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      Searching for the perfect republic: Eric Foner on the 14th amendment – and if it might stop Trump

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

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      in Elections

      Republican praises January 6 attacker’s ‘good faith and core principles’

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      Seeking leniency for a January 6 rioter charged with assaulting police, the Louisiana Republican congressman Clay Higgins – a former law enforcement officer himself – saluted the man’s “good character, faith and core principles”.In video taken during the attack on Congress on 6 January 2021, the rioter was seen to say: “It’s going to be violent and yes, if you are asking, ‘Is Ryan Nichols going to bring violence? Yes, Ryan Nichols is going to bring violence.’”Nichols, in an affidavit, admitted posting the video, attacking officers with pepper spray and urging rioters on with shouts including, “This is not a peaceful protest”.In court in Washington last week, Nichols, of Longview, Texas, pleaded guilty to two charges: obstruction and assaulting, resisting or impeding police and obstruction of an official proceeding.More than 1,000 arrests have been made over the attack and hundreds of convictions secured, some for seditious conspiracy. Donald Trump, who incited the riot as he attempted to overturn his 2020 presidential election defeat by Joe Biden, faces 17 charges related to his election subversion, four federal and 13 at state level in Georgia.Nine deaths have been linked to the attack staged by the former president’s supporters, including law enforcement suicides.Higgins’ own website describes him as having “spent much of his career dedicated to uniformed service [as] an army veteran and law enforcement officer”. It also says he is “widely regarded as one of the most conservative members of Congress”.Nonetheless, in a letter dated 7 November, he asked the US district judge in Nichols’s case, Royce C Lamberth, to show leniency when passing down sentence.“Sir,” Higgins wrote. “I submit to you this letter in support of Ryan Taylor Nichols. He is a man of good character, faith, and core principles.“I humbly ask that he receive fair consideration of the whole of circumstances regarding his case, condition, and background. He has already served nearly two years in the District of Columbia jail in pretrial confinement, which has been destructive to his physical (liver issues) and mental health (PTSD).”Nichols had been under house arrest since 22 November 2022 and had “not sought to flee nor shown any indication of dangerous activity”, Higgins said.He added: “Prior to his arrest, Mr Nichols had no criminal background and served honorably in the United States Marine Corps. He continued to serve domestically in a search and rescue capacity, even being publicly recognised for his heroic actions on national television.”That referred to Nichols’s commendation by the Louisiana-raised TV host Ellen DeGeneres – in 2018 – and in relation to his work to rescue people and animals stranded by Hurricane Florence.Nichols, Higgins said, “has already paid a tremendous price in time and treasure” for his actions on January 6.“His case must be considered fairly and thoroughly in line with his fundamental constitutional rights.”No date has been set for sentencing. More

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      Man who stormed US Capitol in face paint files paperwork for congressional run

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      The man who donned face paint and a horned headdress to storm the US Capitol at the 6 January insurrection has filed paperwork for a potential congressional run in Arizona as a libertarian.Jacob Chansley, known as the “QAnon Shaman”, became one of the most recognizable symbols of the insurrection, as media showed him walking the halls of the Capitol and standing at the dais in the US Senate.He pleaded guilty to a felony charge of obstructing an official proceeding and was sentenced to 41 months in prison. He was released early in March.After his release, he resumed posting bizarre messages online. His profile on X, @AmericaShaman, says his nickname is “a straw man they created in an attempt to control the narrative & destroy my public image”. In response to someone asking for a campaign donation link, he said he wasn’t taking donations now and wasn’t sure if he would later because “BIG $$$ is a part of the problem in politics … I intend to run an ENTIRELY different kind of campaign …”As Chansley has a felony, he would not be able to vote for himself until he gets his voting rights restored in Arizona.Chansley filed a statement of interest in running for congressional district 8 with the Arizona secretary of state last week. Writing his name as Jacob Angeli-Chansley, his forms say he would run as a libertarian.The right-leaning eighth district seat will be open in 2024 as Debbie Lesko, the Republican representative, announced she would not seek re-election. Since her announcement, a flood of Republican contenders have entered the race.Republican primary candidates for the seat include the losing 2022 Senate candidate Blake Masters, the Arizona House speaker, Ben Toma, losing 2022 attorney general candidate Abe Hamadeh, and a state senator, Anthony Kern, who attended the 6 January event at the Capitol. A handful of others are also running. More

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      ‘I’m more worried today than I was on January 6’: top conservative’s warning to America

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      Michael Luttig knows the eye of the storm. On the night of 4 January 2021, the retired federal judge advised Mike Pence, the vice-president, against trying to overturn the results of the presidential election. Last year on live television he delivered compelling testimony to the congressional panel investigating the January 6 insurrection.Now, with less than a year until the nation goes back to the polls, Luttig recognises that the battle to save the American republic from the demagoguery of Donald Trump is far from over – and he is more worried than ever before.“I am more worried for America today than I was on January 6,” he warns in a phone interview with the Guardian. “For all the reasons that we know, his election would be catastrophic for America’s democracy.”Luttig, 69, is an unlikely hero of the resistance. Born in Tyler, Texas, he was assistant counsel to the president under the Republican Ronald Reagan, and clerked for then judge Antonin Scalia and the supreme court justice Warren Burger. He served on the US court of appeals for the fourth circuit from 1991 to 2006 and was committed to an “originalist” interpretation of the constitution.He endorsed the George W Bush White House’s post-September 11 policy of declaring terrorism suspects “enemy combatants” so that they could be held by the military without charges. He was an advocate of the death penalty – including for the man who killed Luttig’s own 63-year-old father, John, in a carjacking outside his home.Luttig retired in 2006 and entered the private sector, working for Boeing and Coca-Cola before sliding into what seemed a quiet retirement. But at the dawn of 2021, America was on the brink of a constitutional crisis after Trump lost the election to Joe Biden and pressured Pence to reject the outcome.On the night of 4 January, Luttig received a call from old friend Richard Cullen, who was working as a lawyer for Pence. Cullen explained that John Eastman, who had previously clerked for Luttig, was making the claim that Pence had the constitutional authority to stop certification of the election results.Lutting told Cullen to advise Pence that this was flat wrong and further set out his views on Twitter: “The only responsibility and power of the Vice-President under the Constitution is to faithfully count the electoral college votes as they have been cast.”The vice-president duly stood his ground and spurned Trump, who reportedly branded Pence a “wimp” and complained: “I don’t want to be your friend any more if you don’t do this.” On January 6 a mob of Trump supporters stormed the US Capitol and demanded that Pence be hanged, leaving a trail of death, destruction and excrement, but the results got certified all the same.Testifying to the House of Representatives’ January 6 committee in an almost painfully slow and deliberate manner, Luttig recalled: “On that day, America finally came face to face with the raging war that it had been waging against itself for years. So blood-chilling was that day for our democracy, that America could not believe her eyes and she turned them away in both fear and shame.”As Biden was sworn in, proclaiming that “democracy has prevailed”, and Trump slinked back to his Mar-a-Lago redoubt in Florida, there were hopes that the worst of the storm had passed. But it soon became apparent that Trump wasn’t going anywhere. He continued to hold rallies, call the shots in the Republican party and push the “big lie” that he, not Biden, was the true winner in 2020.Now, despite 91 criminal indictments in four jurisdictions, many of which relate to the attempted coup, he is running to regain the White House in 2024. He is the clear frontrunner for the Republican nomination and, according to a recent New York Times and Siena College poll, leading Biden in five of the six most important battleground states.Should Trump win a second term, the Washington Post newspaper reported this week, he already has plans to use the federal government to investigate or prosecute perceived enemies including his former chief of staff John Kelly, former attorney general William Barr and Gen Mark Milley, the chair of the joint chiefs of staff.A presidency guided by such authoritarian impulses would be “ruinous” for democracy and the rule of law, Luttig predicts. “He did what he did on January 6. He’s continued to maintain for three years that the election was stolen from him. He’s done that with now complete and total support of the Republican party.“All that he has done beginning with January 6 has corrupted American democracy and corrupted American elections and laid waste to Americans’ faith and confidence in their democracy to the extent that today millions and millions and millions of Americans no longer have faith and confidence in their elections.“He’s the presumptive nominee of the Republican party in 2024 and indeed many people believe that he will be the next president.”Luttig, however, has a plan to stop him. In August he joined with the liberal constitutional scholar Laurence Tribe to publish an article in the Atlantic magazine under the headline “The Constitution Prohibits Trump From Ever Being President Again”.The pair argued that section 3 of the 14th amendment automatically excludes from future office anyone who swears an oath to uphold the constitution and then rebels against it. Irrespective of criminal proceedings or congressional sanctions, they contended, Trump’s efforts to overturn the election are sufficient to bar him for life.Luttig elaborates by phone: “The former president is disqualified from holding the presidency again because he engaged in an insurrection or rebellion against the constitution of the United States when he attempted to remain in power, notwithstanding that the American people had voted to confer the power of the presidency upon Joe Biden.“That constituted a rebellion against the executive vesting clause of the constitution, which limits the term of the president to four years unless he is re-elected by the American people. I cannot even begin to tell you how that is literally the most important two sentences in America today.”Luttig draws a fine but important legal distinction between a rebellion against the constitution, as described by the 14th amendment section 3, and rebellion against the United States. He claims that groups that filed lawsuits in Colorado and elsewhere to bar Trump from the ballot are confused on this issue.“They do not yet understand what disqualifies the former president, namely an insurrection or rebellion against the constitution. They have argued the cases as if he is disqualified because he engaged in insurrection or rebellion against the United States.“That’s why they have, unfortunately, focused their efforts on establishing or not that the former president was responsible for the riot on the Capitol. The riot on the Capitol is incidental to the question of whether he engaged in a rebellion against the constitution.”But he adds: “All of these cases – and there’ll be others in the states – is the constitutional process by which the American people decide whether the former president is disqualified from the presidency in 2024. All of these cases are going to roll up to the supreme court of the United States and it will be decided by the supreme court whether Donald Trump is disqualified.”Even some Trump critics, however, have argued that a legal ruling banning him from the race from the White House would enflame America’s divisions, whereas beating him at the ballot box would be more satisfying. Luttig naturally takes a lawyerly view: “The constitution tells us that it is not disqualification that is anti-democratic. Rather, it is the conduct that gives rise to disqualification that the constitution tells us is anti-democratic.”America’s founding document does not allow for second guessing about the political fallout, he adds. “It is the constitution that requires us to decide whether he is disqualified, whatever the consequences of that disqualification might be.”In the meantime Luttig this week helped form a new conservative legal movement, relaunching an organisation formerly known as Checks & Balances as the Society for the Rule of Law. The move was billed as a nationwide expansion aimed at protecting the constitution and defending the rule of law from Trump’s “Make America great again” movement. Its leadership includes Luttig, the lawyer George Conway and former Republican congresswoman Barbara Comstock.“We believe that the time has come for a new conservative legal movement that still holds the same allegiances to the constitution and the rule of law that the original conservative legal movement held but has abandoned,” Luttig explains. “There’s a split in the conservative legal movement that mirrors the split in the Republican party about Donald Trump.”On other side of that split is the Federalist Society, a group that for decades has played a crucial role in grooming conservative judges – its prominent figures have included Leonard Leo, who advised Trump on his supreme court picks – but has said little about the threat posed by the former president to the constitutional order.Luttig, who, unlike Conway, has never been a member of the Federalist Society, said: “We believe that the Federalist Society has failed to speak out in defence of the constitution and the rule of law and repudiate the constitutional and legal excesses of the former president and his administration and, most notably, failed to repudiate the former president’s efforts to overturn the 2020 election.” More

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      in US Politics

      Standing My Ground review: Capitol cop Harry Dunn on January 6 and the Trumpist threat

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      If you think you’ve read everything you need to know about the violent attempt to overthrow the US government on 6 January 2021, this insider’s book by a 6ft 7in African American Capitol police officer will change your mind.Harry Dunn has written a 237-page cri de coeur for himself and for the US. It is a story that is more important than ever when so many crazed Republicans continue to revere the traitor whom the justice department says is directly responsible for this singularly shameful episode in American history.On that terrible day, Dunn and hundreds of his fellow Capitol cops were in hand-to-hand combat with scores of drunken and drug-addled seditionists. The police officers were attacked with everything from metal bike racks to flagpoles and banisters ripped from the stairs of the building.“You could hear the screaming and hollering as the battle raged on,” Dunn writes. “Blood was streaming down officers’ faces. They were yelling, grunting, and trying to force the rioters back. Many of them were blinded and coughing after being doused with pepper spray, bear spray, and even WD-40.”In the years since then, Dunn has beaten back post-traumatic stress disorder with the help of his family, his friends, professional therapists and sympathetic Congress members like Jamie Raskin of Maryland. Raskin took Dunn to lunch after the officer called the congressman’s office to tell him he was the source of an anonymous quote in a story in BuzzFeed which – to Dunn’s delight – Raskin had tweeted out.Since then, Dunn has made dozens of public appearances and written this book, with a single goal: “I want the people responsible for that day, including Trump … to pay a price, just like we paid a price … I will always be standing my ground to make sure our democracy exists. And I’ll ask that you stand with me so that nothing like this ever happens again.”Dunn reserves his greatest anger for those he and his fellow officers risked their lives for in the face of that furious mob. He was “full of rage” when it became clear that “Republicans were walking away from their earlier condemnation of the attack … Congress members … whom I had guarded and protected through State of the Unions [and] inaugurations … had suddenly turned on me. It angered me that loyalty to a single individual could overwhelm otherwise decent people … who had fallen into the darkness and forgotten their oaths of office.”He writes about how the day was particularly traumatic for Black police officers, because they were repeatedly called the N-word, as well as being beaten and sprayed and kicked and pummeled.He compares their treatment by Trump and others to the notorious assault in 1946 of a decorated Black second world war veteran named Isaac Woodard, who was pulled from a Greyhound bus because “the bus driver hadn’t liked the way Woodard asked to use the restroom” outside Augusta, Georgia. Local police officers beat him savagely and “the police chief used his baton to gouge Woodard’s eye sockets until both eyeballs ruptured beyond repair. Woodward was blind from that day forward.”“Now multiply that betrayal by two thousand times,” Dunn writes, “because that’s how many Capitol and Metropolitan police department officers were viciously assaulted by Americans whose democracy we defend every day.”After that, “we were betrayed by our president, many of our elected officials, and thousands of other Americans we had sworn to protect”.Dunn testified before the January 6 House committee and at trials for some of the terrorists who have been convicted for their crimes. Just like Woodard, “we were wearing our uniforms and badges, signifying our service to our nation”. But also just like Woodard, “to them we were throw-away people to be despised, hated and derided … merely because of the color of our skin … January 6 was never about politics. It wasn’t about election fraud. That was an excuse for people to do some shit they had wanted to do in the first place.”Last week’s election results in Ohio, Virginia, Kentucky and Pennsylvania – like the elections of 2018, 2020 and 2022 – proved once again that a majority of Americans reject the extremist agenda embraced by the Maga movement and its hideous head.Having finally recovered from most of the injuries inflicted on that fateful day in January 2021, Dunn feels he’s “been given a new lease on life, another chance to make a difference and that is what I want to do”. He ends the book with a plea to readers to do exactly what he is trying to do with that second chance: become a tireless foot soldier in the never-ending fight against racism and ignorance and book burning in America.He writes: “Be the change you want to see in the world.”
      Standing My Ground is published in the US by Hachette More

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      in US Politics

      Renegade review: Adam Kinzinger on why he left Republican ranks

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      Adam Kinzinger represented a reliably Republican district in the US House for six terms. He voted to impeach Donald Trump over the insurrection and with Liz Cheney was one of two Republicans on the January 6 committee. Like the former Wyoming congresswoman, he earned the ire of Trump and the GOP base.A lieutenant colonel and air force pilot, Kinzinger read the terrain and declined to run again. In his memoir, he looks back at his life, family and time in the US military. He also examines the transformation of the Republican party into a Trumpian vessel. With the assistance of Michael D’Antonio, biographer of Mike Pence, he delivers a steady and well-crafted read.Kinzinger finds the Republicans sliding toward authoritarianism, alienating him from a world he once knew. On 8 January 2021, two days after the Trump-inspired coup attempt, he received a letter signed by 11 members of his family, excoriating him for calling for the president to be removed.“Oh my, what a disappointment you are to us and to God!’ the letter began. “We were once proud of your accomplishments! Instead, you go against your Christian principles and join ‘the Devil’s army’ (Democrats and the fake news media).”The word “disappointment was underlined three times”, Kinzinger counts. “God once.”Elected in 2010 with the backing of the Tea Party, once in office, Kinzinger distanced himself from the Republican fringe. The movement felt frenzied. Hyper-caffeinated. He cast his lot with Eric Cantor, House majority leader and congressman from Virginia. “Overtly ambitious”, in Kinzinger’s view, Cantor also presented himself as “serious, sober and cerebral”. Eventually, Cantor found himself out of step with the enraged core of the party. In 2014, he was defeated in a primary.Cantor was too swampy for modern Republican tastes. Out of office, he is a senior executive at an investment bank.Simply opposing Barack Obama and the Affordable Care Act wasn’t enough. With America’s first Black president in the White House, performative politics and conspiracy theories took over.Kevin McCarthy, deposed as speaker last month, earns Kinzinger’s scorn – and rightly.“I was not surprised he was ousted,” Kinzinger told NPR. “And frankly, I think it couldn’t happen to a nicer guy.”On the page, Kinzinger paints McCarthy as weak, limitlessly self-abasing and a bully. He put himself at the mercy of Matt Gaetz, the Florida extremist, prostrated himself before Marjorie Taylor Greene, the Georgia extremist, and endured 15 rounds of balloting on the House floor to be allowed the speaker’s gavel – an illusion of a win.McCarthy behaved like “an attention-seeking high school senior who readily picked on anyone who didn’t fall in line”, Kinzinger writes. The California congressman even tried, if feebly, to physically intimidate his fellow Republican.“Once, I was standing in the aisle that runs from the floor to the back of the [House] chamber,” Kinzinger remembers. “As [McCarthy] passed, with his security man and some of his boys, he veered towards me, hit me with his shoulder and then kept going.”Apparently, McCarthy forgot Kinzinger did stints in war zones.Kinzinger also takes McCarthy to task for his shabby treatment of Cheney, at the time the No 3 House Republican. On 1 January 2021, on a caucus call, she warned that 6 January would be a “dark day” if they “indulged in the fantasy” that they could overturn Joe Biden’s victory over Donald Trump.McCarthy was having none of it. “I just want to be clear: Liz doesn’t speak for the conference,” he said. “She speaks for herself.”skip past newsletter promotionafter newsletter promotionThat, Kinzinger writes, was “unnecessary and disrespectful, and it infuriated me”.These days, McCarthy faces the prospect of a Trump-fueled primary challenge. But he is not alone in evoking Kinzinger’s anger. Kinzinger also has tart words for Mitch McConnell and his performance post-January 6. The Senate minority leader was more intent on retaining power than dealing with the havoc wrought by Trump and his minions, despite repeatedly sniping at him.When crunch time came, McConnell followed the pack. Kinzinger bemoans McConnell’s vote to acquit in the impeachment trial, ostensibly because Trump had left office, and then his decision to castigate Trump on the Senate floor when it no longer mattered.“It took a lot of cheek, nerve, chutzpah, gall and, dare I say it, balls for McConnell to talk this way,” Kinzinger bristles, “since he personally blocked the consideration of the case until Trump departed.”Kinzinger devotes considerable space to his own faith. An evangelical Protestant, he is highly critical of Christian nationalism as theology and as a driving force in the Republican party. He draws a direct line between religion and January 6. Proximity between the cross, a makeshift gallows and calls for Mike Pence to be hanged was not happenstance.“Had there not been some of these errant prophecies, this idea that God has ordained it to be Trump, I’m not sure January 6 would have happened like it did,” Kinzinger said last year. “You have people today that, literally, I think in their heart – they may not say it – but they equate Donald Trump with the person of Jesus Christ.”In his book, Kinzinger echoes Russell Moore, former head of public policy of the Southern Baptist Convention: “Moore’s view of Christianity was consistent with traditional theology, which does not have a place for religious nationalism. Nothing in the Bible said the world would be won over by American Christianity.”Looking at 2024, Kinzinger casts the election as “a simple question of democracy or no democracy … if it was Joe Biden and Donald Trump, I don’t think there’s any question I would vote for Joe Biden”.
      Renegade is published in the US by Penguin Random House More

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      in Elections

      Efforts to keep ‘insurrectionist’ Trump off 2024 ballot to be heard in court

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      A multi-pronged effort to keep Donald Trump off the 2024 presidential ballot as an insurrectionist resumes in earnest, beginning with a court case in Colorado on Monday, the first of two states that will hear legal arguments this week.Those seeking to have the former president ruled ineligible are relying on a civil war-era provision of the 14th amendment to the US constitution that states no person can hold public office if they “have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof”.They argue that Trump’s incitement of the deadly 6 January attack on the US Capitol, in which his supporters attempted to block Congress certifying Joe Biden’s 2020 election victory, perfectly encapsulates the clause that has yet to be seriously tested in a courtroom.In Denver on Monday, and in Minnesota’s supreme court on Thursday, hearings will commence in cases that could ultimately end up in the US supreme court, regardless of which side wins in the lower court. The rulings are likely to be swiftly appealed, dragging the cases out with next year’s general election only 12 months away.“We’ve had hearings with presidential candidates debating their eligibility before – Barack Obama, Ted Cruz, John McCain,” said Derek Muller, a law professor at the University of Notre Dame, listing candidates challenged on whether they met the constitutional requirement of being a “natural-born citizen”.But the arguments against Trump, he said, rely on an obscure clause of the constitution with an “incendiary” bar against insurrection. “Those legal questions are very heavy ones,” he said, noting that even if they are seen as long shots, they raise important issues and have a plausible legal path to success.Among those who support the argument for Trump’s removal from the ballot are the Virginia senator Tim Kaine, Hillary Clinton’s 2016 running mate, who told ABC last month that the “language is specific” in the 14th amendment clause.“In my view, the attack on the Capitol that day was designed for a particular purpose at a particular moment and that was to disrupt the peaceful transfer of power as is laid out in the constitution,” he said.“So I think there is a powerful argument to be made.”Dozens of cases citing the amendment have been filed in recent months, but the ones in Colorado and Minnesota seem the most important, according to legal experts. They were filed by two liberal groups with significant resources, and in states with a clear, swift process for challenges to candidates’ ballot qualifications.That means the Colorado and Minnesota cases are taking a more legally sound route to get courts to force election officials to disqualify Trump, in contrast to other lawsuits that seek a sweeping ruling from federal judges that Trump is no longer eligible for the presidency.The Citizens for Responsibility and Ethics in Washington (Crew) watchdog group filed the Colorado lawsuit. “By instigating this unprecedented assault on the American constitutional order, Trump violated his oath and disqualified himself under the 14th Amendment from holding public office, including the office of the president,” its filing states.Trump’s lawyers say the provision has not been used in 150 years, and the plaintiffs are interpreting it incorrectly. They contend it was never meant to apply to the office of president, which is not mentioned in the text, unlike “senator or representative in Congress” and “elector of president and vice-president”.They also insist Trump never “engaged in insurrection” and was simply exercising his free speech rights to warn about election results he did not believe were legitimate.The then president was impeached for a historic second time in 2021 for inciting the attack on the Capitol, though he was acquitted by the US Senate.Trump has been predictably dismissive. “This is like a banana republic,” he told the conservative radio host Dan Bongino last month. “And what they’re doing is, it’s called election interference. Now the 14th amendment is just a continuation of that. It’s nonsense.”The arguments in Colorado could feature testimony from witnesses to the 6 January 2021 attack, and other moves by Trump to overturn his 2020 election defeat. He is already facing charges in a federal case in Washington DC and a state case being heard in Fulton county, Georgia, over those efforts.Associated Press contributed reporting More

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      in US Politics

      Sedition Hunters: how ordinary Americans helped track down the Capitol rioters

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      For one rioter at the US Capitol on 6 January 2021, wearing a Caterpillar hoodie proved a bad fashion choice. Admittedly, with an American flag-patterned cap and some shades, the garment helped shield his identity as he manhandled a police officer. Yet it came back to haunt him. Investigators used an app and facial-recognition technology to zero in and eventually got their man: Logan Barnhart, a construction worker in Michigan with a passion for fitness. His résumé included bodybuilding and modeling for romance novel covers. While hitting a punching bag in a workout video, he wore some familiar attire: a Caterpillar sweatshirt. Cue the Dragnet music.There was something else remarkable about this investigation: the sleuths were ordinary Americans, part of a spontaneously formed citizen network volunteering their time to track down Capitol rioters. Now their story is shared in a book that takes its name from the movement, Sedition Hunters: How January 6 Broke the Justice System, by Ryan J Reilly, an NBC News justice reporter.“They were really just random Americans who got together and decided they wanted to do something about what happened on January 6,” Reilly says.Those random Americans did not just identify Barnhart. They sought and found other rioters who stormed the Capitol after Donald Trump refused to accept his 2020 election loss to Joe Biden and invited supporters to rally in Washington on the day Congress was to certify the results. Now, one of the Sedition Hunters, Forrest Rogers, is using his talents to siphon out misinformation of a different sort – as a journalist reporting on the conflict between Israel and Hamas for Neue Zürcher Zeitung, a newspaper based in Zurich.In the wake of January 6, the citizen sleuths proved invaluable to the FBI, which Reilly describes as reeling from the fallout of the riots and overwhelmed by the subsequent federal investigation, the largest in American history, as an initial estimate of 800 rioters entering the Capitol ballooned to more than 3,000.While the FBI approached the task with antiquated technology, the Sedition Hunters had all the latest tools, including the app that helped catch Barnhart, which was designed in a garage by one particular sleuth, known only as Alex in Reilly’s book. Many others did such critical work. Like Alex, “Joan” used an article of clothing to pin down a suspect. In her case, it was a blue-and-white sweatshirt from a school in her home town, Hershey, Pennsylvania, worn by a Capitol window-smasher. Its wearer had also been seen inside but all she had was a nickname: “Zeeker.” Joan searched the school’s Facebook page. Zeeker turned out to be Leo Brent Bozell IV, scion of a conservative dynasty.By the time of Bozell’s arrest, two other people had identified him to authorities. Both knew him. Although there are occasional mentions in the book of people who turned in rioters they knew, the Sedition Hunters focused on tracking down hard-to-find individuals who they had never met.“It was easy to get the person virtually if they posted their own crime, built their own case on a social media post,” Reilly says. “Some of them were making efforts to hide their identity in some way.”In his hoodie, baseball cap and sunglasses, one of many faces in a mob, Barnhart was tough to identify. Alex’s app proved a gamechanger. It created a virtual library of images of the attack collected by the Sedition Hunters, which they could now search to unmask the culprit. Each suspect was given a relevant nickname: Barnhart was “CatSweat”, for his Caterpillar garb. Ironically, an image from the rightwing social media platform Parler delivered the coup de grace. Facial recognition technology confirmed CatSweat as Barnhart. His social media accounts yielded further confirmation: a hat he wore in one photo matched his headgear on January 6. On Twitter, he promised Trump he would “be there” at the Capitol that day.Asked if any of the Sedition Hunters were secretly FBI agents, Reilly discounts the possibility with a quip: “They were way too skilled.” More seriously, he adds: “I think that really is what they brought to bear.”The Sedition Hunters sometimes outperformed their professional counterparts. The FBI made some wrong hits. John Richter, a Biden campaign worker, shared his name with a rioter who reached the Senate floor. Guess who was apprehended first? Although the Democratic Richter convinced them they had the wrong guy, with help from his puppy, two years would pass before the feds arrested the actual rioter.“This guy worked for Joe Biden, got him elected,” Reilly says. “He was probably not the man to look for … Stopping the election of a man he worked for did not make a lot of sense.”Reilly also notes that conservative elements within the FBI supported Trump and were lukewarm on investigating those who rioted for him.“Despite what we heard the past seven or eight years from Donald Trump, at its core, it’s a conservative organization,” Reilly says. “A lot of people generally lean conservative. It does not mean they’re all Trump supporters, but there was a lot of whataboutism in the FBI after the Capitol attacks.”skip past newsletter promotionafter newsletter promotionReilly does provide many examples of FBI personnel acting on tips from the Sedition Hunters. After Joan made her initial identification of Zeeker as Bozell and communicated this to the bureau, she kept scanning images from the riots for that blue-and-white sweatshirt. This uncovered further evidence of his violent actions, which she also transmitted. A special agent thanked her, promised to update prosecutors and made good on that vow, an additional charge against Bozell being brought within 24 hours.Reilly is mindful of some developments still on the horizon. There is a five-year statute of limitations for Capitol rioters – 6 January 2026 – so the window to bring remaining fugitives to justice is about two and a half years wide. There’s a wild card too: what happens if Trump wins the presidency again and decides to issue pardons?“I think it’s very real,” Reilly says of that possibility. “He said he’s going to. To me, it really depends on what the extent is going to be … You can easily see him pardoning everybody who committed misdemeanors, something like that.”Of more serious charges, he adds: “I don’t know across the board.”Who knows what will happen. For now, readers can savor the unheralded work of the Sedition Hunters, best summed up in Joan’s reflection about helping bring Bozell to justice: “He probably would’ve gotten away with it, if it weren’t for those meddling sleuths.”
      Sedition Hunters is published in the US by PublicAffairs More