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@judgeluttig

Oct 21

Former Republican Administration officials from five Republican Administrations argue in this amicus brief filed yesterday in United States v. Donald Trump that the former president is not entitled to absolute immunity from prosecution for his alleged crimes

against the United States because, in attempting to overturn the presidential election that he knew he had lost, he violated the Executive Vesting Clause of Article II, Section 1, Clause 1 of the Constitution.

To our knowledge, this is the first brief ever to make this constitutional argument against absolute immunity from criminal prosecution for a president.

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@judgeluttig

Oct 14

In concluding from these “framing/ratification comments” that the text of Section 3 is ambiguous, Professors @kurtlash1 and Calabresi are turning constitutional interpretation upside down. Framing or ratification comments — whether ambiguous, as here, or clear —

cannot “render” constitutional text ambiguous. By Section 3, a person is disqualified from holding an “office . . . under the United States” if he engaged in an insurrection or rebellion against the Constitution of the United States, having taken an oath to support the same.

These framing/ratification comments do not even arguably render this clear constitutional text ambiguous. Indeed, in making the argument they do from these ambiguous comments, Professors Lash and Calabresi implicitly acknowledge the constitutional text itself IS unambiguous.

Read 6 tweets

@judgeluttig

Oct 2

I apology for the length of this rejoinder. A "Letter to the Editor" seemed futile for the needs and purposes of this tweet. Thank goodness for Twitter!

This editorial today by @washingtonpost is perhaps the most journalistically incompetent and irresponsible editorial on the Constitution of the United States and a question of constitutional law by a major national newspaper that I ever remember reading.

The editorial inauspiciously begins by "misquoting" the Disqualification Clause of Section 3 of the Fourteenth Amendment itself, next dismissively pronouncing the argument for disqualification made by the nation's foremost constitutional scholars as little more than "intriguing,"

Read 23 tweets

@judgeluttig

Oct 2

This excellent piece in the @latimes by @pennlaw professor @KermitRoosevelt on Section 3 adds the compelling historical explanation/justification for the former president's disqualification from the presidency that has been missing from the national conversation to date:

"[The Civil War] was also different in its goal and rationale. The secessionists of the 19th century wanted to break away from the United States and start their own country. Confederate leader Jefferson Davis was their president, they declared, not Abraham Lincoln.

The Jan. 6 insurrectionists, by contrast, wanted to retain Trump as president of the United States. They weren’t trying to separate from the country; they were trying to take it over.

Read 7 tweets

@judgeluttig

Sep 18

There is simply no basis in constitutional interpretation, reason, or logic for concluding from the constitutional fact that the president nominates and appoints “Officers of the United States” under Article II, Section 2, Clause 2, that the president is not

“an officer of the United States” for purposes of the Disqualification Clause of Section 3 of the Fourteenth Amendment. Such is constitutional non sequitur. Under the Constitution, the president holds the “Office of the President of the United States.”

He is unquestionably an “officer of the United States,” even if he is not an “Officer of the United States” for purposes of the Appointments Clause. The fact that the president is elected, not appointed, and therefore is not an “Officer of the United States”

Read 12 tweets

@judgeluttig

Sep 3

As it always is, it was a pleasure to be on with the exceedingly intelligent, articulate, informed @AliVelshi this morning to discuss the application of the Disqualification Clause of Section 3 of the Fourteenth Amendment to the former president.

I addressed two legitimate questions that have been raised. I explained as to the first -- whether disqualification is anti-democratic -- that actually the Fourteenth Amendment itself declares that disqualification is not anti-democratic at all,

that Section 3 is one of the most democratic provisions in the Constitution precisely because it is a provision of the Constitution. Instead, it is the conduct that gives rise to disqualification under Section 3 that the Constitution deems and declares to be anti-democratic.

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