Fourteenth Amendment (US Constitution)

Every Tuesday and Friday, Ezra Klein invites you into a conversation about something that matters, like today’s episode with David French. Listen wherever you get your podcasts.Transcripts of our episodes are made available as soon as possible. They are not fully edited for grammar or spelling.Should Trump Be Barred From the Ballot?David French walks us through the -constitutional battle over whether the ex-president can run again.[MUSIC PLAYING]EZRA KLEIN: From New York Times Opinion, this is “The Ezra Klein Show.”[MUSIC PLAYING]So before we begin today, we have a couple of open jobs on the show. One, a researcher role which will be central in our political and policy coverage in 2024, and an associate engineer role who will be helping to engineer the show, making this whole thing happen, making it into actual audio that sounds good. If either role seems up your alley, you can find the links to them in our show notes.[MUSIC PLAYING]I find it almost impossible to fully apprehend how crazy this political moment is. So we’re here, we’re on the eve of the Iowa caucus. Donald Trump is leading the polls by over 30 percentage points. He leads in the New Hampshire primary. He leads in the Republican race overall. I mean, he’s breached 60 in a bunch of those polls. It’s a huge dominant lead. He’s neck and neck with Joe Biden when you do horse race polls for the general.So Trump looks overwhelmingly likely to be the nominee for Republicans. He has a even odds shot of being the next president. And at the same time — at the same time that is all happening, the Colorado Supreme Court ruled that Trump is disqualified from the ballot because of his efforts to overturn the election on Jan. 6 — constitutionally disqualified. No different than if he wasn’t old enough.In Maine, the Secretary of State followed Colorado’s lead. States across the country are now weighing ballot disqualification measures against Trump. The Supreme Court is going to take up the case.And this is happening, again, at the same time that Trump has four criminal suits against him with over 90 internal charges in them that are all going to trial in different ways, or motions, immunity motions.So you have Donald Trump here in an overwhelming amount of legal and constitutional trouble at the same time that he is romping to the nomination — romping, potentially, to the general election.It’s hard to know what to think about all this because it requires you to weigh really profound questions against each other, right? The questions of letting people choose their candidates in a democracy or abiding or even understanding the Constitution’s guardrails for protecting that democracy.But one person who I think has been doing a really good job weighing all this, and he’s done it on the show before, is my fellow columnist at The New York Times, David French. I had him on a while ago to talk about the beginnings of Trump’s legal troubles. Then when I was on my book leave, he guest-hosted the show, looking in depth at the criminal suits. I would still very much recommend that show as a great introduction to that side of it.But I wanted to have him on to talk about the ballot disqualification questions and whether or not Donald Trump should be allowed to run or whether it is unconstitutional for him to be on the ballot in 2024. I will note, my voice is a little hoarse throughout this. I’m recovering from that cold and cough going around everybody right now.But as always, my email is ezrakleinshow@nytimes.com.[MUSIC PLAYING]David French, welcome back to the show.DAVID FRENCH: Thanks, Ezra. Thanks for having me back. I appreciate it.EZRA KLEIN: A lot has happened since you’ve last been here, and I want to begin with the big news, which is Colorado Supreme Court coming out and saying Donald Trump would not be on the ballot, that it would not be constitutional to put him on the ballot. What was their reasoning?DAVID FRENCH: Yeah, the reasoning is really pretty simple, that Donald Trump’s conduct leading up to and on Jan. 6, 2021, was encompassed by Section 3 of the 14th Amendment, which prohibits anyone from holding office who, having once taken the oath of office, engages in insurrection or rebellion against the Constitution of the United States or gives aid or comfort to an insurrection or rebellion.And it was essentially saying, look, Donald Trump was an officer of the United States who previously took an oath of office, committed insurrection or rebellion, and by the Section 3 of the 14th Amendment, ratified after the Civil War, is just as disqualified from holding office as if he was too young or not a natural born citizen.EZRA KLEIN: This is a clause that is trying to deal with the problem of political popularity among an insurrectionist. Because something you hear right now when the question is whether it should apply to Donald Trump is, look, this should be up to the people. The public should get to vote for who they want to be president. And this is a clause explicitly trying to deal with what is at least seen to be a coming problem, which is, what if enough of the public wants to vote for an insurrectionist?DAVID FRENCH: Yes, and this is something, Ezra, I’m so glad you brought it up right up front. This is an anti-democratic provision in the United States Constitution. Now, you can pull back and sort of say, wait a minute, David, why would you use language like anti-democratic, or maybe another way of saying it would be counter-majoritarian. Why would you say that?Because really, truly, a democracy can’t flourish if insurrectionists are elected to office. They can kill the very democracy that put them into office. So it really is in a more meta level pro-democracy. But it really is truly a counter-majoritarian provision of the Constitution of which, Ezra, as we all know, there are many counter-majoritarian provisions in the Constitution. And so —EZRA KLEIN: Yes, I find many of them quite frustrating.DAVID FRENCH: Yes. [LAUGHS] Exactly.EZRA KLEIN: As a Californian with barely any Senate representation.DAVID FRENCH: Exactly. You’ve got the same Senate representation as Wyoming.EZRA KLEIN: Exactly.DAVID FRENCH: I mean, there’s the electoral college. There’s the Senate. There’s the whole Bill of Rights. We have a lot of counter-majoritarian guidelines that limit the reach and scope of our democracy. So that’s the way liberal democracy is. Liberal democracy — a good way of thinking about it is democracy with guardrails.And some of the guardrails are deliberately designed to prevent majoritarian oppression and tyranny. So a majority can’t vote away your First Amendment rights. A majority can’t vote away your rights to equal protection under the law or your due process rights. So all of these things guard and protect people against majoritarian tyranny.And so here what you have is a counter-majoritarian provision of the Constitution enacted quite deliberately because the framers of the amendment, the authors of the amendment, believed and had seen that majorities can elect insurrectionists. And insurrectionists can be fatal to a constitutional republic. And so it’s quite deliberately designed to be a check on majority power in this limited sense.EZRA KLEIN: Tell me about the context in which that amendment and that clause got adopted. What were the authors of it trying to prevent?DAVID FRENCH: Yeah, this is very, very important. So following the Civil War, what you had was a situation where a big chunk of the country is essentially under military occupation. Confederates were not being prosecuted, certainly not at any scale. And in fact, in 1868, confederates were pardoned by President Johnson.So there was still, though, a question, what do we do about the fact that we have former Confederate soldiers. You had the Confederate officers. You had Confederate politicians. And these were the people who ran the Confederacy, who, before the war, many of them had been public officials in the United States.And if Robert E. Lee wanted to, he could run for Senate and win and be a Senator from Virginia. He could have a host of Confederate generals who could immediately return to government. If he had universal franchise, and the Confederate citizens who were back to American citizens again voted, they’d bring these a host of Confederates back into Congress.And so they were treasonous. They were insurrectionists. They were rebellious. But also, they still had the support of segments of the Southern population. So what do you do? How do you reintegrate a country together after it’s been torn apart in such a horrific way?And so the balance that was struck was we’re not prosecuting everyone, but here’s what we are going to say, is if you participate in insurrection or rebellion, and you’ve previously taken an oath of office — in other words, you’re an oath-breaker — then you can’t return into government, unless Congress, by ⅔ majority in both houses, says that you can.And so this was a way of, if you look at the greater context of it, there was the open hand being extended to former Confederates that says, we’re not going to prosecute you, we’re not going to strip you of your property, we’re going to be remarkably generous given the gravity of your crime. But at the same time, there was a pretty modest restriction, which was, but we’re not going to let you help run the place.EZRA KLEIN: So I want to go back now to a different part of the history here. We’ve talked a bit about how Article 14, Section 3 emerged. But my sense of how it emerged with the force it has in this political moment is that there was actually a law review article, unusually, that maybe changed the world a bit. And this is a piece by William Baude and Michael Stokes Paulsen called “The Sweep and Force of Section 3.”And what’s interesting about Baude and Paulsen is they’re both members of the Federal Society. They’re conservative legal scholars in good standing. They decide to study this for a year. And they come out with this blockbuster article saying this is real, this does apply to Trump, and we need to take it seriously.And I take much of the core of their article — not the only thing in it — but part of it to be how they define insurrection. Looking through the textual record to try and understand what insurrection meant when this part of the Constitution was framed. So how do they do that? What is their work and what is their conclusion there?DAVID FRENCH: Yeah, so this — I’m so glad you brought up the article. And it really is sort of unique amongst law review articles. I was talking to Will Baude, shortly after the article came out, and asking about the download numbers. So your normal law review article might have a few dozen, but they had crossed 100,000 very quickly.And the article itself, it’s a long read. It’s more than 100 pages. It’s a tour de force of legal analysis in a very specific way. It’s a tour de force of originalist legal analysis.I want to put my finger on that, Ezra, because this disqualification argument did not get its full force through a progressive legal interpretation of the Constitution, through progressive legal scholars or liberal legal scholars. This came from an originalist interpretation from Federalist Society conservative scholars. And not just any scholars, but two really of the most respected, two of the heavyweights in the conservative legal world. These folks are extremely well respected and admired.And so what they did is they did a classic conservative legal analysis, which is let’s start with text. Text is king. Let’s start with text. And the text is really easy to understand. I’ll read it right here. It’s pretty short and basic.“No person shall be a Senator or representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States or under any state, who, 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, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same or given aid and comfort to the enemies thereof. But Congress may, by a vote of ⅔ of each house, remove such disability.”So they took a look at that really basic statute and they then do the historical spadework of saying, what would be the historical public meaning of these words? That’s what originalism is. It is not the original intent. It is the original public meaning. So for example, insurrection or rebellion — what would that have meant to the framers of this — and to the Republic when this was passed? What would that have meant?And so when you begin to look at the historical record — and Baude and Paulsen have done it. A number of other folks have done it. That you really realize that the insurrection definition and the perception of insurrection that was in play at that time was absolutely broad enough to encompass the Jan. 6 attack. Absolutely broad enough.And now, remember, Ezra, this is not a provision — while it was motivated by the Confederacy, by its terms, it does not apply only to the Confederacy. They could have written it like that. They could have said that any person who served in the Confederate army during the previous rebellion or in the Confederate government during the previous — they did not limit it that way. They quite intentionally said insurrection or rebellion.And when you go and you look at everything from Shays’ Rebellion to the Whiskey Rebellion to various forms of revolt against public authority, what they concluded is the definition is certainly broad enough to encompass a violent attack on the Capitol conducted for the purpose of essentially pre-overthrowing the elected government that was about to come into office, to block an elected government from coming into office.It was an attempted coup, in many ways. Although it wasn’t — he was in power at the moment. It was a coup to try to retain power, to block the peaceful transition of power. And the argument is, essentially, that’s exactly what an insurrection means is you’re talking about a violent attack, motivated by a political or public purpose, that would disrupt the governing and the routine transfer of power in the United States.So this was, Ezra, if you’re somebody like me, who is partial to originalism as a method of legal analysis, it was a great advertisement for originalism. Because this is what it looks like. This is how it’s done. This is how it makes sense. And this is how it helps us understand provisions of an amendment that you might question or have concerns about its meaning or understanding.EZRA KLEIN: So let me take on the role of Trump’s defense here, a role I often take on in my life.DAVID FRENCH: [LAUGHS] Constantly.EZRA KLEIN: So what I might say here is that’s all true. Donald Trump did not engage in insurrection. He believed the election was fraudulent. He was consuming information, sources telling him that. He had tried to organize or encourage a protest. That protest turned violent. It turned into a riot.But that is different than Donald Trump engaging himself in insurrection. He might have been a little bit supportive of it. He didn’t stop it. But he even told them to protest peacefully and patriotically.And there is nothing in there that says that a president who believes an election has been rigged against him should not encourage his voters, his supporters to protest, should not call up secretaries of state and try to get them to run an honest election. That Donald Trump was well within the law, he was well within his speech rights. And yes, there are people who engaged in insurrection on Jan. 6, but Donald Trump was not one of them.DAVID FRENCH: Well, Ezra, as Mr. MAGA for purposes of this podcast, I would agree with you.EZRA KLEIN: I look forward to my listener email.DAVID FRENCH: I agree with you if you had accurately described the facts. But you did not accurately describe the facts. Because what we we’re dealing with here wasn’t just a protest. It wasn’t just an effort to organize a protest. It certainly wasn’t just an effort to ask or plead with state officials to take a look at voter fraud. Everything here went well beyond the bounds of all of the lawful activities you just described.So if you back up and you take a look at what is an insurrection or rebellion, how does an insurrection or rebellion take place — and so you have the Confederacy, many members of the Confederacy were operating under the presumption that they had the right to vote, a right of self-determination that they could vote to leave the Union. The Union was not an eternally binding union but a voluntary union.And so members of the Confederacy very much believed that they had a legal right to do what they were doing. And many times believed they were standing in the shoes of the revolutionaries, the 1776 generation who were engaging in their own act of self-determination.So there’s almost always going to be a legal argument or a legal pretext to some time then supplemented by violent action. And what we had here was a combination of legal subterfuge and violent action, and Donald Trump was involved in both — both elements. Not either one of them happens without his involvement. And the legal subterfuge, of course, has been — and charged by Jack Smith — and includes, for example, the fake electors scheme where people were presenting themselves as genuine electors when they had not won the vote in their state.And then you look at Jan. 6, the record is incredibly damning for Trump. So not only does he summon the crowd. There are repeated instances of him telling the crowd to come on Jan. 6, including talking about how it’s going to be wild. We now have sworn testimony that Trump knew the crowd was armed.We have sworn testimony that Trump had even urged that the mags, the metal detectors that were used to try to prevent people who have weapons from getting close access to a president, that he urged that they be removed or pulled back, because he understood that the armed crowd wasn’t there to do him harm.Then he tells the crowd to go to the Capitol. And yes, he does say peacefully and patriotically. But when you’re looking at the test, Ezra, of whether a speech is actual incitement to violence, there’s not any one single set of magic words that inoculate you against an incitement to insurrection or incitement to rebellion kind of analysis because you look at the whole of the situation, which also included Rudy Giuliani telling the crowd, this we’re about to be on trial by combat.The entire thing is whipping the crowd into a frenzy. He brings the crowd, knows they’re armed, demands that they go to the Capitol, says they should fight like hell. All of this was set up for what occurred.EZRA KLEIN: How about this question of intent or belief? Elections do get rigged. They do get stolen. If Barack Obama or Joe Biden was seeing real evidence that an election had been rigged against him, I would expect them — I would want them to try to fight to make sure the election was fair.One argument you hear from MAGA types is that Donald Trump believed this. If you look at the calls he’s making to people like the Georgia Secretary of State, if you look at the things he’s saying, he appears to believe, so much as we can say what Donald Trump ever believes, which I think to be actually an ontologically difficult thing to do.But he believes there has been a wide scale theft here, and that actual belief, the fact that he is trying to right what he believes to be a Democratic wrong, is protective here. Is that true?DAVID FRENCH: No, not really. So this is actually cracking the door open to a really important part of the discussion, which is how much of what we’re talking about has to be proven in the way that you prove a criminal case. Now, it’s true that the intent element is a necessary part of the proof in the criminal case against Trump, both the Jack Smith Jan. 6 case and the Fani Willis Georgia case. Varying kinds of proof of intent are required.So it’s actually not the case that you have to prove that Trump knew he lost the election. In many of these counts, especially in Georgia, you just have to prove that he knew what he was saying in that specific instance was not true. So if he knew what he was saying when engaging with public officials in Georgia was false, then he’s in a world of hurt, to use legalese.And so there are intent requirements that are embedded, to varying degrees, in each one of the criminal statutes he’s been charged with related to Jan. 6 in the election. This is not a criminal statute. You can’t look at this in the same way as a proof problem like you have the same proof problem with a criminal statute. Why do we know there’s a distinction here? Because the amendment does not require a criminal conviction. It doesn’t.And again, let’s look back at the historic context. Why would they do that? And the answer is pretty easy to state, because, remember, this was enacted after a time in which already an enormous amount of amnesty had been granted to Confederates. And the idea that they were going to prosecute each and every former Confederate and Confederate official would have been extraordinarily burdensome, just extraordinarily burdensome.And besides, there wasn’t really that much of a proof problem. You had an actual army that existed, that had ranks, that had records. And so it wasn’t exactly a secret. It wasn’t hard to determine whether any given Confederate officer or official was a Confederate officer or official. And it wasn’t difficult to determine that the Confederacy was an insurrection or rebellion.Here, it’s a little bit different. It’s not really that hard to determine who was at Jan. 6. It’s not hard to determine Trump’s actions around that day and around that time. There are some disputes on the edges and on the margins, but we know the broad brushes of the story. And the real question then is not, did Trump do X, Y, and Z? The real question is, did X, Y and Z constitute an insurrection or rebellion?EZRA KLEIN: So you say this does not require a criminal conviction, which is true. But it isn’t clear what it does or does not require. So if it did require a criminal conviction, at least we know the venue in which it needs to be proven.But one of the questions I have seen different lawyers bringing up here, and one way I think some people believe the Supreme Court is going to slip out of deciding this, is around this question of a venue. And another way of putting it is, is this provision self-executing?So in Colorado, this gets decided inside the election code. That’s where the dispute is brought. In Maine, it’s a secretary of state making the decision. There’s fear of what happens if you have every secretary of state and election official and election system making its own determinations.And so there is this argument that this is not self-executing. You would need Congress to somehow decide where the decision needs to be made about whether or not Donald Trump is an insurrectionist for this to hold. So can you talk a bit about that question of self-execution?DAVID FRENCH: Yeah, that’s a really good and important question. So it really has two components to it. The first component is, does Congress have to enact legislation that says, here’s the circumstances under which we apply this section of the amendment, here are the rules for challenging, here’s the standard of proof, et cetera, before it can be applied? So that’s one question. Does this operate without Congress doing anything?I think from the text, you can see it’s self-executing. And how does the text portray that? Because the very last sentence says, “But Congress may vote of ⅔ of each house to remove such disability.” So what it’s saying is this is operative until Congress votes to remove it. So it’s already operating.And so, first, it is self-executing in the sense that we don’t need an act of Congress to put this into play. We do need acts of Congress to remove it from play.The other question is, if that kind of legislation is not required, what sort of processes do a candidate who might contest whether they engaged in insurrection or rebellion, who doesn’t agree that they were an insurrectionist or rebellion, isn’t there some form of due process? Shouldn’t they have an opportunity to contest that claim? And Ezra, this is where we’re going to get really wonky.The government is required to give you process — due process — before it takes your life, it takes your liberty, takes your property. And so his life is not at stake. His property is not at stake. Does he have a liberty interest at stake here? And the answer would be he has a liberty interest in running for president or running for public office.And when you’re looking at due process analysis, a lot of the process, the level of the processes due is related very much to the strength of the liberty interest in play. So for example, if you’re dealing with life in prison, which would be short of death, the most draconian restriction on liberty possible from the government, there’s a lot of process that’s due. That’s the criminal proof beyond a reasonable doubt, rights of appeal, habeas relief. I mean, all of these things come into play.But what if the liberty interest is, I want to run for president of the United States? Well, the level of process that’s going to be due there is not going to be — if you look at the history of how we look at these things — anything like the level of process required in a criminal case. That’s just not going to be required if the liberty interest at stake is me running for president.Now, that doesn’t mean that there isn’t a constitutional requirement to give Trump a fair process to challenge the findings. And in this circumstance, I think Colorado is coming to the situation from a pretty strong perspective. There was notice. There was an opportunity to be heard. There was a hearing. Maine is a little different. You had a secretary of state making a decision there, less formal legal process.But I think there is not going to be, Ezra, requirement for criminal-style legal process before the imposition of this section because the liberty interest in running for office is not the same, say, for example, as the liberty interest in trying to stay out of prison. And so I think the actual process given Trump through the Colorado process was probably sufficient. But, of course, that’s not up to me.EZRA KLEIN: I’m not sure I’d fully buy this. I mean, I take your point that for any individual running for president is not an extraordinary question of liberty. But for the country, who can run for president and who can appear on different ballots is a pretty important question.And if you have a process that is completely undefined, and you can be thrown off by secretaries of state of which some are sober and take their duty seriously and some are not, if you can be thrown off by pretty modest hearings within a state’s kind of election systems, you can imagine that going in a lot of very strange directions, right?I am more on the liberal side. I think some of the things that the right has convinced themselves of around Joe Biden or Hillary Clinton or Barack Obama being from Kenya in recent years — if you take the precedent here, you can imagine a similar birther controversy playing out very differently, where all of a sudden you now have random states throwing Barack Obama off of the ballot, or somebody like Barack Obama in the future. I know I’ve messed up the time continuum here.I mean, do you really by the Supreme Court would go that way? And don’t you think there’s a real problem there?DAVID FRENCH: I think the main situation is very sketchy if you’re talking about any kind of meaningful due process. Again, the Colorado situation is there was much more robust process there.But I’m also going to push back a little bit here, because, again, what we’re not wrestling with here is what we think the framers of the 14th Amendment should have done, but what we’re wrestling with here is what they did — and what they did and did not do.And what they absolutely did not do is require a criminal conviction. They absolutely did not do that. They also did not specify a process. And so what we’re dealing with is a section of an amendment that is broadly written without a requirement of a criminal conviction.And how do we know this is really broad? Because it’s not just saying, “engaged in insurrection or rebellion” against the same, it also has this really kind of squish language in it that says “or given aid or comfort to the enemies thereof.” And so in that circumstance, what are they aiming to do here? What is the meaning of this? The meaning is a very strong message that insurrectionists or rebels cannot regain access to government.So what we’re dealing with here, Ezra, is really something that’s kind of opposite of what you’re talking about. It’s creating, in many ways, a presumption against eligibility, because if there was an insurrection or rebellion, and you engaged in it or you gave aid or comfort to it — aid or comfort — again, broad words — then, sorry, you don’t get to run.It’s very valid to say, should this have been written this way? Isn’t it preferable to say that there should have been a criminal conviction? Isn’t it preferable for the amendment to have laid out a precise process? Or maybe even a better way of putting it, isn’t it preferable, Ezra, that Congress would have already acted under the power given to it by the 14th Amendment to specify a process?I think those are all very valid questions — policy questions. This is a broadly worded section of the amendment, for better and for worse. And some of the implications can get a little alarming. But there are remedies for that. And the remedies include, well, get Congress to act, to specify a process. That’s one remedy. Another remedy would be to amend the section of the Constitution.But as of right now, this is the section. And by the way, even though it’s kind of broadly written, it’s broadly written about a very narrow circumstance — insurrection or rebellion. And so that’s why this has not been an issue since it was enacted. I mean, this has not been something that has dominated American conversation since it’s been enacted, for multiple reasons, but mainly, insurrection and rebellion, mercifully, is pretty rare in the United States of America.[MUSIC PLAYING]EZRA KLEIN: You have many advantages in this conversation over me as an actual lawyer familiar with constitutional interpretation. I think the only one I have over you is I am not an actual lawyer versed in constitutional interpretation And I don’t believe this Supreme Court is originalist in any kind of consistent way. And I believe they — and I think I’m right about this — routinely come to the positions and solutions they feel they need to come to to get to the outcomes they want. And I just am not somebody who believes in the mystique of the court. And I’m not somebody who believes they decide things non-politically or non-ideologically.And so other courts have looked at this and have not come to the view of Colorado, including California, which declined to throw Trump off of the ballot when they looked at it. And when I think about the Supreme Court, I just find it very hard — and we should note, in Colorado, there’s a split bench on this. The decision was not unanimous. Colorado put a stay on its own ruling, assuming the court would take a look at this. And the court is going to take a look at this. They’ve said that already.How do you really imagine this going? I understand your interpretation of this part of the Constitution. But what do you think of their interpretation of both this part of the Constitution and their role, which I think they sometimes at least play into, of being some kind of stabilizing force in the country?DAVID FRENCH: So I’m going to partly agree with you. I do think it is a very heavy lift to ask the Supreme Court to declare, in essence, that the front-runner for the Republican nomination has either given aid or comfort to a rebellion or engaged in a rebellion.At a gut instinct level, it’s kind of hard for me to see the Supreme Court doing something this dramatic. But at the same time, every time I dive back into the text and the history, which is what should be governing the court right now, it leaves them with fewer and fewer options because the text and the history here is really strong against Donald Trump.And so what you’re dealing with — Trump’s best case is something more along the lines of, do you really want to do this? Is this something you really want to do? Any time you’re walking into a Supreme Court courtroom and asking the Supreme Court to take truly unprecedented action, even ifthat unprecedented action is constitutionally grounded, it’s a heavy ask. It’s a heavy lift. But at the same time, we can look through history — and the record here is kind of spotty. Many times the court will decline to take that heavy load and often will leave in place unjust systems.But sometimes the court says, we have to act. The text of the Constitution does not permit this current situation no matter how deeply entrenched it is in the United States. So an example of that is Brown v. Board of Education. Even though the Southern states, they reacted with all of this massive resistance — there was violence, people died — the Supreme Court was right to say the Constitution does not permit this abomination of segregation. They were right. Even though it was a heavy lift, a huge ask, extremely disruptive, so to speak, of the existing status quo, they imposed the Constitution.So a conservative would then look and say, hey, here’s another recent example where the Supreme Court did what it believed the Constitution required it to do even if the consequences created massive political repercussions across the United States. And that was Dobbs.Or you could look in recent presidential politics and say, has the Supreme Court ever stepped in to a presidential contest and settled it? Well, Bush v. Gore.And so you can look at history and you can say, here’s example A, example B, example C of the Supreme Court stepping in in a very decisive way that was quite disruptive to the status quo.But also, at the same time, Ezra, you can point to multiple examples where the Supreme Court said, no, we’re not going to do that, for the reasons you articulated, that there’s also a lot of other things that are often swirling around in justices’ mind. One of the things I always say about judicial analysis is judges are people, too. There is no such thing as sort of Justice Tron 9000 who dispenses justice without any kind of personal connection or an underlying human legal philosophy.As I wrote in the Times last week, republics are not defended and maintained by cowardice. If the Supreme Court, in its legal judgment, believes that Section 3 of the 14th Amendment encompasses the president, and he engaged in insurrection or rebellion, then its obligation is to disqualify him.Now, I do know and do understand there are legal arguments against the position that I’m taking. And I don’t think anyone should say that the court’s illegitimate if it doesn’t do it. But I think the arguments are overwhelming that he is disqualified. And I would hope that every branch of American government would have the courage to uphold the Constitution and to sustain the objection.EZRA KLEIN: I think from the perspective of somebody who is more pro-Trump than I am — but I do understand this perspective, just from the ambient miasma of having cable news on the televisions in the office all the time — you have this guy who it feels like every possible count, indictment, obstacle in the world is being thrown at him now by the Biden government. Now, it’s not obviously all by the Biden government. There are state attorney generals here and prosecutors and so on.But nevertheless, you have 90 some indictments in four criminal cases. And you have now this growing movement to strike him from the ballot. And I think it creates this feeling that Donald Trump is being treated in a way no American politician, including some who actively fomented armed revolution, has been in history.DAVID FRENCH: Almost certainly you’re correct. He is being treated differently at this point in time than any other president in American history. However, you have to ask why. Now, the MAGA argument is because you hate him and you’re persecuting him, this innocent man who stands in for the hatred or the persecution you would direct at us. I mean, this is literally, Ezra, as we have seen — essentially, the ethos of MAGA is they are coming for Trump in lieu of coming for them. This is a constant refrain you hear.But the reality is he’s being treated differently because he behaved differently. He’s having unique prosecutions because he has behaved uniquely. In each of the four indictments, there’s either absolute proof of or strong evidence exists that Trump is engaged in criminal conduct. With such evidence that he’s engaged in criminal conduct, what are the options for a rule of law-oriented democracy that applies the rule of law to every single person? There is no king. There is no royalty or aristocracy that is immune from the rule of law.And so what has happened is Donald Trump, through his unique behavior, has created a unique dilemma for the United States government. And so that’s the situation that we’re in.So, yes, if MAGA looks at half of the picture and sees the unique treatment of Donald Trump, it enrages them. But they deny the validity of the other half of the picture, which is the uniquely unlawful behavior.EZRA KLEIN: This, to me, is an interesting talent and dynamic of Donald Trump, which is that he makes the institutions of American life act more like the thing he says they are because of the way he acts in the first place. So he makes the media seem more like an opposition party because he acts in such an outrageous, dishonest, wild, confrontational way that the media covers him more oppositionally.He makes the — it gets called the deep state — seem more like a cohesive thing arrayed against him because he is trying to undermine so many of the ways the government works, trying to get around so many of the laws, trying to break so many of the processes and procedures. He makes a judicial system go after him in ways it would probably prefer not to do because he so flagrantly violates the law, because he actually does end up trying to overturn an election.And then he can say, see, I told you, all these institutions are politicized. They’re against me. They’re against you. They are out to get us.DAVID FRENCH: Yes. [LAUGHS] That’s exactly what he does. I mean, and that’s exactly become the MAGA mindset. And it essentially goes like this, as you see from the grass roots up. And it is, we need a disrupter. We need someone who’s going to burn it all down. We need somebody who doesn’t play by the normal rules of politics. We need somebody who’s going to break things.And then when they elect a disrupter who tears things down, who doesn’t play by the normal rules of politics and breaks things, then MAGA says, why aren’t you treating him like every other politician? And it’s this double game that’s constantly played. And there’s a series.And another one is we are entitled to break the rules, we are entitled to engage in behavior that is threatening, that sometimes veers into violence, bullying, intimidation. And then if you hold us accountable for that, we’re going to respond by threatening more bullying and intimidation and accuse you of being destabilizing.And this is, again, the kind of game that is played. And always the rules apply to you and never do the rules apply to them. And this is a dynamic we’ve become incredibly familiar with since 2015.Now, that doesn’t mean that everything that everyone has done to oppose Donald Trump is either wise or lawful. I mean, for example, we have seen some wrongdoing that was uncovered at the FBI during the Russia investigation. But the bottom line is that we’re always in this asymmetric situation where MAGA grants itself enormous freedom of action and liberation from all norms, but tells you that, in response to their breaking of all norms, that you cannot deviate from your standard treatment that you’ve given politicians for the last 200 years.[MUSIC PLAYING]EZRA KLEIN: You wrote a book a few years ago that quite a bit of it was imagining ways that the United States could fall into Civil War. You had different scenarios there, but I don’t think one you had — although one you might now want to add — is this one, which is that you have the contested disqualification of a candidate.Or I think here’s another version of it. He is not disqualified. He wins despite losing the popular vote. He embarks immediately on a campaign of self-pardoning and widespread retribution against those who he feels wronged him. I mean, if you believe that Donald Trump believes he is in the right here, then to him there has been the greatest witch hunt in history with the Biden administration throwing everything it has to try to put him in jail, get him off the ballot. And he’s going to respond in kind.I mean, he had a Truth Social post where he says that in response to the kinds of abuses being thrown at him, even the Constitution must be suspended. The counterattack must be ferocious.I mean, do you actually think we have the capacity, in one direction or another, to endure this? Do we have the capacity to endure what it would mean to take him off? Or do we have the capacity to endure what it would mean if he is not taken off but wins and tries to respond in kind?DAVID FRENCH: I think that’s a tremendous question. In the branching tree of possibilities, as of right now, we don’t have one that I’m going to say is clearly stabilizing. You went through the deeply destabilizing scenario of if he wins.There’s another deeply destabilizing scenario if he loses because we know what happens from the past when he runs and loses. We had a historic attack on Congress, where people died, where there was hundreds of police and protesters injured, hundreds of prosecutions and occupation of the Capitol that we’d never seen in American history except when the British occupied it in the War of 1812.So I honestly think, Ezra, the most stabilizing option is disqualifying him from office. I think that’s the most stabilizing. Yes, it would create a spasm of outrage, no question. But is it going to be worse than the spasm of outrage that we saw when he lost legitimately that was motivated by a series of lies that were spectacularly stupid?The idea that everything will be OK if we don’t apply the Constitution, let the American people make their choice, I don’t think that we should acquiesce in the argument that it’s more destabilizing for him to be disqualified from holding office than him losing, or if he wins and he starts to behave exactly the way the framers of the 14th Amendment would imagine that an insurrectionist or a rebel would behave when they were in office.EZRA KLEIN: I largely agree with that. I’ve come to think of this argument, which you hear a lot as the stability for thee but not for me argument. Because, as you say, on the one hand, I buy the point — I fully buy it — that it is destabilizing to strike Trump from the ballot. And on the other hand, allowing an insurrectionist, which is what Donald Trump is —DAVID FRENCH: Yeah.EZRA KLEIN: — with the plans that he has already articulated, to take office again, is a profound danger to the republic. So I think of something Rich Lowry, who leads The National Review, which is a magazine you used to work for, that he wrote. And he was writing about the Justice Department case against Trump. And he said, “Our institutions aren’t in robust health and are ill-equipped to withstand the intense turbulence that would result from prosecuting the political champion of millions of people.”And, yes, our institutions are not in robust health. They are partially not in robust health because Donald Trump and his movement have spent years undermining, attacking, discrediting them. But they’re not going to be in better health if he returns to office, if he faces no accountability, no consequences, and just comes back into office, possibly due to a fluke. You could have a situation where Joe Biden has a health crisis three weeks before the election and that is how Donald Trump wins and can now take on a shermanesque campaign of vengeance across the American institutional system.I think behind it is a tendency to take the potential fury of MAGA very seriously, but not the dangers of MAGA in power seriously, which I think also comes from a sense that Trump 2 would be a rerun of most of Trump 1, where he was largely ineffective, where most of his chaos was tweets and rhetoric — not all of it, but most of it — until Jan. 6.But this is something you follow. And there’s been a lot of reporting on this and thinking about it. And so I’m curious how you rate it. Do you think Donald Trump 2, if he took office again, do you think that would be really different than Trump 1? Do you think we’d be dealing with a very different kind of administration or do you think that is an overblown concern?DAVID FRENCH: I think we’d be dealing with a very different kind of administration. Over at The Dispatch, where I used to write before I came to the Times, Nick Catoggio wrote a really interesting piece about how a lot of MAGA doesn’t know that Trump of 2024 is not exactly the Trump from 2016.That Trump, for all of his norm-breaking in 2016, both had a more of a concrete platform that he ran on and also the Republican establishment had more of a role in his early presidency, from Tillerson, Mattis, a whole host of seasoned and veteran Republicans who were part of the administration who had been the adults in the room, so to speak.EZRA KLEIN: Mike Pence.DAVID FRENCH: Mike Pence. And much of the story of his administration is dominated by both external conflict, in the sense of all of the fighting between Democrats and dissenting Republicans against Trump’s policies, but also a big part of the story of his presidency was the internal fight. There was this constant internal trench warfare to try to him him in, to try to prevent him from enacting his worst impulses.And I think it’s really important for people to understand that a Trump 2 is not going to have that element to it. It is not going to have all of these establishment, quote, “adults” in the room, Republicans in there with him. He’s over that. He’s done with that. He’s done with that from the standpoint of his staffing his own administration. He’s done with that from the standpoint of appointing judges and justices.Because, remember, a bunch of his appointees blocked his effort to steal the election. If his own court appointees had supported his position, the whole election challenge would have been a lot more awful and contentious than it was. And so he’s over these Republican establishment figures. He’s over the Federalist Society. And so it’s a very different person coming in with much thinner program other than vengeance.And one part that’s very important, also, is his allies have talked about invoking the Insurrection Act, like right on day one of his presidency. The president, at the president’s sole discretion, has the ability to call up both the National Guard, put them under his control, or active duty troops, like the 82nd Airborne, 101st Airborne, air assault division, and put them under his immediate control to essentially restore order as he sees it.But it’s a very poorly written statute that puts very few safeguards around the presidency. And so the president really does have this discretion to call out the troops. And a lot of his supporters have urged him to do that, and they urged him to do it during Jan. 6. And that’s extraordinarily scary.And here’s the way I would put the danger situation, Ezra — and this is, I think, the logic of the framers of this amendment — who is more dangerous? Is it an insurrectionist who is the nominal leader of an angry mob or is it an insurrectionist who commands the most powerful military in the history of the world?EZRA KLEIN: One way I’ve been thinking about this is that, in the Trump administration, what you had was a coalition government. You had a coalition government between MAGA, which was a small but growing faction of the party that managed to take leadership of it, and the other traditional factions of the Republican Party — business and evangelicals and so on.And what you have now, if Trump wins again, is a noncoalition government. It’s just MAGA. There is no longer anything that even looks like opposition to Trump. The people who opposed him in Congress have left Congress or are leaving Congress. When he brought in people, initially, he didn’t know what he was doing. He didn’t know who supported him. There wasn’t a bench. Now there’s a bench. You have things like the Heritage Foundation who have been trying to build out the personnel lists and the plans and so on.And so you’ve moved from a coalition government, where other parts of the coalition restrained some dimensions of Donald Trump, to a unified government, to a non-divided government under MAGA control with Donald Trump as the leader and the figurehead, but also people who are much more committed to executing Donald Trump’s impulses than was true in 2017 to 2020.DAVID FRENCH: I agree with that. I think the term coalition government is really an excellent way of describing the previous administration. And the elements of the coalition, over time, ultimately, did not get along. And that clash was most salient during the insurrection because here you had — and Jack Smith will be able to introduce just an enormous amount of evidence that even his own hand-picked Attorney General, Bill Barr, and many other figures in the administration — his Vice President, Mike Pence — were saying, no, you’ve lost, Mr. President. You lost. You lost. You lost.And then you had this other faction in the administration that was saying use the military to seize voting machines. You won. Fire the attorney general. And we know now which faction Donald Trump went with and which faction Donald Trump is still with to this day. So forget about the idea of the contentiousness of the previous Trump administration between establishment and MAGA. It’s all MAGA now. And it’s an even angrier version of MAGA than existed before.That’s one of the challenges I see. And I live in MAGA country. 85 percent of my neighbors are Republican. And what I would say is most Republicans are generally checked out of politics on this day-to-day basis, just like most Americans are. But that subset of people in my neighborhood, in my community, who are truly MAGA, are far more radicalized than they were even in 2020.And it’s just escalating, Ezra. I’m not seeing the temperature being turned down. And sadly, and what’s terrifying to me, is, in the larger Republican public, that anger is not alienating them enough to not also pull the lever for Trump. They are tired of politics. They are weary of MAGA in some ways and will resist MAGA in very isolated circumstances. I’ve seen that in my own community. But when it comes to Trump, there’s something about him where the rules don’t apply to him in the way they do even to other Republican politicians in the G.O.P.And so MAGA is more radicalized, more angry, and, in many ways, more dominant than I imagined it would be when I woke up the morning of Jan. 7, 2021, and I thought, finally people see what MAGA really is and they’re going to wake up. And it’s not that they woke up, really, Ezra. It’s more that they checked out and left MAGA in control.EZRA KLEIN: As we speak, Trump’s lawyers are arguing for an immunity claim for him. What are they arguing? And how do you rate their likelihood of succeeding?DAVID FRENCH: Yeah, essentially, what they’re arguing is if he’s acting in his capacity as President of the United States, that he has a broad freedom of action because we don’t want lawyers coming in and we don’t want judges coming in and reevaluating and rethinking the really hard decisions that a president has to make in the heat of the moment with partial information, when the president is acting as the president, in his capacity as the president, clothed with official authority, then the remedy for misconduct is specified in the Constitution. That’s impeachment and conviction. It is not criminal prosecution.And so, literally, while we were recording this, Ezra, there was an exchange in court where the judge asked if a president ordered the murder of a political opponent by the military, would he still be immune from prosecution? And Trump’s team said, yeah, unless he was impeached and convicted.And so they really are digging in under the notion that, wait, your remedy for presidential misconduct is impeachment and conviction. In the absence of that, when the president is acting as the president, then he can’t be touched by the judicial system. And I think the odds of that argument succeeding are extremely low.It is not a case that I have written about nearly as much or talked about nearly as much because, quite frankly, I think it’s quasi frivolous or near frivolous to argue that the real remedy here is impeachment and conviction. That is a remedy. That is not the only remedy.And there’s a lot of court precedent that really does clarify that a president is not immune from the processes of law, not even immune while he’s president. And so I think that the presidential immunity argument is more of a delay tactic than something that’s actually a material threat to Smith’s prosecution.EZRA KLEIN: Didn’t Mitch McConnell say that Trump would still face actual prosecution whatever happened here?DAVID FRENCH: Oh, yeah, that was a theme post-Jan. 6. And Ezra, think about how we’re always facing the same thing when it comes to Trump. They’ll say, you can’t do X. You should do Y instead. And then you do Y. And they say, well, no, you can’t possibly do Y. You have to wait until Z.It’s always the shifting goal posts. It’s always a moving target. And always along with the shifting goal post and the moving target is this Tony Soprano-esque kind of MAGA bullying that says, nice little Republic you got there, shame if something happened to it if you make us too angry.EZRA KLEIN: So you mentioned, a minute ago, Jack Smith. And I want to spend a second there. So I think people constantly see that Trump has 90 some charges against him. And if you’re paying attention to politics atmospherically — frankly, even if you’re not — I’m a professional, and every time I see that number, my mind just shuts off. It’s like I can’t handle that many charges.But what you really have are four criminal cases each with internal indictments. And so you have the Stormy Daniels hush money case. You have the classified documents case. And then, in Georgia, and then with Jack Smith — you mentioned the special prosecutor for the Justice Department — you have cases around Jan. 6 and the effort to overturn the election.And one thing you can imagine playing out, over the next year — which is going to be a hell of a way to have a presidential election, but nevertheless — is imagine a world where the Supreme Court passes, punts, rejects — whatever it is — this idea that Trump is an insurrectionist. And at the same time, you have this Georgia case, you have this DOJ case that, as you say, are calling all this evidence, bringing all this information forward. How do you imagine those things interacting with each other?DAVID FRENCH: Oh, man, Ezra. [LAUGHS] So again, this is why I keep going back to this idea that you just can’t concede that disqualifying him from office is more destabilizing than any of the other branching tree of possibilities that we have. So here’s one, for example, the Supreme Court says, no, he did not engage in insurrection or rebellion. Or maybe the Supreme Court says, no, it’s not going to disqualify Trump. So then he’s not disqualified, but he’s convicted in federal court.Well, being convicted in federal court, that doesn’t mean that he can’t run for president. So you could have a convicted felon running for president. And given the polarization that — Ezra, you know better than anybody in this country, having written just an excellent book about it — he’s still going to have a chance, even if he’s a convicted felon.And so you get into this branching tree of possibilities and how destabilizing is that to have a convicted felon who could potentially win the presidency with other criminal charges? Because I think it’s really remote the idea that all of the cases against him will be prosecuted before the election. It’s more likely that none of them are prosecuted before the election.But you look at the branching tree of possibilities here and they’re all potentially destabilizing. Why? Because all of the branching tree of possibilities contain a central figure of Donald Trump, who is inherently destabilizing.EZRA KLEIN: Then our final question. What are three books you would recommend to the audience?DAVID FRENCH: All right, I’ve got three. Only one of them is really new in any way. I’m currently reading and really enjoying — it’s a Max Hastings book. He’s one of my favorite military historians.It’s called “Operation Pedestal.” And for you, military history buffs, who listen to Ezra, really phenomenal storytelling about a pivotal convoy to save Malta in 1942 when it was under siege. Just an incredible cast of characters and remarkable level of heroism. And it’s a really tremendous book.The next one is a brand new book by N.T. Wright, who’s a theologian. And it’s called “Into the Heart of Romans.” And this is for your theology buffs who listen to your show, Ezra. And it really is making a really interesting argument that the book of Romans, this pivotal book in the New Testament, has been, in some important ways, misinterpreted, and that a more proper interpretation of Romans is one that actually has a more radical call to virtue.And then the next book is — back to your history buffs — and it’s called “Manhunt: 12-Day Chase for Lincoln’s Killer.” And it’s by James Swanson. And if you pick it up, you start reading it, and you realize it feels like I’m reading almost like a script for a television crime drama.It takes the assassination of Lincoln and puts it into a modern frame of how we think about solving cases and how — it’s like a criminal procedural, as well as a historical account. It’s really good. It’s a very gripping read. And it made me ask a question — given all that happened after he died, was the killing of Abraham Lincoln the most consequential political assassination in all of American history? And I think it might have been.[MUSIC PLAYING]EZRA KLEIN: David French, thank you very much.DAVID FRENCH: Thanks so much, Ezra. It’s always a pleasure to join you.[MUSIC PLAYING]EZRA KLEIN: This episode of “The Ezra Klein Show” is produced by Rollin Hu. Fact-checking by Michelle Harris with Kate Sinclair and Mary Marge Locker. Our senior engineer is Jeff Geld, with additional mixing by Efim Shapiro. Our senior editor is Claire Gordon. The show’s production team also includes Annie Galvin and Kristin Lin. We have original music by Isaac Jones, audience strategy by Kristina Samulewski and Shannon Busta. The executive producer of New York Times Opinion Audio is Annie-Rose Strasser.[MUSIC PLAYING] More