William Baude
Big Brains podcst

Can Trump legally be president?, with William Baude (Ep. 129)

Scholar who ignited debate over 14th Amendment argument for disqualification examines upcoming Supreme Court case

William Baude
Big Brains podcst

Show Notes

The Supreme Court’s decision on whether Colorado can take former President Donald Trump off the ballot in the 2024 election may be one of the most consequential in its history. The case will turn on the court’s interpretation of Amendment 14, Section 3 of the Constitution, which bars any previous elected official from holding office if they participated in an insurrection. When making their case, Colorado followed the logic of a law review article co-authored last year by University of Chicago Prof. William Baude. The article drew a ton of attention, in part because Baude is a conservative legal scholar and member of the Federalist Society.

As the Supreme Court begins oral arguments on Feb. 8, Baude joined Big Brains to make his case for why he thinks Section 3 applies to Trump. But this isn’t an episode about what should happen at the Supreme Court, it’s about what could happen. Whether you agree with Baude or not, understanding the legal theory behind his argument is crucial to understanding any decision that may come from the court. And, as we walk through the scholarship on Section 3, it’ll become clear that there are more than just two outcomes: on or off the ballot, but many outcomes…some with ramifications—including a possible constitutional crisis—all the way to Jan. 6, 2025.

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Transcript:

Paul Rand: This month, the Supreme Court is going to make arguably one of the most consequential decisions in its history.

Tape: The Supreme Court is at the center of the presidential election. It has agreed to decide if Colorado went too far in banning Donald Trump from its ballot. Colorado’s top court ruled 4-3 to remove Trump from the primary because of his role in the deadly siege at the Capitol.

Tape: The Colorado Supreme Court made his decision based on Amendment 14, Section 3 of the Constitution.

Tape: Chances are the 14th Amendment isn’t near the top of your most familiar Constitutional amendment list.

Tape: It’s really simple: If you’ve taken an oath to support, protect, defend the Constitution, and then you engage in insurrection and rebellion, you can’t serve in office again unless Congress, by two-thirds vote, allows you to. That’s the rule. It’s super simple.

Tape: This is a Constitutional question that clearly demands some clarity from the high court.

Paul Rand: The argument made by the Colorado Supreme Court follows the logic of a law review article from last year. That article was co-authored by this man.

William Baude: I don’t think we were ready for this. This is an article that my co-author Michael Stokes Paulson and I’d been working on for a while.

Paul Rand: That’s William Baude. He’s a Professor of Law and the Faculty Director of the Constitutional Law Institute at the University of Chicago. It’s not only rare, but almost unheard of for a law review article to get over 100,000 downloads and over 350,000 views in just a few months.

William Baude: We anticipated when we posted it, there might be some news attention and so on, but I don’t think we thought there’d be anything like this level of citation, argument, litigation. I mean the whole thing is pending at the Supreme Court.

Paul Rand: Part of the reason it got so much attention is because Baude is a conservative legal scholar. And not only that, but he is a member of the conservative organization, the Federalist Society.

William Baude: So I guess it strikes people as noteworthy that somebody who strongly supported all of President Trump’s judicial nominees still thinks he can’t be eligible to have more of them.

Paul Rand: Baude is also an originalist, meaning his scholarship focuses on history and research to interpret the Constitution how it would’ve been understood at the time that it was written. So when he first sat down to write about Section 3, he wasn’t actually sure what he would find.

William Baude: Most of the time we were writing it, I didn’t actually know how it was going to come out, what all the answers were going to be. We started writing it to say this is an important clause of the Constitution; people aren’t taking it seriously. We need to work through its meaning. And it wasn’t until I learned more history and learned more about all the historical insurrections before Section 3 was enacted that I realized how clear it was that January 6th was an insurrection. And I even thought about: Gosh, should we not post this right now just because this is going to be potentially so controversial or potentially so explosive? Should we just hold off and wait? But I felt like our duty here is to conduct research, and so we probably ought to publish our research once we’ve done it.

Paul Rand: Maybe you think that January 6th wasn’t an insurrection. Maybe you think that it was, but we can’t say Trump participated in it. Or maybe you think both of those things are true, but he should still be allowed on the ballot. This isn’t an episode about what should happen. It’s about what could happen.

Paul Rand: And whether Baude is right or wrong, understanding the legal theory behind the arguments is crucial to understanding what decision the Supreme Court might come to. And as we walk through the scholarship on Section 3, it’ll become clear that this is far more complicated than you might think, and there could be worse outcomes than Trump’s simply being on or off the ballot.

William Baude: I have no idea how much credit or blame our contribution deserves. I’m not used to the idea that just sort of abstract reason of the Constitution could have such a major effect.

Paul Rand: Welcome to Big Brains, where we translate the biggest ideas and complex discoveries into digestible brain food. Big Brains, little bites from the University of Chicago Podcast Network. I’m your host, Paul Rand. On today’s episode, the legal scholarship behind one of the Supreme Court’s biggest decisions and what the fallout may be.

Paul Rand: Maybe we can jump right into it, and maybe just say: What is an Amendment 14, Section 3? And what is it that your insight is—or your argument is about that?

William Baude: So the 14th Amendment to the Constitution is a constitutional amendment passed just after the Civil War that requires states to recognize equality and guarantee due process. So it’s the source of Supreme Court decisions like Brown v. Board of Education or Obergefell or Roe v. Wade.

William Baude: But it has a clause that’s not been as widely litigated or as widely discussed that was very important at the time it was enacted, which is this Section 3. And what Section 3 says, in brief, is that anybody who was previously in the government and took an oath to the Constitution and then engaged in insurrection or rebellion against the government or the Constitution can’t hold office again.

Paul Rand: At first it may seem aggressive to constrain who people can vote for. After all, that’s the whole point of a democracy. But there are already multiple ways in which we constrain who can be elected. No one under 35 can be president, nor anyone who is foreign-born. Of course, when it becomes to Trump and the upcoming Supreme Court decision, there are two crucial questions.

William Baude: So the two places that I struggled with the most as we were writing it, that I thought were close calls, were the question of: What is an insurrection? And the second was this definition of “engage in,” and this question of whether the speech plus the dereliction of duty is enough to count as engaging in insurrection. And that took a sort of close read to some of the historical materials before I realized how close of a fit it was.

Paul Rand: We’ll start with the first question: Why is Baude so confident that this was an insurrection?

William Baude: This is sort of an issue of interpreting the Constitution. So the central things people usually use to interpret the Constitution are the text, the structure, the historical context, any sort of precedents we have from court and from history. I think an insurrection, in historical context, meant concerted forcible resistance to the authority of government to execute the laws.

William Baude: So there are historical examples of this like the Whiskey Rebellion. It was called the Whiskey Insurrection at the time, or Fry’s Rebellion, or lots of examples of the use of force by the Klan and by others. Not just using force, not just resisting the government but resisting the authority of the government. And we argue that’s exactly how we have to see what happened on January 6th, 2021.

Paul Rand: As Baude writes in the article: “It was not merely a protest of a particular legal measure, but a forcible prevention and disruption of it. And it was not the disruption of just any legal measure but of one that was itself central to the allocation of authority under our Constitution.”

William Baude: That was an attempt to resist the authority of government to count the electoral votes, and that was the reason that they targeted Congress on that particular day.

Tape: This is our Capitol.

Tape: It’s up to us people now, the American people.

Tape: You want you be ready to …

Tape: One more time.

Tape: What are you ready to do?

Tape: Whatever it takes, I’ll lay my life down, if it takes.

Tape: Absolutely. That’s why we showed up today.

Paul Rand: The one thing that I get a little stuck on in this, is the Department of Justice has brought a number of cases against participants, but I don’t believe that any of them have been charged with insurrection. So if the DOJ can’t see their way to proving this is an insurrection, then why should the Supreme Court?

William Baude: So one thing to keep in mind is I believe that this insurrection provision has been on the books, so to speak, since before the Civil War ended, since before Section 3. I think it dates all the way back to 1862 in various incarnations, and I believe nobody’s ever been convicted under it. So federal prosecutors generally like to bring charges where there’s a kind of tried-and-true path to conviction, and I do think that just makes it, for a prosecutor, a stranger prosecution to bring.

William Baude: It’s also just a very different question to ask whether you should put somebody in prison, and that’s a question that goes to a jury and that we expect prosecutorial discretion about, than it’s to ask whether they can hold public office again. And the purpose of Section 3 is sort of funny. At the time the thought was: We shouldn’t just try to put everybody in jail who fought in the Confederacy. That would be cruel and just sort of extend the divisions of the war. I mean, what they did was a crime, but we shouldn’t just prosecute them all. And so Section 3 was seen as kind of the safer alternative. Let’s let them go about their lives. Let’s not try to have a massive punitive retaliation. So it’s sort of strange that now we’re more comfortable bringing prosecutions against a former president than we are applying Section 3 down.

Paul Rand: So let’s say the court agrees with the argument that January 6th was indeed an insurrection. There is still a second question to answer before Section 3 would kick in: Did Trump engage in that insurrection?

William Baude: So to unpack the text just a little bit more, the categories that are sort of covered by Section 3 as violations are those who have engaged in insurrection or rebellion or given aid or comfort to the enemies thereof. And so that brings in its own set of interpretive questions. “Aid and comfort to the enemies” is a phrase that also appears in the Constitution’s definition of treason. So one view is that’s only referring to enemies during wartime. The other possibility is that the enemies are the people who are engaged in the insurrection of rebellion, reading the clause against itself, in which case it might sweep in an even broader set of assistance aiding and abetting.

William Baude: For somebody like President Trump, who wasn’t personally marching on Congress himself, I think for everybody that would be an easier case for him being covered. I think there are a lot of people who would say: “Yes, January 6th was an insurrection, but whether the president engaged in it is a closer call.” And I think if he personally had been at the front lines chanting “Hang Mike Pence,” that would be an easier call for a lot of people. Even if what happened the January 6th is an insurrection, was the speech at the Ellipse plus his subsequent conduct enough to count as engaging in that insurrection—or giving aid or comfort to it?

Paul Rand: And you think he did because why?

William Baude: We relied heavily on the January 6th report from the House Committee in Congress, which engaged in a huge amount of fact finding about this. That’s what a lot of courts and other public actors have relied upon. There are arguments that report’s incomplete and that there’s another side of the story. So at the trial, President Trump had the opportunity to put in additional counter evidence. He didn’t really do that, but you could also imagine that happening.

William Baude: And so we even say you could imagine President Trump one day is going to take the stand in one of these proceedings and testify under oath about what really happened and why he did what he did, and maybe that’ll be credible, maybe that would change the story. But we’re sort of on the firmest ground when it comes to the meaning of the Constitution. What it meant to engage in insurrection rebellion at the Civil War is something they talked about a lot, and they were pretty clear. It didn’t just mean the people who carried guns as Confederate soldiers, that it included legislators who just provided sort of abstract support for it.

Tape: We’re going to walk down. and I’ll be there with you. We will never give up. We will never concede. It doesn’t happen. You don’t concede when there’s theft involved. And to use a favorite term that all of you people really came up with: “We will stop the steal.” All Vice President Pence has todo is send it back to the states to recertify, and we become president and you are the happiest people.

William Baude: There’s an opinion by early Attorney General Stanbery, who specifically says that inciting people to engage in rebellion is a form of engaging in rebellion.

Tape: Because you’ll never take back our country with weakness. You have to show strength, and you have to be strong.

Paul Rand: But what about the First Amendment? Isn’t Trump’s speech protected under the First Amendment as political speech?

William Baude: All right, so this is maybe one of the most controversial parts of our article. Full disclosure.

Paul Rand: OK.

William Baude: In the article we say there is a pretty well-established principle that when there are two constitutional provisions, the one that’s enacted more recently controls—and Section 3 of the 14th Amendment is enacted more recently than say the First Amendment and the free speech principles it contains. So if there’s a conflict between the two, and most of the time you try to interpret these provisions in a way to minimize the conflict, but if there’s a conflict between the two Section 3 controls, so even if there was political speech, that doesn’t matter for Section 3 purposes.

William Baude: Full disclosure, even the courts that have agreed with much of our argument, like the courts in Colorado have found a different path to that. They’ve said they think the First Amendment is important here and that if Trump’s speech were covered by the First Amendment, that would be a defense. But they’ve concluded that his speech went so far across the line in terms of inciting an immediate lawless action that it’s not protected by the First Amendment.

Paul Rand: The crux of this argument, from President Trump’s point of view, is that it was a fraudulent election, even though there’s no proof of that to any stretch. But if the election was fraudulent or it was seen to be fraudulent, is this still an insurrection? Or would it actually be an attempt to uphold democracy?

William Baude: I think if President Trump were right, if the election really were stolen, that would be a very good defense to a charge of insurrection. I think that the true facts matter, so if he’s right about that, and I’m wrong about that, fair enough.

William Baude: There was a really good report performed by a number of prominent Republican office holders called Lost Not Stolen, where they went through all the evidence and concluded that there are no sufficient irregularities that would’ve swung the election. We can always talk about a few things, but there’s no evidence that the election itself turned on anything.

Paul Rand: But Baude argues that even if you don’t think Trump’s conduct before the January 6th riot falls under Section 3, his conduct during it does.

William Baude: I also think that in the specific case of President Trump, even once the insurrection had started his failure to do anything, he had a duty to take care the laws are faithfully executed.

Tape: During the attack, those closest to President Trump privately urged him to take action and tell his supporters to stop the assault. House Republican leader Kevin McCarthy spoke with him from the besieged Capitol. His son Donald Trump Jr. and several Fox hosts texted White House contacts to tell Trump to address the crowd. Hours passed before President Trump did anything to address the insurrection.

William Baude: And his failure to do something is different because he was the person in charge of enforcing the laws.

Tape: While this was happening at 2:24 p.m., Trump tweeted from the White House criticizing Pence for not having “the courage to do what should have been done.”

Paul Rand: There’s certainly been arguments media-wise of your paper and what it means, and there’s some dialogue that says: Well, if we’re going to call January 6th an insurrection, then we have to also look at things like the Black Lives Matter protests, and they set fire to a courthouse in Portland.

Tape: The main battle line is here outside the federal courthouse,

Tape: Hundreds stormed the federal courthouse and tried to barricade agents inside by wedging the doors shut with wooden boards.

Paul Rand: And doesn’t that mean left-wing politicians, maybe even President Biden, have given aid and comfort? How do you hear that, and do you say: Listen, yes or credible? Or wait a minute, that’s not the case?

William Baude: I mean, I think that is tapping into an important principle, which is this is not a one-time excuse to go after President Trump. If there are other insurrections and other politicians are participating in them, then yeah, Section 3 applies to them. I do think when you look at the facts, they all get a little complicated. Section 3 requires it to be not just a riot, but an insurrection. So a challenge to federal authority, not just state authority, but to federal authority. I think you can make arguments about Portland or about, there was a sort of attack in the White House a couple of years ago. I think you can make arguments about those, but they’re a little complicated.

Paul Rand: OK. We are watching a period where the person that is the Homeland Security chief is being looked at in terms of impeachment.

Tape: And the House Homeland Security Committee is holding its first impeachment hearing for Homeland Security Secretary, Alejandro Mayorkas. House Republicans are accusing Mayorkas of failed leadership on border issues. But Chairman Mark Green, calling him a threat to national security, say Mayorkas has broken his oath to this country.

Paul Rand: And so I started looking at this and saying: Well, how far do you take this? And if indeed this case is, if we don’t have Section 3 tied to a conviction. So say, for example, this idea of Mayorkas and that he’s giving aid and comfort to an insurrection and we don’t have to have a trial for him, it’s just self-evident and he wants to run for office again. How does that play, and where’s the boundaries on this?

William Baude: No, look, I mean, I do think one of the reasons that we wrote the article is I think it’s important to try to think through these principles and to think through the meaning of the Constitution in advance rather than just making it up for every new political controversy. I do think the threshold for an insurrection is high that it requires a real challenge to the authority of the government, and that’s not something that’s true most of the time. That said, I recognize the world we live in, and I recognize we live in a world where right now people seem to be eager to take any legal argument they can think of and use it as an excuse to stop the other side.

Paul Rand: Yes.

William Baude: That’s a difficult time for sure, but I feel like, I don’t know if our system can’t handle the truth about the Constitution, I don’t know what else we’re supposed to do.

Paul Rand: So let’s say you agree with Baude that January 6th was an insurrection and that the former president engaged in it under the wording of Section 3. There are still several legal arguments that the Supreme Court may choose to follow that would keep the Amendment from applying to Trump, but many of those arguments could possibly lead to a far more terrifying constitutional crisis. That’s after the break.

Paul Rand: If you’re getting a lot out of the important research shared on Big Brains, there’s another University of Chicago Podcast Network show you should check out. It’s called Not Another Politics Podcast. Not Another Politics podcast provides a fresh perspective on the biggest political stories, not through opinions and anecdotes, but through rigorous scholarship, massive data sets, and a deep knowledge of theory. If you want to understand the political science behind the political headlines, then listen to Not Another Politics Podcast: part of the University of Chicago podcast Network.

Paul Rand: Big Brains is supported by UChicago’s Online Master of Liberal Arts program, which empowers working professionals to think deeply, communicate clearly, and act purposely to advance their careers, choose from optional concentrations and ethics and leadership, literary studies and tech and society. More at mla.uchicago.edu.

Paul Rand: Since Baude published his article, and especially after the Colorado court decision, there have been a series of counterarguments playing out in the media and among the legal profession. One that you probably have heard the most is that Trump hasn’t been charged at a court of law with insurrection. So how can Section 3 apply?

William Baude: Yeah, so Section 3 is just written very differently from a crime. It’s not written like the treason clause. It’s written as just a rule in who can hold office. It just is. It just says; “No person shall be president if they’ve done these things.” And to require it to go through the criminal process is to kind of mix and match very different parts of our system. Our rules for who can hold office are not criminal laws. They’re not entrusted to any jury or any prosecutor. They’re entrusted to the election law system instead.

Paul Rand: Right. Right.

William Baude: It’s more like other clauses in the Constitution that say you can’t be president if you’ve already been president twice before, like Barack Obama or George W. Bush. We don’t have to do anything to make that happen. Nobody has to convict them. It’s just a fact.

Paul Rand: It just is.

William Baude: Just is.

Paul Rand: But then how does this actually work? If it just is that Trump is barred from holding office by the Constitution, who exactly should be doing this barring and how should they be doing it?

William Baude: I mean, this is one of the places where the Constitution gets complicated. It’s one of the reasons we thought we had to write the article is that there’s no one person in charge of enforcing the Constitution’s limits on office or Section 3. So it sort of varies based on each office. The presidential election is actually 50 little elections in every state. Every state under the Constitution gets to select its own electors to the Electoral College. They could have their own rules for how those electors are selected. There are different criteria for office. There are different ballot access rules in every state.

William Baude: And so our argument, and that’s the posture this has gone to the Supreme Court, is that each state, when it’s selecting its own electors has to decide who’s eligible to be on the ballot. It has to enforce the provisions of the Constitution. That’s what the state of Colorado did recently. They said: “Under Colorado law, we shouldn’t put somebody on the ballot if they’re ineligible to be president.” And they held a trial, a five-day trial and concluded that President Trump had engaged in insurrection and so concluded he couldn’t be on the ballot.

Paul Rand: There’s another legal counterargument, which at first may seem tremendously farfetched, but it is really important to understand because it very well may be the argument the Supreme Court ultimately follows. Section 3 doesn’t technically say an official who engaged in insurrection can’t run on the ballot. It just says that they can’t hold office.

William Baude: So I think this is technically correct. Technically, a state could say: Well, even if he can’t be president, we want to vote for him anyway. Either as a protest vote or because they hope that maybe the situation will change by the time he’s elected. Here’s the thing is Section 3 actually has a safety valve built into it. It has this rule that Congress by two-thirds vote can grant amnesty to anybody who needs it, and they’ve used that in the past. And so I am pretty comfortable with it.

William Baude: I think if Donald Trump were so popular or so important that he’d be allowed to serve or be allowed to run, that’s a question for Congress, not for you or me. So you can imagine states thinking: Well, maybe Trump’s disqualified now, but let’s elect him. And if he’s the popular choice, hopefully Congress will grant him amnesty, forgive him for January 6th and let him take office anyway.

William Baude: The state of North Carolina did this in the 1870s. They sent up one of the leaders of the Confederacy to Congress, and he waited around hoping Congress would sort of grant him forgiveness and let him take his seat, and they didn’t. So North Carolina just didn’t have a seat for a while. But a state’s allowed to make that gambit if they want to. Where we differ is I don’t think states have to take that gambit.

William Baude: So what the Colorado court said is, as a matter of Colorado law, we don’t want to elect somebody who can’t hold office because then we’re going to throw away our votes. Indeed, millions of voters will be outraged to learn. They’ve sort of been tricked into voting for somebody who can’t take office. And I think states can make that choice. They can decide whether they want to put an insurrectionist on the ballot.

Paul Rand: And it’s possible that the Supreme Court may rule exactly this way. It gives them an escape hatch from any political fallout. They don’t have to say whether January 6th was an insurrection, and they don’t have to say whether Trump participated. They could just say Section 3 doesn’t apply to taking him off ballots. There is another possible escape hatch that they might take based on another legal argument. If you thought the last one sounded technical, just wait till you hear this. Section 3 doesn’t apply because technically the President is in an officer of the United States.

William Baude: So the best version of this argument is that there’s another clause to the Constitution, the original Constitution, called the Commissions Clause, which says the President shall commission all the officers of the United States. And that means that when you get appointed to be Secretary of State or under Secretary of Homeland Security, they give you a commission that’s signed by Joe Biden. You hang out on your wall. And if the President commissions all officers of the United States and the President never gives himself a commission, then it seems to follow the President must not be an officer of the United States, at least for that clause.

William Baude: And then if you start to sort of spin that out to other instances of the clause, you might think: OK, so “officer of the United States” is like a technical term, a term of art that only means you have a commission from a president signed on the wall, and it doesn’t qualify under the Constitution. And that’s why I think if you do read that Constitution kind of like that, as if it’s full of technical terms, in terms of art, you can kind of get there. I don’t think that’s the right way to read a provision enacted 80 years later.

William Baude: The main thing that surprised me, I guess, is how many people have come to endorse this officer of the United States sort of technical reading. We did address it in our article for five or 10 pages because we recognized it was a possible point of tension, and we thought we should talk about it. But I wouldn’t have necessarily predicted that was going to be the thing that Attorney General Mukasey and others that a prominent conservatives would seize on. And maybe it’ll turn out to be me who’s all wet.

Paul Rand: You’re right.

William Baude: I don’t think we read the Constitution quite at that... I think we read it in a little bit more of a common-sense way. And I think just when you look at the purpose of the Amendment, when you look at the discussion of the amendment around the time it was enacted, it’s pretty clear that the President qualified as an officer, the Constitution calls them an officer. But these are the things that lawyers spend a lot of time sweating so there are going to be half of President Trump’s brief in the Supreme Court is about this issue. There are some complicated technical interactions there. I just think ultimately it’s not, if we’re wrong, that’s not the reason we’re wrong.

Paul Rand: So let’s say that the court goes in this direction, which setting the precedent that the President is technically not an officer of the United States have any potential downstream effects.

William Baude: It might. So the phrase “Officer of the United States” appears in other clauses of the Constitution where it’s more ambiguous who it refers to and it appears in various statutes, including the statutes that President Trump has been invoking to try to resist some of the lawsuits against him. So potentially saying the President’s not an office of the United States could have ramifications throughout the US code unless you make up some special reason that those are different.

Paul Rand: Talk about the timing of this going to the Supreme Court and where you expect this to go and what might be some possible outcomes here.

William Baude: So they could say Colorado is correct and states are allowed to keep him off the ballot if they want. And Maine has already decided to do that as well. Several other states like Oregon have kind of paused their proceedings while waiting to see what the Supreme Court does. So they could do that. And they could say, as a matter of law, President Trump is eligible, and nobody can kick him off the ballot. He’s not an officer of the United States, or he didn’t engage in insurrection or something like that. And that would also probably end this question.

William Baude: There are some paths in the middle—if they decide on the basis of this run, not hold theory; or if they say, well, let’s wait and see what he’s convicted of; or if they say this is ultimately a decision for Congress. Those actually kind of leave things open for various other actors in our constitutional system.

William Baude: And one thing in particular, I guess people should be aware of is on January 6th, 2025 is when the electoral votes are counted in joint session of Congress. And one of the big questions is: Does Congress have a role to play in that session in deciding whether the president’s eligible? Can they say: “You’re casting electoral votes for somebody who can’t hold office? Those don’t count,” sort of a ironic echo of the arguments people wanted them to do on January 6th, 2021. So if the court doesn’t resolve it definitively, it may be leaving the door open to a very, very stressful January 2025.

Paul Rand: Stressful is one word; catastrophic could be another.

William Baude: Yeah, this is a big deal. So the Constitution contains an amendment, the 12th Amendment, that says that the electoral votes are counted in joint session of Congress. There is an unfortunate ambiguity in this amendment about who actually is in charge. It’s written in the passive voice. So it says that in the presence of both houses of Congress and the Vice President, the votes shall be counted and nobody quite knows who even is in charge of that.

William Baude: Congress has then enacted a statute called the Electoral Account Act that was amended after January 6th, 2021, to deal with some of that mischief. So now it’s the Electoral Account Reform Act that sets forth other potential principles for how the electoral votes are counted. And the Section 3 issue will turn on a phrase in the statute, regularly given. Congress can reject electoral votes only if they’re not regularly given. And so the question will be: Does casting a vote for somebody who’s barred by Section 3 count as votes that are not regularly given?

William Baude: They turn out to be arguments and precedents on both sides. So Congress itself will have to deliberate up with those things. It’ll be the new Congress. So this happens just after the Congress that’s elected in 2024. So the House and Senate elections in 2024 will shape the environment that will count the votes for the presidential election of 2024 in a way that’s just really hard to predict.

Paul Rand: Imagine the political fallout if a Democratic Congress views it as their constitutional duty to block Trump from taking office. Imagine still if they then follow procedure to elect their own president. What happens when two different people try to enter the White House in 2025?

William Baude: Yes, or it’s possible the Supreme Court will be forced to step in the 14-day period between January 6th and the inauguration again and speak to that question. It could be quite a crisis.

Paul Rand: But there’s a much simpler argument being made that follows this concern about a crisis. The Supreme Court should rule that Section 3 just doesn’t apply to Trump simply on the grounds that it would be bad for our democracy to be kicking people off the ballot.

William Baude: You do sometimes see people saying something like, it would be really bad if the front-runner for one of the two major political parties were disqualified. That would be a huge crisis for our democracy. So maybe that’s a reason not to say this was an insurrection. I don’t think that’s a credible argument, but I do think it’s one that has a lot of resonance with a lot of people. But I don’t think that’s how they should do their job, and I don’t think it’s even how they think they should do their job.

William Baude:  I mean, the justices all take an oath to the Constitution to decide cases without regard to persons, without fear or favor, which they just take very seriously as a matter of judicial role. They work pretty hard to be removed from the immediate political process, and they know that they’re going to be in the bench for a long time and that the only thing that sustains their power in our system is the sense that they are trying to decide cases according to law.

William Baude: And obviously half the country disagrees with the Supreme Court half the time because they decide so many closely contested questions, and they know that. They also know that their willingness to put aside the sense of immediate politics is the only thing that gives them legitimacy. You can’t let people work the ref. I mean, it’s a time-honored tradition in sports and judging. And every referee and every judge knows that’s what people are trying to do, and part of their job is not worry about it too much, and it happened during desegregation.

William Baude: People were worried a lot about the backlash in the South against judges that they enforced the Constitution to desegregate schools, and the backlash was real. It happened. It made a lot of the judges’ lives very difficult. Some of them were threatened and attacked, but I think the lesson we drew from that was we have to do our best and protect the judiciary, not that the courts should back off and people get mad at them.

Paul Rand: Well, the argument of course being made is in many cases that these are Trump appointees in many cases on the court, that they’re going to be predisposed to lean into him. How do you feel that that’s being looked at and how that argument holds up?

William Baude: I mean, I think I saw President Trump say something like that, that he’s excited because he has some of his nominees on the court. I don’t believe that they’ll judge this case differently from any others. I think there were a number of challenges to the 2020 election brought by President Trump in his campaign that prominent Trump-appointed judges ruled against because they recognized that that just wasn’t the law and they weren’t going to misapply the law for him. And I’m confident they’ll do the same thing here. They might disagree with me, and if they disagree with me, that’s fine, but I don’t think they’re going to tilt the scales.

Paul Rand: If you looked at what’s going on and you say: Here’s what I think is going to happen. If you had to give an educated best guess of what’s going to happen, where do you want to take this?

William Baude: This I find... I mean, I’m happy to talk about it, but I find it really hard to predict. I think if you look on the prediction markets, they say there’s a 80% chance the Supreme Court will reverse and a 20% chance they’ll rule against Trump and affirm the lower court.

Paul Rand: 80/20?

William Baude: Yeah, but I don’t know, when you think it through, the thing is the Supreme Court has to sit down and write an opinion, provide an explanation to the country for why they’re doing what they’re doing. And I think it’s just very hard to figure out what opinion really holds water as a legal matter that explains why the Constitution doesn’t apply here.

Paul Rand: It’s worth pointing out that Baude’s argument is strongly grounded in originalist theory, and that theory holds sway among many of the justices.

Tape: Originalism remains a defacto legal theory of the American Conservative movement, and honestly, the 6-3 Trump court.

Tape: The State Supreme Court ruling goes back and quotes Neil Gorsuch in this ruling. It’s specifically targeting a decision that Neil Gorsuch made, a ruling he made in 2012 as an appellate court judge in Colorado where he recognized it is in a state’s legitimate interest to protect the integrity and practical functioning of the political process that permits the state to exclude from the ballot candidates who are constitutionally prohibited from assuming office. In addition to being strict constitutionalists, these justices tend to love to send things back to the states and tend to really be proponents of states’ rights.

William Baude: My hope is that in the end, when they sit down to try and write it, they’ll realize that, like it or not, this is where the Constitution takes us. But I’m not sure.

Paul Rand: Maybe this last point is you spend all this time thinking about Section 3D. You look at it and say, man, we ought just take that out. Or do you say, no, this is exactly why this is there.

William Baude: I do think disqualifying people from the ballot is a big deal and doing it in these circumstances where we can’t even agree on who won the election, let alone what an insurrection is, is a real challenge for our country. I’ll say this, I do think in a healthy democracy, you don’t need these kinds of disqualification provisions. You just put everything on the ballot, and you just trust the people to sort things out. And unfortunately, Section 3 was enacted out of fear that we didn’t always have a perfectly healthy democracy.

William Baude: And so I guess I do think the generation that wrote Section 3, that wrote the 14th Amendment, had just been through a civil war, and so they had a lot of thought about what do you have to do as a matter of reality to try to bring the country back together while also ensuring that this doesn’t happen again? And I think we’ve maybe lost sight of the real hard questions about how to govern the country through that kind of division, or maybe still in the middle of the division so... You don’t even have the perspective.

Narrator: Big Brains is a production of the University of Chicago Podcast Network. We’re sponsored by the Graham School. Are you a lifelong learner with an insatiable curiosity? Access more than 50 open enrollment courses every quarter. Learn more at graham.uchicago.edu/bigbrains. If you like what you heard on our podcast, please leave us a rating and review. The show is hosted by Paul M. Rand and produced by Lea Ceasrine and me, Matt Hodapp. Thanks for listening.

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