US Politics

The 14th amendment was passed in 1868, to settle important matters arising from the civil war, including how we define equality before the law. Ever since, it has served as the foundation for one landmark supreme court decision after another, from Brown v Board of Education (1954), which banned segregation in public schools, to Obergefell v Hodges (2015), which legalized gay marriage.In recent times, a little-known feature has come into sharp focus. Six days after the January 6 Capitol attack, Eric Foner, a historian of the US civil war and the Reconstruction era, argued that section 3 of the amendment forbids an “officer of the United States” from holding office if he or she has sworn an oath to the constitution, then participated in an “insurrection or rebellion”.That could mean Donald Trump is ineligible to hold public office.The matter is now before the states. In September, New Hampshire’s secretary of state refused to intervene. On 8 November, Minnesota’s supreme court rejected an attempt to prevent Trump from running. On 14 November, a judge in Michigan dismissed a lawsuit that tried to exclude Trump. But other states will be reckoning with the issue in the weeks ahead, including Colorado.To better understand the origin of the 14th amendment, and its ongoing relevance to 2024, Foner sat down with Ted Widmer, another civil war historian. The interview has been edited for length and clarity.Ted Widmer: The 14th amendment has been in the news a lot lately. Can you remind us why this particular amendment holds so much sway?Eric Foner: The 14th amendment is the most important amendment added to the constitution since the Bill of Rights in 1791. It’s an attempt by the victorious north, the Republican party in the aftermath of the civil war, to put its understanding of that war into the constitution.It is also the longest amendment. They tried to deal with everything that was on the political agenda in 1865, 1866. It deals with many specific issues, such as ensuring that southern enslavers are not going to get monetary compensation. Or that – and this is in the news today – that if you take an oath of allegiance to the constitution, and then you engage in insurrection, you are barred from holding political office in the United States.On the other hand, the 14th amendment also contains the first section, which is a series of principles arising from the end of slavery, beginning with birthright citizenship, that all persons born in the US are automatically citizens of the US. Although there’s an exclusion of Native Americans, who are still at that point considered citizens of their tribal nation, not the US. Also in the first section, “equal protection of the law”, that no state can deny to any person, not just citizens, the equal protections of the law – this was a fundamental change in American politics and society.Can you elaborate?No state gave Black people full equality before the law before the Reconstruction era and the 14th amendment. What equal protection actually means in practice is certainly open to debate. And it has been debated ever since 1868, when the amendment was ratified. There are key supreme court decisions over the last century – whether it’s outlawing racial segregation, establishing the right to terminate a pregnancy, “one man, one vote”, and many others – [that] have rested on the 14th amendment. My basic point is this: to borrow a modern phrase, I think the 14th amendment should be seen as a form of “regime change”. It’s an attempt to change the regime in the United States. It’s not a minor little change in the political system. It’s to change a pro-slavery regime, which is what we had before the civil war, to one based on equality, regardless of race. A fundamental change.This is what the civil war has accomplished. It has destroyed slavery, and it has created a new political system, which views all persons in the US as entitled to some modicum of equality.What is the immediate context of the passage of the 14th amendment? What were they trying to address?Well, the immediate context was what we call the Reconstruction era, the period immediately after the civil war, when the country was trying to come to terms with the consequences of the war, the most important of which were the destruction of slavery and the unity of the nation. As I mentioned, there were specific issues, which really have very little bearing on our political life today, although they keep popping up. For example, part of the 14th amendment says the government has to pay its debt: if it borrows money, selling bonds, it has to pay them off when they become due. This lay there pretty much unremarked for a long time. But lately with the debates over the debt ceiling, it’s back in the news again.But the fundamental issue was: what was going to be the status of the 4 million former slaves, who were now free citizens? Were they going to enjoy equality, were they going to have the right to vote, which was critical in a democracy? Were they going to be able to hold public office? What about economic equality, would they enjoy anything like that? The 14th amendment tries to deal with that in various ways. There are five sections, all of them relate back and forth to each other.Even though Abraham Lincoln was no longer alive, does it reflect his thinking?A constitutional amendment is the only legislative measure in which the president has no role whatsoever. The president cannot veto a constitutional amendment the way he can veto a piece of normal legislation. In fact, when the 13th amendment was passed, irrevocably abolishing slavery in the US, Lincoln worked to get it ratified, and he signed a copy of it as a symbol of his support. He got a handwritten copy of the 13th amendment, approved by Congress, and he signed it, whereupon Congress said, “You can’t sign this, President Lincoln, because the president has no role in the passage of the amendment. You’re trampling on our powers.”Didn’t know that.Yeah, they got annoyed when he signed it. Signing it didn’t make it legal or illegal. It becomes part of the constitution when it’s ratified by Congress and by a sufficient number of states.But the point is, Lincoln was a mainstream Republican. He was a great man, a brilliant writer and speaker, but he was also a party man. And the 14th amendment was approved by almost every Republican in Congress. There is no question Lincoln would have approved it. Also, Lincoln did not get into big fights with Congress the way some presidents have. So I think the basic principle, equality before the law, Lincoln had come to approve that during the civil war. He didn’t really hold that view before the civil war. But there’s no question in my mind that if Lincoln had not been assassinated, and was still president, he would have happily urged Congress to support the 14th amendment.Is birthright citizenship a uniquely American concept?Well, that is another complex and important issue and something that is back on the political agenda today. Is it uniquely American? No, it’s not. There are other countries that also automatically make you a citizen.But the point of birthright citizenship is it’s very important in the constitution to have this. It’s basically a statement that anybody can be a citizen. We are not a country based on a single religion, we are not a country based on a single political outlook, we are not a country with an official sort of set of doctrines that you have to adhere to. We’re not a country with an ethnic identity. A person of German ancestry born in Russia could automatically be a citizen of Germany, just by that ethnic identity. But the child of a guest worker, born in Germany, is not automatically a citizen of Germany.So birthright citizenship is an important consequence of the civil war. And of course, it had been deeply debated before then. Just before the civil war, in 1857, the supreme court in the Dred Scott decision ruled that no Black person could be a citizen. There were half a million free Black people. They were born in the US, most of them, and they could never be a citizen.The first section of the 14th amendment abrogates the Dred Scott decision, and creates a national standard for who is a citizen. The original constitution mentioned citizens, but it didn’t say who exactly they are, or what are the qualifications for being a citizen. So this clears up an ambiguity of the constitution and establishes a basic principle, equality, as fundamental to American life.Does that mean between Dred Scott in 1857 and the 14th amendment in 1868 that African Americans, even if they had liberated themselves and fought in the union army, were not citizens?Well, the Republican party and Lincoln had repudiated the Dred Scott decision on paper. Even as early as 1862, the attorney general, Edward Bates, issued a ruling saying Dred Scott was wrong.But what you said is true, it’s the 14th amendment that creates Black citizenship as a constitutional principle. The Civil Rights Act of 1866 established it in national law. By then 200,000 Black men had fought in the civil war. They were almost universally considered to be citizens. If you would fight and die for the nation, they’re not going to say after the war, “You can’t be a citizen.”Dred Scott destroyed the reputation of the supreme court in the north. During the secession crisis, nobody said, “Let’s let the supreme court decide this.”Unlike the Declaration of Independence, or the constitution, whose signers are well known, the 14th amendment is more anonymous. Who were the principal authors?It was written by the joint committee on Reconstruction, a 15-member body set up by Congress to figure out what laws and constitutional amendments were necessary to enforce the verdict of the civil war.My book The Second Founding begins by saying exactly what your question says. People have heard of James Madison, “father of the constitution”. They have heard of Alexander Hamilton, for reasons we know nowadays. These are people who were critical in writing the constitution.But who remembers John Bingham, the congressman from Ohio, who was more responsible than anyone else for the first section of the 14th amendment, about the federal government having the power to prevent states from denying Americans equality? We don’t remember Thaddeus Stevens, the great radical Republican from Pennsylvania who was the floor leader in the House, who did more than anyone else to get the 14th amendment ratified. We don’t remember James Howard, from Michigan, who got it through the Senate. In other words, the 14th amendment is not seen as fundamental to our constitutional system, whereas, of course, the original constitution is.So what I say in my book is, we’ve got to think of these people as like the founding fathers. This was a refounding of the nation, and the people who were critical in that deserve to be remembered.Were there parts that could have been written more clearly?The writing was in two modes. One was very clear. If you loaned money to the Confederacy, it’s never going to be repaid. That’s a highly specific point. But the language of the first section of the 14th amendment is much more ambiguous or general. Equal protection of the law. All citizens are entitled to due process of law. People cannot be denied life, liberty and property without due process of law.The language might have been clearer. But John Bingham wanted it to be ambiguous. What issues relating to the political equality of race relations would get on to the national agenda in the next 10, 50 or 100 years? He wanted to have a general set of principles which could be applied when necessary, and in fact, the fifth section, the final section of the 14th amendment, specifically states, “Congress shall have the power to enforce” this amendment. What does it mean to enforce the equal protection of the law? Well, that’s for the courts and the Congress and others to decide. So the language could have been clearer, but I’m not sure it would have been better if it were clearer. They wanted it to be ambiguous to leave room for future action.In other words, they thought this was not the end of Reconstruction. This was just one step toward creating what Thaddeus Stevens called “the perfect republic”, which they wanted to build on the ashes of slavery.Love that phrase.That’s Stevens’ speech, before the House. You know, the 14th amendment was a compromise. There were radical Republicans, conservative Republicans, moderate Republicans. And they hammered out a series of compromises. But Stevens, who was a real radical, also knew when you had to compromise. In his final speech before Congress, before the 14th amendment was ratified, he said, “Yeah, I had always hoped that when we could get out from under the power of slavery, we could create this perfect republic that the founders tried to, but failed to, because they allowed slavery.”skip past newsletter promotionafter newsletter promotionBut that dream has vanished, he said. The perfect republic is never really achieved, in any human endeavor. So, yeah, that’s what they were trying to do. Erase the mistakes of the founders, when it came to slavery, and remake the republic.Could the 14th amendment have passed if Congress had not taken a strong stand against seating southerners?The passage of the 14th amendment is interesting. Immediately after the civil war, Congress said, “We’re not letting the southern states back in quite yet.” They cannot vote on whether to ratify the three Reconstruction amendments. So the vote in Congress was only among northerners. If the south had had all the congressmen it normally did, the 14th amendment would never have been ratified. You need a two-thirds vote in Congress, and three-quarters of the states. It’s a very high bar to amend the constitution.But another aspect of this is, could it have passed the states? When the 14th amendment is first passed by Congress, President Andrew Johnson’s plan of Reconstruction is still in effect. Johnson had set up all-white racist governments in the south. They were still in power. And they all voted not to ratify the 14th amendment, every one of the southern states except Tennessee. They did not want Congress establishing this principle of equality for Black Americans.Congress got so infuriated that in 1867, they abolished those governments. They said, “We are going to give Black men the right to vote.” They hadn’t done that at the beginning of Reconstruction. They’re going to set up new state governments in the south, and those governments are going to ratify the 14th amendment. They ordered them to ratify it. And the way they guaranteed it was to allow Black men to vote. New governments were set up, biracial governments. For the first time in American history, Black and white men were sitting in legislatures, voting on laws, holding public office. This was a radical change in American democracy. And with those new governments, in which Black people for the first time had a voice, the southern states ratified the 14th amendment. So how the 14th amendment was ratified is irregular compared to most other amendments.Why was section 3 added?Section 3 is one part of the amendment that has been almost completely ignored until the last couple of years. It doesn’t apply to all southern whites, or even most of them, but to anyone who held an office before the civil war, who took an oath of allegiance to the constitution. That would mean people who served in the military or held some kind of public office. Even a postmaster has to take an oath to the constitution. The purpose was to eliminate the old ruling class of the south from public office. It was to create a space where new governments could come into being which would approve of the principles of the 14th amendment. They did not deny the right to vote to ex-Confederate leaders. But they did deny the right to hold office.It was almost never enforced. There are only a few examples of this amendment being enforced during Reconstruction. A couple of local officials were disqualified from office because they had held an office before the civil war then served in the Confederate army. In other words, they gave aid to insurrection after having pledged allegiance to the constitution. I think there were a couple in Tennessee. But basically, Congress gave an amnesty after a few years to just about everybody that this covered.And in the first world war, a socialist member of Congress, Victor Berger, was convicted under the Espionage Act. If you criticized the American participation, you could be put in jail. Congress expelled him under the third clause of the 14th amendment. In other words, he pledged allegiance to the constitution and was now convicted of what they called espionage. It wasn’t actually spying, it was really just opposing the war. But then the supreme court overturned the conviction and Congress let him back in.In the last year or two, this has become a major issue in relation to Donald Trump. Depending on how you analyze it, Trump took an oath to support the constitution – obviously, when he was sworn in as president – but gave aid to insurrection. If you consider the events of 6 January 2021 an insurrection. He tried to overturn a governmental process, tried to prevent the legitimate election of a president.There have been lawsuits in a number of states to keep Trump off the ballot in 2024. Thus far, none has succeeded. Some are pending. A couple of cases have come up about lesser officials who took part in the events of January 6. And in fact, a guy in New Mexico, a county commissioner, was ordered out of office by a court on the grounds that he was barred by the third section of the 14th amendment.A congressman in North Carolina, Madison Cawthorn, faced claims that he could not serve. It became moot because he lost his primary. But there was a court that did say that it was a legitimate question whether he could serve if elected, because he had been there taking part in the events of January 6.So it’s on the agenda now. But there is no jurisprudence really related to section 3. Nobody knows what the supreme court would say. Some people say you would need a judicial ruling. How do you know that a guy participated? It’s like you’re convicting him without a trial. But on the other hand, others say, no, this is just a qualification for office. This is not a criminal trial.Being barred from office is not a criminal punishment. It’s one of the qualifications for office. For example, let’s say somebody was elected president who was under the age of 35. The constitution says you have to be 35. Let’s say Alexandria Ocasio-Cortez was elected president. Not likely, but she’s a well-known figure in politics. Well, she couldn’t serve because she’s under 35. And a court or somebody would just have to say, “I’m sorry, you don’t meet the qualifications here.” I am not a law professor. Neither I nor anyone else knows what the courts would decide. But in actuality the 14th amendment says it’s Congress that enforces the 14th amendment, not the supreme court. They didn’t want the court involved because of Dred Scott.The final section of the amendment says, “Congress shall have the power to enforce this amendment by appropriate legislation.” Would Congress have to declare somebody having participated in insurrection? I don’t know. But this was brought up including by me about two years ago, in the op-ed, in the Washington Post, after the insurrection of January 6.There was an effort to impeach President Trump, but it didn’t succeed. But I pointed out you don’t need impeachment, which requires a two-thirds vote to convict in the Senate. If you really want to keep Trump out of office because of his actions on January 6, you could do it through the third section of the 14th amendment.Certainly, regarding a president, there is no precedent. But the third section has never been repealed. So there it is.Did the 1872 Amnesty Act supersede section 3?That’s been brought up. The 14th amendment also says Congress can eliminate this punishment or disability by a two-thirds vote. In 1872, in the run-up to the presidential election of that year, Congress did pass a general Amnesty Act, which saved almost all prominent Confederates.Now, some people say that eliminated section 3, and therefore it can’t be enforced. But that’s not the case. You can let people off from one punishment, but it didn’t say this section is no longer applicable. It said that a whole lot of people would no longer be punished as part of an effort to bring about sectional reconciliation. The Amnesty Act doesn’t necessarily repeal a previous measure unless it says the previous measure is automatically repealed.How has section 3 been interpreted since Reconstruction?It has barely been interpreted. There have been only a handful of cases. There’s almost no jurisprudence related to it, which is one of the reasons Congress has been reluctant to enforce it. Joe Biden has said he doesn’t really want to get into this. It would guarantee a prolonged legal battle if you tried to enforce section 3 against Trump. Enforcing it against the county commissioner in New Mexico probably didn’t raise a lot of animosity. But it has happened. So there is a bit of jurisprudence, but not enough that a court could easily say, “Here’s the precedent, this is what we’ve done in the past.”Is the president “an officer of the United States”?Again, because there’s no jurisprudence, it hasn’t been decided. A couple of prominent conservative law professors wrote an article saying section 3 is on the books and can be enforced. Then they changed their mind. And they said the president is not an officer of the United States. So it does apply to all sorts of other offices. But not the president.This has never been exactly determined, but it certainly seems the normal understanding of the term “officer” is someone holding office. The president certainly holds office. When the constitution was ratified, there was no president. The previous constitution, the Articles of Confederation, didn’t have a president. There was no executive officer. It was only the Congress. So it’s unclear. They added the president as someone who could execute the laws. But I don’t see how you can eliminate the president or exclude the president from this language. If you take the whole of section 3, I think it’s pretty clear that they are trying to keep out of office anybody who committed the acts that section 3 describes. But again, it’s complicated.Did the events of January 6 constitute “an insurrection or rebellion against the constitution”?They certainly tried to a halt a constitutional procedure, the counting of the electoral votes. One of the more bizarre parts of our constitution, actually, but nonetheless, it’s there.What is your definition of insurrection or rebellion? You know, this gets into a question we actually haven’t talked about, which is very important in relation to the 14th amendment, which is the notion that you can clearly ascertain the original meaning, or the original intention of a law or a constitutional provision or something like that, and that the constitution should be interpreted according to the original meaning of the people who wrote the provision, or the original intention.This notion that you can ascertain, clearly, the original intention is absolutely absurd. No important document in history has one intention, or one meaning. Particularly the 14th amendment, it was written with compromises, with 8-7 votes in the joint committee. It was ratified by hundreds of members of state legislatures. Who can tell us exactly what the intention is? It is a legitimate historical question to ask, what were they trying to accomplish? But that’s a little different than saying what was their intention, at least in the legal realm.Yes, historians are always trying to figure out, why did they write and ratify the 14th amendment? In a way, that’s an intention question.But to answer that question, unfortunately, justices have a way of going purely to debates in Congress. They do not look at the general historical context. The meaning of the 14th amendment was debated and argued and fought out at all levels of society.One of my favorite quotations from this period comes from Elizabeth Cady Stanton, the great advocate of women’s rights. She said, during Reconstruction, I’m paraphrasing, “The basic principles of our government were debated at every level of society, in Congress, in the pulpits, in schools, at every fireside.” I love that. In other words, even in their homes, people are debating the issues around the 14th amendment. There is no one single intent that you can locate in that gigantic discussion about constitutional issues, which accompanied the ratification of the 14th amendment. So I think, as most historians would say, it’s a pointless test to try to identify one single intention.Wouldn’t the legal challenges take longer than the election itself?Yes, the legal challenges would take a long time, and it would be weird if Trump is elected next fall, then a year into his term of office he’s evicted because he doesn’t meet the qualifications. We saw how Trump reacted to actually losing an election. But now, if he won and then was kicked out of office, that would certainly be a red flag in front of a bull.
Eric Foner, DeWitt Clinton professor emeritus of history at Columbia University, is a Pulitzer prize-winning author whose most recent book is The Second Founding: How the Civil War and Reconstruction Remade the Constitution
Ted Widmer is a distinguished lecturer at the Macaulay Honors College, City University of New York, and a former special assistant to President Bill Clinton. His most recent book is Lincoln on the Verge: Thirteen Days to Washington More

It couldn’t happen again … could it? With less than a year to the next US presidential election, polls suggest the presumed Republican nominee Donald Trump would beat the Democratic incumbent Joe Biden in a clutch of key swing states. David Smith weighs up how a Trump return to the White House might look. Lloyd Green considers how a strong pro-abortion rights vote in state elections last week could yet signal a significant twist. And, amid growing Democratic party jitters over Biden’s low ratings, Richard Luscombe asks if the California governor Gavin Newsom is running a shadow campaign.British politics was stunned this week by the return of former prime minister David Cameron, parachuted back into government as the new foreign secretary. Pippa Crerar and Patrick Wintour weigh up what it says about the direction of the Tory government, home and abroad. And in Opinion, Polly Toynbee bids a not-so fond farewell to Suella Braverman, the deeply divisive home secretary who was sacked by Rishi Sunak on the same day.As fierce fighting between Hamas militants and the Israeli army encroached on Gaza hospitals this week, Ruth Michaelson reports on the dire situation at Dar al-Shifa hospital, where patients are dying due to energy shortages and dwindling supplies. And as Benjamin Netanyahu’s reputation plummets in Israel, Peter Beaumont asks who – or what – might succeed the controversial prime minister.Sweden has some of the world’s most progressive policies around work and wellbeing, with generous parental leave and bonuses for taking breaks the norm. Leah Harper settles down for a spot of fika and asks what the rest of us could learn from such practices.Features include an extract from Barbra Streisand’s new memoir where, among other things, the American singer and actor recounts meeting the then Prince Charles and what happened when she cloned her pet dog.In Culture, our man Rhik Samadder tries staying alive in the new reality version of the hit Netflix show Squid Game. And, from Eddie Izzard to Volodymyr Zelenskiy, there’s a look at the comedians who’ve moved from the world of standup to politics.Get the Guardian Weekly magazine delivered to your home address More

China and the United States have pledged to work together more closely to fight global warming, declaring the climate crisis “one of the greatest challenges of our time”, hours before a key meeting in San Francisco between Joe Biden and Chinese leader Xi Jinping.The announcement further fuels hopes the two nations can mend relations following years of turmoil over issues including trade, human rights and the future of Taiwan.In a joint statement following climate talks in the US, they pledged to make a success of a crucial UN climate summit starting at the end of this month in Dubai.And they recommitted to the 2015 Paris climate accord goals of holding global warming to “well below” 2C, while pursuing efforts to limit the increase to 1.5C.“The United States and China recognise that the climate crisis has increasingly affected countries around the world,” the statement said. “They will work together … to rise up to one of the greatest challenges of our time for present and future generations of humankind.”US and Chinese climate envoys John Kerry and Xie Zhenhua met this month at the Sunnylands resort in California in a bid to restart stalled cooperation.Experts agree that keeping the Paris goals in reach will require an enormous collective effort to slash greenhouse gas emissions this decade.Xi began his first visit to the US in six years on Tuesday. He is due to meet Biden at an undisclosed location in San Francisco on Wednesday morning and then attend the annual summit of the Asia Pacific Economic Cooperation (Apec) forum.Xi’s summit with the US president will be the first face-to-face meeting between the US and Chinese leaders in a year and has been billed by US officials as an opportunity to reduce friction in what many see as the world’s most dangerous rivalry.Xi waved from atop a passenger staircase attached to his Air China plane and then descended to meet US officials waiting on the tarmac, including treasury secretary Janet Yellen and US ambassador to China, Nicholas Burns.He then got into his Chinese Hongqi, or “Red Flag”, limousine and departed the airport for the city, where demonstrations are expected both supporting and protesting against his visit.Less than two hours earlier, US secretary of state Antony Blinken addressed ministers of the 21-member Apec and stressed the US believed in “a region where economies are free to choose their own path … where goods, ideas, people, flow lawfully and freely”.Blinken did not mention China in his remarks, but his language echoed US rhetoric in recent years in which Washington has accused Beijing of bullying smaller countries in the Indo-Pacific and trying to undermine what the US and its allies call the existing “rules-based” order.US trade representative Katherine Tai, who with Blinken opened the Apec ministerial session, said the San Francisco meeting came at a time of “great uncertainty and challenges” for the region. She noted increasing geopolitical tensions, fragile supply chains and a worsening climate crisis.Earlier, Biden said his goal in his talks with Xi would be to improve the relationship with China after a period of strained ties. He said he would seek to resume normal communications between the two superpowers, including military-to-military contacts.White House national security spokesperson John Kirby told reporters Biden and Xi would also talk about the Israel-Hamas conflict in Gaza as well as US efforts to support Ukraine.Democratic senator Ben Cardin wrote to Biden to push for immediate freedom for Mark Swidan, Kai Li and David Lin, whom the US government has classified as wrongfully detained in China. Republicans and other Democrats have also called for their release.“With the holiday season approaching, and the opportunity to start the new year on a more positive note in bilateral US-China relationships, I implore you to secure commitments from president Xi to release these Americans immediately,” Cardin wrote.Cardin also asked for the release and safety of US-based journalists’ family members whom he said are missing, jailed or detained in China due to their connection to the journalists.Economic issues will also be high on the agenda.Biden said the US does not want to decouple from China but wants to change the economic relationship for the better. His administration has made a push to “de-risk” some critical US supply chains from China as the two countries’ economic and military competition has grown.But it has been careful to assure countries in the region, including China, that the US does not seek complete economic separation, a notion that has fueled concerns among Washington’s partners and allies of a superpower showdown that would upend the global economy.The Chinese severed military-to-military contacts with the US after then House of Representative speaker Nancy Pelosi visited democratically governed but Chinese-claimed Taiwan in August 2022.Restoring the contacts is a top US goal to avoid miscalculations between the two militaries.Several hundred mostly pro-China demonstrators carrying Chinese flags gathered outside the Chinese delegation’s hotel ahead of Xi’s arrival in the US.Larger protests, including by rights groups critical of Xi’s policies in Tibet, Hong Kong and toward Muslim Uyghurs, are expected to gather near the summit venue on Wednesday.As Biden arrived in San Francisco, dueling demonstrators greeted his motorcade from the airport. Some waved Chinese flags and held banners calling for “kindly” and “warm” US-Sino ties. Others held signs condemning the Chinese Communist party.With Reuters and Agence France-Presse More

Ukrainian authorities have arrested a controversial MP who was at the heart of efforts by Rudy Giuliani to dig up compromising material about Joe Biden, and placed him in pre-trial detention.Oleksandr Dubinsky, 42, is accused of collusion with Russia and of spreading “fake” information about Ukraine’s political and military leadership, in particular related to his claims about supposed Ukrainian interference in US political processes.Ukrainian authorities announced the charges on Monday, and on Tuesday Dubinsky appeared in court in Kyiv, in a closed session.Later, the politician himself published a video on his Telegram account saying he had been sent to pre-trial detention for 60 days. He faces up to 15 years in jail if found guilty.Dubinsky was elected as an MP from president Volodymyr Zelenskiy’s Servant of the People party in 2019, but he was later kicked out of the party, accused of insubordination.Ukraine’s SBU intelligence service said on Monday it had arrested an MP on suspicion of treason, and said the suspect had allegedly been “conducting information and subversive activities in favour of Russia”.Former MP Andriy Derkach, and former prosecutor Kostiantyn Kulych, are also accused of being part of the network. Both are believed to be in hiding outside Ukraine.“The main task of this organisation was to take advantage of the tense political situation in Ukraine and discredit our state in the international arena,” the SBU statement said.“For this, the group received money from Russian military intelligence. This financing amounted to more than $10m [£8m].”.In late 2019, as impeachment charges against Donald Trump were being drafted, Dubinsky and Derkach held a series of press conferences in Kyiv, claiming they had uncovered corruption at a Ukrainian company where Biden’s son Hunter had previously sat on the board of directors.Giuliani, who was then the president’s personal lawyer, travelled to Ukraine and met Dubinsky and Derkach. Giuliani was looking for material that would exonerate Trump over allegations he had pressed Zelenskiy to launch an investigation into the Bidens and Ukraine. Giuliani also hoped to uncover evidence of corruption by the Bidens.In 2020, US authorities claimed Derkach had been an “active Russian agent” for more than a decade.In 2021, the US placed Dubinsky on a sanctions list, accusing him of working as part of a “Russia-linked foreign influence network” and of trying to undermine Biden’s 2020 election campaign. After the US designation, Dubinsky was kicked out of Zelenskiy’s party but continued to work as an MP.Dubinsky has long been considered a close ally of Ihor Kolomoisky, a billionaire oligarch who was a strong backer of Zelenskiy before his run for the presidency. Kolomoisky was arrested earlier this year on suspicion of fraud and money laundering.Dubinsky has denied all the charges and said evidence presented in the prosecution’s case was either falsified or obtained under pressure.“What is happening now is a simple matter. Political persecution for criticising the authorities, which I have been doing throughout my parliamentary career,” Dubinsky said in another video. More

Donald Trump can appear on the ballot for the Republican primary in Michigan, a state judge ruled on Tuesday, a setback to challengers who argue he is constitutionally disqualified from being president because of his actions on 6 January 2021.The lawsuit is one of several that left-leaning groups have filed across the country arguing that section 3 of the 14th amendment bars Trump from holding office. The provision says anyone who takes an oath to the United States and then engages in “insurrection” or “rebellion” against the nation cannot hold office unless Congress votes by two-thirds majority to allow them. The measure was adopted after the civil war and has not been tested.In Michigan, that language does not prevent a candidate from appearing on the ballot for a party primary for the purposes of selecting a nominee, Judge James Robert Redford, of the Michigan court of claims, ruled on Tuesday. While he left the door open to a challenge should Trump become the nominee, he suggested courts could not prevent Trump from appearing on the ballot because the core question in the matter was one for Congress, not judges.“The questions involved are by their nature political,” Redford wrote in his opinion. “It takes the decision of whether there was a rebellion of insurrection and whether or not someone participated in it from the Congress, a body made up of elected representatives of the people of every state in the nation, and gives it to but one single judicial officer.”Ron Fein, the legal director for Free Speech for People, who represented the challengers in the case, said the court “adopted a discredited theory that claims that only Congress can decide whether a presidential candidate fails to meet constitutional qualifications for office”.Fein said his group would appeal the case to the Michigan supreme court and seek to bypass the Michigan court of appeals. Democrats have a 4-3 majority on the bench there. The Michigan case is being closely watched because it is one of several battleground states critical for a presidential candidate to win next year.“The Michigan supreme court should reverse this badly reasoned lower-court decision. While our appeal is pending, the trial court’s decision isn’t binding on any other court, and we continue our current and planned legal actions in other states to enforce section 3 of the 14th amendment against Donald Trump,” Fein said in a statement.Steven Cheung, a spokesman for the Trump campaign, praised the ruling.“Each and every one of these ridiculous cases have LOST because they are all un-constitutional leftwing fantasies orchestrated by monied allies of the Biden campaign seeking to turn the election over to the courts and deny the American people the right to choose their next president,” he said in a statement.The Michigan secretary of state, Jocelyn Benson, a Democrat who was once an election law professor, tweeted she was “gratified that today’s court ruling affirms my position that under Michigan law anyone generally advocated by the news media to be a candidate for the Republican and Democratic nomination for president must be listed on the February 2024 primary ballot”.She added: “As the court notes, any consideration of a candidate’s eligibility to serve under the 14th amendment of the constitution should occur after they are nominated or elected.”Last week, the Minnesota supreme court also dismissed a 14th-amendment challenge, saying the constitutional provision could not block Trump from appearing on a primary ballot. A trial court in Colorado also oversaw a five-day evidentiary hearing on a challenge there and is expected to issue a ruling soon.Legal experts widely expect the ruling to be decided by the US supreme court, to which Trump appointed three of the six conservative justices that comprise a supermajority. More

House Democratic leadership have released a joint statement to support the resolution to avert the government shutdown:
House Democrats have repeatedly articulated that any continuing resolution must be set at the fiscal year 2023 spending level, be devoid of harmful cuts and free of extreme right-wing policy riders. The continuing resolution before the House today meets that criteria and we will support it.”
Earlier, Senate majority leader Chuck Schumer said he and the White House support the resolution.The full statement from House Democratic leaders here:A Michigan judge rejected an effort to remove Donald Trump from the state’s primary ballot, a blow to advocates who were arguing that his role in the January 6 insurrection made him ineligible for the presidency.The AP reports that James Redford, a court of claims judge in the key swing state, has ruled that the former president will remain on the ballot:
Redford wrote that, because Trump followed state law in qualifying for the primary ballot, he cannot remove the former president. Additionally, he said, it should be up to Congress to decide whether Trump is disqualified under a section of the US constitution’s 14th amendment that bars from office a person who ‘engaged in insurrection’.
Redford’s further wrote, “The judicial action of removing a candidate from the presidential ballot and prohibiting them from running essentially strips Congress of its ability to ‘by a vote of two-thirds of each House, remove such a disability.’”The effort to disqualify Trump was citing a civil war-era constitutional clause.Earlier analysis from our voting rights reporter Sam Levine here:The House of Representatives is expected to vote within the next hour on new speaker Mike Johnson’s unconventional two-tier funding bill that will keep the government operating beyond the current shutdown deadline of Friday.Johnson, a Louisiana Republican, has expressed confidence the bill will pass, despite a declaration by the 50-strong House Freedom Caucus that it does not support it. The speaker told reporters earlier that there appears to be enough of a groundswell of members on either side of the aisle who want to get a deal done and “get home” for next week’s Thanksgiving holiday.The bill was filed under an expedited process that removes certain procedural obstacles but requires a two-thirds majority of House members – 290 votes – to pass.I’m handing over the blog to my colleague Sam Levin on the west coast to guide you through the rest of the day. Thanks for joining me.While we wait for the vote, here’s Lauren Gambino’s report of what to expect, and why Johnson says he’s confident of passing his first real test as speaker.A person connected to the fabulist New York congressman George Santos pleaded guilty on Tuesday to a charge of wire fraud relating to the politician’s campaign finances.Samuel Miele, 27, pleaded guilty in federal court in Islip to impersonating a House staffer while soliciting funds for Santos, the New York Times reported.Last month Nancy Marks, a former aide to Santos, pleaded guilty to embellishing campaign finance reports with fake loans and donors.Santos is facing a House ethics committee investigation, and survived a House vote to expel him earlier this month.He has pleaded not guilty to 23 federal charges accusing him of multiple frauds, including making tens of thousands of dollars in unauthorized charges on credit cards belonging to some of his campaign donors.Miele’s lawyer, Kevin Marino, said that his client accepted responsibility but declined to say whether the plea included an agreement with federal prosecutors to testify against Santos, the Times reported.The “elbowgate” episode involving former speaker Kevin McCarthy wasn’t the only hint of violence on Capitol Hill on Tuesday: a heated discussion in a Senate committee almost turned into a physical fight after a verbal argument escalated between Oklahoma Republican Markwayne Mullin and Teamsters president Sean O’Brien.During a hearing for the Senate’s Help (health, education, labor and pensions) panel, Mullin began reading a social media post in which O’Brien had criticized him.“Quit[e] the tough guy act in these senate hearings. You know where to find me. Anyplace, Anytime cowboy,” O’Brien had written, according to Politico.“This is a time, this is a place to run your mouth. We can be two consenting adults, we can finish it here,” Mullin said before standing up from his chair to confront O’Brien.“You want to do it now?” Mullin demanded, to which O’Brien said he did. Both then taunted each other to “stand your butt up”.“You’re a United States senator. Sit down please,” committee chair Bernie Sanders chided Mullin, and urged the pair to focus on the economic issues at hand. The argument lasted several minutes.Politico has video of the confrontation here.Matt Gaetz, the architect of Kevin McCarthy’s downfall as speaker, has now filed an ethics complaint against him over this morning’s alleged assault on Tennessee congressman Tim Burchett.The firebrand Florida congressman, leader of the group of eight Republicans who sided with Democrats to oust McCarthy last month, says there’s “substantial evidence” that the California lawmaker breached an obligation to act with decorum.“This incident deserves immediate and swift investigation by the ethics committee,” Gaetz wrote, reported on X, formerly Twitter, by Politico reporter Olivia Beavers.“While Rep Burchett is within his rights to decline to press charges against Rep McCarthy, [the House ethics] committee does have a duty to investigate breaches of the binding code of official conduct, whose first rule is that ‘a member … shall behave at all times in a manner that shall reflect creditably on the House’.“There is substantial evidence Rep McCarthy breached this duty.”Gaetz, one of the brashest and loudest members of the Republican House caucus, claims that he himself has “been a victim of outrageous conduct on the House floor as well, but nothing like an open and public assault on a member committed by another member”.Joe Biden won’t be afraid to take on Chinese president Xi Jinping “where confrontation is needed” during their meeting on Wednesday, the White House says, but is confident of a productive bilateral summit addressing conflicts in Ukraine and Gaza.The two leaders will talk during the Asia-Pacific economic cooperation (Apec) summit in San Francisco and have a “full agenda”, John Kirby, strategic communications coordinator for the national security council just told reporters aboard Air Force One:
These are two leaders that know each other well, [have] known each other a long, long time. They can be frank and forthright with one another. I fully expect that that’ll be the case.
The table has been set over the course of many weeks for what, what we hope will be a very productive, candid and constructive conversation here. The president wants to make sure that we’re handling this most consequential of bilateral relationships in the most responsible way forward.
Kirby wouldn’t be drawn on exactly what the discussions will look like, but expanded on “confronting” Xi where Biden thought fit:
He means to compete with China. He’s coming into this discussion with the wind at his back from an economic perspective. We think the US well poised in that competition with China.
He’s not going to be afraid to confront where confrontation is needed on certain issues where we don’t see eye to eye with President Xi and the PRC, but we’re also not going to be afraid, nor should we be afraid, as a competent nation to engage in diplomacy on ways which we can cooperate with China on climate change, for instance, and clean energy technology. There’s going to be an awful lot on the agenda.
Other areas of possible cooperation, Kirby said, were Ukraine and Israel:
The president will make clear that we’re going to continue to support Ukraine against Russia’s aggression, and that China could play a role here in helping us support Ukraine but also to helping advance [Ukraine president Volodymyr] Zelenskiy’s vision of a just peace here for when the conflict is over.
I won’t speak for the Chinese but I have every expectation that the fighting in Ukraine will come up.
White House press secretary Karine Jean-Pierre has begun her “gaggle” with reporters aboard Air Force One.Jean-Pierre began by sharing achievements made by the Biden administration on climate change, including Biden signing legislation on climate action as well as protecting lands and waters.Jean-Pierre’s announcements comes after a new federal report shows that climate change is impacting every area of the US and will worsen in the next 10 years.The report also details that extreme weather events are happening every three weeks, costing the US $1bn.Read more on the federal report here.House Democrats seem prepared to help the GOP spending bill pass amid faltering support from far-right Republicans, Politico reports.In a private meeting on Tuesday, the House minority leader Hakeem Jeffries outlined why the spending bill was a win for Democratic party, highlighting that the bill did not come with spending cuts or any “poison pill” additions, Politico reported.Other ranking House members have similarly colored the bill as a win for Democrats given the lack of cuts or attempts to insert Republican legislative priorities.“I think those are very significant wins for us,” Washington representative Pramila Jayapal said to Politico, noting that the bill did not contain cuts or other insertions.Jeffries did not instruct members on how to vote for the bill, which is scheduled for a floor vote on Tuesday afternoon.But many Democrats have privately noted that support for the GOP spending bill could be high, as members of the Republican House Freedom Caucus have opposed the measure.Senate majority leader Chuck Schumer has said that he and the White House support the stopgap funding bill, as the deadline to avoid a shutdown approaches.Schumer told reporters on Tuesday that the bill achieves the main aim of avoiding a government shutdown, Politico reported.“We all want to avoid a shutdown. I talked to the White House and both of us agree, the White House and myself, that if this can avoid a shutdown it’ll be a good thing,” Schumer said to reporters.Schumer added that the latest bill also does not cut spending, a demand coming from far-right representatives.It’s lunchtime, so time to take stock of where we are on a busy Tuesday in US politics:
Mike Johnson, the House speaker, says he’s “confident” his bill that would keep the government funded and open beyond 17 November will pass a vote scheduled for about 4.20pm ET. The Louisiana Republican made a case to colleagues that the “clean” bill he’s proposing will allow the party to “stay in the fight” for spending battles ahead.
But the House Freedom Caucus, an alliance of about 50 hard-line Republicans, said it cannot support the bill, leaving Johnson dependent on support from Democrats to get it over the finish line.
Former speaker Kevin McCarthy, ousted last month by rebel Republicans for working with Democrats to pass the previous stopgap funding bill, elbowed one of them in a hallway assault, one of them claims. Tim Burchett of Tennessee says McCarthy gave him a sharp dig in the kidney then ran off with his security detail. McCarthy denies the allegation.
Joe Biden is on his way to San Francisco and a meeting with China’s premier Xi Jinping at the Asia-Pacific Economic Cooperation summit.
At the White House earlier, Biden unveiled a $6bn package of spending to bolster climate resilience, coinciding with the release of the government’s fifth annual national climate assessment.
Still to come: White House press secretary Karine Jean-Pierre, and strategic communications coordinator to the National Security Council John Kirby will “gaggle” with reporters aboard Air Force One en route to the west coast.Former speaker Kevin McCarthy, accused of a devious elbow in the back of Tennessee congressman Tim Burchett earlier Tuesday, has form, it seems.The ousted Republican delivered more than one “shoulder charge” on another rebel who displeased him, the former Illinois congressman Adam Kinzinger, according to a book Kinzinger released last month.In it, he calls the California lawmaker “notably juvenile” for his treatment of Liz Cheney, the former Wyoming congresswoman who like Kinzinger served on the 6 January House committee investigating Donald Trump’s efforts to overturn his 2020 election defeat.And he detailed two times he says McCarthy physically “checked” him, “as soon as I started speaking the truth about the president who would be king,” Kinzinger wrote.“Once, I was standing in the aisle that runs from the floor to the back of the [House] chamber. As he passed, with his security man and some of his boys, he veered towards me, hit me with his shoulder and then kept going.“Another time, I was standing at the rail that curves around the back of the last row of seats in the chamber. As he shoulder-checked me again, I thought to myself, ‘What a child.’”McCarthy has denied he elbowed Burchett, one of eight Republicans who voted to oust him from the speaker’s chair last month. But the circumstances of that alleged assault and the ones Kinzinger describes in his book are almost identical: a sharp dig then scurrying off with his security detail.McCarthy, Kinzinger said, is “an attention-seeking high school senior who readily picked on anyone who didn’t fall in line”.Joe Biden has just boarded Air Force One at Maryland’s Join Base Andrews, on his way to the Asia-Pacific economic cooperation (Apec) summit in San Francisco.While he’s in California, the president will meet Chinese counterpart Xi Jinping to try to allay growing tensions between the two nations as global conflicts flare in Ukraine and Gaza.The Guardian’s Amy Hawkins says their meeting, which could last several hours, is the culmination of months of lower level dialogues which took place over the summer, with Washington sending more delegates to China than Beijing did to the US.Read more: More

Fulton county prosecutors have asked the judge overseeing the 2020 election subversion case against Donald Trump and his co-defendants in Georgia to immediately impose an “emergency” protective order over the discovery materials to prevent potential future leaks of evidence.The request came after several media outlets published details of videotaped statements that former Trump lawyers Jenna Ellis, Sidney Powell and Kenneth Chesebro gave as part of plea deals to avoid being tried as racketeering co-defendants with the former president.The Fulton county district attorney Fani Willis had previously asked for a protective order for the discovery materials in the case. But citing the leak of several of the “proffer” interviews, Willis renewed the request on Tuesday to Fulton county superior court judge Scott McAfee.“The release of these confidential video recordings is clearly intended to intimidate witnesses,” the filing said, “subjecting them to harassment and threats prior to trial, constitutes indirect communication about the facts of this case with co-defendants and witnesses”.Trump has pleaded not guilty to charges that he and 18 co-defendants engaged in racketeering activity and conspired to overturn the results of the 2020 election results in the state of Georgia. To date, three of Trump’s ex-lawyers and a local Republican operative have taken plea deals.The actual motivation for the leaks were unclear. Ellis’s testimony, for instance, was widely seen as damaging to Trump – and the move to seek a protective order amounted to an aggressive play by prosecutors to suppress discussion of the proffers leading up to trial.Willis also said in the filing that she would take the unusual step of refusing to send copies of the video recordings to defense lawyers, and that they would instead have to watch the recordings at her office in downtown Atlanta, where they could only take notes.In the separate federal 2020 election subversion case brought against Trump in Washington, the discovery materials were subject to a protective order almost as soon as Trump was charged. But special counsel prosecutors have not forced Trump’s lawyers to only view the discovery in person.The prosecutors disclosed in their submission to the judge some back-and-forth communications they had with a couple defense lawyers over the leaks, including with Trump’s lawyer Steve Sadow, who had asked the district attorney’s office to state they had not leaked the material.skip past newsletter promotionafter newsletter promotion“The state had nothing to do with leaking any information to the media!” replied Nathan Wade, one of the top prosecutors on the case.But then a lawyer for Harrison Floyd, a Trump ally charged with harassing Georgia election worker Ruby Freeman, replied to the email chain on Tuesday morning, writing, “It was Harrison Floyd’s team.” The lawyer later said the statement was a typo and that they were not the leak.Willis first requested a protective order on 27 September. The delay with the protective order, according to a person familiar with the matter, has been over a protracted negotiation between the district attorney’s office and all 19 co-defendants over the language in the order. More

Donald Trump paid tribute on Tuesday to his sister, Maryanne Trump Barry, after her death at the age of 86, saluting her beauty and intellect but also complaining about what he called her “merciless” treatment by US news media after he became president in 2016.Barry retired from the federal bench in 2019 after investigations of Trump family tax affairs seemed to implicate her in avoidance schemes.She died on Monday at her home on the Upper East Side, in New York City.“My great sister, Maryanne, passed away yesterday at the age of 86,” Trump wrote on his social media platform, Truth Social, on Tuesday.“A truly beautiful woman, tall and elegant, with a presence like no other, she was also a tremendous student, intellect, and judge, in charge of the United States court of appeals for the third circuit, just below the US supreme court.”It long been known that Barry received her first judicial appointment, from Ronald Reagan in 1983, thanks in large part to Roy Cohn, an infamous mafia-linked lawyer who was then Donald Trump’s fixer. Barry was appointed to the appeals court in 1999, by Bill Clinton, and assumed senior status in 2011.Trump continued: “Her life was largely problem-free, PERFECT, until I made it difficult for her when I decided to run for president.“The Fake News, and others, went after her mercilessly, and because of the fact that she felt it inappropriate, due to her position, to defend herself, it just never stopped! While tough and strong, she was made to suffer in those years from 2016 until her retirement.”In 2018, the New York Times said a blockbuster report on Trump’s taxes, which he had kept from public view, was in large part fueled by the discovery of a “disclosure form that … Maryanne … filed related to her Senate confirmation hearing”.“In that document,” the paper added, its reporter “noticed a $1m contribution from an obscure family-owned company: All County Building Supply & Maintenance.”A year after Barry retired, her niece, the writer and Trump critic Mary L Trump, released recordings in which her aunt was harshly critical of the then president.Bemoaning “the phoniness of it all … the phoniness and this cruelty”, Barry said: “Donald is cruel.”She also criticised him for not being a reader, and said: “His goddamned tweet[ing] and lying, oh my God … I’m talking too freely, but you know. The change of stories. The lack of preparation. The lying. Holy shit.”Donald Trump now faces 91 criminal charges, including 17 regarding election subversion, and assorted civil trials. Nonetheless, he leads polling regarding the Republican presidential nomination by vast margins nationally and in battleground states.He did not comment on Monday on his sister’s death. On Tuesday, before issuing his statement about his sister, he used his Truth Social platform to attack the New York attorney general, whose lawsuit over his business practices landed him and his family in court; to post favourable polling results; and to complain about the latest Marvel superhero film.Turning to his tribute to his deceased sibling, Trump said he would “never forget the many times people would come up to me and say, ‘Your sister was the smartest person on the court.’ I was always honoured by that, but understood exactly what they meant – they were right!“She was a great judge, and a great sister. She will be truly missed!” More