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  • Writer's pictureRBSonnenmoser

The Pinch; or, How It's Almost Impossible to Follow a Straight Flush with a Full House





 

A warning: no one’s gonna be happy all the way through.

 

If you support the Defendant and want him to be the next President of the United States, you’re likely to be peeved when I introduce the legal doom-spiral, by way of The Pinch, that seems likely to nullify him politically.

 

If you think the Defendant is a cancer on the soul of our democratic republic, a malignant tumor whose populist demagoguery (a.k.a. his narcissistic pastime) urgently requires the political equivalent of chemotherapy and radiation and surgical excise, you’re probably going to be bummed when I introduce—and, yes, mostly defend—a reading of the Fourteenth Amendment that might be palatable to at least five, if not six or seven, justices of the Supreme Court and that removes a certain someone’s Fourteenth Amendment “disability.”

 

My first version of this essay had a different emphasis: how diehard supporters of the Defendant seem among the world’s biggest, most eternal, optimists. Their bread and butter, I was going to say, is hope beyond hope. How, in 2024, if these phone surveys are to be believed at all, they’d rather lose with a convicted felon than win with a flawed but likely competent-enough and un-incarcerated candidate. How their unyielding hope undergirds their desire for an increasingly small-chance possibility: not only for an electoral straight flush in November—winning every crucial swing state by a few thousand votes, à la 2016— but also a legal full house through the winter, spring, and summer. That miraculous hand to follow that other miraculous hand is, in essence, that every lawyer in every criminal trial masterfully threads the reasonable-doubt needle and the nation’s best constitutional lawyers en masse sign up to represent the Defendant and then put forward persuasive-to-the-populace-and-the-Supreme-Court interpretations of the Fourteenth Amendment that keep their man on the ballot.


But something struck me when I was reading the Colorado GOP’s appeal to the Supreme Court. Not only weren’t the lawyers bringing their A-game; I’d argue Jay Sekulow et al seemed reluctant to offer an obvious, and maybe even winning, argument. And then, when the Defendant’s own attorneys filed their appeal a couple of days ago, which was very C-game, to my mind, I was struck again. Why were all of these lawyers missing it? Why were they reluctant to make one of the better arguments they could make?


(Disclosure: I’m an English professor, not a constitutional law scholar, and so when I say “obvious, and maybe even winning, argument” I’m basing that on my own imperfect, what-might-seem-reasonable-and-moderately-persuasive-to-regular-citizens-regardless-of-political-party standard.)


At first, I thought they weren’t making the obvious and relatively strong argument because they simply hadn’t thought of it. But then another possibility started banging around my brain: They’re pinched. These lawyers are trapped by a pincer made of the competing demands of four indictments and a political campaign.


The Pinch is the conflict between the legal arguments that would exonerate in one venue but damn in another.



 

Before we get to all that, though, here are two similar—but, as you can see, in no way identical—sentences.

 

First: “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.”

 

Second: “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”

 

The first is the first sentence of Section Three of the Fourteenth Amendment. The second is the federal criminal law against insurrection and rebellion.

 

Lawyers for the Colorado GOP called the second one, which is 18 U.S. Code § 2383, the “only current enforcement mechanism even arguably available” to enforce Section Three. “Arguably” is a crucial word. As an enforcement mechanism, this law is about as flawed as you can get—because it uses significantly different terms and expands the prohibition on holding office from oath-breakers to, well, everyone who insurrects or rebels.

 

The Colorado Supreme Court’s majority opinion is eminently thorough and persuasive, but I can imagine SCOTUS noticing this blind spot in the majority’s legal reasoning:

 

We are similarly unpersuaded by Intervenors’ assertions that Congress created the only currently available mechanism for determining whether a person is disqualified pursuant to Section Three with the 1994 passage of 18 U.S.C. § 2383. That statute makes it a crime to “assist[] or engage[] in any rebellion or insurrection against the authority of the United States.” True, with that enactment, Congress criminalized the same conduct that is disqualifying under Section Three. All that means, however, is that a person charged and convicted under 18 U.S.C. § 2383 would also be disqualified under Section Three.

 

 

 

Is ”true” the right word? With the insurrection law, did Congress criminalize “the same conduct that is disqualifying under Section Three”? Or did it broaden the scope established by Section Three to include non-oath-takers and insurrectionists and rebels that rise up against or resist the federal government’s authority or its laws (but don’t necessarily rise up against or resist the Constitution)?

 

There is an undeniable linguistic difference in what the insurrectionists or rebels are insurrecting or rebelling against: “the authority of the United States or the laws thereof” or “the Constitution of the United States.”

 

Is it a substantive difference?

 

Will SCOTUS think so?

 


 

 

Much of the legal analysis I’ve read in the press and in various court opinions and legal filings has, understandably, spent a lot of time exploring the “plain meaning” of the word “insurrection.” The Colorado Supreme Court decision delves into the historical understanding of the word. Here’s a contemporary-to-the-enactment definition of insurrection, which the Colorado decision cites, from Noah Webster in 1860:

 

A rising against civil or political authority; the open and active opposition of a number of persons to the execution of law in a city or state. It is equivalent to SEDITION, except that sedition expresses a less extensive rising of citizens. It differs from REBELLION, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one, or to place the country under another jurisdiction.

 

One of the Defendant’s own lawyers, during his second impeachment trial, said on the floor of the U.S. Senate, “Everyone agrees” there was a “violent insurrection of the Capitol” on January 6, 2021. As the judge who declared Couy Griffin disqualified, via the Fourteenth Amendment, from serving as Otero County Commissioner, because he engaged in insurrection, reminds us: “[E]ach branch of the federal government has referred to the January 6 [a]ttack as an ‘insurrection’ and the participants as ‘insurrectionists,’ including bipartisan majorities of both chambers of Congress, more than a dozen federal courts, President Biden, and the Department of Justice under former President Trump.”

 

So, there is really good evidence from the 1860s and the 2020s that an insurrection is what happened on January 6, 2021.

 

On the bigger question of whether or not the Defendant engaged in insurrection against the Constitution, his own appeal to the Supreme Court doesn’t really attempt much persuasion. Rather, it blithely asserts a few things. In about 500 words, his lawyers talk about a 2020 riot in Portland, Oregon; provide a definition of “‘[i]nsurrection’ as understood at the time of the passage of the Fourteenth Amendment” which doesn’t include any citations from 19th century sources (“Do your own research!” his lawyers seem to be saying, or, “Just trust us!”) and that happens to be much closer to Noah Webster’s definition of rebellion; and then complain that the Colorado Supreme Court cited a sociology professor in its majority opinion. 

 

Receiving little to no attention, strangely, in either the Colorado GOP’s or the Defendant’s appeal, is the phrase “against the same”—as in “insurrection or rebellion against the same.” Grammatically, “the same” refers to the Constitution of the United States.

 

More legal filings—which are supposed to make “arguments on the merits”—will be forthcoming, and oral arguments have been scheduled for February 8, 2024, so it’s always possible that the Defendant’s lawyers will change course. But, so far, they seem to have missed—or evaded—an argument that might be convincing to a majority of the Supreme Court and palatable even to those, like me, who would like to excise the tumor by any peaceable means necessary.

 

Here’s the argument the Defendant’s lawyers seem unwilling to make: One of the best arguments for Trump not being disqualified by the Fourteenth Amendment is to admit that he engaged in conduct that likely broke the federal law, that he engaged in an insurrection against the Electoral Count Act and comforted the insurrectionists (“We love you!”); he incited a riot which he had a reasonable belief might become an insurrection (“When you catch somebody in a fraud, you are allowed to go by very different rules”); and then he refused to intervene, even when the lawlessness and violence and disruption of the certification of the election was not only imminent but, you know, happening; but he never engaged in or incited insurrection or rebellion against the Constitution of the United States.

 

Because the accused insurrectionist happens to be a former president, it’s been hard for me to grasp some of the legal arguments conceptually. So, I’ve made up these two what-ifs:

 

What if President George Washington had ridden out to suppress the Whiskey Rebellion and then, once on site, chose to side with the insurrectionists rather than to do his job at Commander in Chief, which was, you know, suppressing the insurrection?

 

What if Abraham Lincoln, once the Constitution of the Confederate States of America had been written and ratified, said, “That new one they’ve got seems as good as ours” rather than continuing to fight for (“preserve, protect, and defend”) and follow the Constitution of the United States and then told an angry crowd gathered near the Capitol that “We might as well go by different rules now, you know?” And then that crowd broke into the Capitol to try to intimidate the legislators into agreeing with them and Lincoln.

 

Both scenarios feel fairly un-American and icky (and fairly hard to imagine). But fictional George Washington’s behavior, I would say, is an abdication of duty and is certainly also criminal and therefore impeachable. It is insurrection according to the (current) federal law but maybe not the Fourteenth Amendment. (We are in anachronistic hell, of course, in my scenarios.) But I cannot say that fictional Washington’s behavior 100 percent fits my conception of what it might mean to engage in an insurrection or rebellion against the Constitution.


Fictional Lincoln's what-if behavior feels closer to what it would take for me to say, unequivocally, that a former president had rebelled and been in league with insurrectionists against the Constitution of the United States.

 

I can imagine some of the textualist, originalist-in-the-mold-of-Scalia associate justices of the Supreme Court saying that what happened on January 6, 2021, is much closer to the Washington-Whiskey Rebellion what-if than the Lincoln-Confederacy one.

 

Can’t you imagine a majority of the Supreme Court saying that insurrection or rebellion against the Constitution of the United States is the standard, not insurrection or rebellion against, say, a federal tax based on the number of windows in your house (see Fries’s Rebellion)? Or a tax on liquor (see the Whiskey Rebellion)?

 

Can’t you imagine SCOTUS finding the Fourteenth Amendment’s framers were specifically targeting for prohibition those prior officer-holders that rebelled and rose up against the Constitution, in ways large and small: all those legislators and judges and representatives and senators and governors who, by living and fighting and abiding by the Constitution of the Confederate States, thereby rebelled against the Constitution of the United States, simply by agreeing with the general aims of the Confederacy and contributing, in whatever ways they did, to its rebellious cause?

 

(A very reasonable argument against this one, by the way, can be found in the New Mexico judge’s order disqualifying Couy Griffin from state office, which cites the insurrection’s disruption of the execution of the Twelfth Amendment and the Twentieth Amendments, in particular.)

 

Can’t you imagine the Supreme Court of the United States saying that what happened on January 6, 2021, was certainly an insurrection and a seditious conspiracy according to the roomier confines of federal law, but that the Defendant’s behavior, as un-American and reprehensible and criminal as it was, falls short of what it would mean to engage in an insurrection or rebellion against the Constitution? 



 

 


One of the sillier arguments I’ve read recently is that the authors of the Fourteenth Amendment wanted to prohibit all those who swore to support the U.S. Constitution and later rebelled against it from holding federal and state office except anyone who wanted to be president and also happened to be super-popular nationally.

 

This argument was put forward by the Colorado GOP, in their appeal to the Supreme Court.

 

Above is my paraphrase. To be fair, here’s how Jay Sekulow et al wrote it:

 

The Supreme Court of Colorado opined that it would make no sense to put in place an insurrectionist bar for every other federal office, but not for the President (or Vice-President). But there is a key difference. Every Senator or Representative represents a geographic area where sympathy for insurrection was (at the time of the post-Civil War era) a real and legitimate concern. Lower federal officers, meanwhile, are not elected and thus do not face national electoral scrutiny. Only the President (and Vice-President) face nationwide electoral accountability. And if an electoral majority of the voters determine that they want a certain individual as Chief Executive, regardless of alleged or even actual past transgressions, that is their national choice under the Constitution.

 

This line of thinking perhaps doesn’t sound too silly to our ears, because the American public widely believes in ideas like “nationwide electoral accountability.”


But the framers of the Fourteenth Amendment were not looking for ways to ensure the presidency continued to represent a “national choice.” Rather, they wanted to disempower oath-breakers. Section Three of the Fourteenth Amendment wasn’t intended to provide a pathway to power for former Confederates: Just run for President! It was intended to prevent those who once swore an oath to the U.S. Constitution from holding an office that requires them to again swear that oath.

 

To be sure, the presidency carve-out is only one of the many silly arguments put forward in their appeal: someone who holds an “office” isn’t an “officer,” the word “support” means something radically different than the phrase “preserve, protect, and defend,” how often someone’s name gets mentioned in a phone survey of 1,000 registered voters should be relevant to constitutional interpretation, and so on.

 

I’d imagine someone like Chief Justice John Roberts might be intellectually offended by some of the goofier assertions: “Thus, the Colorado Supreme Court decision would unconstitutionally disenfranchise millions of voters in Colorado and likely be used as a template to disenfranchise tens of millions of voters nationwide.” To disenfranchise a voter means to deprive them of their legal right to vote. The Defendant’s disqualification for office via the Fourteenth Amendment disenfranchises as many voters as Arnold Schwarzenegger’s or any random thirty-year-old’s constitutional disqualification: exactly zero.

 

The silliness could also be called needle-threading or nitpicking or a hunt for victory by the thinnest of technicalities. (The stuff about the 2024 presidential polls feels less like needle-threading and more like ego-feeding the boss.)

 

Why, you might be wondering, are the Defendant’s lawyers swinging only for the pitcher’s mound?

 

Why, for example, is the main argument in the Defendant’s recent appeal of the Maine Secretary of State’s decision, as far as I can tell (it’s one of the few with a whole multiple-sentence paragraph devoted to it), that the Secretary of State overstepped her statutory authority by “consider[ing] any challenge to President Trump's qualifications under section 336, as those are not part of the declaration.” The Defendant’s lawyers in Maine are asking for a constitutional interpretation of significant import to hinge on whether a required form represents a “declaration” or if some of it is rather a “statement.”

 

You might think that the Defendant’s appeal to the United States Supreme Court, since it’s the highest court we’ve got, might swing for the fences. It doesn’t.

 

The first paragraph of the appeal asks the Supreme Court to think a bit about the Defendant’s RealClearPolitics polling average. The appeal begins with polling data!

 

From there, the appeal makes a lot of ticky-tack arguments about process and procedure, including an argument that Colorado law only requires one candidate from the Republican party to be qualified for the office in order to list all of their candidates on their primary ballot. Can you imagine if this is the argument that wins the day? That technically the Defendant can appear on the primary ballot because . . . not all of the Republican presidential candidates engaged in insurrection!

 

One of the more interesting bunt-strength arguments is that the Fourteenth Amendment prohibits disqualified persons from holding office, not from running for it. (The National Republican Senatorial Committee filed an amicus brief to the Supreme Court arguing much the same thing, which makes me wonder if more than a few Republican lawyers have doped out that the Defendant faces a few too many hurdles, including more than likely incarceration, to make an in-person appearance at the 2025 inauguration, and so it’s time to start spreading the surreptitious word that a vote for the Defendant is really a vote for Kristi Noem or Elise Stefanik or Sarah Huckabee Sanders.)

 

Eventually the arguments become slightly more robust. By far, the Defendant’s strongest is “The question of eligibility to serve as President of the United States is properly reserved for Congress,” which relies primarily on the text of the Twentieth Amendment, which discusses Congress’s role in choosing a president when one has “failed to qualify.”

 

But a strong counter-argument can be found in the Colorado Supreme Court’s opinion:

 

Finally, the Twentieth Amendment, in relevant part, empowers Congress to enact procedures to address the scenario in which neither the President nor the Vice President qualifies for office before the time fixed for the beginning of their terms. U.S. Const. amend. XX, § 3. By its express language, however, this Amendment applies post-election. Id. (referring to the “President elect” and “Vice President elect”). Moreover, the Amendment says nothing about who determines in the first instance whether the President and Vice President are qualified to hold office.

 

The Defendant’s criminal lawyers are hoping to delay their cases until the Defendant is either president or dead. Plan B, according to some recent reporting, is to resurrect 2016’s Race to the Bottom, only at trial: Nancy Pelosi called to the stand! Lots of innuendo about “the deep state”! A field trip with the jury to see the J6 Choir perform! Revelations that various January 6 insurrectionists have brothers-in-law or third cousins who are secretly . . . maybe . . . could it be . . . dunh dunh DUUNNHHHHH . . . Antifa!

 

His constitutional lawyers, though, seem to be playing not for the spectacle-hungry base but rather for their every-legal-wall-is-closing-in-on-him boss. And so they’re not going for a knockout at the Supreme Court but rather T.K.O. by the tiniest possible margin.

 

Why would a group of reasonably intelligent and presumably semi-competent lawyers put forward such small arguments: the president’s not an officer, he might be disqualified but his V.P. could simply be inaugurated instead, this section can’t be “self-executing” even though the language is clear and the rest of the Fourteenth Amendment is self-executing?

 

Maybe it’s because of those closing-in walls.

 

The Defendant’s lawyers are trapped between the competing demands of his myriad legal problems.

 

What some might call a “conflict of defenses,” I’m calling The Pinch.

 

The Pinch means: The Defendant might not be able to get access to the classified documents he wants for one trial because he’s accused of crimes related to classified documents in another.

 

The Pinch means: The Defendant might not be able to testify helpfully in his own defense at a civil trial concerning business fraud because he’s trying not to damage his political reputation with his potential voters.

 

The Pinch means: Convincing the Supreme Court—or two-thirds of the Congress—that he’s not disqualified by the Fourteenth Amendment might mean admitting that January 6, 2021, was an insurrection in the way of the Whiskey Rebellion, so a clear violation of the federal law, but not in the way of the Fourteenth Amendment (in the way of the oath-breaking Confederates). Not only might such an admission come at the expense of some of his political support, it might also require admission of facts that are alleged in his federal or Georgia indictments for his efforts to overturn the 2020 presidential election.


The Pinch, therefore, means: Winning one case might mean losing another. Or another. Making a robust argument that you’re qualified for the ballot in November 2024 might mean admitting some things that will help various prosecutors in March, April, May, June, and July.

 

More often than not, a full house doesn’t follow a straight flush.


The improbable can happen, but it isn’t likely.


The Pinch means: Hemmed in by facts, and by reasonable interpretations of the law, and by his own moral confusion, and by the competing demands of being indicted for felonies and having committed those felonies with lots of witnesses and co-conspirators alive to tell the tales and also trying to get back to the White House, the Defendant ends up losing more cases, and elections, than he wins.






 



Richard Sonnenmoser has published fiction, poetry, and creative nonfiction in Harvard Review, West Branch, Crab Orchard Review, Permafrost, Colorado Review, and other magazines. He lives in Missouri. The images above were created with DALL-E.


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