  Friday, October 27, 2023

TODD ZWILLICH

Deputy DC Bureau Chief, VICE News

Washington, D.C. Bureau
@toddzwillich

Former US President Donald Trump speaks to members of the media at New York State Supreme Court in New York, US, on Wednesday, Oct. 25, 2023. (Stephanie Keith/Bloomberg via Getty Images)

The 14th words

Felony charges for obstruction, racketeering and mishandling national secrets are cool. But have you ever tried a case to decide if Donald Trump is qualified to be president at all?

Tune in Monday morning at 10 a.m. eastern for the first case testing whether Trump is barred from being president on account of being an insurrectionist under Section 3 of the 14th Amendment.

It's going down in Denver, where a group of voters, including a couple of former GOP legislators and a conservative columnist are suing to keep Trump off Colorado ballots in 2024. Trump has tried three different ways to get this case dismissed (a fourth is pending) and failed each time.

You'll be able to live-stream the hearing, and media organizations have been granted expanded access to cover the trial.

Chances are you're familiar with the main issue here: Section 3 forbids any public officer who's sworn an oath to protect the Constitution, and then does an insurrection or rebellion against the Constitution, from ever holding office again. It's only been used eight times to bar an official, most recently Couy Griffin, the New Mexico "Cowboys for Trump" founder who was ousted from his county commissioner job after attending Jan. 6.

So do Trump's actions on and around Jan. 6 constitutionally disqualify him from holding office? I've previously written about this here.

Each side gets 17 hours and change to make their case. Colorado District Judge Sarah B. Wallace will have to decide a bunch of issues including whether Section 3 applies to Trump even though he hasn't been convicted of a crime for Jan. 6; whether Trump's knowledge of the crowd's weapons and violent intent, and his refusal to act for more than three hours during the riot, all mean he participated in an insurrection; and whether the Office of the President is subject to the the disqualification clause at all (most scholars think it is).

A lot of evidence and testimony from the January 6 Committee report are likely to come into play in the trial.

About those witnesses: The witness list is, as of this writing, under seal. There are clues that at least one of Trump's former White House officials who was with him on Jan. 6 is on the list, though. Could be Cassidy Hutchinson? Mark Meadows? We'll see.

Disqualifying Trump as an insurrectionist may seem like a long shot. But it's less of a long shot now that several conservative legal scholars have come out to say his constitutional unfitness is a legal no-brainer. More recently, conservative former Appellate Judge J. Michael Luttig has argued that Trump is even more disqualified under Section 3 because he violated the Constitution's limit of presidential powers to a four-year term. Trump tried to illegally extend his powers beyond that term and deprive Joe Biden of taking those powers. Disqualified! says Luttig.

This case is designed for speed, mostly because Colorado's deadline to print ballots for the 2024 primary is Jan. 5, 2024. Closing arguments are set for Wednesday, Nov. 15, with a decision due two days later. Then it likely goes straight to the Colorado Supreme Court for appeal.

There are other cases pending in other states, including Minnesota, Michigan, and Florida. You've probably already figured out that one or more of these cases is going to SCOTUS and its conservative majority.

But Congress enacted the 14th Amendment after the Civil War to prevent defeated Confederates from returning to Washington to take stewardship over the Constitution they'd just tried to wreck. We're about to find out whether the courts have the guts to apply it to a former president who wants power, whether the Constitution grants it to him or not.

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

WHAT'S HAPPENING

Speaker of the House Mike Johnson, R-La., second from right, takes pictures with members after a news conference on the House steps of the the U.S. Capitol after winning the speakership on Wednesday, October 25, 2023. (Tom Williams/CQ-Roll Call, Inc via Getty Images)

Tragic Johnson

It took Kevin McCarthy a couple days after Jan. 6 to abandon the idea that Trump should be held accountable for causing the insurrection, and instead to scurry back to Trump to help his campaign to overturn democracy.

Mike Johnson suffered no such inhibitions.

Rep. Johnson, the newly elected GOP speaker from Louisiana, not only voted not to certify the 2020 electors after the violent mob attacked the Capitol. He was the driving force, largely unseen to the public at the time, pushing Republicans to join him in rejecting Joe Biden's electors.

A month earlier, in December, Johnson also rallied Republicans to get behind a last-ditch and extremist lawsuit by Texas Republicans to nullify the votes of tens of millions of voters in four swing states, all so Trump could stay in power.

And a month before that, just after Trump launched his campaign to lie his way into staying in power, Johnson trafficked in Sidney Powell-grade conspiracy theories about Dominion voting machines and the nefarious influence of Hugo Chavez on their programming.

Long before that, Johnson espoused a trope popular with right-wing operators who are sick of competing in fair elections. It's the one where America "isn't actually a democracy" (and logic therefore dictates that minority rule is awesome.) Johnson supported a lot of policies the hard-right doesn't like. He voted earlier this year to defuse a MAGA-induced crisis by raising the debt ceiling. He's for spending plans that they insisted should cause a government shutdown just weeks ago.

But what they loved from Johnson, in addition to his Christian soldier social views, is the coup he attempted to deliver to Donald Trump. (Sen. John Fetterman has his own take.)

During the weeks of speakerless GOP chaos, a few Republicans showed signs of bucking antidemocratic MAGA bullying tactics. A few said the party can't be viable if its leaders continue to support Trump's election lies.

Last week the conservative Republican Ken Buck proclaimed the party must have new leaders who reject election denialism. He denounced Jim Jordan on the grounds that Jordan had a hand in Jan. 6 and wouldn't say Biden won the election.

But by Wednesday, the idea that the dysfunction and infighting would give way to a speaker connected to democracy and the rule of law had vanished. The hope that a few conservative Republicans would use the fight to germinate an anti-anti-democatic movement in the party fell over, limp.

Like Jordan, Johnson participated in the Jan. 6 "inside" strategy of rejecting duly chosen electors. And like Jordan, he actively promoted the lies that brought the mob to the Capitol. When Buck was asked on CNN Wednesday whether Johnson given the assurance that Jordan never could, that the 2020 election wasn't stolen, Buck said:

"I have not gotten that promise from Mike." He enthusiastically voted for Johnson anyway.

Yet another disturbing poll came out this week confirming why all this is happening. Six in 10 self-described Republicans say Trump had nothing to do with trying to overturn the 2020 election. That is of course, simply false. Republican lawmakers know their voters are dangerously divorced from reality, and they're fully committed to making it worse.

While that poll was in the field, Republicans chose Johnson as their speaker nominee. Coup booster (and pardon-seeker, pg. 120) Rep. Matt Gaetz gloated about his amazing success. Organizers of the Jan. 6 rally where Trump told his mob to "fight like hell" cheered from the sidelines. At his victory press conference, a reporter asked Johnson about his support for overturning the 2020 election.

The Republicans, forming a tight pack around Johnson, guffawed and jeered and booed the reporter. One of them, North Carolina's Virginia Foxx yelled, "Shut up!"

Southern map, when will you pay them back?

North Carolina Republicans' march to gerrymander their elections into irrelevance is complete. The new map is in, and it means the state's current 7-7 Republican-Democrat congressional delegation will likely be dominated by Republicans 11-4.

BUT! Down in Georgia, a federal judge has struck down Republicans' map on the grounds that it dilutes Black voters' influence in violation of the Voting Rights Act. We've been watching this case ever since the Supreme Court helped force Alabama to stop disempowering Black voters in a similar fashion. So this decision, assuming it stands, means Georgia legislatures will have to carve out a new Black-majority district, and several state House and Senate districts.

BREAKING THE VOTE LAW

Jenna Ellis, former legal adviser to former US President Donald Trump, reads a statement at the Fulton County Courthouse in Atlanta, Georgia, US, on Tuesday, Oct. 24, 2023. (John Bazemore/AP/Bloomberg via Getty Images)

Attorney for the worst

Add Jenna Ellis to the list of Trump co-defendants who've pled out and taken deals in Georgia. Ellis traded in her long, long history of brazenly lying about the 2020 election for an extremely sincere apology telling Judge McAfee she should have never helped Donald Trump.

That, and an agreement to fully cooperate with prosecutors and testify in any of the Georgia case's proceedings, were enough to keep Ellis out of jail on her felony charge. Her tear-filled statement, foisting responsibility for literally years of lies onto other, older lawyers was next-level self-preservation. Quite hilarious, actually!

So Ellis, lawyers Sidney Powell and Ken Chesebro, and bail-bondsman Scott Hall make it four co-defendants who've taken deals in exchange for their testimony. And now there are guilty pleas from nearly every mini-conspiracy in the big Georgia case.

- Ellis is trouble primarily for Rudy Giuliani. Look at all of these over acts! Her plea agreement states that she teamed up with Rudy and co-defendant Ray Smith, another lawyer, to lie to Georgia legislators about election fraud, illegal votes, and faulty election procedures, all to get them to appoint fake electors for Trump. Now she'll be in a position to tell a jury that it was all false, and that she and her confederates knew it.

- Ken Chesebro knows all about the plan to recruit fake electors and how John Eastman and Donald Trump planned to use them in the bid to replace duly elected ones in D.C.

- Sidney Powell is all about the Coffee County computer caper and the effort to steal voting data in an effort to fraudulently advertise a corrupt election.

- Hall is a smaller player who comes from the election worker intimidation end of the plot.

There are almost certainly more pleas to come as DA Fani Wiliis works her way up the chain in the 19-defendant case. Who'll be next!?

How many of the remaining 15 co-defendants will eventually plead out, how many will go to trial with Donald Trump (who, it's safe to assume, will never ever plead)? The good people at Lawfare have thoughts.

Stockton trade

By the way, say hi to L. Allyn Stockton, Rudy's new Georgia lawyer. Rudy's old attorneys backed away from him several weeks ago. And don't forget he's getting sued in New York by his longtime friend and lawyer Robert Costello for $1.36 million in unpaid legal bills.

Immunity theater

Mark Meadows, on the other hand, has not flipped and is not cooperating, as far as anyone who's not his lawyer or Jack Smith can tell. Here are a couple good explainers if, like me, you found yourself wondering how Meadows' apparent immunity arrangement with Smith works in the broader Trump crime ecosystem.

What's important to remember is that Meadows isn't charged, and isn't identified as a co-conspirator in the federal coup case. Whatever limited immunity he was granted to compel his grand jury testimony can't be used against him by Smith, but it also doesn't apply to the Georgia case, where he is charged. Meadows is also trying (so far unsuccessfully) to remove his Georgia case to federal court, which could also affect how the two cases interact for him.

It's funny: The more you dig into legal procedure, the more you can forget to remember what's even more important: Meadows reportedly told investigators that his entire story of belief in Trump's stolen election story is bullshit. He lied in his book, lied in media appearances, lied to whoever would listen. "Under penalty of perjury," ABC News points out, "Meadows offered a vastly different assessment."

If Meadows was given "limited use" immunity and compelled to testify in the federal grand jury about Trump, it would mean nothing he said can be used against him in the federal case. But it wouldn't mean he can't be prosecuted later using other evidence. That's rare, but whether Jack Smith is planning that, we don't know.

It also means he'd almost certainly be called to testify at Trump's trial. If he has an immunity arrangement, he can't take the 5th.

Meadows has pled not guilty in Georgia, and so far in the federal case is walking between the raindrops. Several experts I talked to said it's hard to imagine Willis letting him plead to anything below a felony. Then again, given all he knows, his testimony against Trump would be extremely valuable.

Maw and order

It took less than four hours from the news of Meadows' immunity sitch for Trump to threaten him. A little slow, I know, but it was the dinner hour (hopefully all the ketchup is accounted for). Thing is, Meadows is a likely witness in the federal case. And that prompted the Special Counsel to go right back to Judge Tanya Chutkan to encourage her to lift her temporary stay and reinstate Trump's limited gag order.

Jumpin' back Jack

Special Counsel Jack Smith has withdrawn a second subpoena in the ongoing federal coup investigations. It's all a sign that the investigation, which has led to charges for Trump and unindicted co-conspirator status for six others, may be narrowing.

The newly pulled-back subpoena was to the Trump 2020 campaign, which Smith was investigating for evidence of illegal acts in fundraising or political activity as Trump tried to stay in power. Another subpoena investigating fundraising at Trump's Save America PAC was withdrawn last week.

All this signals that Smith may be winding down the fundraising end of the investigation, and maybe has decided not to pursue charges there. If so, we'll know eventually. The Special Counsel law requires him to issue a report at the end of his investigation describing his charging or not-charging decisions.

I SAID WHAT I SAID

"Damn right!"

— GOP Rep. Anna Paulina Luna, yelling her approval after Dem Rep. Pete Aguilar pointed out that new speaker Mike Johnson led efforts to object to the 2020 election results.

ON OUR RADAR

(not) Our town — The MAGA candidate who peppered her run for mayor of Franklin, Tenn. with embraces of white supremacists and Christian nationalists got absolutely crushed in Tuesday's election. In fact, Gabrielle Hanson and the whole local slate of MAGA candidates lost in the Nashville suburb.

Earlier this month Hanson was escorted into a candidate forum by a local group called the Tennessee Active Club, which regularly traffics in antisemitic and racist rhetoric, recruiting new members primarily on Telegram. Hanson refused to disavow the group, bringing a bunch of gross attention down on the town.

Fast fashin' — The frontrunner in the five-way GOP governor primary in North Carolina is playing cleanup on his social media posts quoting Hitler, comparing the removal of Confederate statues to the persecution of Jews in Germany, and more. Or rather, Lt. Gov. Mark Robinson is not clearing them up—he's leaving the posts up while telling reporters he's "moved past them."

Robinson has a long history of antisemitic and incendiary posts, which he recently called "poorly worded." Turns out the history is more extensive than previously reported.

Johnny be good — Not all of Trump's lawyers have copped pleas. Coup grand-designer and Georgia defendant John Eastman is still hanging tough, as far as we know, and he's also still facing an attempt by the California Bar to disbar him. Eastman got a little boost this week from a former Appeals Court judge.

Putin on the disinfo — Of all the (many) ways Trump's interests align with Russia's, undermining faith in US elections is near the top. But the United States isn't alone. Russia has been busy trying to destroy belief in election integrity in more than a dozen nations worldwide.