A Letter to Politifact

 

 

Amy Sherman

Politifact

 

Re: Amy Sherman, Can Donald Trump run for president if charged and convicted of removing official records?, Politifact (Aug. 9, 2022), <https://tinyurl.com/5y6juh52>.

 

Dear Ms Sherman,

 

I am the author or co-author of several publications on constitutional qualifications for elected federal positions, on Section 3 of the 14th Amendment, and on impeachment procedures and standards.[1] Likewise, I have also been a source for prior Politifact reports.[2]

 

You stated in your August 9, 2022 report that:

 

Congress could act to bar Trump from running again under Section 3 of the 14th Amendment, which says that public officials cannot serve in any future federal, state, or military office if they engaged in “insurrection or rebellion.” The Senate hasn’t pursued that route. It could have banned Trump from running again during impeachment proceedings and did not. It’s unknown how the committee investigating Trump’s actions around the Jan. 6 attack may address the prospect of Trump’s candidacy.

 

Not one of your statements above is a fact. Each is a highly contestable legal claim, argument, or intuition.

 

First, you suggest Congress, acting under Section 3 of the Fourteenth Amendment, can pass a statute or resolution barring Trump (and, by implication, others) for purported insurrection. That has never been done. No federal court of record has ever said it could be done. And one federal court has suggested that it cannot be done. See Griffin’s Case, 11 F. Cas. 7 (Circuit Court of the District of Virginia 1869) (Chase, Chief Justice of the United States). Your suggesting that Congress can enforce Section 3, by what amounts to a bill of attainder, is not a “fact;” rather, it is a contestable legal intuition.

 

Second, you state that a Section 3 disqualification by Congress would bar the defendant from holding “any future federal, state, or military office.” (emphasis added) However, that is not what Section 3 says. Section 3’s disqualification bar extends to listed positions: “Senator or Representative in Congress, or elector of President and Vice-President, or … any office, civil or military, under the United States, or under any State.” This list does not cover: [1] membership in a state legislature; and, [2] arguably, the presidency and vice presidency. No court of record has determined the scope of Section 3 disqualification or the scope of its “office … under the United States”-language. Your use of “any” is not a “fact;” rather, it is a contestable legal intuition.

 

Third, you wrote: “[The Senate] could have banned Trump from running again during impeachment proceedings and [it] did not.” Senate disqualification in impeachment proceedings is controlled by the Impeachment Disqualification Clause—Article I, Section 3, Clause 7. That provision bars the defendant from holding “any Office of honor, Trust or Profit under the United States.” Here too, the scope of the Impeachment Disqualification Clause’s “office … under the United States”-language has never been determined by the United States Supreme Court or any court of record. (And, that is not surprising as only three defendants—Judge Humphreys (1862), Judge Archbald (1913), and Judge Porteous (2010)—have ever been disqualified in Senate impeachment proceedings.) Your asserting that this “office … under the United States”-language would bar a disqualified defendant from running for or holding the presidency—or any other elected federal position—is not a “fact;” it is a contestable legal intuition. Indeed, the Impeachment Disqualification Clause’s language of “office … under the United States” is also the language in 18 U.S.C. Section 2071. Today, the majority view (in my opinion) is that the “office … under the United States”-language in Section 2071 does not extend to the presidency (or to any other elected federal positions)—if the majority view is correct, as determined by the courts, that is some reason to think that the nearly identical language in the Constitution in Article I (the Impeachment Disqualification Clause) and Amendment XIV (the Insurrection Disqualification Clause) does not extend to the presidency (or to any other elected federal positions).

 

Fourth, and finally, you wrote: “It’s unknown how the [House] committee investigating Trump’s actions around the Jan. 6 attack may address the prospect of Trump’s candidacy.” Perhaps, it is not “unknown.” Have you considered the alternative?: The House committee has taken no concrete action because it has no power to do anything consequential—that is, anything which will have actual legal consequences along the lines it would seek to achieve.

 

Given that even legal holdings established by the Supreme Court can be overturned by the Court in subsequent cases (e.g., Dobbs overturning Roe), perhaps, it is time for your organization to reconsider the idea that legal “facts” exist at all. There might be a few unambiguous and undisputed legal facts (e.g., each state has exactly two authorized senators). But your repeatedly affirming that the scope of disqualification under Article I or Amendment XIV is clear, unambiguous, and undisputed cannot fall under that narrow rubric. Few things do.

Seth

Seth Barrett Tillman, ‘A Letter to Politifact,’ New Reform Club (Aug. 17, 2022, 3:17 AM), <https://reformclub.blogspot.com/2022/08/a-letter-to-politifact.html>; 

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[1] See, e.g., Josh Blackman & Seth Barrett Tillman, Is the President an ‘officer of the United States’ for Purposes of Section 3 of the Fourteenth Amendment, 15 N.Y.U. J.L. & Liberty 1 (2021), <https://www.nyujll.com/volume-15/blog-post-title-four-flm6h>, <https://ssrn.com/abstract=3978095>, <https://tinyurl.com/3n77hrhw>; Josh Blackman & Seth Barrett Tillman, What Happens if the Biden Administration Prosecutes and Convicts Donald Trump of Violating 18 U.S.C. § 2383?, 2021 U. Ill. L. Rev. Online 190 (2021), <https://tinyurl.com/tnnv7dvw>, <https://ssrn.com/abstract=3837615>; Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications, 5(1) British Journal of American Legal Studies 95 (2016) (peer review), <https://www.ssrn.com/abstract=2679512>; Josh Blackman & Seth Barrett Tillman, Defining a Theory of “Bribery” for Impeachment, Lawfare: Hard National Security Choices (Dec. 6, 2019, 12:43 PM), <https://tinyurl.com/trafz4f>, <http://ssrn.com/abstract=3492627>; Seth Barrett Tillman, Reading the Senate Rules of Impeachment Litigation: A Response to Hurd and Wittes, Lawfare: Hard National Security Choices (Dec. 9, 2019, 12:16 PM), <https://www.lawfareblog.com/reading-senate-rules-impeachment-litigation-response-hurd-and-wittes>, <https://ssrn.com/abstract=3499577>;  Seth Barrett Tillman, Secretary Clinton Can Relax Because Section 2071 Disqualification Does Not Apply to the Presidency: A Response to Attorney General Michael B. Mukasey and Cause of Action (with a Short Reply from Attorney General Mukasey) (2015), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2650328>.

[2] See Lauren Carroll, Trump lawyer: Foreign dignitaries staying in a Trump hotel doesn’t violate Constitution, Politifact (Jan. 13, 2017, 4:00 PM), <http://www.politifact.com/truth-o-meter/statements/2017/jan/13/sheri-dillon/trump-lawyer-foreign-dignitaries-staying-trump-hot/>; Lauren Carroll, Giuliani: President Trump will be exempt from conflict-of-interest laws, Politifact (Nov. 16, 2016), <https://www.politifact.com/factchecks/2016/nov/16/rudy-giuliani/giuliani-president-trump-will-be-exempt-conflict-i/>.