Should Trump be constitutionally barred from the presidency?

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A view of the U.S. Supreme Court on Thursday morning January 4, 2024 in Washington, DC. Former President Donald Trump has petitioned the U.S. Supreme Court to keep his name on the primary ballot in Colorado. Earlier in December, the Colorado Supreme Court ruled 4-3 that former President Donald Trump is ineligible to run for the White House and appear on the state's ballot, citing the U.S. Constitution's insurrection clause in the 14th amendment.  (Photo by Drew Angerer/Getty Images)
A view of the U.S. Supreme Court on Thursday morning January 4, 2024 in Washington, DC. Former President Donald Trump has petitioned the U.S. Supreme Court to keep his name on the primary ballot in Colorado. Earlier in December, the Colorado Supreme Court ruled 4-3 that former President Donald Trump is ineligible to run for the White House and appear on the state's ballot, citing the U.S. Constitution's insurrection clause in the 14th amendment. (Photo by Drew Angerer/Getty Images)

The U.S. Supreme Court is hearing an appeal of a Colorado court ruling this week that could keep former President Trump off the ballot.

It could profoundly shape the 2024 election — and American democracy.

Today, On Point: Should Trump be constitutionally barred from the presidency?


Mark Graber, Regents professor at the University of Maryland Francis King Carey School of Law

John Yoo, Emanuel Heller professor of law at the University of California, Berkeley.

Timothy Snyder, professor of history at Yale University. Author of several books, including "On Tyranny" and "The Road to Unfreedom."


Part I

MEGHNA CHAKRABARTI:  On Thursday, the United States Supreme Court will hear oral argument in a case that will have a profound impact on the 2024 presidential election, and longer term on American democracy. The case is Trump v. Anderson. And the question before the court, should Donald Trump be disqualified from the presidency?

Today's show comes in two parts. First, we'll hold a kind of miniature oral argument with two legal scholars who have filed 'friend of the court' briefs in this case, so that you get a flavor of the kind of argument that will be presented before the justices on Thursday. Then we'll turn to a historian to look into the past to understand what's at stake with the country's future in this case.

So let's start with Mark Graber. He's Regents professor at the University of Maryland, Francis King Carey School of Law, one of only seven professors ever to hold that chair. He's also one of the country's most prominent experts in constitutional law regarding insurrections. Between the nation's founding and post-Civil War reconstruction, he filed a brief arguing that the Constitution says Trump should be disqualified from the presidency.

Professor Graber, welcome to On Point.

MARK GRABER: Thank you for having me.

CHAKRABARTI: Also with us is John Yoo. He's Emmanuel Heller professor of Law at the University of California, Berkeley. He's filed a brief to the court arguing against disqualification. Professor Yoo is also recognized as one of the nation's preeminent conservative legal scholars.

He has extensive experience in constitutional and federal law, most notably during the first administration of President George W. Bush and the War on Terror. Whereas Deputy Attorney General in the Justice Department's Office of Legal Counsel, he authored a memo for the Bush administration arguing that U.S and international law did not protect unlawful combatants from "Enhanced Interrogation techniques."

Professor Yoo is also a fellow at the Claremont Institute, a group whose mission is to quote, restore the principles of the American founding to their preeminent authority in national life. Professor John Yoo, welcome to you.

JOHN YOO: Thanks. It's great to be with you.

CHAKRABARTI: First of all, I want to read Section 3 of the 14th Amendment of the Constitution, which is where all the differing legal interpretations lie.

So that section reads, "No person shall be a senator or representative in Congress or elector of President and vice president, or hold any office, civil or military under the United States or under any state, who having previously taken an oath as a member of Congress or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each house, remove such disability."

Okay, so let's begin with the first point of contention in the many briefs that have filed, been filed to the court in this case. And Professor Yoo, let me start with you. There's the simple disagreement over whether or not a president, a former president, qualifies as an officer of the United States in terms of what the Section 3 reads, your argument is?

YOO: Sometimes it helps when interpreting the Constitution to actually look at the text closely first before we get into all the history and precedent and practice. And here I think the text is fairly clear. It has two parts. One, the beginning, the first sentence you read, is what offices are you not allowed to hold?

And then the second part is, what office did you have in the past that disqualifies you for having this new post? So the first sentence, just the list of things you're not allowed to do, if you had engaged in insurrection and been, had taken oath before. Include, I think it's pretty precise. Senator, representative in Congress.

So a member of the legislature, elector for president and vice president. And then the phrase you just mentioned, Meghna, any office, civil or military under the United States. Now the Constitution pretty clearly distinguishes between President on the one hand, and an officer of the United States. An officer of the United States ... be like a cabinet officer or anyone below cabinet.

He or she might be all the way, be a prosecutor, a line prosecutor in the Justice Department at a U.S attorney's office. I think that the court has always made clear that the Constitution distinguishes between those two, because the president is not an officer. He's not, or she's not appointed.

She's not, or he's not picked by the president and confirmed by the Senate, for example. There's an appointments clause that takes care of that. Instead, the president is elected, in fact, the president and vice president, only people who are elected by the country as a whole. I think the text is even clearer when you dig deeper. Because in the sentence you read Meghna, it says you can't be an elector for president and vice president.

So in the text itself the 14th Amendment says you can't be an elector for president and vice president.


YOO: So then why would they leave the word out when they talk about officer of the United States.

CHAKRABARTI: Yeah. Let me turn to Professor Graber for his response on that, because Professor Yoo is right.

There's no specificity around the word president here. But on the other hand, I also see that, in terms of elected offices, of course, senators and representatives are elected by the people in their state. And I say, I think there's a lot of let's say nebulousness around the phrase or "hold any office" in the United States.

So Professor Graber, what are your thoughts?

GRABER: First, please note that the general of the Air Force, which did not exist in 1866, is not mentioned. Cabinet officials are not mentioned. What we do know is every member of the 39th Congress that frames the 14th Amendment said the President was an officer of the United States.

We know that during the discussions and the ratification debates, everyone said, what's the purpose of the 14th Amendment, Section 3? It is to prevent from holding any office. Anyone who was an officer and participated insurrection, they would have been stunned, startled, would not know what you were talking about if they said there was this weird exception for a president who had never held any office.

Why would anyone in their right mind after all say a federal dog catcher who participates in an insurrection cannot hold an office? But there's an exemption for the highest office in the land. There, if the highest officer in the land bombs Congress, signs a pact with North Korea to drop an atomic bomb on Washington D.C., that person can still be president.

CHAKRABARTI: Why would anyone, because Textualism and originalism is a very powerful and deeply held legal line of scholarly thinking in this country. And there's many examples of when there's nothing else to look at. Perhaps, let me say not nothing else to look at, but it's trying to divine the intent of the founders, which is the basis upon which the court decides, Professor Graber.

GRABER: Presumably we don't think the founders were idiots. And so if we have an interpretation which has the founders doing something we think is stupid, that has no reason, we ask, did they mean that? And notice what I said, everybody in 1866 said a president is an office of the United States. So textualism and originalism.

If we take the date when the 14th Amendment was framed and ratified. Textualism and originalism support, including the president, what people may have meant 80 years ago. I think Professor Yoo was wrong about 80 years. But 80 years ago was not the debate. The debate is what would an ordinary person understand by officer of the United States in 1866, and here the historical and textual evidence is overwhelming.

CHAKRABARTI: So let me get professor Yoo to respond to that because I think professor, just to be clear for listeners, we are we are talking about the 14th Amendment as noted, which was not in the original text of the Constitution, right?

It is post-Civil War. So it's not necessarily, what did Thomas Jefferson, John Adams, et all intend in the original text of the Constitution. It is what did the crafters and the ratifiers of the 14th Amendment intend. So what's your response to that?

YOO: Actually, I think one way to understand this is there's a difference between textualism and originalism.

Textualism means looking at the whole text of the Constitution, reading it together, originalism which I have I have to confess, I have joyously engaged in from time to time. Originalism means look at the statements of the people who wrote and ratified the amendment at the time and try to understand what they meant.

But originalism, or this kind of history, should never, I think, overcome what the text itself says. So for example, we would say, what does free speech mean? And we could say what did the founders who wrote the First Amendment mean by that? We start with what does the word in the actual text of the Constitution mean when you read it altogether? This is not some made-up strange approach to interpret the Constitution. It started very early on. Chief Justice John Marshall used that approach when he read the Constitution to allow National Bank now. So what I read, and let me also say, this is a close question. I'm not claiming by any means that this is obvious and clear.

I think both sides here are very good arguments. But I think what you're hearing here on the other side is an effort to use that history, of which there's not a lot, because I think everyone has to see that no one really thought about this problem and that the comments about this are rather stray ones.

Is that enough to overcome the text? Because I don't think it's obvious. I actually, I don't, I don't agree at all that the text allays president into officer of the United States. Instead, repeatedly, the constitutional text makes a difference. They're impeached differently, they're appointed differently.

The Supreme Court has said in several opinions recently that the president and officer of the United States are different. This is something actually the justices on the court, they don't agree on much sometimes these days, but they seem to agree on that principle. Another question then that Mark raises is why would they do that?

It seems so irrational or senseless. One reason you might say, is because the provision already says you can't be an elector for president or vice president. So the people who wrote the 14th Amendment, as you said, I know this is right after the Civil War, this is the Reconstruction. They might've said, we won't let any Confederates become electors, so they're not going to pick a Confederate president.

Part II

CHAKRABARTI: Today, Professor John Yoo and Professor Mark Graber joins us. They have both filed briefs in the major case currently before the United Supreme Court. It's called Trump v. Anderson, and it is a case where the justices are being asked to decide whether Donald Trump should or should not be disqualified from the presidency.

Now professors, I'd like to dive into the second major question here, and that is of whether or not Donald Trump actually engaged or aided an insurrection on January 6th. Professor Graber, let me read a little bit from Professor Yoo's brief here to the court. Where he says that the breadth of the term insurrection, in the absence of legislative definition, is uncertain and indeterminate. And then the brief says, quote, if an insurrection against the constitution includes any interference with the execution of any of the functions of the branches of the federal government, it sweeps too widely. End quote. Professor Graber, is there a legal basis for a more robust definition for insurrection?

And did Donald Trump engage in that?

GRABER: Insurrection was well known in the 19th Century. John Marshall, first Chief Justice. Joseph Story. Benjamin Curtis, Stephen Field. All the justices had a common definition, an insurrection involved an assemblage. There was clearly an assemblage on January 6th. Lots of people, the assemblage was resisting in the case of the United States federal law.

That assemblage was resisting the peaceful transfer of presidential power. The third thing that we're resisting by force, violence and intimidation. People died; people were injured. There was clearly force, violence and intimidation on January 6th, and it must be for a public purpose. They were not there to sell congressional furniture on eBay.

They were there to protest a stolen election. The common law, constitutional rules are also very clear. Anyone who knowingly assists or incites an insurrection is an insurrectionist. Donald Trump uses incendiary rhetoric. He is told that's inspiring violence. He doubles down. He says, "Come to Washington and be wild."

He's told that is inspiring violence. He doubles down. He is told there are people in the crowd. Bent on violence. He says, when there's fraud, you don't do the usual things. Fight. Fight like hell, save our country. I think a reasonable person could conclude this is not a person who is simply for peace.

CHAKRABARTI: Professor Graber. Let me follow up with that though, because this is where admittedly, to both of you, my understanding of the far limits of speech protections is a little hazy. Because I've heard in response to your argument that it was, Trump never said, go directly to Congress and interfere or stop the count, the certification of electoral votes.

The things that he said that you cited could arguably be, have read in, a multiplicity of different ways. So how is that a direct support or incitement of insurrection?

GRABER: The question is, how would a reasonable person interpret it? So consider two versions. My spouse, knowing I'm going to be on this show, says, "Fight hard, Mark." Probably it's a metaphor.

My spouse seeing me with a gun, with a weapon. Says, "Fight those SOBs." That's probably an incitement to violence. Context matters. When you know people are armed. When you've been informed people are planning violence, and you tell them fight. When you tell them, when you're dealing with fraud, you don't use the usual methods.

I think a reasonable person could conclude that is incitement to violence.

CHAKRABARTI: Professor Yoo, do you see that same clarity around the definition of insurrection as Professor Graber lays out?

YOO: First, let me start out by saying you, Professor Graber, I'm conceding our reasonable people, so I'm not going to argue with whether you, either of you might think Donald Trump committed insurrection.

I don't think, I think this question is about who gets to decide whether there's an insurrection. Does every county official in the country who runs an election in their local town get to decide and get to strike, not just Donald Trump? Look, the clause applies to basically every federal and state officer elected and appointed.

Do they get to sit there and edit the ballots? I don't think so. I think instead what we should do is have Congress decide by statute and one more thing. Congress did pass a statute. There is an insurrection statute, it's a criminal violation, and Congress having passed that statute, could leave it up to the Justice Department.

To prosecute Donald Trump and anyone else connected with the January 6th, and I think if they're convicted, they would then trigger the 14th Amendment. Then I think state officials could, having seen that some officer in the federal government has found a legitimate process like a criminal trial, that Donald Trump was an insurrectionist, they could then strike him off the ballot.

Congress could issue some kind of resolution, as it did for Confederates after the Civil War, one way or the other. Now the problem is the January 6th protest, riot, whatever you want to call it, is being investigated by the special counsel in Washington, Jack Smith. And Jack Smith actually has not indicted Trump for insurrection.

Even though Joe Biden is out there calling Donald Trump an insurrectionist in his campaign speeches, I think that this is a conscious decision by the Biden administration. They could enforce a 14th amendment under the statute passed by Congress. They've chosen not to do so.

Otherwise, I think you could open up a Pandora's box where all kinds of state officials throughout the country, as we've seen in Colorado and Maine and other places, could start, thumbs up, thumbs down on whether I think a candidate was an insurrectionist. I hate to say it, but I think you're going to open up the possibility for retaliation. I could see Red State County officials saying, Oh, Joe Biden or someone of the Democratic Party is an insurrectionist too. Because I don't think they've been policing the border properly, so I'm going to strike them off the ballot, also.

CHAKRABARTI: I'm going to come back to you, Professor Graber, in a second. But Professor Yoo, your point about the slippery slope is well taken. We're going to discuss that a little bit later in the show with our historian. But with the idea that someone would've had to be formally accused by the Justice Department in this case, tried and convicted of insurrection.

Coming back to the idea of what's actually in the text of the Constitution, there's no provision in Section 3 of the 14th Amendment saying that a person needed to have been charged, tried, and convicted of insurrection. It just says, engage or supported or given aid and comfort to those. So why would you need to have that legal groundwork already have been laid in order to prove that a person is, has been disqualified?

YOO: This is actually a really deep constitutional problem. There are some constitutional provisions which take a automatic effect as you're describing, like the Bill of Rights when you're prosecuted by the government. You don't need the Congress to pass a statute to say, I can claim that I was searched without a warrant.

But there are other provisions in the constitution. We have, the court has said and has long been recognized to require Congress to implement in some way. For example, the president can't go around starting to appoint people to cabinet offices that Congress hasn't created yet. And so the question, this is a hard question.

I'm not saying this is easy, but it's a hard question whether this question of insurrection requires some kind of definition. The chief justice of the United States at the time of the 14th Amendment's Ratifications. Salmon Chase, he sat as a lower court judge. He heard a case very much like this one, where there was someone who had been met, part of the Confederacy, who had been an officer before.

Was challenged and he said, I think Congress has to pass a statute. This is a case that comes up one year after the ratification of the 14th Amendment. I'm not saying this is what he said to the people who wrote the amendment. Because he wasn't there, but it's pretty close in time. And lastly, I think on this question of insurrections, the problem is that if you don't have Congress pass a statute or if the other branches don't do it, as I said, the other branches could enforce it through prosecution or through passing.

Congress could pass a resolution. Then you're allowing anybody to define who's an insurrectionist, who happens to be in charge or involved in an election.

CHAKRABARTI: Professor Graber, so this gets us to the question of, professor, you just mentioned it about whether or not Section 3 of the 14th amendment is self-executing.

Now, here's, admittedly, I'm a lay person here, but here's my read of it. That there is a specific direction to Congress in Section 3. It's that last sentence. It says, Congress may by a vote of two-thirds of each house remove such disability. So there's the constitution saying if Congress doesn't like that someone has been disqualified from office, in this case, the presidency, Congress can undo that. The implication there is that by the absence of that kind of specific language, that Congress must be the body that defines how this person may be disqualified, that the Constitution doesn't require it. That Section 3 is, as far as I can read, self-executing. Your thoughts on that?

Am I wrong on that?

GRABER: You're right. Let me make two points. There are lots of points in response and I'm sure John feels there are lots of points he would like to make in response to me, but I'll just settle two. First, if the 14th amendment is self-executing or is, sorry, not self-executing, then neither is the 13th, which means that if Congress repealed laws, slavery would be legal.

In the United States, I don't think anybody thinks that there's no reason to treat the 14th Amendment differently. Second, local officials enforce the constitution all the time. There's somebody speaking. Are they advocating insurrection or is this free speech? The first person who decides is the local police officer, but it doesn't stop there.

The local police officer's decision can be appealed to the local prosecutor. Eventually, we can get to the Supreme Court, so if local officials start throwing people off the ballot, those people will appeal and eventually the Supreme Court or Congress will decide, but it's not the case that a local official makes a decision that Donald Trump is disqualified and there's nothing anyone else can do about it.

It's the same rules for every other provision of the constitution. That's all people are asking, who want to disqualify Donald Trump. I know that when council is making arguments before the Supreme Court in oral argument, each side gets roughly half an hour. Unfortunately, we can't do that in this case. Because we need to, I want to move on and fulfill my promise to listeners that we're going to talk to a historian, but I do have one last question to both of you, and I appreciate the legal analysis that you've brought to this show. Because the questions about whether the president is an officer. What's the definition of, excuse me, insurrection, the role Congress has here. Those are the questions that will be before the court.

So hearing both of your arguments, I think, is very clarifying for listeners. But the last question I have for you is not so much one of law, but of country. On January 6th when you and the rest of us were watching what was unfolding in the halls of Congress. Did you have a worry at any time that the United States was on the precipice of ceasing to be the recognizable democracy it has been for 200 years?

Professor Yoo, how did you feel on that day?

YOO: I thought it was terrible. I'm not one of those people who thinks nothing happened on January 6th or that there were infiltrators from the government. I thought it was a terrible thing for our country. But I also expected, and I'm confident that our institutions are resilient enough to respond to it as they have.

I think that the people will have to decide on November, in the November elections, whether Donald Trump was responsible for January 6th and how much he was, if the Justice Department isn't going to pursue him for being an insurrectionist.

CHAKRABARTI: Professor Graber.

GRABER: I wasn't worried on January 6th because on January 7th people said there will be consequences.

This was an insurrection. The Constitution deals with this. Now we have people who seem to disagree with Abraham Lincoln, who said, once ballots are counted, there is no recourse for bullets, that people should not face the consequences of insurrection. There is a legal consequence in Section 3 and our democracy should impose it.

Mark Graber, he's Regents professor at the University of Maryland, Francis King Carey School of Law. Professor Graber, thank you so much for joining us.

GRABER: Thank you.

CHAKRABARTI: And John Yoo, Emanuel Heller, professor of Law at the University of California, Berkeley. Professor Yoo, thank you so much for being with us.

YOO: It was a lot of fun. Thanks for having me back.

CHAKRABARTI: Both of the professors we just heard of heard from, again, let me remind you, filed 'friend of the court' briefs in this major Supreme Court case that the court hears on Thursday. So that's the legal nitty-gritty, at least a taste of it, that the court's going to hear on Thursday.

But what about what's really at stake? What's underneath that legal nitty gritty? For that, let's turn to Timothy Snyder. He's professor of History at Yale University, author of many books, including "On Tyranny" and "The Road to Unfreedom." He's also submitted a 'friend of the court' brief in this Trump case.

Professor Snyder, welcome back.

TIMOTHY SNYDER: Very glad to be with you.

CHAKRABARTI: What kind of brief did you file and why?

SNYDER: I should say I co-signed a brief along with several other respected scholars, and I'm honored to be as associated with that brief. It's a different kind of argument. The argument is along the lines of let's forget for a moment, our American exceptionalism. Let's forget for a moment our habit of thinking our institutions will always protect us. Let's forget for a moment our idea that we are somehow a city on a hill. And let's ask how democracy in the 21st century actually collapses.

And so one looks around and one sees it collapses when heads of state and government refuse to allow power to be transferred peacefully. When they tried to do that in the 21st century, it's often through either bureaucratic means, like trying to put pressure on those who count the ballots or it's through state or privately organized violence.

So you look around the world for the last quarter century or so, and then you come back to the United States, and you say, "Aha, what's happening in the U.S. is not so special. It's not so exceptional. It's quite typical of the way that democracy goes under. President Trump's actions in late 2020 and early '21 are quite typical.

They resemble things that happen in say, Belarus or Cote d'Ivoire, and you say, okay, now let's look back and think about Section 3. What were the people who wrote Section 3 meaning to do, and you realize, okay, they were themselves aware of how an insurrection could lead to a civil war, and they were trying to create a general way to prevent an insurrection from becoming a civil war.

So looking outside the U.S. is a way of getting perspective on these debates, which can get awfully detailed otherwise.

Part III

CHAKRABARTI: Today we are talking about a historic case before the United States Supreme Court. They will be hearing oral argument on Thursday. The question before the court, should Donald Trump be disqualified from the presidency? Now, in the first part of the show, we went through the legal arguments for and against that, and now we're talking about what's truly at stake and the historical ramifications of this case.

And to do that, we're joined by Timothy Snyder, history professor at Yale University. So let's get, just get right to it. Professor Snyder, you have said that this case is about what you've called constitutional self-defense. It's about whether or not this country truly believes in the rule of law.

Explain that.

SNYDER: So democracy is rare. Democracy is hard and people who have seen democracy be challenged or collapse become very thoughtful about that. And so there's a tradition and the United States takes part in that tradition. Of having a kind of constitutional moment of reflection ,where one recognizes that the horizon is not always bright and open, that there can be challenges, and that and as a response to those challenges, a constitution has to be able to defend itself.

What happened in the United States between 1861 and 1865 was one of many world historical challenges to the principle of democracy. This is why Lincoln's speech at Gettysburg is so famous. Government of, by and for the people. Is coined as a response to that challenge to democracy and Lincoln's trying to define what democracy is.

When you face a challenge like that, you respond. Section 3 of the 14th Amendment is constitutional self-defense. In the sense that it gives future, it gives people of the future a chance to react to a similar challenge or a challenge to constitutional rule. That's what I mean by constitutional self-defense, and I think we can only really see how, see the logic of it if we accept that democracy, the rule of law, constitutionalism are regularly challenged, and since they're regularly challenged, a constitution can be modified in such a way as to accept that challenge and overcome it. We have this tendency to think of Section 3 as being something which is annoying, bureaucratic.

It's in the way. Let's try to find a way to get rid of it. Let's find some semantic challenge so we don't have to think about it anymore. But Section 3 is actually something incredibly positive and wise. It's a recognition of a historical truth, which is that moments come where you need a provision in the Constitution to keep that constitution going.

CHAKRABARTI: And about the primacy of the rule of law, that the rule of law is generally understood as we have a commonly agreed to set of principles codified in law that help guide us as a nation and as a democracy. How do you see this case as potentially undermining that rule of law?

SNYDER: I guess I see this case as being very profoundly about the rule of law. Historically speaking, philosophically speaking, the alternative to the rule of law is the rule of fear. And when we look at what Mr. Trump tried to do in January of 2021, he was trying to replace law with fear. And when we look at what he's done since, and this is actually a point, I think that's very important, in the amicus brief I co-signed, when we look at what he's done since, he's tried very hard to intimidate his fellow Republicans, judges, other elected officials, he's tried to change the way this government is run, such that it's fear rather than law and choice that matter.

He's an exceptional figure in that respect. We haven't had anyone like him. And so I think his insurrection of January 6th, 2021 is representative of a general pattern of a person who, and he said this himself. One doesn't have to speculate. Who were he to return to power, would undo a system of law.

And as I say, this is exactly the situation that Section 3 was meant to catch. It was meant to rescue us between the point of an oath breaking insurrection. And some kind of greater conflict.

CHAKRABARTI: But about that fear, it's already rife in American political life. You've been hearing, I've been hearing, talking heads, let's say on in media, both conservative and liberal, advising the justices not to disqualify Trump out of fear of the response from his base. You've called this the pitchfork ruling quandary, that people are saying very clearly. If the court disqualifies Trump many of his most fervent supporters may rise up and perhaps even act violently. Your thoughts.

SNYDER: Yeah. I want to say very clearly that everybody who makes an argument out of that motivation is taking part in an authoritarian transition.

That is exactly how you move away from having the rule of law, to having the rule of fear, when you anticipate that the other side is going to use violence. And you concede in advance, you simply can't have the rule of law. And this is one of the reasons why, maybe the main reason why this case is so important.

To be clear, the arguments that have been put forth on Mr. Trump's behalf are often very bad, and the people who make them, very often know that they're very bad. They admit often, quite openly. I'm just putting this argument out there because I'm trying to give the Supreme Court an alibi for when it doesn't face up to what the Constitution clearly says.

Right? Section 3 is actually incredibly clear, and I'm happy to talk more about that. If you know the history, it's even clearer. So people are saying, we are motivated by fear and we're going to use. And fear is going to change the way that we understand or rather neglect our constitution. If you do that, you are taking part in shifting away from constitutional rule to the rule of fear.

That is precisely what the Supreme Court cannot do if we're going to have the rule of law.

CHAKRABARTI: I'm going to come back to your thoughts on Section 3 specifically, but about this, bringing the judiciary to heel, that is a hallmark of authoritarian nations. Is it not?

SNYDER: Yeah. This is also very important.

Trump openly, and again, this makes him an unusual figure in American history. There aren't that many comparable figures. He openly treats, he treats it as normal for his followers to threaten to carry out threats against people in the judicial branch. He tweets about anti-Trump judges or judges who hate Trump.

Thereby engaging in what's called stochastic violence. He knows that if he launches this message out to enough millions of people, something is going to happen. And so he's trying to intimidate the judiciary. This is something that the judiciary has to be aware of, rather than yield to. And of course, if you are a justice or a judge.

You think about a situation where Trump comes to power as a result of your own fear, you then have to be aware that fear that you've displayed when he wasn't even president is going to be exploited when he is president.

CHAKRABARTI: So basically, what you're saying is that we're in a situation where, it seems as if a lot of people already think that the Supreme Court may rule out of that fear that you're talking about.

And Trump isn't even in office right now. That would undermine the legitimacy of the court, in the public's eye very profoundly. And I know that's something that Chief Justice John Roberts is extremely concerned about. The view the public's trust in the court. But give me an example of another country.

If you could, just briefly, Professor Snyder. Where an authoritarian, one of their first targets was to weaken the judiciary or bring it under the authoritarian's direct influence or control.

SNYDER: This is an absolute hallmark of 21st century authoritarian transitions.

One good example is the Russian Federation, with whom we have much to deal at the moment. Another good example is contemporary Hungary, where step by step the courts were brought to heel, Poland was just caught in the middle of that transition. Poland was on the way, and I think the judiciary would've been completely lost, had elections not changed. Governments in Poland a few months ago. Israel is also a country of great concern here. So this is completely normal. What you do is you try to undo the basic thing which Madison and the other framers understood, which is that you have to have checks and balances by bringing the judiciary to heel and fear is one way to do that.

And you mentioned another, which is ridicule. If the Supreme Court looks like it's afraid or if it issues a ruling, which is ridiculous in the sense that people have a hard time, authentically have a hard time taking it seriously. And for me, the notion that the president is not an officer of the United States, rises to that threshold, then, that's going to be a way that the judicial judiciary is going to be weaker moving forward.

CHAKRABARTI: And there's another thing that Professor John Yoo brought up which I've heard very frequently that slippery slope argument that if the court says. Yes, Donald Trump is disqualified from the presidency in the absence of any sort of congressional guidance. That you heard him say clearly.

That means that state officials anywhere could decide who gets to run for just about anything. Do you see any historical evidence that would gird that fear or not?

SNYDER: I guess when thinks about the historical evidence, I just, I have to refer here to the two briefs, the two amicus briefs written by five and twenty-five historians of the 19th century United States, who pretty much settle the questions that you discuss in the first part of the show, along the lines of the president was meant.

Section 3 is self-executing. Those things are pretty much settled as historical issues, as far as a historical precedent for that kind of spiraling out of control. I would ask the question this way, what kind of precedent are we setting if nothing happens to Trump? The reason why Section 3 is there is partly because the people who framed it in 1866 understood that it was hard to get a trial verdict on a high-profile person like Trump. The relevant case at the time was Jefferson Davis. People knew it would be hard to try Davis for treason. He was never actually convicted, but Davis and everyone else involved understood that he had been disqualified for running for president by section three.

Section three is there not to make things more complicated. It's there to make things simpler.

CHAKRABARTI: So tell me more then, because it seems that, I mean, you've written about that your reading of Section 3 is very clear that, in fact, you believe there should be no debate about it. Tell me more.

SNYDER: I honestly think that if Supreme Court rules on the basis that the president of the United States is not an officer of the United States, that this will be regarded for decades into the future as laughable. And I don't mean that metaphorically. I mean that people will actually be laughing about it for decades.

Let me just read section three, and I'm going to drop a couple words. No person shall be, no person shall hold any office, civil or military, under the United States. The reason why the words I dropped were senator, representative in Congress or elector. The reason why those words were added was because an elector or a senator or representative, as elected officials, wouldn't have been understood necessarily as officers.

The president, of course, would've been understood as an officer. The president at the time called himself an officer, John Bingham, who framed these words, said that the president was an officer. This very issue came up in discussion in 1866 in Congress, and it was clarified that the president was an officer.

So this was 100% clear. There's no clash here between originalism and textualism. Because what the text says and what the context says are exactly the same.

CHAKRABARTI: I appreciate conversations where there's like calm and straightforward analysis here, but that said, I feel like you talked about people will be laughing for decades. But could they also be looking back decades or even centuries now, from now, and say, look, this was one of those inflection points. This is one of those points where we can point, where we can look at clearly that the United States. And say the justices who had the final word regarding the rule of law in this country, if indeed they choose to not find him as disqualified, took a very sharp turn knowingly toward the end of its democracy, towards authoritarianism.

SNYDER: I guess I would put it this way. The people who are debating this in 1866 had faced an existential challenge to the American Republic, and they were therefore aware that the American Republic could be challenged and in fact could be destroyed, defeated from without or within. They were concerned with oath-breaking insurrectionists, who had betrayed the Republic before the first shot was fired at Fort Sumter.

As well as with Insurrectionists who took part in what we call the Civil War. Their debate was not frivolous. Their debate was extremely serious, because they were aware that the arc of a Republic's history can be broken. They knew that into what they did was serious. I'm afraid that what we're about to do is frivolous.

I'm afraid that we're looking for ways not to take responsibility. The people who wrote Section 3 were taking responsibility. They correctly were persuaded that something terrible could happen also in the future, and therefore they gave us this precisely acting bit of constitutional self-defense. So that we would have a relatively easy way out of a historically unusual situation in which an oath-breaking insurrectionist seeks power again. That has not happened very often, nor will it happen very often, but it is happening right now.

And I think the question is whether we can summon an ounce of the seriousness now in 2024 that the people who wrote the 14th Amendment demonstrated in 1866.

CHAKRABARTI: You can make the argument though that we've already seen ample evidence of that frivolity. In the second impeachment of Donald Trump following January 6th, we had the most prominent members of the United States Senate stand up and say, Donald Trump absolutely incited this insurrection. Donald Trump absolutely supported, aided and abetted the disruption of the proceedings in this very chamber. I'm thinking of Senator Mitch McConnell, who was almost ferociously angry in speaking during the Senate trial, but then voted to find Trump not guilty anyway.

I guess his argument then was the question should be put to the people. If the justices do the similar thing and say the question must be put to the people. That will happen in November of 2024.

SNYDER: Yeah, I personally, I want to be clear, and I think this is true about a lot of other people who are interested in this case, I think Trump will most likely be shellacked in November of 2024.

But whether he wins or he doesn't win, he's going to try to carry out some kind of insurrection. He's said as much himself, right? But the real issue is who takes responsibility? When we say the people will decide, somebody else will decide, let's pass a law. You're kicking the can into the future. What Section 3 does is it gives you a tool to take responsibility now. It'd be a shame to miss that opportunity.

This program aired on February 5, 2024.


Headshot of Claire Donnelly

Claire Donnelly Producer, On Point
Claire Donnelly is a producer at On Point.


Headshot of Meghna Chakrabarti

Meghna Chakrabarti Host, On Point
Meghna Chakrabarti is the host of On Point.



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