Thread by @SethAbramson

(1 of 2) For those confused by some of the horrific legal takes out there tonight: a bill of attainder is a punishment without trial. A resolution regarding insurrection includes no punishment and follows a trial in which a super-majority declared an act of insurrection occurred.

(2 of 2) A resolution of the sort many are suggesting, which could even take the form of Congressional censure, would not include a punishment. If Trump were to try to run for office again, a state could refuse to put him on the ballot. A suit would ensue. That's how it'd work.

(PS) Trump is famous for using the courts to delay an issue until there's no remedy. Any state that kept him off the ballot on the basis of an insurrection censure might tie up the courts for so long Trump could miss his ballot deadlines. But it's even more complicated than this.

(PS2) Those who say a Congressional censure for an act of insurrection can't be used this way say Sect. 3 of the 14th Am. is only available if a federal prosecutor proves beyond a reasonable doubt an insurrection statute that didn't exist when Sect. 3 of the 14th Am. was written.

(PS3) Moreover, the only standard explicitly acknowledged by the Constitution for disqualification from office is a super-majority of senators using any standard of proof they choose. Trump's defenders now say the standard of proof is a *unanimous jury*. It doesn't work that way.

(PS4) What some on Twitter like to do is take cases that are matters of first impression and pretend—with bellicose language—that everyone knows how these cases would be handled. I'm always candid with readers: we've no idea whatsoever how this would end up. It hasn't been tried.

(PS5) So here's what we know:

1️⃣ Congressional censure isn't a bill of attainder.
2️⃣ A Senate supermajority has publicly declared Trump committed an act of insurrection.
3️⃣ A Senate supermajority is the only standard—*not* the only USC mechanism—for disqualification from office.

(PS6) Also:

4️⃣ The standard of proof and vote required for disqualification from office isn't a unanimous jury convicting Trump under a statute that didn't exist when the 14th Am. was written.
5️⃣ Many people are lying tonight about whether this is a matter of first impression.

(PS7) Unfortunately, the horrifically bad lawyers on Twitter who are pretending we know how all this would work and completely misusing the phrase "bill of attainder" to refer to Congressional censure are louder and angrier than me, so they will probably be better heard than me.

(PS8) What's required now is for both houses of Congress to censure Trump via a majority vote alleging an act of insurrection. In the Senate, 67 senators technically should feel compelled by their public statements to vote in favor—but only 60 are needed to break a filibuster.

(PS9) Nothing else would happen at the moment. There'd be no further votes or trials in Congress. If a court convicted Trump of an insurrection-adjacent crime, that'd be good but not required. The real test would come when/if Trump tried to run for office. States could then act.

(PS10) A state could argue Trump isn't eligible to appear on its ballot under the 14th Amendment. Litigation could drag on inteeminably, and this Supreme Court has shown in the past that it's not always to able to respond in a timely fashion—thereby making issues non-justiciable.

(PS11) I happen to believe that, after the January 6 insurrection, even this Supreme Court wouldn't bend over backwards to assist Trump in getting on various state ballots in 2024. Upshot: I have *no idea* why anyone is attaching the phrase "bill of attainder" to anything I said.