  Friday, September 08, 2023

TODD ZWILLICH

Deputy DC Bureau Chief, VICE News

Washington, D.C. Bureau
@toddzwillich

Michigan Secretary of State Jocelyn Benson speaks during the Get Out the Vote Rally in Detroit.(Dominick Sokotoff/SOPA Images/LightRocket via Getty Images)

Terminated for clause

Like Frederick Douglass, the Constitution's "Insurrection Clause" is being recognized more and more. The Civil War rebels who spawned Section 3 of the 14th Amendment after they tried to destroy America didn't much like Douglass. And it's likely that supporters of Donald Trump's effort to destroy the 2020 election won't like Section 3 in the coming months either.

This week, a group of voters and good-government activists in Colorado sued to disqualify Trump from the 2024 ballot there, under the 14th Amendment. Other groups are promising that similar suits are coming. Secretaries of state, who run the election, are sounding off. Section 3 has only been used once against one public-official-slash-Jan. 6-insurrectionist. It was this guy, who Breaking the Vote covered before America learned his name.

The 14A/S3 option just got real. I called up Gerard Magliocca, a professor at the Indiana University School of Law who specializes in the "Disqualification Clause."

This was one of the most obscure little corners of the Constitution up until, well, we had an insurrection.

Most people have never heard of it until recently. So it's understandable that they're either skeptical about it or want to learn more before they make a decision. It's not like the First Amendment or many other concepts we know and understand better. But for the Insurrection Clause, now the wheels are starting to turn.

How would this work?

There are two main possibilities. A secretary of state in a state that lets that official make such decisions could decide Trump is ineligible, and then Trump would sue. And that case would get to the Supreme Court pretty quickly. Or it could be that voters will sue, to try to get Trump declared ineligible from the ballot. And then if they are able to win at some stage, then the Supreme Court will get the case.

The secretary of state route is quicker because they just have to make the decision. And that quickly gets into court. The other path of voter lawsuits might take longer. You've got to go through the whole trial process, and of course, the voters are not going to win in every state. The worst thing that would happen would be if there were no decision at all. We can't go through the election without knowing whether Trump is eligible to be president.

Some secretaries of state, like Jocelyn Benson in Michigan, say they're actively discussing it and time is of the essence. Brad Raffensperger, in Georgia, just wrote that he's not going to consider it because voters should decide.

And you can understand that some secretaries of state may want to wait and see if somebody else will take the first step or whether a court does something that they can then rely on for their decision. But I think there will be at least one who will be willing to just take the plunge. My view is that secretaries of state are there to ensure orderly elections. And that means determining as quickly as possible whether Trump is eligible to be on the ballot. So by saying that he's ineligible, they're just starting a process that's going to end up in the Supreme Court. They're not deciding in any final way.

Does this ultimately come down to nine justices deciding if Jan. 6 qualifies under the section's language singling out "insurrection or rebellion"?

Yes, in the sense that they're the ones that are going to have to decide this. But also no, in the sense that before they get the case there's going to be a lot of discussion. There are going to be judicial opinions and appellate rulings that will tee up the question for them.

What's totally novel is, they've never done a case about Section 3 of the 14th Amendment. When it's something new, it matters more. It's not like abortion or affirmative action where, let's face it, every justice knows what they think. Here, I don't think they know what they think about it. How many states, officials, or appeals courts will say Trump is ineligible? And what else will be going on by the time they get the case, with respect to criminal charges?

That's the obvious question. Does guilt or innocence in a criminal trial, say for a conspiracy that includes rioters at the Capitol, have anything to do with this?

Normally, no. You can be disqualified under Section 3 without being charged or convicted of a crime. None of the disqualified Confederates from the Civil War were convicted. But people would be more convinced to disqualify Trump if he were convicted.

Some are arguing that disqualifying Trump will further anger his supporters, and just make the country more chaotic. That's a political consideration, of course. What's your view?

Voters get to decide from among eligible candidates. So to say "let the voters decide" is to assume the candidate is eligible. If I don't comply with the ballot requirements in my state, I can't say well, hey, those don't matter because the voters want to vote for me.

It also causes a Catch-22. Suppose Trump were polling at 2%. Then people would say, why disqualify him, just let him run and lose. But if he's polling at 40% people say you can't disqualify him, because he's too popular. So exactly when can you disqualify somebody? At 20%? Is there a Goldilocks test to make sure it's just right? The Constitution doesn't contemplate one.

Just from an academic standpoint. This is your area, it's never been really real, and now it's as real as it gets. I don't know another way to ask this: Are you excited? Be honest.

It would be better if my area of expertise were not relevant, because then we wouldn't have had an insurrection at all. We just went through 155 years of having the privilege of it not being relevant. Having to break the glass in an emergency is exhilarating, but really for all the wrong reasons. Let's hope this is it and this relevance never comes back again.

Don't forget to sign your friends up for Breaking the Vote!

BREAKING THE VOTE LAW

The guilted age

After a lot of motions, a ton of shouting, and some ruthless trolling, former Trump aide Peter Navarro was finally convicted yesterday for ignoring two Jan. 6 committee subpoenas. A federal jury deliberated for about five hours before returning guilty verdicts on two counts of criminal contempt.

Navarro had argued that he was honoring then-President Trump's executive privilege by refusing to testify. But US District Judge Amit Mehta ruled there was not "even a smoke signal" of evidence that was true, and wouldn't allow the jury to hear it. In any event, Navarro never even showed up to answer his subpoenas and assert the privilege he claimed to have.

Judge Mehta set Navarro's sentencing for Jan. 12, 2024. Steve Bannon, convicted for similar conduct, got four months in prison. Navarro says he's appealing all the way to the Supreme Court.

Vice of counsel

At its core, what you're watching in Fulton County is Donald Trump losing his grip on the case. That's the bottom line I got talking with several former prosecutors, who all pointed to the frenzy to speed up, sever, or remove among Trump's 18 RICO co-defendants as proof of the rule: When the hammer drops, the confederates in a conspiracy start looking to protect themselves, even if it means selling out the boss, and of course, each other.

Lawyers Ken Chesebro and Sidney Powell (golden points forever to whoever came up with "Chese & Kraken," wish it was me) are going to trial early, and together. Both exercised their rights to speedy trials and this week, though Judge Scott McAffee denied Chesebro's attempt to sever from Sid and get in front of a jury on his own. Their trial will be on TV where the media and public will get their first big helping of evidence that Donald Trump wants to keep hidden until after the 2024 election.

Even in their preliminary hearing this week, Chesebro and Powell, through their lawyers, pointed at one other as the more serious alleged criminal. Other defendants at every level of the conspiracy are making their motions to sever their fates from Chesebro and Powell and stick with Trump, where their transgressions might seem small next to the world's most famous defendant.

Mark Meadows, who's trying to remove his case to federal court, minimized his role in Trump's post-election crusade. His lawyers put it out there that Trump was the star of the Jan. 2 "11,470 votes" phone call, while Meadows barely said anything. Meadows himself said he only helped organize fake electors because Trump wanted them and Meadows didn't want to get "yelled at."

How could Trump, obsessed with control and willing to pay for it, be losing it? Again, that's the nature of RICO. Eighteen confederates may have maxed out the dividends of loyalty. And with no prospect of being pardoned by Trump should he get back to the White House, Number 1 is looking eminently look-outable.

Also Trump, as far as we know, isn't buying loyalty in Georgia by paying his co-defendants' way. Trump isn't paying Rudy Giuliani's massive legal costs, though he did host a $100,000-a-plate fundraiser for the cash-strapped, disgraced co-defendant last night. Defendant Jenna Ellis has been especially upset about the lack of support. To see how much that matters, look at Mar-a-Lago.

We already knew that Yuscil Taveras, the IT guy also known as "Employee 4," changed his story about deleting security footage from perjury to the truth after he fired his Trump-funded lawyer and talked to a public defender. Now it's clear Taveras, no longer under Trump's control, has made a deal, and is cooperating with Jack Smith while avoiding being charged.

That's a loss of control in the Mar-a-Lago case that will likely hurt co-defendants Walt Nauta and Carlos De Oliveira, if not Trump himself. As the pressure mounts on the valet and the property manager, how will they view the advice of their Trump-paid counsel?

E. Jean Carroll leaves following her trial at Manhattan Federal Court on May 8, 2023 in New York City. (Stephanie Keith/Getty Images)

Cruel summary

Donald Trump won't even get to argue that he didn't defame E. Jean Carroll when he called her a liar and "not my type" while president. He's already lost. The same federal judge who presided over the suit that found Trump liable for sexually assaulting Carroll cut to the chase this week, granting Carroll a summary judgment win given the facts of the first case.

The current case will still go to trial, but only so that a jury can determine punitive damages and sanctions against Trump, US District Judge Lewis Kaplan ordered. That's on top of the $5 million in damages Trump was already ordered to pay Carroll for the sexual abuse.

22, savage

Former Proud Boys leader Enrique Tarrio's 22-year sentence this week broke the record for longest insurrection-related prison stretch to date. Tarrio was sentenced in federal court in DC after his May conviction for seditious conspiracy and other charges. Tarrio got the most of any of his four co-defendants, three of whom were also convicted of sedition. But in every case US District Judge Timothy Kelly came in well under the government's sentencing request, noting that the Proud Boys had no aims to kill people or blow up buildings the way other terrorists do (yes, they each qualified for stepped-up prison time under the sentencing guidelines' "terror enhancements").

Tarrio told Judge Kelly at sentencing that he was "done" with political organizing, as though political organizing—and not a violent and seditious attack intended to overturn an election— was what got him into trouble. "What happened on January 6 was a national embarrassment," said Tarrio. As you might have guessed, Tarrio's show of remorse was… fraudulent.

Which brings us to Proud Boy Dominic "Spazzo" Pezolla, who last Friday cried and asked the court for mercy , saying he'd learned hard lessons about his actions. As soon as Judge Kelly left the courtroom, Pezolla raised his fist and yelled, "Trump won!"

Grass-lit

Coup co-designer John Eastman is fighting to keep his law license at the same time he's fighting the conspiracy charges in Fulton County. Did Eastman just suggest that Trump conspired directly with GOP Sen. Chuck Grassley to have Grassley replace Mike Pence whole presiding over Congress on Jan. 6? The idea definitely came up before and after Jan. 6.

Eastman's lawyers have just begun presenting his side of this (very long) disbarment case. He's expected to take the stand in his own defense next week.

Dilution now, dilution tomorrow, dilution forever

It's been a big week for Republican suppression of Black voters in the South. A three-judge federal court again slapped down Alabama Republicans for refusing to draw a congressional map that un-dilutes the power of Black voters to pick their preferred candidates.

This all comes from Allen v Milligan, the recent SCOTUS decision backing up a lower court order for the Alabama GOP to create a second Black-majority district out of its seven congressional seats. GOP legislators and the governor defied the order, drawing a second district that didn't come close. This week, the federal court reacted with shock and disgust that conservative officials are effectively standing in the polling place door.

Alabama Republicans are vowing to appeal back to SCOTUS again. They say they have a shot at getting Justice Brett Kavanaugh to change his vote. In reality, they want the inevitable increase in Black representation to appear to be imposed by outside forces over their defiant objections. That's some narrative.

In Georgia, a GOP-drawn congressional map finally went to trial on claims that it also violates Section 2 of the Voting Rights Act. And a state judge in Florida struck down a map, approved by Gov. Ron DeSantis and the GOP House and Senate, that drew out a majority-Black district in North Florida in 2021.

Take our country hack

What do the Fulton County RICO case, a raft of recent Michigan indictments, and disgraced former county clerk Tina Peters in Colorado all have in common? Maybe that's what DOJ should be asking, since they all include quixotic plots to steal data from voting machines.

Tina was supposed to go to trial next month on seven felony counts related to the break-in and theft in Mesa County, Colo. But her trial was delayed for the third time this week, after a set of new lawyers said they needed more time to prepare. Tina's new trial date is Feb., 2024.

Forget me plot

Speaking of Michigan, one of the indicted fake electors there developed quite a case of amnesia about her role in the alleged fraud. Some journalists were on hand to jog her noggin.

Perry-ic victory

GOP Congressman and post-coup pardon-requester (pg, 121) Scott Perry scored a win against the feds this week. A federal appeals court partially blocked Jack Smith's access to Perry's cell phone, which was seized pursuant to a search warrant in Smith's criminal investigation of the coup attempt. The ruling is still sealed, so it's not clear exactly what grounds the all-GOP-appointed three-judge panel (including two Trump appointees) cited. But it's got to be a huge relief for Perry, who was heavily involved in networking and planning coup-related efforts in Pennsylvania, at DOJ, and in Congress (hence, the pardon ask!)

So far, Smith has avoided any direct allegations involving members of Congress.

I SAID WHAT I SAID

"I'm allowed to do whatever I want."

— Donald Trump, to radio host Hugh Hewitt, asked whether he told anyone at Mar-a-Lago to move boxes, allegedly committing obstruction.

ON OUR RADAR

Janet Protasiewicz is sworn in for her position as a State Supreme Court Justice at the Wisconsin Capitol rotunda in Madison, Wis. on August 1, 2023. (Sara Stathas for The Washington Post via Getty Images)

Deterring democracy — Wisconsin, as I point out a lot, is gerrymandered to the gills. Newly-installed Supreme Court Justice Janet Protasiewicz was elected in April on the promise of making the state's electoral maps more fair. Now it's becoming clearer than ever that Republicans will undo voters' 11-point preference for Protasiewicz before they agree to share democratic power.

Bench slapped — Here's how New York Judge Arthur F. Engoron reacted to Trump's request to delay his $250 million trial for business fraud scheduled for October 2. Ouch.

The 700 club — Donald Trump's attempted coup has now racked up over 700 years in total jail time. More than 350 rioters and seditionists have been sent to jail or prison for Jan. 6. Recent Proud Boys and Oath Keepers verdicts drove the incarceration numbers up.

Where's the thief — Using Trump's penchant for grifting his legal defense against his supporters' penchant for being grifted? Who would do such a thing?