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      Why Would John Eastman Want to Overturn an Election for Trump?

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      The figure of John Eastman, a constitutional theorist, former law professor and legal adviser to Donald Trump, looms increasingly large in retrospectives on the events of Jan. 6, and for good reason: Out of all the characters who floated through the White House in the aftermath of the 2020 election, only Eastman appears to have been fully serious about keeping Trump in office.Other people certainly imagined themselves to be serious, figures like Sidney Powell and Mike Lindell of MyPillow fame, but really they inhabited a fantasy world and mostly just invited Trump to live there with them. Then another set of figures — including various White House advisers and United States senators — lived in reality while pretending to believe the fantasy, either in the hopes of managing the president’s moods until his term ended or for cynical political reasons of their own.Only Eastman seemed to partly bridge the divide. True, his belief that Trump ought to remain in office depended on many of the same voter-fraud speculations — mutable, adaptable, an assumption in search of confirmation — that the outright fantasists embraced. But his legal plan of action was intended to be as plausible as possible, linked to interpretations of election law and the U.S. Constitution that were radical but not purely fanciful, and devised to exploit points of tension or contradiction where a constitutional crisis might genuinely be forced.Trump didn’t have the cooperators or the capacities required to reach that destination. But Eastman, unlike the clowns and cynics, actually drew up a road map for getting there, devoting real legal and constitutional knowledge to the goal of throwing the American presidential succession into crisis.John Eastman in Colorado in 2021.Andy Cross/MNG/The Denver Post, via Getty ImagesIn this, he embodied in the strongest form a tendency shared by others in his intellectual home base, the Claremont Institute — a conservative institution with many mansions, but one known lately for its hospitality to the reactionary internet and its enthusiasm for a politics of crisis.That enthusiasm first took shape in the “Flight 93 Election” essay, published in the Claremont Review of Books in 2016, in which the future Trump administration official Michael Anton made the case that the American Republic was in such dire shape that it would be preferable to elect a man who might literally crash the plane rather than to allow it to continue in its current course. Eastman’s eagerness for a constitutional crisis was a kind of bookend to that essay, infused with the same spirit but applied to a presidential transition rather than the presidential vote.This tendency has made Claremont an object of special fascination to hostile interpreters of Trump-era conservatism. At this point, you can read a wide range of critical essays trying to tease out how an institution formally devoted to the genius of the founding fathers and the ideals of Abraham Lincoln ended up harboring so much sympathy for a demagogue like Trump.I have my own interpretation, which goes back to my personal experience as a youthful “Publius fellow” at Claremont 20 years ago, when along with a brace of other young right-of-center nerds I was given a summer crash course in the thought of Harry Jaffa, the Claremont eminence (then living, now deceased), and his various disciples.The Jaffa school offered an interpretation of American history that might be described as Inception, Consummation and Corruption. Its Great Consummator was Lincoln, who restored the promise of the founding by fully establishing the “all men are created equal” absolutism of the Declaration of Independence. Its villains were John C. Calhoun and the progressives of the early 20th century, the former for defending slavery and inequality, the latter for replacing a constitutional republic with a bureaucratized administrative state, and both for displaying a philosophical and moral relativism that Jaffa despised (and that, as his intellectual feuds multiplied, he claimed to discern in many of his fellow conservatives as well).But one thing you noticed hanging around with Claremont folks was that while they were obviously interested in the good and bad of each American regime change, from the original founding (great) to the Lincolnian re-founding (even better) to the progressive re-foundings of Woodrow Wilson (their great villain, the “Lost Cause” sympathizer turned arrogant technocrat) and Franklin Roosevelt, they were also just really interested in the idea of founding itself, when moments of crisis bring new orders out of old ones.At one point, as a break from reading founding-era texts, we were treated to a screening of “The Man Who Shot Liberty Valance,” the great John Ford western whose theme is the Old West’s transition into political modernity, passing from the rule of the gun (embodied by John Wayne’s Tom Doniphon) to the rule of the lawbook (embodied by Jimmy Stewart’s Ransom Stoddard).In the movie, the transition can’t happen without a dose of chaos, a mixture of violence and deception. Lee Marvin’s outlaw, Valance, challenges the peaceable lawyer Stoddard to a duel; Doniphon saves the lawyer by shooting the outlaw from the shadows — and then the killing is mistakenly attributed to Stewart’s character, who is lionized for it and goes on to be a great statesman of the New West while the cowboy and his vigilante code recede.The not-so-subtle implication of the Claremont reading of American history is that this kind of fraught transition doesn’t happen once and for all; rather, it happens periodically within the life of any nation or society. Whenever change or crisis overwhelms one political order, one version of (in our case) the American republic, you get a period of instability and rough power politics, until the new era or the new settlement is forged.But it doesn’t happen without moments like Doniphon shooting Valance — or Lincoln suspending habeas corpus, say, or Roosevelt threatening to pack the Supreme Court — when norms and niceties need to be suspended for the sake of the new system that’s waiting to be born.When I try to understand what Eastman imagined himself doing in serving Donald Trump even unto constitutional crisis, this is where my speculations turn. I don’t think this is the necessary implication of Claremont thought; indeed, you can find in the latest issue of The Claremont Review of Books an essay by William Voegeli critiquing conservatives who seem “enthused about chaos” and overeager to re-found rather than conserve. But I think it’s an understandable place for the Claremont reading of American history to turn at a time when the American republic does appear sclerotic, stalemated, gridlocked and in need of some kind of conspicuous renewal.Nor is it a coincidence that Claremont conservatives would turn this way at the same time that their adversaries on the American left nurture plans to expand the Supreme Court, add new states to the Union and abolish the Senate and the Electoral College. Both right and left are reacting, in different ways and with different prescriptions, to the sense of crisis and futility in our politics, the feeling that surely some kind of revolution or transformation is due to come around — that God in his wisdom is overdue to send us a Lincoln or a Roosevelt and that the existing norms of our politics probably won’t survive the change.What makes this sentiment particularly understandable is that the Claremont history of America’s multiple regime changes is generally correct: Our country really has periodically transformed itself, for better or worse (sometimes both at once), through the actions of strong leaders and strong movements that risked crisis to overturn and transform and even, yes, re-found.The problem — well, on the right, there are three problems.First, the part of the right that imagines a re-founding can’t agree on what shape its imagined new American regime should take. (Are we demolishing the administrative state or turning it to conservative ends? Restoring lost liberties or pursuing the common good? Building a multiethnic working-class majority or closing the border against future Democratic voters?) Which is one reason the Trump presidency, infused by these conflicting impulses, ended up being such a shambolic mess.The second obvious reason it was a mess was just the character of the president himself. It’s here that my attempt to imagine my way into Eastman’s crisis mind-set collapses: I just can’t fathom the idea that it could be worth pushing our constitutional system into chaos when your candidate to play the role of Lincoln or Roosevelt is Donald Trump.To cast a vote for Trump as a defensive measure against Hillary Clinton is one thing. But to nominate yourself to play Tom Doniphon in a political shootout so that a decadent order can give way to something new, when your candidate to lead the new order is a sybaritic reality-television star who shambled through his first presidential term … no, there my attempt at imaginative sympathy fails.But then finally, even deeper than the folly of risking so much for Trump himself is the folly of doing so without democratic legitimacy and real majority support. At past moments of American renewal or regime change the leaders of the emergent order have been able to claim a popular mandate for their project. Yes, Lincoln’s case is exceptional: He was a plurality president in 1860 and won a big majority in 1864 with the South still in rebellion. But he obviously won both elections, the outcomes weren’t particularly close, and the other transformative presidents in our history, from Andrew Jackson down through Roosevelt to Claremont’s own beloved Ronald Reagan, won a clear or resounding mandate for a second term.No complaints about a rigged election can change the fact that Trump did not — that despite ample opportunities for statesmanship, he never persuaded a majority of Americans to support whatever his project was supposed to be.And this is where the various indictments of Claremont Trumpism draw the most blood. If your intellectual project champions Lincoln over Calhoun, but you end up using constitutional legerdemain to preserve the power of a minority faction against an American majority, then whatever historical part you imagine yourself playing, you have betrayed yourself.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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      America’s Doug Mastriano Problem

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      If the Ohio Senate primary two weeks ago provided some clarity about the ideological divisions in the Republican Party, Tuesday’s primaries often seemed more like a showcase for the distinctive personalities that populate a Trumpified G.O.P.The Pennsylvania Senate race gave us an especially vivid mix: As of this writing, the Celebrity Doctor and the Hedge Fund Guy Pretending to Be a MAGA True Believer may be headed for a recount, after the Would-Be Media Personality With the Inspiring Back Story and the Unfortunate Twitter Feed faded back into the pack. In the governor’s race, Republican voters chose to nominate Doug Mastriano, a.k.a. the QAnon Dad. In North Carolina, they ended — for now — the political career of Representative Madison Cawthorn, the Obviously Suffering Grifter.On substance, as opposed to personality, though, the night’s stakes were relatively simple: Can Republicans prevent their party from becoming the party of constitutional crisis, with leaders tacitly committed to turning the next close presidential election into a legal-judicial-political train wreck?This is a distinctive version of a familiar political problem. Whenever a destabilizing populist rebellion is unleashed inside a democratic polity, there are generally two ways to bring back stability without some kind of crisis or rupture in the system.Sometimes the revolt can be quarantined within a minority coalition and defeated by a majority. This was the destiny, for instance, of William Jennings Bryan’s 1890s prairie-populist rebellion, which took over the Democratic Party but went down to multiple presidential defeats at the hands of the more establishmentarian Republicans. You can see a similar pattern, for now, in French politics, where the populism of Marine Le Pen keeps getting isolated and defeated by the widely disliked but grudgingly tolerated centrism of Emmanuel Macron.In the alternative path to stability, the party being reshaped by populism finds leaders who can absorb its energies, channel its grievances and claim its mantle — but also defeat or suppress its most extreme manifestations. This was arguably the path of New Deal liberalism in its relationship to Depression-era populism and radicalism: In the 1930s, Franklin Roosevelt was able to sustain support from voters who were also drawn to more demagogic characters, from Huey Long to Charles Coughlin. Two generations later, it was the path of Reaganite conservatism in its relationship to both George Wallace’s populism and the Goldwaterite New Right.The problem for America today is that neither stabilizing strategy is going particularly well. Part of the Never Trump movement has aspired to a Macron-style strategy, preaching establishment unity behind the Democratic Party. But the Democrats haven’t cooperated: They conspicuously failed to contain and defeat Trumpism in 2016, and there is no sign that the Biden-era variation on the party is equipped to hold on to the majority it won in 2020.Meanwhile, the Republican Party at the moment does have a provisional model for channeling but also restraining populism. Essentially it involves leaning into culture-war controversy and rhetorical pugilism to a degree that provokes constant liberal outrage and using that outrage to reassure populist voters that you’re on their side and they don’t need to throw you over for a conspiracy theorist or Jan. 6 marcher.This is the model, in different styles and contexts, of Glenn Youngkin and Ron DeSantis. In Tuesday’s primaries it worked for Idaho’s conservative incumbent governor, Brad Little, who easily defeated his own lieutenant governor’s much-further-right campaign. Next week the same approach seems likely to help Brian Kemp defeat David Perdue for the governor’s nomination in Georgia. And it offers the party’s only chance, most likely via a DeSantis candidacy, to defeat Donald Trump in 2024.Unfortunately this model works best when you have a trusted figure, a known quantity, delivering the “I’ll be your warrior, I’ll defeat the left” message. The Cawthorn race, in which the toxic congressman was unseated by a member of the North Carolina State Senate, shows that this figure doesn’t have to be an incumbent to succeed, especially if other statewide leaders provide unified support. But if you have neither unity nor a figure with statewide prominence or incumbency as your champion — no Kemp, no Little — then you can get results like Mastriano’s victory last night in Pennsylvania: a Republican nominee for governor who cannot be trusted to carry out his constitutional duties should the presidential election be close in 2024.So now the obligation returns to the Democrats. Mastriano certainly deserves to lose the general election, and probably he will. But throughout the whole Trumpian experience, the Democratic Party has consistently failed its own tests of responsibility: It has talked constantly about the threat to democracy while moving leftward to a degree that makes it difficult to impossible to hold the center, and it has repeatedly cheered on unfit Republican candidates on the theory that they will be easier to beat.This happened conspicuously with Trump himself, and more unforgivably it happened again with Mastriano: Pennsylvania Democrats sent out mailers boosting his candidacy and ran a big ad buy, more than twice Mastriano’s own TV spending, calling him “one of Donald Trump’s strongest supporters” — an “attack” line perfectly scripted to improve his primary support.Now they have him, as they had Trump in 2016. We’ll see if they can make the story end differently this time.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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      If Roe Is Struck Down, Where Does the Anti-Abortion Movement Go Next?

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      The Supreme Court draft opinion signals a new era for the 50-year effort to end the constitutional right to abortion. Next goals include a national ban and, in some cases, classifying abortion as homicide.For nearly half a century, the anti-abortion movement has propelled itself toward a goal that at times seemed impossible, even to true believers: overturning Roe v. Wade.That single-minded mission meant coming to Washington every January for the March for Life to mark Roe’s anniversary. It required electing anti-abortion lawmakers and keeping the pressure on to pass state restrictions. It involved funding anti-abortion lobbying groups, praying and protesting outside clinics, and opening facilities to persuade women to keep their pregnancies. Then this week, the leaked draft of the Supreme Court opinion that would overturn the constitutional right to abortion revealed that anti-abortion activists’ dream of a post-Roe America appeared poised to come to pass.The court’s opinion is not final, but the draft immediately shifted the horizon by raising a new question: If Roe is struck down, where does the anti-abortion movement go next?Many leaders are redoubling state efforts, where they’ve already had success, with an eye toward more restrictive measures. Several prominent groups now say they would support a national abortion ban after as many as 15 weeks or as few as six, all lower than Roe’s standard of around 23 or 24. A vocal faction is talking about “abortion abolition,” proposing legislation to outlaw abortion after conception, with few if any exceptions in cases of rape or incest.The sprawling anti-abortion grass-roots campaign is rapidly approaching an entirely new era, one in which abortion would no longer be a nationally protected right to overcome, but a decision to be legislated by individual states. For many activists, overturning Roe would mark what they see as not the end, but a new beginning to limit abortion access even further. It also would present a test, as those who have long backed incremental change could clash with those who increasingly push to end legal abortion altogether.This week, many anti-abortion leaders were wary of celebrating before the court’s final ruling, expected this summer. They remembered Planned Parenthood v. Casey in 1992, when they hoped the court would overturn Roe and it ultimately did not. But they said they have been preparing for this moment and its possibilities for decades.“If a dog catches a car, it doesn’t know what to do,” said Carol Tobias, president of the National Right to Life Committee. “We do.”The Susan B. Anthony List, an anti-abortion political group, is planning a strategy involving state legislatures where it sees room to advance their cause or protect it. The National Right to Life is trying to support its affiliates in every state as it looks to lobby lawmakers. Both groups have been hoping to build support in Congress for a national abortion ban, even if it could take years, just as it did to gain momentum to undo Roe. Many Republicans have repeatedly tried to enact a ban at about 20 weeks, without success. Next week Democrats in the Senate are bringing a bill to codify abortion rights to a vote, but it is all but certain to be blocked by Republicans.Abortion rights advocates are using the moment to re-energize their own supporters, organize protests and mobilize for midterm elections in November. Planned Parenthood Action Fund, NARAL Pro-Choice America and Emily’s List announced Monday, hours before the leaked draft appeared, that they would spend a collective $150 million on the midterm election cycle. Other groups are planning a nationwide “day of action” May 14, with marches in cities including New York, Washington, Chicago and Los Angeles.The reality of the leaked draft shocked casual supporters of abortion rights who weren’t paying particularly close attention to the issue, or who had grown numb after decades of warnings about the end of Roe.An abortion opponent at the March for Life in Washington. Many leaders are doubling down on state fights, with an eye toward pushing for more restrictive measures in other parts of the country.Kenny Holston for The New York Times“People just couldn’t fathom losing a constitutional right that has been enshrined for nearly half a century,” said Kristin Ford, vice president of communications and research for NARAL Pro-Choice America. “To see it in such stark terms has really galvanized people.”Across the anti-abortion spectrum, everything is on the table, from instituting bans when fetal cardiac activity is detected, to pressing their case in Democratic strongholds. Some activists are prioritizing limiting medication abortion, which accounts for more than half of all abortions.From Opinion: A Challenge to Roe v. WadeCommentary by Times Opinion writers and columnists on the Supreme Court’s upcoming decision in Dobbs v. Jackson Women’s Health Organization. Alison Block: Offering compassionate care is a core aspect of reproductive health. It might mean overcoming one’s own hesitation to provide procedures like second-trimester abortions. Patrick T. Brown: If Roe is overturned, those who worked toward that outcome will rightly celebrate. But a broader pro-family agenda should be their next goal. Jamelle Bouie: The leak proves that the Supreme Court is a political body, where horse-trading and influence campaigns are as much a part of the process as legal reasoning.Bret Stephens: Roe v. Wade was an ill-judged decision when it was handed down. But overturning it would do more to replicate its damage than to reverse it.Jay Kaspian Kang: There is no clear path toward a legislative solution to protect abortion rights. That’s precisely why people need to take to the streets.This week in Georgia, former Senator David Perdue, who is challenging Gov. Brian Kemp in the Republican primary for governor, called for a special session to “eliminate all of abortion” in the state, which already has an abortion ban at about six weeks on the books that would likely take effect if Roe is overturned.While many fighting for restrictions believe abortion to be murder, only a small fringe openly call for punishing a woman for procuring one.Lawmakers in Louisiana, however, advanced a bill on Wednesday that would classify abortion as homicide and make it possible for prosecutors to bring criminal cases against women who end a pregnancy.“If the fetus is a person, then we should protect them with the same homicide laws that protect born persons,” said Bradley Pierce, who helped draft the Louisiana legislation and leads the Foundation to Abolish Abortion. “That’s what equal protection means.”A more prominent anti-abortion group, Louisiana Right to Life, however, opposes the bill for going too far.For the more mainstream campaigners, a post-Roe landscape would mean the anti-abortion fight will become even broader, clearing the path to expand further into state politics. “It will be different work,” said Mallory Carroll, spokeswoman for the Susan B. Anthony List. If Roe is overturned, anti-abortion activists will be free to pass legislation without having to work around Roe’s limits. “Instead of just fighting for the right to pass pro-life laws, we will actually be able to pass and protect pro-life laws,” she said.On Monday, before the leak, a coalition led by Students for Life Action told Republican members of Congress in a letter that abortion restrictions even at 12 weeks of pregnancy were not sufficient but that what ultimately mattered was “whether the infant is a human being.”After the leaked draft of the Supreme Court opinion, activists on both sides of the abortion debate gathered in front of a federal courthouse in Indianapolis. Jamie Kelter Davis for The New York TimesUltimately, abortion opponents’ biggest goal extends beyond legislation. It is an effort to change broader American culture and get more people to see a fetus as a human person with an inherent right to life. Many activists talk about making abortion not merely illegal but “unthinkable.”Public opinion polls show that a majority of Americans say abortion should be legal in at least some cases. But anti-abortion activists say they see plenty of room for persuasion in the details. Polling also suggests most Americans are open to some restrictions. Thirty-four percent of Americans say abortion should be legal at 14 weeks of pregnancy — roughly the end of the first trimester — compared with 27 percent who say it should be illegal, according to a survey released Friday by the Pew Research Center. Another 22 percent say “it depends.”“We are prepared to not only create a legal landscape to protect life at the federal and state levels, but also to support a culture of life,” said Kristen Waggoner, general counsel for the Alliance Defending Freedom, which supports Mississippi’s ban at 15 weeks that led to the Supreme Court case that could overturn Roe.Advocates on the left see the leaked draft laying out a playbook for a sweeping attempt to roll back other established rights. “There are some folks on the right saying they’re just turning back to the states, when in fact it’s very clear their agenda is much broader than that,” Ms. Ford of NARAL said. “It’s not just about abortion.”The State of Roe v. WadeCard 1 of 4What is Roe v. Wade? More

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      Why Republicans Are So Angry About the Supreme Court Leak

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      The country is divided. There are those Americans furious that the Supreme Court is soon to take away the right to have an abortion. And there are those Americans furious that someone leaked that the Supreme Court was soon to take away the right to have an abortion.Among those Americans angry with the anonymous leak of Justice Samuel Alito’s draft opinion overturning Roe v. Wade is the entire Republican Party. “Last night’s stunning breach was an attack on the independence of the Supreme Court,” said Mitch McConnell, the Senate minority leader, in a statement issued after the leak. “This lawless action should be investigated and punished as fully as possible. The Chief Justice must get to the bottom of it and the Department of Justice must pursue criminal charges if applicable.”Senator Ted Cruz of Texas told Fox News, “The leak of the draft Supreme Court opinion will do lasting damage to the integrity of the court and the independence of the judiciary.” And Senator Mike Lee of Utah wrote that because the Supreme Court relies on “decorum and confidentiality” to do its work, it is therefore “dangerous, despicable, and damaging” to leak its deliberations to the public. The Supreme Court, he declared, “is not a political body.”He might also have added that it has a right to privacy.In any case, McConnell, Cruz, Lee and the rest of their Republican colleagues must be joking.The Supreme Court is, and has always been, a political body. That’s true of the justices, certainly. Over the course of the court’s history, most of them were chosen with political considerations in mind, to the point that many were politicians themselves. It’s true of the institution as well. The Supreme Court deals with political issues — not simply abstract questions of law — and operates within the context of political conflict and political struggle.And the Supreme Court, right now, is an avowedly partisan institution, an unaccountable super-legislature controlled by men and women drawn from a cadre of conservative ideologues and apparatchiks, acting on behalf of the Republican Party and its allies. Whatever legitimacy it had retained was sacrificed in the drive to build the majority that seems poised to overturn Roe v. Wade and open the floodgates to harsh restrictions on the reproductive autonomy of millions of Americans.When McConnell led the Senate Republican caucus in a blockade of President Barack Obama’s nominee for the Supreme Court in 2016 and then killed what remained of the judicial filibuster the next year to place Neil Gorsuch in the seat instead, they diminished the legitimacy of the court. When those same Republicans looked past a credible accusation of sexual assault to confirm Brett Kavanaugh in 2018, they again diminished the legitimacy of the court. And when, with weeks left before the 2020 presidential election, Republicans ignored their own rule from four years earlier — that an election-year vacancy “should not be filled until we have a new president” — to place Amy Coney Barrett on the bench in a rushed, slapdash process, they once more diminished the legitimacy of the court.What’s more, their occasional protests notwithstanding (in a speech last year at the McConnell Center at the University of Louisville, Barrett insisted the court was “not comprised of a bunch of partisan hacks”), the court’s conservatives have done almost nothing to dispel the view that their majority is little more than the judicial arm of the Republican Party. They use “emergency” orders to issue sweeping rulings in favor of ideologically aligned groups; they invent new doctrines designed to undermine voting rights protections; and as we’ve just witnessed, they’ll let nothing, not even 50 years of precedent, stand in the way of a sweeping ideological victory.No discussion of the Supreme Court’s legitimacy, or lack thereof, is complete without mention of the fact that its current composition is the direct result of our counter-majoritarian institutions. Only once in the past 30 years — in the 2004 election — has anything like a majority of the American electorate voted for a president who promised a conservative Supreme Court. The three members who cemented this particular conservative majority — Gorsuch, Kavanaugh and Barrett — were nominated by a president who lost the popular vote and were confirmed by senators representing far fewer than half of all Americans.The typical response to this point is to say we do not elect presidents by popular vote. And we don’t, that’s true. But Americans have always acted as if the popular vote conveys democratic legitimacy. That’s why supporters of Andrew Jackson condemned the “corrupt bargain” that placed John Quincy Adams in the White House in 1825, why many supporters of Samuel Tilden were furious with the compromise that gave Rutherford B. Hayes the presidency after the 1876 presidential election and why allies of George W. Bush were prepared to argue that he was the rightful winner of the 2000 election in the event he lost the Electoral College but won a majority of voters.It matters whether a president has democratic legitimacy. Donald Trump did not. But rather than act with that in mind, he used his power to pursue the interests of a narrow ideological faction, giving its representatives free rein to shape the Supreme Court as they saw fit. The court, then, is stained by the same democratic illegitimacy that marked Trump and his administration.Republicans seem to know this, and it helps explain why they’re so angry about the leak. They hope to write conservative ideology into the Constitution. For that to work, however, Americans need to believe that the court is an impartial arbiter of law, where each justice uses reason to come to the correct answer on any given issue of constitutional interpretation.The leak throws that out the window. The leak makes it clear that the Supreme Court is a political body, where horse-trading and influence campaigns are as much a part of the process as pure legal reasoning.If the court is a political body — if it is a partisan body — then a roused and unhappy public may decide to reject its judgments and authority. That public may ask itself why it should listen to a court that doesn’t heed its opinion. And it may decide that the time has come to reform the court and dismantle the ill-gotten majority that conservatives worked so hard to create.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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      Marjorie Taylor Greene Denies ‘Insurrectionist’ Charge in Court

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      In an extraordinary administrative law hearing, the Georgia representative was forced to defend her actions surrounding the attack on the Capitol on Jan. 6, 2021.WASHINGTON — Representative Marjorie Taylor Greene, Republican of Georgia, on Friday repeated false claims of widespread fraud in the 2020 presidential election as she defended her actions surrounding the Jan. 6, 2021, attack on the U.S. Capitol, in an extraordinary hearing that asked whether she should be labeled an “insurrectionist” and barred from office under the Constitution.While under oath at an administrative law hearing in Atlanta, Ms. Greene insisted that “a tremendous amount of fraudulent activity” had robbed former President Donald J. Trump of his re-election, an assertion that has been soundly refuted by multiple courts, Republican-led recounts and Mr. Trump’s own attorney general, William P. Barr.But despite her exhortations on social media to “#FightForTrump,” she said she had possessed no knowledge that protesters intended to invade the Capitol on Jan. 6, or disrupt the congressional joint session called to count the electoral votes and confirm Joseph R. Biden Jr.’s victory. She said she did not recall meeting with any of the instigators.And Ms. Greene said neither she nor members of her staff had offered anyone tours of the Capitol complex before Jan. 6, 2021, nor had they provided anyone with a map of the complex, refuting tales of a conspiracy promoted by some Democrats that she had helped the rioters plan their attack.“I was asking people to come for a peaceful march, which is what everyone is entitled to do under their First Amendment,” Ms. Greene testified. “I was not asking them to actively engage in violence.”The contentious hearing unfolded after a group of constituents from her Northwest Georgia district, supported by liberal lawyers, filed suit to block Ms. Greene, a vigorously right-wing lawmaker, from appearing on the ballot for re-election. They charged that she had exhorted rioters to take up arms to block the certification of Mr. Biden’s election, and helped organize the assembly behind the White House on Jan. 6, 2021, that turned into a violent mob.The legal case appeared to be on shaky ground as the administrative law judge, Charles R. Beaudrot, repeatedly sided with Ms. Greene’s lawyer, the prominent conservative election attorney James Bopp Jr., who maintained that much of the questioning violated his client’s right of free speech. Judge Beaudrot will make a recommendation on whether to bar Ms. Greene from the ballot, but the final decision will fall to Georgia’s secretary of state, Brad Raffensperger — the same official who resisted pressure from Mr. Trump to change the presidential election results in the state, and who faces a Trump-backed challenger, Representative Jody Hice, in the coming Republican primary.But the proceeding afforded lawyers pressing the case against Ms. Greene to maintain their pressure and keep attention on her role on Jan. 6, and compel her to answer for it. The proceedings were broadcast on C-SPAN, live-streamed on YouTube, Twitter and Facebook and revealed a House Republican that was often peevish and sometimes on the defensive.“This is a solemn occasion,” Ron Fein, the lead lawyer bringing the case against Ms. Greene with the group Free Speech for People, told Judge Beaudrot. “This is not politics. This is not theater. This is a serious case that the voters who we represent have brought in order to offer proof that their United States representative seeking re-election, Marjorie Taylor Greene, having taken the oath to support the Constitution, then broke that oath and engaged in insurrection.”Mr. Bopp dismissed the case as precisely the opposite, asserting that the law was on the side of his client, who, far from engaging in insurrection, had been a victim during the riot — scared, confused, and fearing for her life as Mr. Trump’s supporters swarmed through the Capitol, where she was present just to do her job.He maintained that the entire Free Speech for People effort was designed to deny Georgia voters their rights, because the plaintiffs could not defeat Ms. Greene at the ballot box.“This is not a candidate debate. This is not a place for political hyperbole. This is not a place for political smear. It’s a court of law,” Mr. Bopp said.At the heart of the case against Ms. Greene is the plaintiffs’ claim that the congresswoman is disqualified from seeking re-election because her support of the rioters who attacked the Capitol made her an “insurrectionist” under the Constitution, and therefore barred her under the little-known third section of the 14th Amendment, which was adopted during the Reconstruction years to punish members of the Confederacy.That section declares that “no person shall” hold “any office, civil or military, under the United States, or under any state, who, having previously taken an oath” to “support the Constitution,” had then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”Similar cases have suffered setbacks in North Carolina, where a federal judge blocked a challenge against Representative Madison Cawthorn, another far-right Republican, and in Arizona, where the Superior Court in Maricopa County ruled on Thursday that it did not have the authority to block the re-elections of two other conservative Republicans, Representatives Paul Gosar and Andy Biggs, and the candidacy for secretary of state of a state representative, Mark Finchem.A separate effort is pending against Republicans, including Senator Ron Johnson, in Wisconsin.But so far, only the case against Ms. Greene has been allowed to proceed. And on Friday, she was forced to answer questions under oath.Ms. Greene denied calling Speaker Nancy Pelosi a “traitor to her country,” though the plaintiffs’ lawyer, Andrew Celli, produced a quotation from her saying just that. She also said she never advocated violence against her political opponents, though her personal Twitter account “liked” a post that advocated “a bullet to the head of Nancy Pelosi.” She said she did “not recall” advocating that Mr. Trump impose martial law.Capitol Riot’s Aftermath: Key DevelopmentsCard 1 of 5Signs of progress. More

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      Only the Feds Can Disqualify Madison Cawthorn and Marjorie Taylor Greene

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      The events of Jan. 6, 2021, are casting a long shadow over the midterm elections. Voters in North Carolina are seeking to bar Representative Madison Cawthorn from running for re-election to his House seat, and those in Georgia are trying to do the same to Representative Marjorie Taylor Greene.These voters have filed complaints with state elections officials arguing that Section 3 of the 14th Amendment disqualifies members of Congress who engage in insurrection from appearing on the congressional ballot. (Challenges to other elected officials have also begun involving other candidates.)But these challenges face an intractable problem: Only the federal government — not the states — can disqualify insurrectionists from congressional ballots. States cannot unilaterally create procedures, unless authorized by federal statute, to keep accused insurrectionists off the congressional ballot.If these members of Congress engaged in insurrection, then the U.S. House of Representatives may exclude them, or federal prosecutors may charge them with the federal crime of insurrection. But in light of an important 1869 judicial decision, the cases against Mr. Cawthorn and Ms. Greene — which are currently mired in both state and federal proceedings — cannot remove the candidates from the congressional ballot.The 14th Amendment was ratified in 1868 in the wake of the Civil War. Section 3 disqualified many former Confederates from holding certain public offices if they had taken an oath to support the U.S. Constitution but subsequently, as Section 3 declares, “engaged in insurrection or rebellion.” Since 1868, the federal judiciary has had few occasions to interpret Section 3. As a result, the courts are largely in uncharted territory. Nevertheless, there is some important on-point precedent.An 1869 case concerning Hugh W. Sheffey is instructive for the Jan. 6 litigation and how courts might see things today. Mr. Sheffey took an oath to support the Constitution but later served as a member of the Confederate Virginia legislature, thereby actively supporting the Confederacy.After the war, he served as a state court judge. As Judge Sheffey, he presided over the trial and conviction of Caesar Griffin for shooting with an intent to kill. Later, Mr. Griffin challenged his conviction in federal court. He argued that Section 3 should have disqualified Mr. Sheffey from serving as judge. Griffin’s case, as it is known, was heard on appeal by the federal circuit court in Virginia. Salmon P. Chase, the chief justice of the United States and an appointee of President Abraham Lincoln, presided over the appeal. Chief Justice Chase ruled against Mr. Griffin, finding that Section 3 did not disqualify Judge Sheffey, despite the fact that he had taken an oath to support the U.S. Constitution and that it was “admitted,” as the case stated, that he later committed a Section 3 disqualifying offense.Chief Justice Chase reasoned “that legislation by Congress is necessary to give effect to” Section 3 of the 14th Amendment — and that “only” Congress can enact that legislation. Chief Justice Chase added that the exclusion of disqualified office holders “can only be provided for by Congress.” Congress must create the procedure that would determine if a defendant violated Section 3. Section 5 of the 14th Amendment emphasizes this principle: Congress, it states, “shall have the power to enforce, by appropriate legislation, the provisions of this article.”In short, Griffin’s case teaches that in legal terms, Section 3 is not self-executing — that is, Congress must establish, or at least authorize, the process that affords accused insurrectionists an opportunity to contest the allegations brought against them.Mr. Cawthorn and Ms. Greene deny that they engaged in insurrection and oppose any assertion that they violated the law, which would include Section 3 disqualifying offenses. Moreover, in the Cawthorn and Greene cases, the plaintiffs have not pointed to any federal legislation authorizing the states to police Section 3 by disqualifying accused insurrectionists from the congressional ballot. Without federal authorization, state elections boards and even state courts could very well be powerless to make determinations about congressional candidates and Section 3.There may be another way, based on an existing statute, to disqualify a candidate from congressional ballots: the Insurrection Act of 1862. This legislation, which predated the 14th Amendment, mirrors one of the disqualifying offenses established in Section 3.The modern Insurrection Act is virtually unchanged from the statute Lincoln signed in 1862. If the Justice Department indicts and succeeds in convicting Mr. Cawthorn, Ms. Greene or others of insurrection under that act, then on that basis, state elections boards and state courts may remove these candidates from the congressional ballot.Representative Madison Cawthorn of North Carolina.Stefani Reynolds for The New York TimesBut so far, the Justice Department has not charged any congressional candidates with inciting or engaging in an insurrection or with any other disqualifying offenses. Most of the Jan. 6 federal charges have been based on things like property crimes or for obstructing official proceedings or assaulting officers rather than insurrection.If the Justice Department does not secure a conviction of a Section 3 disqualifying offense before the state ballot is printed (the primary in North Carolina is scheduled for May 17 and the one in Georgia for May 24), then, generally, state boards of election and even state courts will be powerless to remove otherwise eligible congressional candidates from the ballot.Recently, some scholars and advocates have contested Chief Justice Chase’s opinion in Griffin’s case as precluding the state challenges against Mr. Cawthorn and Ms. Greene. In their view, even in the absence of a federal statute, state election officials who conclude that a person engaged in insurrection may proceed to remove that candidate from the congressional ballot. There is no Supreme Court precedent that squarely forecloses that position. Moreover, Chief Justice Chase’s decision was not rendered by the United States Supreme Court, and so it is not controlling precedent. On Monday, a federal court in Georgia allowed the state court disqualification proceeding to go forward against Representative Greene. The federal judge did so without citing or distinguishing Griffin’s case.Still, we think the chief justice’s opinion is persuasive; we expect state and federal courts, including the U.S. Supreme Court, will likely follow this historically entrenched position. Chief Justice Chase’s approach is the simplest path. If the courts find that Section 3 is not self-executing, there is no need for state election officials to decide far more politically charged questions about whether Mr. Cawthorn and Ms. Greene — and potentially, looking ahead to 2024, Donald Trump — engaged in insurrection.Congress has not authorized the states to enforce Section 3 by striking congressional candidates from the ballot. Thus, state courts and elections boards lack jurisdiction to exclude alleged insurrectionists from the congressional ballot. In such circumstances, state governments must let the people decide who will represent them in Congress.Josh Blackman is a law professor at South Texas College of Law Houston. S.B. Tillman is an associate professor at the Maynooth University School of Law and Criminology. They recently wrote a law review article about the application of Section 3 of the 14th Amendment to President Trump.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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      Mike Lee and Ted Cruz Fought So That One Man Wouldn’t Have to Face the Pain of Defeat

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      Ted Cruz of Texas and Mike Lee of Utah are two of the most prominent “constitutional conservatives” in the Senate. They built their political careers on their supposed fidelity to the Constitution and the original intent of the founding fathers. Cruz made his constitutional conservatism the centerpiece of his 2016 campaign for president, while Lee has written three books on the founding era and presents himself, to the public, as a constitutional scholar rather than a mere politician.It is interesting, then, that Lee and Cruz were among the Republican senators most involved in Donald Trump’s attempt to subvert the Constitution and install himself in office against the will of the voters.As The Washington Post reported last month, Cruz worked “directly with Trump to concoct a plan that came closer than widely realized to keeping him in power.” According to this plan, Cruz would object to and delay the counting of electoral votes on Jan. 6 in favor of a 10-day election audit that would give Trump-friendly state legislatures time to overturn the result and send new electors to Congress.And as CNN reported last week, Lee was in close contact with Mark Meadows, then the White House chief of staff, in the months, weeks and days before the Jan. 6 attack. Lee supported and encouraged the president’s effort to overturn the election, with both ideas and political assistance. “I have an additional idea for the campaign,” he wrote to Meadows on Nov. 23, 2020. “Something is not right in a few states. I think it could be proven or disproven easily with an audit (a physical counting of all ballots cast) in PA, WI, GA, and MI.”Two weeks later, Lee would tell Meadows, “If a very small handful of states were to have their legislatures appoint alternative slates of delegates, there could be a path.” And on Jan. 4, 2021, Lee told Meadows that he had been “calling state legislators for hours today, and am going to spend hours doing the same tomorrow” in hopes of finding “something from state legislatures to make this legitimate and to have any hope of winning.”Lee eventually voted to certify the results of the presidential election and had previously told journalists, and the public, that he was dismayed by the events of Jan. 6. In their book covering the insurrection, “Peril,” Bob Woodward and Robert Costa report that Lee “was shocked” by the conservative legal scholar John Eastman’s plan to delay final certification of the election and “had heard nothing about alternative slates of electors.”But the truth is that Lee was with the president from the start. His only real objection — the only thing that gave him pause — was that Trump and his allies had not crossed their “T’s” or dotted their “I’s.” Which is to say that they had not done the work necessary to give their attempted self-coup a veneer of legality and constitutional fidelity. Or, as Lee wrote to Meadows, “I know only that this will end badly for the president unless we have the Constitution on our side.”Cruz and Lee were not the only “constitutional conservatives” to support Trump’s attempt to keep himself in office after losing the Electoral College vote (to say nothing of the popular vote). Their participation in the plot, however, tells us something important about what it actually means to be a “constitutional conservative.”The term is supposed to convey a principled commitment to both the Constitution and the institutions of the American republic it helped bring into being. But if Cruz, Lee and other “constitutional conservatives” have any commitment to the Constitution, it is only to the letter of the document, not its spirit.The spirit of the Constitution, of the Philadelphia Convention and everything that followed, is embodied in self-government. The point of the deliberation and experimentation of the founding moment was to find some ground on which the American people, however narrowly defined, could live out the principles of the Revolutionary War they had just fought and pursue their common interests.Whatever the specifics of the governing charter, the essential idea was that this government would be one that, as James Madison wrote, “derives all its powers directly or indirectly from the great body of the people.”The people have, for now, agreed to elect the president through a process that gives a good deal of discretion to a broad range of officials, some elected, some appointed, but all working with legitimate authority. In the main, they used that authority to allow as many people to vote as possible, in accordance with our laws and our norms.If, under those conditions, Donald Trump had won the 2020 presidential election, neither Cruz nor Lee nor anyone else in the Republican Party would have disputed the outcome or contested the process. It would have been a shining example of the strength of our republic.But he did not win, and so our “constitutional conservatives” fought to undermine and overturn our institutions so that one man would not have to face the pain of defeat. Which gets to the truth of what that “constitutional conservatism” really seems to be: not a principled attempt — however flawed in conception — to live up to the values of the founding, but a thin mask for the will to power.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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      Effort to Remove Marjorie Taylor Greene From Ballot Can Proceed, Judge Says

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      The case that Ms. Greene unsuccessfully sought to have dismissed mirrors efforts against other Republicans centered on the Jan. 6, 2021, attack on the Capitol.A federal judge cleared the way on Monday for a group of Georgia voters to move forward with legal efforts seeking to disqualify Representative Marjorie Taylor Greene from running for re-election to Congress, citing her role in the Jan. 6, 2021, attack on the Capitol.The disqualification effort is based on a constitutional provision adopted after the Civil War that barred members of the Confederacy from holding office. It mirrors several other cases involving Republican members of Congress, whose roles leading up to and during the deadly riot have drawn intense criticism.The judge, Amy Totenberg, who was appointed to the U.S. District Court for the Northern District of Georgia by President Barack Obama, denied Ms. Greene’s request for a preliminary injunction and temporary restraining order in the high-profile legal feud.Ms. Greene, 47, who is known for her unflinching loyalty to former President Donald J. Trump and for her clashes with Democrats, has steadfastly denied that she aided and engaged in the attack on the Capitol.In the 73-page ruling, Judge Totenberg wrote that Ms. Greene had failed to meet the “burden of persuasion” in her request for injunctive relief, which she called an extraordinary and drastic remedy.“This case involves a whirlpool of colliding constitutional interests of public import,” Judge Totenberg wrote. “The novelty of the factual and historical posture of this case — especially when assessed in the context of a preliminary injunction motion reviewed on a fast track — has made resolution of the complex legal issues at stake here particularly demanding.”James Bopp Jr., a lawyer for Ms. Greene, said on Monday night that the ruling was flawed and minimized the adverse effect that the disqualification effort was having on Ms. Greene’s right to run for office.“This is fundamentally antidemocratic,” Mr. Bopp said, maintaining that Ms. Greene had “publicly and vigorously condemned the attack on the Capitol.”He called the effort to remove her from the ballot part of a well-funded nationwide effort to strip voters of their right to vote for candidates of their choice, with elections determined by “bureaucrats, judges, lawyers and clever legal arguments.”In her request for an injunction, Ms. Greene argued that it would be impossible to fully resolve the case before Georgia holds its primary elections on May 24. Absentee ballots will start to be mailed on April 25, Ms. Greene’s motion said.In the ruling, Judge Totenberg determined that Ms. Greene had failed to prove that there was a strong likelihood that she would prevail on the merits of her legal claims. A state administrative judge is scheduled to hear the case on Friday.The decision by Judge Totenberg stood in stark contrast with a recent ruling in a similar case involving Representative Madison Cawthorn in North Carolina. In blocking that disqualification effort, U.S. District Judge Richard E. Myers II, an appointee of Mr. Trump, ruled that the 14th Amendment of the Constitution narrowly applied to members of the Confederacy after the Civil War.Ms. Greene’s critics have said that she frequently referred to efforts to challenge the 2020 presidential election results as “our 1776 moment” in public comments that led up to the riot at the Capitol. They contend that the phrase was a code used to incite violence, and point to the third section of the 14th Amendment in their argument to drop her from the ballot.That section says that “no person shall” be a member of Congress or hold civil office if they had engaged in insurrection or rebellion after “having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State.”Capitol Riot’s Aftermath: Key DevelopmentsCard 1 of 3Debating a criminal referral. More