Friday, October 27, 2023

Richard N. Painter, expert on legal ethics, says efforts to overturn the 2020 election could bar Mike Johnson from serving as House speaker under 14th Amendment

Mike Johnson, plucked from obscurity on Wednesday to be speaker of the U.S. House, might be disqualified from serving due to his efforts to overturn the 2020 presidential election, with his behind-the-scenes actions helping lead to the Jan. 6 attack by Donald Trump supporters on the U.S. Capitol. That is from Richard N. Painter -- former chief ethics  lawyer in the George W. Bush White House, law professor at the University of Minnesota, and vice chair of Citizens for Responsibility and Ethics in Washington (CREW), a government watchdog group.

In a post at X (formerly Twitter), Painter writes:

Under 14th Amendment, Section 3, anyone who gave aid or comfort to the insurrection of 1861 or the insurrection of 2021, is DISQUALIFIED from public office, and that includes Speaker of the House of Representatives. Is the Speaker's chair still vacant?

That thought probably jolts Americans on both sides of the political aisle. But our research at the blog Legal Schnauzer indicates the public should not brush it off. For one, the record indicates Richard Painter is a serious fellow, aligned with an organization, CREW, that does serious work.In fact, CREW already has filed a Section 3 lawsuit in Colorado, arguing that Donald Trump -- who was president on Jan. 6 and now is the runaway front-runner to be the Republican Party nominee in the 2024 presidential election, is barred from running for public office. Is CREW executive director Noah Bookbinder messing around? It does not sound like it, based on our post (dated 9/13/23) titled."Debate about Trump's possible disqualification is no longer an academic exercise; lawsuit in Colorado makes the 14th Amendment's implications very real."Says Bookbinder:

On January 20, 2017, Donald Trump stood before the nation and took an oath to “preserve, protect and defend the Constitution of the United States.” After losing the 2020 presidential election, Donald Trump violated that oath by recruiting, inciting, and encouraging a violent mob that attacked the Capitol on January 6, 2021, in a futile attempt to remain in office. . . . 

While Section 3 has not been tested often in the last 150 years, due to lack of insurrections, last year CREW represented residents of New Mexico who sued to remove county commissioner Couy Griffin from office, the only successful case to be brought under Section 3 since 1869. The judge in that case determined January 6th was an insurrection under the Constitution and that someone who helped to incite it–even if not personally violent–had engaged in insurrection and was disqualified from office. . . . 

In the wake of the Civil War -- the closest we have ever come to losing our Republic -- the framers of the 14th Amendment's disqualification clause understood we needed to make sure those who attacked our democracy would not then be put in charge of it, Bookbinder says, adding:

It is a self-executing provision that requires neither action from Congress nor a criminal prosecution to apply. . . .

This constitutional provision is not a punishment, it is a qualification. Just as a 30-year-old cannot serve as president, neither can someone who engaged in insurrection.

Debate over Section 3, as you might expect, quickly caught the attention of liberal legal scholars. But they are not alone. From a post (dated 8/16/23) under the title "Conservative profs say Trump is ineligible to serve as president under 14th Amendment, and D.C. ethics advocate plans to ensure that provision is enforced:

Two prominent conservative legal scholars determined that former President Donald Trump is ineligible to be president under a provision in the Constitution barring people who engaged in insurrection from office.

Professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — both members of the conservative Federalist Society (FedSoc) — studied the question for more than a year and detailed their findings in an article set to be published next year in the University of Pennsylvania Law Review, according to The New York Times.

"When we started out, neither of us was sure what the answer was," Baude told the outlet. "People were talking about this provision of the Constitution. We thought: 'We're constitutional scholars, and this is an important constitutional question. We ought to figure out what's really going on here.' And the more we dug into it, the more we realized that we had something to add."

The professors' conclusion, he said, is that Trump "cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6."

What could lie ahead? The Federalist Society professors shine light on that question, per an article by Igor Derysh at Salon:

The article argues that there is "abundant evidence" that Trump engaged in an insurrection, citing his efforts to change vote counts through threats and intimidation and urging his supporters to march on the Capitol.

"It is unquestionably fair to say that Trump 'engaged in' the Jan. 6 insurrection through both his actions and his inaction," the article said.

Other conservative legal scholars have weighed in on the issue. Writes Deyrsh:

Steven Calabresi, a law professor at Northwestern and Yale and a founder of the Federalist Society, [said] "election administrators must act."

"Trump is ineligible to be on the ballot, and each of the 50 state secretaries of state has an obligation to print ballots without his name on them," adding that they may be sued if they refuse.

Trump is also facing prosecution for his role in the post-election scheme, but that case and Section 3 address "completely separate questions," U of Chicago's Baude said:

"The question of should Donald Trump go to jail is entrusted to the criminal process," he said. "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."

How might these issues apply to Mike Johnson? In terms of personality, he and Trump are radically different -- with Trump seemingly combustible at any moment, while Johnson tends to give off more rational, considered vibes. But ideologically, the two sing from the same hymnal. If anything, Johnson might be more to the extreme right than Trump. And a number of analysts have said Trump essentially picked Johnson to be speaker by pulling his support for Tom Emmer (R-MN), who was the nominee for a few hours, and calling him a RINO (Republican in Name Only).

Does Richard Painter have a point about Mike Johnson and Section 3? We think he does, and we will examine, in an upcoming post, issues that might prove challenging for Johnson.

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