amendment, and because Trump, as president, did not take an oath to, in the words of the amendment, “support the Constitution of the United States,” but rather to “preserve, protect, and defend the Constitution,” in the words of the presidential oath.

Now, we could call Trump’s Supreme Court appeal hair-splitting, but that wouldn’t be fair to inadequately conditioned and treated hair, would it?

Two hundred Republican members of Congress weighed in with an amicus brief on Thursday asserting that the state of Colorado had “trampled the prerogatives of members of Congress.”

Of course they did.

Any normal Supreme Court, which is to say, any other sitting Supreme Court in the history of the United States, would throw this out of control assemblage of legal table scraps out with the garbage.

This Supreme Court will hear oral arguments on February 8. It’s too bad Dali isn’t alive to be there and sketch the proceedings, because I’m sure it would take his talents to put it across.

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.

Please consider subscribing to Lucian Truscott Newsletter, from which this is reprinted with permission.

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Donald Trump's Perfect World Of Unlimited (Fascist) Power

Donald Trump

Last Tuesday, D. John Sauer, a lawyer for Donald Trump, went before the D.C. Circuit Court of Appeals and said his client could not be prosecuted for ordering the assassination of one of his political opponents (clearly, if not specifically, meant to include President Biden) unless he was first impeached by the House and convicted by the Senate. Since that ignominious moment, pundits and commentators and legal experts have been all over the specifics of the argument, which had to do with Trump’s claim that he is immune from prosecution for anything he did while he was president that came under the broad-as-an-ocean (for Trump, anyway) category of “official duties.”

Trump’s lawyers were in court to argue that the four counts in the indictment brought by Special Counsel Jack Smith against Trump should be dismissed because of this claim of immunity. But all anyone can talk about since Tuesday has been what we might call the freedom to assassinate claim. It was an extreme hypothetical asked by Judge Florence Y. Pan, who after Sauer hemmed and hawed at her first try at pinning him down, said, “I asked you a yes-or-no question. Could a president who ordered SEAL Team 6 to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution?”

As Adam Liptak, the New York Times Supreme Court reporter cleverly said in a January 10 analysis, “Mr. Sauer said his answer was a ‘qualified yes,’ by which he meant no.” Liptak went on to point out something not brought up in court, that if Trump’s argument is accepted that he would have to be impeached and convicted before he was prosecuted for assassinating a political rival, “A member of Congress might be reluctant, in any event, to vote against a president prepared to order the military to murder his opponents,” among whom would definitely be any member of Congress who voted to impeach and any senator who voted to convict him.

The commentariat seemed to welcome the opportunity to lay in the sun on Trump’s courtroom beach and knock down the legal sandcastles his lawyers had erected. The problem, however, is that everybody, including the judges on the Circuit Court, is continuing to play on Trump’s beach, addressing his arguments regarding his insane claims of what amounts to king-like impunity when it comes to the power he is asserting belonged to him as president and continues to adhere to him as a former president. In other words, it’s not only the assassination claim; it’s everything else.

With all that’s going on, it’s easy to forget that Trump has lost in two claims of immunity in courts of appeals recently. On December 13 of last year, the Court of Appeals for the Second Circuit in Manhattan ruled that Trump cannot claim presidential immunity from the defamation suit brought against him by writer E. Jean Carroll, who claimed that Trump had raped her back in the 1990’s. Carroll’s second defamation trial, this one to determine yet more damages against Trump for defaming Carroll a second time, goes to court next week on January 16.

On December 29, the D.C. Circuit Court of Appeals ruled against Trump in his claim of presidential immunity from civil liability in a lawsuit brought by several D.C. and Capitol Police against Trump for inciting the attack on the Capitol on January 6, 2021 during which they were injured.

So not only is Trump claiming he cannot be prosecuted for illegal acts he committed while president, he is claiming civil immunity from judgements against him for the same acts, and civil immunity from defamation lawsuits brought against him for statements he made as president that had nothing to do with his official duties.

It’s not just the legal realm in which Trump is threatening to create a perfect world for himself, in which he will be allowed to do whatever he wants to do, no matter if it is legal or illegal, without suffering consequences. Trump and spokesmen for him have said that if he is elected president he will claim a right to fire federal civil service workers and replace them with political appointees who have passed a loyalty test to him, not the Constitution, so that he will not be hampered by bureaucracy in carrying out his plans to, among other things, deport millions of immigrants without legal hearings or any other procedural rights. Trump has said that on “day one” if elected president he would invoke the Insurrection Act and put active duty members of the military on the streets to put down demonstrations against him, as well as to assist in his demonstrably illegal plans to deal with immigrants on the border.

These are just a few of the things we know that Trump is planning if elected. There are doubtlessly many other plans Trump has made to illegally exercise presidential power in ways that no other president has ever claimed the right to do. All of it amounts to a “so sue me” approach to governing if Trump becomes president again. He clearly has a plan to do whatever he wants to do as president and then use the Department of Justice to defend himself in court if and when he is sued by parties affected by his outrageous assertion of presidential power.

I don’t think it’s unreasonable at all to suspect that Trump plans to use law enforcement powers to arrest and detain political opponents. I mean, if his lawyers are in a federal appeals court arguing that he has the right to assassinate political opponents, what is to stop him from merely arresting them on bogus charges and detaining them, or detaining people without charges at all under some spurious claim of emergency powers under the Insurrection Act?

The way Trump ran his business in New York City amounted to exercising powers as a businessman that didn’t exist, such as refusing to pay money to contractors who worked for him, and then, in effect, saying “so sue me.” In dealing with aggressive reporting he didn’t like, he flipped the “sue me” thing on its head and sued the writers. Trump sued Timothy L. O’Brien, who wrote TrumpNation: The Art of Being the Donald, in which he stated that Trump was worth far less than his claim of $10 billion plus. He filed nuisance suits against other writers or had his hit-man Michael Cohen call them up and threaten lawsuits if they didn’t back down from claims they made or cancel the publication of articles altogether.

Trump recently threatened to cancel the broadcast licenses of companies he doesn’t like, such as Comcast, the parent company of NBC and MSNBC, and he made numerous similar threats against CNN and other news outfits when he was president in 2017 and 2018. Can you imagine what he might do to the press in a second term if elected?

All of Trump’s claims today of presidential immunity for his past actions merely hint at what he’ll do if he is elected for a second term.

A look back at what he said on the Access Hollywood tape may give us a preview. This is how he thought and acted before he was elected president in 2016: “When you're a star, they let you do it. You can do anything. Grab 'em by the pussy. You can do anything.”

Every day, Donald Trump tells us who he is and what he’s going to do. Believe him.

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.

Please consider subscribing to Lucian Truscott Newsletter, from which this is reprinted with permission.