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      How Biden’s View on Presidential War Powers Has Shifted

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      The president says he can direct limited military operations without lawmakers’ approval. Most G.O.P. presidential candidates, including Donald J. Trump, did not answer a survey on executive power.If he is elected to a second term, President Biden pledged that he will go to Congress to start any major war but said he believed he was empowered “to direct limited U.S. military operations abroad” without such approval when such strikes served critical American interests.“As president, I have taken great care to ensure that military actions carried out under my command comply with this constitutional framework and that my administration consults with Congress to the greatest extent possible,” he wrote in response to a New York Times survey of presidential candidates about executive power.“I will continue to rigorously apply this framework to any potential actions in the future,” he added.The reply stood in contrast to his answer in 2007, when he was also running for president and, as a senator, adopted a narrower view: “The Constitution is clear: Except in response to an attack or the imminent threat of attack, only Congress may authorize war and the use of force.”In the survey, The New York Times asked major presidential candidates to lay out their understanding of issues that can be critical to the outcome of policy fights but about which they are rarely asked: the scope and limits of a president’s power to act unilaterally or in defiance of statutes, particularly in war, secrecy and law enforcement.Mr. Biden’s answers showed how his view of executive power evolved over years in the White House — eight as Barack Obama’s vice president and now nearly three as president.Only a handful of candidates for the Republican nomination engaged in the survey, including former Vice President Mike Pence, former Gov. Asa Hutchinson of Arkansas and Mayor Francis Suarez of Miami before he suspended his campaign late last month.Vivek Ramaswamy, a businessman and entrepreneur, answered only about half of the 14 questions, and former President Donald J. Trump declined to participate altogether, as did Gov. Ron DeSantis of Florida and Nikki Haley, the former ambassador to the United Nations, among others.The Times has published in full the answers of participants, including Mr. Biden and two of his Democratic challengers, Robert F. Kennedy Jr. and Marianne Williamson.Notably, Mr. Biden declined to embrace the idea of curtailing emergency powers Congress enacted that presidents can activate if they declare that there are exigent circumstances, said Jack Goldsmith, a Harvard Law School professor and former senior Justice Department lawyer in the Bush administration.Mr. Trump invoked emergency powers to spend more on a border wall than lawmakers were willing to appropriate, and the Biden administration invoked the authority for a plan to forgive more than $400 million in student debt. (The Supreme Court struck down the proposal over the summer.) There are bipartisan proposals in Congress to impose new curbs, such as by ensuring that national emergencies terminate after 30 days unless lawmakers affirm a presidential declaration.Asked whether he would sign such a bill, Mr. Biden instead made a vague remark about “working with Congress on devising sensible solutions to the challenges we face as a nation.” He added that he would use every tool at his disposal to respond to emergencies.“If Biden is not open to reform — and his answer was as noncommittal as he could be without saying he was not open to it — then it is likely dead on arrival,” Professor Goldsmith said.On the topic of pardons, every candidate who answered the survey said that a president cannot pardon himself. While in office, Mr. Trump claimed he had a legal right to do so, but that is an ambiguous and untested constitutional question. It could become important if he wins the 2024 election even as he faces criminal charges in two federal cases.Former President Donald J. Trump claimed he had the legal right to pardon himself.Doug Mills/The New York TimesIndeed, while Mr. Trump did not participate in the survey, many of its questions addressed disputed assertions of executive power he made as president, and he and his allies are openly planning to expand his authority over the machinery of government if he wins in 2024. Mr. DeSantis has also pushed an expansive view of executive powers as Florida governor.The refusal by the two men and most other G.O.P. contenders to answer questions on the powers they are seeking from voters reflects a party shift that emerged in the 2016 primary, which Mr. Trump upended by becoming the front-runner ahead of establishment candidates.Other Republican presidential hopefuls in the current primary campaign who declined to answer the questions included Senator Tim Scott of South Carolina, Chris Christie, the former governor of New Jersey, Gov. Doug Burgum of North Dakota, and Will Hurd, a former representative of Texas.By contrast, most major Republican primary candidates in 2007 and 2011 were willing to answer the versions of the questions put to them those years, including the party’s eventual nominees, John McCain and Mitt Romney.Four years ago, 17 Democrats vying for their party’s nomination to challenge Mr. Trump also participated in the project. Mr. Biden was among them, making his answers this cycle the third time he has participated. (His willingness to do so as an incumbent seeking re-election also stood in contrast to Mr. Obama, who declined to participate in 2011.)In 2019, Mr. Biden had already shifted to embracing the view, adopted by the executive branch under administrations of both parties, that presidents have broader constitutional authority to carry out limited attacks on other countries without congressional authorization, so long as it falls short of full-scale war.As president, both Mr. Trump and Mr. Biden used force unilaterally, citing their claimed constitutional authority to use military force without congressional permission. In April 2017 and again in April 2018, Mr. Trump directed airstrikes against Syrian government forces, and Mr. Biden in June 2021 and in August 2022 directed airstrikes on Iranian-backed militia groups in Syria.Mr. Pence, who was vice president at the time of Mr. Trump’s strikes, said: “As commander in chief, the president has a constitutional duty to use his executive authority to protect the country from imminent threats. Whether a threat is imminent is a matter of judgment, and it is essential the president be a person of character, experience, and competence whose judgment the American people can trust.”To be sure, just because candidates commit to respecting a limit while on the campaign trail does not mean they will follow through once in office. But their legal policy statements can offer a way to analyze and bring attention to any departure from what they told voters.In 2019, for example, Mr. Biden said that if elected, he would order the Justice Department to review and potentially replace a legal policy memo that says sitting presidents are temporarily immune from indictment. He strongly criticized the department’s interpretation of the Constitution, which limited the special counsel investigating the Trump campaign’s ties to Russia and Mr. Trump’s attempts to impede that inquiry, Robert S. Mueller III.But Mr. Biden never followed through on that pledge. He is now protected himself by the Justice Department’s theory since a special counsel, Robert Hur, is investigating how several classified documents were in his possession when he left the vice presidency.In his survey answers this time, Mr. Biden sidestepped a question about that issue, instead offering a vague statement about Justice Department independence.“As president, I have fulfilled my campaign promise of restoring a strong and independent Department of Justice led by top-flight legal professionals dedicated to realizing the ideal that this nation was founded on of equal justice under the law,” he wrote. “This means no one is above the law — especially the president of the United States.” More

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      Republicans Don’t Mind the Constitution. It’s Democracy They Don’t Like.

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      “A very large portion of my party,” Senator Mitt Romney of Utah tells McKay Coppins of The Atlantic, “really doesn’t believe in the Constitution.”Romney doesn’t elaborate further in the article, and Coppins, who spoke to him in depth and at length, beginning in 2021, for a forthcoming biography, does not speculate on what exactly Romney meant with this assessment of his co-partisans.If Romney was using “the Constitution” as a rhetorical stand-in for “American democracy,” then he’s obviously right. Faced with a conflict between partisan loyalty and ideological ambition on one hand and basic principles of self-government and political equality on the other, much of the Republican Party has jettisoned any commitment to America’s democratic values in favor of narrow self-interest.The most glaring instance of this, of course, is Donald Trump’s attempt to overturn the results of the 2020 presidential election, which was backed by prominent figures in the Republican Party, humored by much of the Republican establishment and affirmed, in the wake of an insurrectionary attack on the Capitol by supporters of the former president, by a large number of House and Senate Republican lawmakers who voted to question the results.Other examples of the Republican Party’s contempt for democratic principles include the efforts of Republican-led state legislatures to write political majorities out of legislative representation with extreme partisan gerrymanders; the efforts of those same legislatures to raise new barriers to voting in order to disadvantage their political opponents; and the embrace of exotic legal claims, like the “independent state legislature theory,” meant to justify outright power grabs.In just the past few months, we’ve seen Tennessee Republicans expel rival lawmakers from the State Legislature for violating decorum by showing their support for an anti-gun protest on the chamber floor, Florida Republicans suspend a duly elected official from office because of a policy disagreement, Ohio Republicans try to limit the ability of Ohio voters to amend the State Constitution by majority vote, Wisconsin Republicans float the possibility that they might try to nullify the election of a State Supreme Court justice who disagrees with their agenda and Alabama Republicans fight for their wholly imaginary right to discriminate against Black voters in the state by denying them the opportunity to elect another representative to Congress.It is very clear that given the power and the opportunity, a large portion of Republican lawmakers would turn the state against their political opponents: to disenfranchise them, to diminish their electoral influence, to limit or even neuter the ability of their representatives to exercise their political authority.So again, to the extent that “the Constitution” stands in for “American democracy,” Romney is right to say that much of his party just doesn’t believe in it. But if Romney means the literal Constitution itself — the actual words on the page — then his assessment of his fellow Republicans isn’t as straightforward as it seems.At times, Republicans seem fixated on the Constitution. When pushed to defend America’s democratic institutions, they respond that the Constitution established “a republic, not a democracy.” When pushed to defend the claim that state legislatures have plenary authority over the structure of federal congressional elections and the selection of presidential electors, Republicans jump to a literal reading of the relevant parts of Article I and Article II to try to disarm critics. When asked to consider gun regulation, Republicans home in on specific words in the Second Amendment — “the right of the people to keep and bear Arms, shall not be infringed” — to dismiss calls for reform.Trump tried to subvert American democracy, yes, but his attempt rested on the mechanisms of the Electoral College, which is to say, relied on a fairly literal reading of the Constitution. Both he and his allies took seriously the fact that our Constitution doesn’t require anything like a majority of the people to choose a president. Attacks on representation and personal freedom — the hyper-gerrymandering of legislatures to preserve and perpetuate minority rule and the attempts to limit or restrict the bodily autonomy of women and other Americans — have operated within the lines drawn by the Constitution, unimpeded or even facilitated by its rules for structuring our political system.Republicans, in other words, do seem to believe in the Constitution, but only insofar as it can be wielded as a weapon against American democracy — that is, the larger set of ideas, intuitions, expectations and values that shape and define political life in the United States as much as particular rules and institutions.Because it splits sovereignty between national and subnational units, because it guarantees some political rights and not others, because it was designed in a moment of some reaction against burgeoning democratic forces, the Constitution is a surprisingly malleable document, when it comes to the shaping of American political life. At different points in time, political systems of various levels of participation and popular legitimacy (or lack thereof) have existed, comfortably, under its roof.Part of the long fight to expand the scope of American democracy has been an ideological struggle to align the Constitution with values that the constitutional system doesn’t necessarily need to function. To give one example among many, when a Black American like George T. Downing insisted to President Andrew Johnson that “the fathers of the Revolution intended freedom for every American, that they should be protected in their rights as citizens, and be equal before the law,” he was engaged in this struggle.Americans like to imagine that the story of the United States is the story of ever greater alignment between our Constitution and our democratic values — the “more perfect union” of the Constitution’s preamble. But the unfortunate truth, as we’re beginning to see with the authoritarian turn in the Republican Party, is that our constitutional system doesn’t necessarily need democracy, as we understand it, to actually work.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      What Fani Willis Got Wrong in Her Trump Indictment

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      By assembling a sprawling, 19-defendant RICO indictment with 41 counts, District Attorney Fani Willis of Fulton County has brought the sort of charging instrument that has typically led to monthslong trials, complicated appeals and exhaustion for the participating attorneys. Now, as some co-defendants seek federal removal while others demand speedy trials in state court, we are starting to see the costs of complexity.In federal and state cases, Donald Trump’s legal game plan has always been the same: delay often and everywhere with the goal of winning the 2024 election and hoping the charges go away. Special Counsel Jack Smith’s election interference indictment — just four counts brought solely against Mr. Trump — makes that difficult. On Monday, the judge set the trial for March 4, 2024.By contrast, the Georgia indictment is a sprawling account of a conspiracy among the former president, his closest advisers and state and local Republican officials to change the outcome of the 2020 Georgia election through an escalating series of falsehoods. For many, it is a satisfying political document. But as a legal instrument, its ambitious scope will provide the co-defendants with many opportunities for delay, appeals, and constitutional challenges.And even though Fulton might very will win in the end, a simpler, more direct approach would likely lead to a better result, faster, here’s why.Much of the Georgia indictment is about how Mr. Trump and others tried to get public officials to do implausible things to hand him the election — things like asking state senators to appoint an alternate slate of electors, calling a special session of the General Assembly or asking the secretary of state to “find” the votes Mr. Trump needed to win.The state chose to charge this conduct in two ways. One of them is strong and simple: Team Trump lied to elected officials and tried to forge documents.The other — that they were aware of the officials’ oaths of office and were hoping specifically to get them to violate it — is unusual and hard to prove.Solicitation requires you to ask someone else to commit a felony intentionally. In this case, the oath of office the defendants were being asked to violate was a promise to follow the Constitution and do what’s best for their constituents. It is indeed a crime in Georgia for a public officer to “willfully and intentionally” violate the terms of his oath.Here’s the problem: It’s hard enough to prove that Mr. Trump’s request violates the Constitution, since the Constitution allows states to figure out how to select electors. But then the state must also prove that Mr. Trump knew this would violate the electors’ oath of office.It seems possible that Mr. Trump had no idea what these officials’ oath of office was, maybe even no idea that they swore an oath at all. Under Georgia’s “mistake of fact” affirmative defense, if Mr. Trump has some evidence that he was operating under a “misapprehension of fact” that would justify his actions, the state must disprove it beyond a reasonable doubt.There are a few reasons this could be a strong defense. First, Mr. Trump surrounded himself with individuals who told him what he was doing was legal. Georgia does not normally have an “advice of counsel” defense, but in this context it seems relevant that people he apparently trusted were not telling him this would violate any oath of office.And to put it gently, Mr. Trump is plausibly ignorant on a variety of subjects, ranging from how hurricanes are formed to whether it’s a good idea to use or inject disinfectants as a possible Covid cure. Even if prosecutors can meet the burden of showing that what he requested was unconstitutional — not necessarily an easy thing to establish with a jury of non-lawyers — it may be difficult to prove that Donald Trump knew, or cared, what the Constitution had to say on the subject.Then there’s the Hawaii precedent. Mr. Trump’s advisers were relying on an incident from the 1960 presidential election, when Richard Nixon looked as though he had won the state of Hawaii by a few dozen votes. But the results were so uncertain that three Democrats submitted their Electoral College votes just in case, and when, after a recount, it looked like John F. Kennedy was the actual winner, the Senate (headed by Nixon) unanimously agreed to the alternate slate.Even though no court ever blessed this procedure, or even held that it wasn’t criminal, Mr. Trump’s team could argue with a straight face that they believed their request was legally possible.There’s also the possibility of a First Amendment defense. Typically, people are allowed to petition the government to do things, even unconstitutional things. That a court might, down the line, find those things to be unconstitutional seems like a dangerous basis to criminalize that petitioning.I’d understand bringing these charges to get at some obviously bad and immoral conduct by the president if there were nothing else available. But there are other, much stronger charges in the same indictment without the same constitutional concerns. Take the false statement counts: The very best case that Mr. Trump and his team could cite is United States v. Alvarez, where the Supreme Court held that there is a First Amendment right to lie about having received the Medal of Honor. But the Supreme Court also specifically said that this protection vanishes when lying for material gain, or to the government.Rudy Giuliani told state legislators that election workers were passing around flash drives like “vials of heroin” and that thousands of dead and felonious voters participated, but he can’t claim those statements have constitutional protection. All Mr. Giuliani can do is show the court what evidence supported those statements. There is none. And what’s more, Mr. Giuliani recently admitted in a civil filing that his claims against two Fulton County election workers had been false. Despite claiming that it was for “this litigation only,” that’s an admission.Similarly, the forgery charges simply need to establish a conspiracy to create fake elector votes that could potentially be counted on Jan. 6. It’s irrelevant whether the parties thought it was legal to do this, so long as they knew they were not, in fact, the duly appointed electors.So it is an odd legal choice to drag a jury through weak, disputed counts in a monthslong trial when you could just focus on the counts that are hard to challenge and easy to explain, saving weeks in the process. The RICO count will already require dozens of witnesses and some complicated instructions, so tossing in these oath of office charges seems like a recipe for confusion and delay.And it’s not just the charges that complicate things, but the sheer number of defendants. A judge granted one co-defendant, Ken Chesebro, a speedy trial, which will require Fulton County to bring this case to trial by Nov. 3 or acquit him as a matter of law. (Sidney Powell has also requested a speedy trial.)Ms. Willis reacted by requesting an October date for the entire case, but at least for the moment, a judge has declined her request. This puts the prosecutors in a bind. Mr. Chesebro’s trial would give Mr. Trump a useful preview of the entire case, from voir dire to closing arguments, which could weaken the effectiveness of Ms. Willis’s prosecution of Mr. Trump and the other defendants. It would allow Mr. Trump’s lawyers to dig into witness testimony and perhaps encourage Georgia Republicans to step in.Additionally, it might be very difficult for Fulton County to actually grant these parties the speedy trial they’ve requested. There is some Georgia authority to suggest that a trial does not “begin” under the statutory speedy trial act until a jury is empaneled and sworn. What happens if Fulton County needs a month, or two months, to actually select the jury that will be sworn?And for all the talk of potentially flipping co-defendants, many of the people in this case don’t have all that much criminal exposure. With no mandatory minimums for prison time and no criminal history, many of the participants could reasonably expect probation, and maybe even a first-offender sentence that would not count as a felony. A simpler case, with fewer co-defendants, would go more swiftly, with less legal uncertainty.As a general, George Washington was known for unworkable battle plans. Where an ordinary commander might send all his troops to one location at one time, Washington would split them into three columns, expecting them to arrive all at one spot with precision timing. It rarely worked out. Despite those mistakes, he’s now best known for winning.For all the potential problems with this indictment, I would still expect Ms. Willis to secure a conviction against Mr. Trump on one or more counts if this case goes to trial as it intends.But there are a dozen ways that things can go sideways, and it is very possible that history will remember the two years that Fulton County took to bring these charges as a wasted opportunity to make a simpler case.Andrew Fleischman is an attorney at Sessions & Fleischman in Atlanta.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Raising a Hand for Donald Trump, the Man in the Mug Shot

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      One by one, some with a little hesitation, six hands went up on the debate stage Wednesday night when the eight Republican candidates answered whether they would support Donald Trump for president if he were a convicted criminal. Hand-raising is a juvenile and reductive exercise in any political debate, but it’s worth unpacking this moment, which provides clarity into the damage that Mr. Trump has inflicted on his own party.Six people who themselves want to lead their country think it would be fine to have a convicted felon as the nation’s chief executive. Six candidates apparently would not be bothered to see Mr. Trump stand on the Capitol steps in 2025 and swear an oath to uphold the Constitution, no matter if he had been convicted by a jury of violating that same Constitution by (take your choice) conspiracy to obstruct justice, lying to the U.S. government, racketeering and conspiracy to commit forgery, or conspiracy to defraud the United States. (The Fox News hosts, trying to race through the evening’s brief Trump section so they could move on to more important questions about invading Mexico, didn’t dwell on which charges qualified for a hand-raise. So any of them would do.)There was never any question that Vivek Ramaswamy’s hand would shoot up first. But even Nikki Haley, though she generally tried to position herself as a reasonable alternative to Mr. Ramaswamy’s earsplitting drivel, raised her hand. So did Ron DeSantis, after peeking around to see what the other kids were doing. And Mike Pence’s decision to join this group, while proudly boasting of his constitutional bona fides for simply doing his job on Jan. 6, 2021, demonstrated the cognitive dissonance at the heart of his candidacy.Only Chris Christie and Asa Hutchinson demonstrated some respect for the rule of law by opposing the election of a criminal. Mr. Hutchinson said Mr. Trump was “morally disqualified” from being president because of what happened on Jan. 6, and made the interesting argument that he may also be legally disqualified under the 14th Amendment for inciting an insurrection. Mr. Christie said the country had to stop “normalizing” Mr. Trump’s conduct, which he said was beneath the office of president. Though he was accused by Mr. Ramaswamy of the base crime of trying to become an MSNBC contributor, Mr. Christie managed to say something that sounded somewhat forthright: “I am not going to bow to anyone when we have a president of the United States who disrespects the Constitution.” For this Mr. Christie and Mr. Hutchinson were both roundly booed.It’s important to understand the implications of what those six candidates were saying, particularly after watching Mr. Trump turn himself in on Thursday at the Fulton County Jail to be booked on the racketeering charge and 12 other counts of breaking Georgia law. Only Mr. Ramaswamy was willing to utter the words, amid his talk about shutting down the F.B.I. and instantly pardoning Mr. Trump, saying Mr. Trump was charged with “politicized indictments” and calling the justice system “corrupt.”“We cannot set a precedent where the party in power uses police force to indict its political opponents,” he said. “It is wrong. We have to end the weaponization of justice in this country.”This is the argument that Mr. Trump has been making for months, of course, but when more than three-fourths of the main players in the Republican field supports it, it essentially means that a major political party has given up on the nation’s criminal justice system. The party thinks indictments are weapons and prosecutors are purely political agents. The rule of law hardly has a perfect record in this country and its inequities are many, but when a political party says that the criminal justice system has become politicized, and that the indictments of three prosecutors in separate jurisdictions are meaningless, it begins to dissolve the country’s bedrock.Mr. Pence said he wished that issues surrounding the 2020 election had not risen to criminal proceedings, but they did, because two prosecutors chose to do their jobs faithfully, just as the former vice president did on Jan. 6. He piously told the audience that his oath of office in 2017 was made not just to the American people, but “to my heavenly father.” But any religious moralizing about that oath was debased when he said he was willing to support as president a man whose mug shot was taken Thursday at a squalid jail in Atlanta, who was fingerprinted and had his body dimensions listed and released on bond like one of the shoplifters and car burglars who were also processed in the jail the same day.Apparently Thursday’s proceedings were a meaningless farce to Mr. Pence, Ms. Haley and the other four. But most Americans still have enough respect for the legal system that they don’t consider being booked a particularly frivolous or rebellious act. The charges against Mr. Trump are not for civil disobedience or crimes of conscience; they accuse him of grave felonies committed entirely for the corrupt purpose of holding onto power.Being booked and mug-shotted for these kinds of crimes represents degradation to most people, despite the presumption of innocence that still applies at the trial level. How does a parent explain to a child why a man in a mug shot might be the nation’s next leader? That should be a very difficult conversation, unless you happen to be a Republican candidate for president.Source photographs by Erik S Lesser/EPA, via Shutterstock and Fulton County Sheriff’s Office, via Associated Press.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      When the Law Is Not a Trump Card

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      The multiplying indictments of Donald Trump, I argued a couple of weeks ago, are putting an end to all attempts to simply practice normal politics in 2024. For both his Republican primary opponents and eventually President Biden, the ongoing efforts to put a former president in prison will shape and warp and shadow every effort to make more prosaic political arguments against a Trump restoration.But there is a corollary to this point, brought home by the conjunction of this week’s Georgia indictment and an argument from two conservative legal scholars that the 14th Amendment’s third article, aimed at excluding Confederates who had betrayed oaths to the Union from political office, should apply to Trump after the events of Jan 6. If the legal challenges against Trump have the power to shape the democratic politics of 2024, the shaping power also works the other way. As extraordinary judicial proceedings alter democratic politics, the legal arena is inevitably politicized as well, undermining its claim to standing some distance outside and above democratic realities.This isn’t a judgment on the legal merits of any of the Trump indictments. It doesn’t matter how scrupulous the prosecutor, how fair-minded the judge; to try a man, four times over, whom a sizable minority of Americans believe should be the next president, is an inherently political act. And it is an especially political act when the crimes themselves are intimately connected to the political process, as they are in the two most recent indictments.The prosecutions seek to demonstrate that not even a president is above the law. But if Trump is indeed the Republican nominee, the proceedings against him will potentially end by subjecting the judicial to the political, the law to raw politics, because millions of Americans can effectively veto the findings of the juries by simply putting Trump in the White House once again. And even if they do not make that choice (I think they probably won’t), even if the polls currently overestimate Trump’s strength (I think they probably do), the entire election will still be an object lesson in the supremacy of the political, because everyone will see that the court rulings aren’t actually final, that political combat is stronger than mere law.You can see all that and still support Trump’s prosecutions as a calculated but necessary risk — in the hopes that having him lose twice, in the courts and at the ballot box, will re-establish a political taboo against his kind of postelection behavior and on the theory that this outcome is worth the risk that the whole strategy will fail completely if he wins.If you see things that way, good; you see clearly, you are acting reasonably. My concern is that not enough people do clearly see what’s risked in these kinds of proceedings, that many of Trump’s opponents still regard some form of legal action as a trump card — that with the right mix of statutory interpretation and moral righteousness, you can simply bend political reality to your will.Certainly that’s my feeling reading the argument that the 14th Amendment already disqualifies Trump from the presidency and that indeed no further legal proceedings — no trial for rebellion or treason, no finding of guilt — are necessary for state officials to simply exclude him from their ballots.The authors of this notable argument, William Baude and Michael Stokes Paulsen, are serious conservative legal scholars of the originalist persuasion, and their claims are couched in close attention to the text of the amendment and its history. Since I am not a legal scholar, the fact that I do not find these arguments remotely plausible can be partially discounted, so I would direct you first to two different critiques: one from a conservative scholar and friend of the authors, Stanford’s Michael McConnell, and one from a critic of originalism, Georgia State’s Eric Segall.McConnell suggests that to avoid giving the 14th Amendment’s provisions a dangerously anti-democratic breadth, such that all manner of normal democratic dissent and rabble-rousing could be deemed disqualifying, we should assume that they refer to a large-scale insurrection, military rebellion or explicit civil war. Applying them to a political protest-turned-riot, even a riot that disrupted the transfer of presidential power, risks a serious abuse of power — “depriving voters of the ability to elect candidates of their choice” — without adequate limitations on its use.Meanwhile, Segall questions the authors’ claim that the amendment’s provisions are “self-executing,” that they can be applied to Trump or any other supposed insurrectionist immediately. He points out that this interpretation was already rejected in 1869 by Salmon Chase, then the chief justice of the United States, one year after the amendment’s ratification in the only ruling we have on this question. This is acknowledged by Baude and Paulsen, to be sure, who argue at length that Chase was wrong. But they are still in the dubious position of claiming that theirs is the true “original” reading of the amendment, seeking some way to deal with the problem of Donald Trump a century and a half later, rather than the reading offered at the time of ratification that has stood unchallenged since.Then here is the point that I, a non-scholar, want to make (though I should note that Segall makes it as well): Even if Baude and Paulsen were deemed correct on some pure empyrean level of constitutional debate, and Salmon Chase or anyone else deemed completely wrong, their correctness would be unavailing in reality, and their prescription as a political matter would be so disastrous and toxic and self-defeating that no responsible jurist or official should consider it.The idea that the best way to deal with a demagogic populist whose entire appeal is already based on disillusionment with the established order is for state officials — in practice, state officials of the opposing political party — to begin unilaterally excluding him from their ballots on the basis of their own private judgment of crimes that he has not been successfully prosecuted for … I’m sorry, the mind reels. It should not happen, it would not work if it did happen, John Roberts and four more justices would not uphold it, and it would license political chaos to no good purpose whatsoever. And if the legal theorist’s response is that this isn’t the “best” way to deal with Trump, it’s just the way that the Constitution requires, then so much the worse for their theory of the Constitution.There is an irony here, which is that a similar kind of legal mentality influenced Trump’s campaign to overturn the results of the 2020 election. John Eastman’s argument that Mike Pence could interpose himself between the official results of the election and Joe Biden’s inauguration was a much more fanciful constitutional argument than the one that Baude and Paulsen make. But it was similar in imagining a particular interpretation of the Constitution as something that can just be deemed correct and then imposed by a particular actor — the vice president in the Eastman case, state election officials in theirs — without regard to anything that would naturally follow in the realm of the political.What would have probably followed from the Pence maneuver, as his own lawyer advised him, would have been either a swift smackdown from the courts or the vice president standing alone against both houses of the legislative branch. (This seems like one reason Eastman’s crackbrained proposal was not a rebellion under 14th Amendment definitions; if Confederate secession could have been defeated through a quick appeal to the Supreme Court, it would not have been much of a rebellion either.)But imagine, if you will, a world where Eastman had uncovered, days before Jan. 6, some piece of historical evidence that raised his theory’s status from “desperate Trumpist motivated reasoning” to “an idea that merits some academic debate.” Suppose even that a few liberal legal scholars had been forced to concede a little ground to his position. Would this in any way have changed the total political folly of the Pence maneuver, the impossibility of levering a presidential outcome from the vice president’s supervisory position, the purposeless destabilization that such a gambit would entail?I say that it would not, that where legal theory touches politics in this way it must necessarily deal with political considerations, that appeals to law and legal text alone are not enough to settle matters if political realities are against you. That is the cold knowledge that all of us watching Trump’s extraordinary indictments converge with his extraordinary campaign need to carry into 2024.BreviaryNic Rowan on Bill WattersonJustin E.H. Smith sings a ballad of Generation XJohn Duggan on Sally Rooney and CatholicismAlex Tabarrok on the acts of Saint ThomasNotes for a Susannah Black Roberts essay on the post-Christian right More

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      With the Latest Trump Indictment, Mind These Lessons From the South

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      With her sweeping indictment of former President Donald Trump and over a dozen co-conspirators, the Fulton County, Ga., district attorney Fani Willis is now set to prosecute her case in a court of law. Just as important, it is essential that she and others continue to explain to the American public why the decision serves a critical purpose beyond the courts and for the health of our constitutional order.The indictment should be situated in the broader arc of American political development, particularly in the South. That history justifies using the criminal justice system to protect the democratic process in Georgia — a critical swing state — for elections now and in the future.We have the benefit of hindsight to heed the great lesson of the Reconstruction era and the period of redemption that followed: When authoritarians attack democracy and lawbreakers are allowed to walk away from those attacks with impunity, they will try again, believing there are no repercussions.We should not make those mistakes again.The period after the American Civil War entrenched many of America’s political ills. Ex-confederates were welcomed back into the body politic without meaningful penance. There were vanishingly few arrests, trials and lengthy punishments. Suffering minimal political disabilities, they could muster enough power to “redeem” Southern governments from biracial coalitions that had considerable sway to remake the South.Examples of democratic decay were regrettably abundant. An early sign occurred in Louisiana. With a multiracial electorate, Reconstruction Louisiana held great promise. During contentious state elections in 1872, Louisiana Democrats intimidated Black voters from casting ballots and corruptly claimed victory. The disputed election spurred political violence to assert white supremacy, including the Colfax Massacre in 1873, where as many as 150 Black citizens were killed in Grant Parish when a white mob sought to take control of the local government.Federal prosecutors brought charges against a number of the perpetrators. But in 1876, the Supreme Court held in United States v. Cruikshank that the federal government could not prosecute private violence under the 14th Amendment because it could only protect citizens against constitutional rights violations by state actors. By its decision, the court gave license to mobs to disrupt the peaceful transition of power with grave consequences.South Carolina could have been a Reconstruction success story. Its state constitution and government reflected the values and priorities of its Black majority. The planter elite attacked the Reconstruction government as a socialist rabble and baselessly mocked elected officials as incompetent. In the lead-up to elections in 1876, political violence brewed across the state, and Democrats secured a narrow victory. But democratic decay was precipitous. Over time, South Carolina imposed new limits on voting, moving precincts into white neighborhoods and creating a confusing system. Legislators passed the Eight Box Law, which required voters to submit a separate ballot for each elected office in a different box and invalidated any votes submitted in the wrong box. This created a barrier to voting for people who could not read.The lack of repercussions for political violence and voter suppression did little to curb the impulse to crush biracial democracy by mob rule. The backsliding spread like cancer to Mississippi, Virginia and North Carolina.In Georgia, just before the state was initially readmitted to the Union, Georgians elected a Republican to the governorship and a Republican majority to the state senate. Yet the promise of a strong Republican showing was a mirage. Conservative Republicans and Democrats joined forces to expel more than two dozen Black legislators from the Georgia General Assembly in September 1868. From there, tensions only grew. Political violence erupted throughout the state as elections drew closer that fall, most tragically in Camilla, where white supremacists killed about a dozen Black Georgians at a Republican political rally.The democratic failures of that era shared three common attributes. The political process was neither free nor fair, as citizens were prevented from voting and lawful votes were discounted. The Southern Redeemers refused to recognize their opponents as legitimate electoral players. And conservatives abandoned the rule of law, engaging in intimidation and political violence to extinguish the power of multiracial political coalitions.At bottom, the theory behind the Fulton County indictment accuses Mr. Trump and his allies of some of these same offenses.The phone call between Mr. Trump and the Georgia secretary of state Brad Raffensperger (“Fellas, I need 11,000 votes,” Mr. Trump demanded) is crucial evidence backing for a charge relating to soliciting a public officer to violate his oath of office. Mr. Trump’s coercive tactics persisted even though he should have known that Joe Biden fairly won the state’s Electoral College votes. But facts never seemed to matter. Mr. Trump’s false allegation of a rigged contest — a claim he and others made well before voting began — was grounded in a belief that opposition to his re-election was never legitimate.Mr. Trump and his allies could not accept that an emerging multiracial coalition of voters across the state rejected him. Election deniers focused on Atlanta, a city whose Black residents total about half the population, as the place where Georgia’s election was purportedly stolen. The dangerous mix of racial grievance and authoritarian impulses left Trump loyalists feeling justified to concoct the fake electors scheme and imploring the General Assembly to go into a special session to arbitrarily undo the will of Georgians.Political violence and intimidation are some of the most obvious symptoms of democratic decay. The charges in Fulton County are an attempt to use the criminal justice system to repudiate political violence.The sprawling case is stronger because the conspiracy to overturn Georgia’s presidential election results was replete with acts of intimidation by numerous people. Mr. Trump and Rudy Giuliani engaged in a full-scale harassment campaign against Fulton County election workers when they baselessly alleged that two individuals added fake votes to Mr. Biden’s tally. Mr. Trump threatened Mr. Raffensperger and a state employee with “a criminal offense” if they declined to join his corruption, warning them they were taking “a big risk.” A healthy democracy cannot tolerate this behavior.Democracy is not guaranteed, and democratic backsliding is never inevitable. The country avoided the worst, but the past few years have still been profoundly destabilizing for the constitutional order in ways akin to some of the nation’s darker moments.Indeed, the case by Ms. Willis can be seen as an effort to avoid darker moments in the future, especially for a critical swing state like Georgia. We should remember the words in 1871 of Georgia’s first Black congressman, Jefferson Franklin Long, who spoke out when Congress debated relaxing the requirements for restoring certain rights to ex-Confederates without meaningful contrition: “If this House removes the disabilities of disloyal men … I venture to prophesy you will again have trouble from the very same men who gave you trouble before.”His prediction proved all too accurate. It now may be up to the people of Fulton County to stop election denialism’s widening gyre.Anthony Michael Kreis is an assistant professor of law at Georgia State University, where he teaches and studies constitutional law and the history of American politics.Source photographs by Bettmann, Buyenlarge, and Corbis Historical, via Getty.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Vivek Ramaswamy Has a Gimmick That Republicans Are Sure to Love

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      Vivek Ramaswamy is a 38-year-old investor and former pharmaceutical executive who wants to be the Republican nominee for president. He’s not ahead by any means, but he’s doing better than you might expect. If Donald Trump dominates the field and Ron DeSantis is the far runner-up, then Ramaswamy is the candidate poised to rise if the Florida governor falls further behind.Ramaswamy is “anti-woke,” condemns Juneteenth as a “useless” holiday and says that “diversity is not our strength.” He thinks climate activism is a “cult” and wants to send the military to the border with Mexico. He wants to unravel the so-called deep state, thinks the Trump indictments are politically motivated and won’t say whether, if he were in Mike Pence’s shoes, he would have refused the former president’s demand to overturn the 2020 election results.In other words, he’s preoccupied by most of the same concerns as his rivals. But he does have one gimmick that DeSantis and Trump don’t: “We are a constitutional republic. We need to revive civic duty among young Americans,” Ramaswamy said on the platform X, formerly known as Twitter. “That’s why I’m announcing my support for a constitutional amendment to raise the voting age from 18 to 25, but to still allow 18-year-olds to vote if they either pass the same civics test required of immigrants to become naturalized citizens, or else to perform 6 months of military or first responder service.”Ramaswamy has elaborated in interviews on his call to raise the voting age for most young people. “I think we have a loss of civic pride in our country. I think people, young people included, do not value a country that they simply inherit,” he told NPR. “I think we value a country that we have a stake in building. And I think that asking a young person, asking any citizen, to know something about the country before voting, I think is a perfectly reasonable condition.”Demanding a de facto literacy test for most young Americans to vote is not actually a “perfectly reasonable condition.” It is a direct assault on the basic democratic rights of millions of citizens.To begin, there’s the fundamental fact that no aspect of political equality hinges on the ability to memorize trivia. What’s more, you do not need a formal education of any sort to embrace the duties of citizenship or to understand yourself as a political actor with a right to self-government. You do not even need one to understand your political interests and to work, individually or with others, to pursue them through our democratic institutions.To think otherwise is to believe that Americans, from the yeoman farmers of the early Republic to the freedmen of the Reconstruction South to the urban industrial workers of the early 20th century, have never been equipped to govern themselves.There’s also the practical fact that most new requirements for voting in the United States are — in intent and purpose — new restrictions on voting.For example, these days we take the secret ballot for granted as the only rational way to conduct an election. Of course the state should produce uniform, standard ballots for all elections. Of course we should vote in private. But for much of the 19th century before the introduction of the secret ballot — also known as the “Australian” ballot — American voters obtained their ballots from their political parties. “Since the ballots generally contained only the names of an individual party’s candidates, literacy was not required,” notes the historian Alexander Keyssar in “The Right to Vote: The Contested History of Democracy in the United States.” “All that a man had to do was drop a ballot in a box.”With a single, standardized ballot — cast in private without the assistance of a friend or relative or party representative — voters had to read to participate. That was the point. As one contemporaneous observer, George Gunton, an economist and social reformer, declared, “so obvious is the evil of ignorant voting that more stringent naturalization laws are being demanded, because too many of our foreign-born citizens vote ignorantly. It is to remedy this that the Australian ballot system has been adopted in so many states.” Its purpose, he continued, was “to eliminate the ignorant, illiterate voters.”We similarly take voter registration for granted — of course we should confirm our intention to vote with municipal authorities ahead of time. But that, too, was introduced to limit and restrict the electorate. “Beginning in the 1830s,” writes Keyssar, “the idea of registration became more popular, particularly among Whigs, who believed that ineligible transients and foreigners were casting their votes for the Democratic Party.” Sixty years later, Southern Democrats used highly discretionary registration laws to remove as many Republican-voting Blacks from the electorate as possible.“The key disfranchising features of the Southern registration laws were the amount of discretion granted to the registrars, the specificity of the information required of the registrant, the times and places set for registration, and the requirement that a voter bring his registration certificate to the polling place,” explained the political scientist J. Morgan Kousser in “The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880-1910.” “Registration laws were most efficiently used — as in South Carolina, Louisiana and North Carolina — to cut the electorate immediately before a referendum on constitutional disfranchisement.”We also can’t forget the actual literacy tests, introduced at the turn of the 20th century, that were designed to keep as many immigrants, Black Americans and laboring people from the polls as possible. The point was to limit, as much as possible, the political power of groups that might challenge the interests of those in power, from industrial barons in the North to large landowners in the South.Ramaswamy says that the goal of his proposal is to encourage civic pride and inculcate a deeper attachment to the country among the youngest American adults. But there are ways to do both without creating new obstacles to voting. There’s also no evidence or indication that a mandatory civics test would achieve the goal in question. When you consider, as well, the extent to which there are older adults — even elderly adults — who could use a little civic pride themselves, it appears that Ramaswamy’s proposal has less to do with fostering national cohesion and more to do with the Republican Party’s unenviable dilemma with young people.Democrats win most younger voters across all racial and ethnic groups. In the 2022 midterm elections, according to the Pew Research Center, 68 percent of voters under 30 backed Democrats compared with 31 percent for Republicans. And soon, young people will represent a majority of potential voters in the country.Rather than try to appeal to or persuade this bloc, Ramaswamy’s proposal is to remove a vast majority from the electorate altogether.To be clear, this isn’t a serious plan. The American public is so polarized along partisan and ideological lines as to make the Constitution effectively unamendable. Ramaswamy’s call to raise the voting age is a novelty policy for a novelty candidate. And yet it tells us something about the Republican electorate, and thus the Republican Party, that the eye-catching gimmick of an ambitious politician is a plan to disenfranchise millions of American voters.In many ways, big and small, the Republican Party has turned against the bedrock “republican principles” of majority rule and popular sovereignty. We see it in a governor removing a duly-elected official because he disagrees with the views she represents, a state legislature gerrymandering itself into a permanent majority regardless of where the votes fall, an entire state Republican Party trying (and failing) to change the rules of constitutional amendment to keep the voters from affirming their rights and a former president who would rather end the American experiment in democracy than accept defeat at the ballot box.Ramaswamy is playing the same song. There’s almost no one in the Republican Party, at this point, who isn’t.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Conservative Case Emerges to Disqualify Trump for Role on Jan. 6

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      Two law professors active in the Federalist Society wrote that the original meaning of the 14th Amendment makes Donald Trump ineligible to hold government office.Two prominent conservative law professors have concluded that Donald J. Trump is ineligible to be president under a provision of the Constitution that bars people who have engaged in an insurrection from holding government office. The professors are active members of the Federalist Society, the conservative legal group, and proponents of originalism, the method of interpretation that seeks to determine the Constitution’s original meaning.The professors — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — studied the question for more than a year and detailed their findings in a long article to be published next year in The University of Pennsylvania Law Review.“When we started out, neither of us was sure what the answer was,” Professor Baude said. “People were talking about this provision of the Constitution. We thought: ‘We’re constitutional scholars, and this is an important constitutional question. We ought to figure out what’s really going on here.’ And the more we dug into it, the more we realized that we had something to add.”He summarized the article’s conclusion: “Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.”A law review article will not, of course, change the reality that Mr. Trump is the Republican front-runner and that voters remain free to assess whether his conduct was blameworthy. But the scope and depth of the article may encourage and undergird lawsuits from other candidates and ordinary voters arguing that the Constitution makes him ineligible for office.“There are many ways that this could become a lawsuit presenting a vital constitutional issue that potentially the Supreme Court would want to hear and decide,” Professor Paulsen said.Mr. Trump has already been indicted twice in federal court, in connection with his efforts to overturn the 2020 election and his retention of classified documents. He is also facing charges relating to hush money payments in New York and may soon be indicted in Georgia in a second election case.Those cases could give rise to prison time or other criminal punishment. The provision examined in the new article concerns a different question: whether Mr. Trump is eligible to hold office.There is, the article said, “abundant evidence” that Mr. Trump engaged in an insurrection, including by setting out to overturn the result of the 2020 presidential election, trying to alter vote counts by fraud and intimidation, encouraging bogus slates of competing electors, pressuring the vice president to violate the Constitution, calling for the march on the Capitol and remaining silent for hours during the attack itself.“It is unquestionably fair to say that Trump ‘engaged in’ the Jan. 6 insurrection through both his actions and his inaction,” the article said.Steven G. Calabresi, a law professor at Northwestern and Yale and a founder of the Federalist Society, called the article “a tour de force.”But James Bopp Jr., who has represented House members whose candidacies were challenged under the provision, said the authors “have adopted a ridiculously broad view” of it, adding that the article’s analysis “is completely anti-historical.”(Mr. Bopp’s clients have had mixed success in cases brought under the provision. A state judge, assuming that the Jan. 6 attacks were an insurrection and that participating in them barred candidates from office, ruled that Representative Marjorie Taylor Greene, Republican of Georgia, had not taken part in or encouraged the attacks after she took an oath to support the Constitution on Jan 3. A federal appeals court ruled against Representative Madison Cawthorn, Republican of North Carolina, on one of his central arguments, but the case was rendered moot by his loss in the 2022 primary.)The provision in question is Section 3 of the 14th Amendment. Adopted after the Civil War, it bars those who had taken an oath “to support the Constitution of the United States” from holding office if they then “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”Congress can remove the prohibition, the provision says, but only by a two-thirds vote in each House.The new article examined the historical evidence illuminating the meaning of the provision at great length, using the methods of originalism. It drew on, among other things, contemporaneous dictionary definitions, other provisions of the Constitution using similar language, “the especially strong evidence from 1860s Civil War era political and legal usage of nearly the precise same terms” and the early enforcement of the provision.The article concluded that essentially all of that evidence pointed in the same direction: “toward a broad understanding of what constitutes insurrection and rebellion and a remarkably, almost extraordinarily, broad understanding of what types of conduct constitute engaging in, assisting, or giving aid or comfort to such movements.”It added, “The bottom line is that Donald Trump both ‘engaged in’ ‘insurrection or rebellion’ and gave ‘aid or comfort’ to others engaging in such conduct, within the original meaning of those terms as employed in Section 3 of the 14th Amendment.”Though the provision was devised to address the aftermath of the Civil War, it was written in general terms and continues to have force, the article said. Congress granted broad amnesties in 1872 and 1898. But those acts were retrospective, the article said, and did not limit Section 3’s prospective force. (A federal appeals court agreed last year in the case involving Mr. Cawthorn.)The provision’s language is automatic, the article said, establishing a qualification for holding office no different in principle from the Constitution’s requirement that only people who are at least 35 years old are eligible to be president.“Section 3’s disqualification rule may and must be followed — applied, honored, obeyed, enforced, carried out — by anyone whose job it is to figure out whether someone is legally qualified to office,” the authors wrote. That includes election administrators, the article said.Professor Calabresi said those administrators must act. “Trump is ineligible to be on the ballot, and each of the 50 state secretaries of state has an obligation to print ballots without his name on them,” he said, adding that they may be sued for refusing to do so.(Professor Calabresi has occasionally strayed from conservative orthodoxy, leading to an unusual request from the group he helped found. “I have been asked not to talk to any journalist who identifies me as a co-founder of the Federalist Society, even though it is a historical fact,” he said. I noted the request and ignored it.)Some of the evidence the article considered overlapped with what was described in the recent indictment of Mr. Trump accusing him of conspiring to subvert the 2020 election. But that case and Section 3 address “completely separate questions,” Professor Baude said.“The question of should Donald Trump go to jail is entrusted to the criminal process,” he said. “The question of should he be allowed to take the constitutional oath again and be given constitutional power again is not a question given to any jury.” More