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      Trump return to White House would be perilous for democracy, conservative lawyers say – as it happened

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      We’re closing the US politics blog now, thanks for joining us today. Here’s what we covered:
      The Wisconsin supreme court appeared poised to strike down gerrymandered Republican-drawn state legislative maps that have maintained the party’s domination for decades. In a hearing Tuesday, the panel’s new liberal majority appeared sympathetic to arguments from lawyers for Democratic governor Tony Evers and others that the majority of districts breached strict rules.
      Two senior aides to Ron DeSantis’s cratering campaign for the Republican presidential nomination almost got into a fist fight during a heated argument, it was reported. The altercation came last week as the Florida governor’s Never Back Down political action committee discussed how to counter a rise in popularity of rival Nikki Haley, the former South Carolina governor.
      Donald Trump appealed a ruling in which a Colorado judge said he could not be disqualified from the presidential ballot under the 14th amendment to the US constitution, even though he engaged in insurrection by inciting the deadly January 6 attack.
      Joe Biden called on Congress to pass his $106bn supplementary budget request that he said includes funding to “step up” the fight against a flow of deadly fentanyl entering the US. The president, speaking at the White House before leaving for a Thanksgiving break in Massachusetts, said the fentanyl crisis was hurting families in every state and curbing it was “something every American needs to get behind”.
      A trio of prominent conservative lawyers said in a scathing New York Times oped that a second term in office for former president Donald Trump would imperil democracy. George Conway, J Michael Luttig and Barbara Comstock, who have formed a new group to “speak out against Trump’s falsehoods”, say Trump has surrounded himself with “grifters, frauds and con men willing to subvert the Constitution” and that “our country is in a constitutional emergency, if not a constitutional crisis”.
      A reminder that you can follow the latest developments in the Israel-Hamas war, including the reported imminent deal for the release of some of the hostages held in Gaza, in the Guardian’s liveblog here.Two senior team members of Ron DeSantis’s flailing presidential campaign almost came to blows during a meeting last week to discuss how to counter Nikki Haley’s rise in the polls, NBC News is reporting.According to the network, Jeff Roe, chief consultant for DeSantis’s Never Back Down political action committee, got into “a heated argument” with longtime DeSantis associate and PAC board member Scott Wagner, the two being stopped just short of a physical altercation.“You have a stick up your ass, Scott,” Roe allegedly fumed at Wagner during the meeting in Tallahassee last Tuesday.“Why don’t you come over here and get it?” Wagner responded, rising from his chair, according to NBC. Wagner was “quickly restrained by two fellow board members”, the network’s report said, adding its information came from sources in the room.Florida governor DeSantis, once seen as a viable rival to runaway leader Donald Trump in the race for the 2024 Republican presidential nomination, has been tanking in numerous opinion polls, even in his own state.He appears to be an an opposite trajectory to former South Carolina governor Haley, whose “surging poll numbers and newfound affection from megadonors pose an existential threat to the Florida governor’s campaign,” NBC said.DeSantis campaign insiders have indicated that the candidate and his wife Casey DeSantis, a former television news presenter who has assumed an increasingly prominent role in his political career, are growing unhappy at the performance of the Never Back Down PAC leadership.Both DeSantis and Haley, however, still trail Trump by a substantial margin.The unseemly scenes in DeSantis’s campaign meeting mirror those of last week’s Senate labor committee meeting when Oklahoma senator Markwayne Mullin rose from his seat and challenged a Teamsters union official to a fight.We’ve been bringing you updates for much of the day from Wisconsin’s supreme court, where arguments have tilted back and forth over the state’s gerrymandered legislative maps.According to the Guardian’s Sam Levine, and Alice Herman in the courtroom in Madison, the panel’s liberal majority appears poised to strike down the existing Republican-drawn maps and end the party’s stranglehold on both legislative chambers of government.But it’s unclear what that would mean for a redraw of the maps, or if special elections would be needed to fill legislative seats next year.Here’s our latest report on today’s developments, and a look at what might come next:A newly-elected Florida Republican state congressman has filed legislation that would effectively ban any LGBTQ group in the state from receiving taxpayer funding.A House bill by Ryan Chamberlin would bar any non-profit from using “sexual orientation or gender identity” as a factor in any application for state contracts or grants, Florida Politics reports.The proposal was immediately criticized by Democrats, who see the bill as an extension of the Republican-dominated legislature’s well-documented assault on LGBTQ+ rights, including the infamous “Don’t Say Gay” bill and other restrictions championed by hard right governor Ron DeSantis.The bill is “bigoted, unnecessary and highly unconstitutional”, Democratic state representative Anna Eskamani said on X, adding that groups such as Equality Florida would essentially be banned from existing.Chamberlin captured his central Florida seat in May with 79% of a special election vote, promising at the time: “There’s work to be done. I’m excited to help with that.”Missouri’s supreme court won’t hear an appeal by Republican secretary of state Jay Ashcroft over the wording of ballot question on access to abortion, a win for advocates attempting to enshrine protections for the procedure.A state appeals court ruled last month that wording asking voters if they were in favor of “dangerous and unregulated abortions until live birth” was politically partisan.On Tuesday, the state supreme court declined to hear Ashcroft’s appeal of that ruling. Missouri’s Republican controlled legislature banned abortion except in cases of medical emergency after the US supreme court last year overturned the Roe v Wade ruling and ended 50 years of federal protections.In all seven states where abortion has been on the ballot since, voters have either supported protecting abortion rights or rejected attempts to erode them.Here’s our state-by-state guide to where abortion laws stand:A judge in Atlanta is hearing arguments on a request to revoke the bond of Harrison Floyd, one of former president Donald Trump’s co-defendants in the Georgia case related to efforts to overturn the 2020 election.Fulton county district attorney Fani Willis filed a motion last week telling superior court judge Scott McAfee that Floyd attempted to intimidate and contact likely witnesses and his co-defendants in violation of the terms of his release, the Associated Press reports.Floyd’s attorneys wrote in a court filing that Willis’ allegations are without merit and that the motion is a “retaliatory measure” against their client. Floyd “neither threatened or intimidated anyone and certainly did not communicate with a witness or co-defendant directly or indirectly,” they wrote.Willis was in court Tuesday to present the prosecution’s case. She planned to call three witnesses, including Gabriel Sterling, a top election official in Georgia who strenuously defended the legitimacy of the state’s 2020 vote count against Trump’s false claims that the election was fraudulent.The charges against Floyd relate to allegations of harassment toward Ruby Freeman, a Fulton county election worker who had been falsely accused of election fraud by Trump and his supporters. Floyd took part in a 4 January 2021 conversation in which Freeman was told she “needed protection” and was pressured to lie and say she had participated in election fraud, the indictment says.Four of the original 19 defendants agreed plea deals that include a promise to testify in any trials in the case. Trump and the others have pleaded not guilty.No trial date has been set, but Willis last week asked McAfee to set it for August next year, and warned the case could stretch into 2025.Donald Trump appealed a ruling in which a Colorado judge said he could not be disqualified from the presidential ballot under the 14th amendment to the US constitution, even though he engaged in insurrection by inciting the deadly January 6 attack.The former president took issue with the finding that he participated in insurrection in connection with the attack on the Capitol staged by his supporters.“The district court ruled that section three [of the 14th amendment] did not apply to the presidency, because that position is not an ‘officer of the United States’,” lawyers for Trump said in a court filing, responding to the ruling last week.“The district court nonetheless applied section three to President Trump, finding that he ‘engaged’ in an ‘insurrection’. Should these findings be vacated because the district court self-admittedly lacked jurisdiction to apply section three to President Trump?”The group that filed the suit on behalf of six state petitioners, Citizens for Responsibility and Ethics in Washington (Crew), also lodged an appeal.It argued: “Section three of the 14th amendment, passed after the civil war, excludes from federal or state office those who engaged in insurrection against the constitution after previously taking an oath to support it.“Because the district court found that Trump engaged in insurrection after taking the presidential oath of office, it should have concluded that he is disqualified from office and ordered the secretary of state to exclude him from the Colorado presidential primary ballot.”Read Martin Pengelly’s full story here:John Dean, former White House counsel to Richard Nixon, is scathing about Donald Trump’s efforts to persuade an appeals court that he should not have a gag order in his federal election interference case because he is running for president.Dean has weighed in on what appears to be a court leaning towards, narrowing the gag order that bans Trump from making inflammatory statements and social media posts attacking prosecutors, potential witnesses and court staff.Dean posted on X/Twitter, saying: “Donald Trump has turned the rule of law in the United States upside down, and it is stunning that federal circuit court judges are buying into his remarkable con!” He said the hearing yesterday in Washington, DC, “bordered on pure farce.”Dean, who ultimately helped bring down Nixon despite being involved in the-then president’s cover-up of corrupt and illegal presidential conduct known as Watergate, must be experiencing deja vu right now. He told the Guardian’s David Smith in June 2022, of now-GOP frontrunner Trump: “I was never worried about the country and the government during Watergate but from the day Trump was nominated, I had a knot in my stomach…he just discovered late in his presidency the enormous powers he does have as president…he knows he can hurt his enemies and help his friends.”On X last night his new post on Trump concluded: “For heaven sakes, hold this man responsible for his aberrant and bullying behavior before he further destroys our country. Enough is enough is enough!”Joe Biden says negotiators are “very close” to securing the release of potentially dozens of hostages held by Hamas in Gaza.The US president was speaking at the White House and said: “We’re now very close, very close – we can bring some of these hostages home very soon, but don’t want to get into the details of things.”He added: “Nothing is done until it’s done and when we have more to say we will, but things are looking good at the moment.”We are closely covering all the news in the Israel-Gaza crisis via our global live blog and you can find the details here.It’s lunchtime on a quiet day so far in US politics, and time for a recap of what we’ve looked at so far:
      Joe Biden has called on Congress to pass his $106bn supplementary budget request that he said includes funding to “step up” the fight against a flow of deadly fentanyl entering the US. The president, speaking at the White House before leaving for a Thanksgiving break in Massachusetts, said the fentanyl crisis was hurting families in every state and curbing it was “something every American needs to get behind”.
      Wisconsin’s supreme court justices have been grilling attorneys for both the respondents and plaintiffs in a much-watched gerrymandering case that could end in a complete redraw of the state’s legislative districts. Lawyers for Democratic governor Tony Evers say the current maps favoring Republicans breach a law that says they must be “contiguous”; a conservative justice says the plaintiffs want to upend 50 years of precedent.
      A trio of prominent conservative lawyers said in a scathing New York Times oped that a second term in office for former president Donald Trump would imperil democracy. George Conway, J Michael Luttig and Barbara Comstock say Trump has surrounded himself with “grifters, frauds and con men willing to subvert the Constitution” and that “our country is in a constitutional emergency, if not a constitutional crisis”.
      Back in Wisconsin’s supreme court, lawyers for Republicans defending gerrymandered state legislative maps are getting a grilling from the judges, as the Guardian’s Alice Herman reports from the courtroom:An attorney representing the Republican-controlled state legislature, the respondent in the redistricting case, argued that petitioners asking for legislative districts to be redrawn before the 2024 elections have not allotted sufficient time to redraw the maps, and disputed their definition of “contiguous districts”.Taylor Meehan argued that the existence of districts with literal water-bound islands invalidate the plaintiffs’ argument that the legislative maps should avoid non-contiguous districts and said that the court should adopt a looser definition of “contiguous”.“You’re telling us to use one definition because it will help your argument and I’m pretty sure the rule is we’re supposed to look at the definition to figure out what the law is,” said justice Jill Karofsky, who, along with bench colleague Ann Bradley, repeatedly questioned Dallet’s definition of “contiguity.”Meehan questioned the right of plaintiffs in non-contiguous districts across the state to bring forward the case, comparing their complaint to an Illinois voter challenging Wisconsin maps.“I don’t see how a petitioner who lives in Beloit” can ask for a statewide redraw, Meehan said.Joe Biden has called on Congress to join him to “step up the fight” against the flow of fentanyl coming into the US.The president was speaking at the White House in his final official engagement before he and first lady Jill Biden head to Nantucket later for their Thanksgiving break.Before a cabinet meeting that’s now gone into private session, Biden said he was heartbroken for families who will have an empty seat at their Thanksgiving table because they had lost a loved one to the drug:
      Fentanyl is likely the number one killer of Americans at this point. It’s an issue that’s hurting families in every state across the nation. Curbing this crisis is something that every American needs to get behind, Democrat and Republican.
      How can we accelerate our efforts and make sure that we’re delivering real results? Congress also has to step up in this fight. It can start by passing my supplemental budget request for national security, including significant resources to help stop the flow of fentanyl in our country, as well as funds to strengthen and support services for people struggling with fentanyl impacts.
      I also urge Congress to permanently make fentanyl and related substances Schedule One drugs. Too many people are dying.
      Biden prefaced his remarks with an update on progress towards a deal to free hostages held in Gaza by Hamas since the 7 October attacks on Israel. He said an agreement was “very close”.You can follow that and other developments in the Israel-Hamas war in our dedicated blog here:Here’s more from Alice Herman covering the gerrymandering case in Wisconsin’s supreme court:Anthony Russomanno, an attorney representing Wisconsin’s Democratic governor Tony Evers, argued that the state’s legislative maps, and the process for drawing them, violates the separation of powers – privileging the legislature, which is responsible for drafting the maps, over the executive branch.Tamara Packard, representing five Democratic lawmakers, also argued the mapmaking process violated the separation of powers.Conservative justices hammered Russomanno and Packard with questions of propriety regarding the timing of the litigation, and justice Rebecca Bradley accused attorneys of attempting to illegally overhaul the makeup of the state legislature.“You are ultimately asking that this court unseat every assemblyman that was elected last year,” said Bradley, comparing the plaintiffs’ request to implement a new map before the 2024 elections, and hold early special elections for representatives not up for election in 2024, to Donald Trump’s attempt to overturn the 2020 election.Packard said her clients, Democratic lawmakers who would face special elections if the court were to side with the plaintiffs, were “ready, willing, and able” to face re-election and that other legislators should be willing as wellA conservative judge on Wisconsin’s supreme court questioned the timing of a lawsuit challenging the state’s legislative districts as oral arguments got under way Tuesday in a much-watched case over gerrymandering.The Guardian’s Alice Herman, who is in the courtroom, reports that Mark Gaber, an attorney representing Campaign Legal Center, laid out one of the plaintiff’s central arguments: that non-contiguous districts in the state are unconstitutional.Almost immediately, conservative judge Rebecca Bradley interrupted Gaber to question the plaintiffs’ timing in bringing the case forward.“Where were your clients two years ago?” she asked, pointing to the fact that the ideological sway of the court flipped when Janet Protasiewicz, a liberal judge, was elected this year. “You’re seeking to overturn 50 years of precedent.”Gaber disputedthe case was brought in a partisan manner, arguing that the state constitution requires contiguous districts – a non-partisan requirement. The argument that 75 of the state’s 132 districts are non-contiguous is at the heart of the plaintiffs’ case against the gerrymandered maps.House speaker Mike Johnson took a trip to visit Donald Trump at his Mar-a-Lago resort in Florida on Monday night, CNN is reporting, a pilgrimage similar to the one that exposed predecessor Kevin McCarthy to criticism.“Maga Mike”, as some have branded the Louisiana Republican for his unswerving loyalty to the former president, has endorsed Trump’s campaign for the party’s 2024 presidential nomination, so a “kiss the ring” visit to Mar-a-Lago was not entirely unexpected.It is not known what the pair discussed, CNN says. But the trip has echoes of former speaker and then minority leader McCarthy’s “groveling” visit to see Trump in January 2021, days after condemning him for sparking the deadly 6 January Capitol riot.With his endorsement of Trump, Johnson, who voted against certifying the 2020 election results, has gone even further than McCarthy did in backing the twice-impeached ex-president, who is currently facing dozens of charges in multiple cases against him around the country.“I’m all in for President Trump,” Johnson told CNBC, adding he was “one of the closest allies that President Trump had in Congress”.The Guardian’s Sam Levine and Alice Herman are following oral arguments this morning at the Wisconsin supreme court, where the seven justices will adjudicate one of the most closely-watched gerrymandering cases this year.The case is a challenge to the maps for Wisconsin’s state legislature, which are so heavily distorted in favor of Republicans that it is all but impossible for Democrats to win a majority.Republicans took over the legislature in 2010, and drew maps that have cemented their majority ever since. Democrats won statewide elections in the state in 2018, 2020, and 2022, but Republicans have never had fewer than 60 seats in the state assembly. State senate districts must be comprised of three assembly districts in Wisconsin, so any gerrymandering in the assembly carries over to the senate.The challengers want the court to strike down the maps and order new elections in all 132 of the state’s legislative districts in 2024.They note that 75 of Wisconsin’s 132 legislative districts are non-contiguous, a clear violation of a state constitutional requirement that says all districts need to be contiguous. The districts, Republicans argue, are contiguous because even with “islands” they still keep municipalities whole.The challengers also argue that the process by which the supreme court picked the current maps violated the separation of powers because the panel chose one the Democratic governor had vetoed.Oral arguments have just begun. We’ll bring you updates as we get them.Read more here:“Grifters, frauds and con men willing to subvert the Constitution and long-established constitutional principles for the whims of political expediency.”That’s how a group of prominent conservative lawyers sees the legal team Donald Trump has surrounded himself with as the former president plots a return to the White House next year.Warning of an unprecedented threat to democracy from a Trump second term, and the worsening of a “legal emergency” set in motion by his unprecedented efforts to overturn his 2020 defeat by Joe Biden, they have founded a group called the Society for the Rule of Law Institute, which they say is needed “to bring sanity back to conservative lawyering and jurisprudence”.A trio of lawyers form the new group’s board. They are George Conway, ex-husband to Trump’s former senior adviser Kellyanne Conway; J Michael Luttig, formerly a US appeals court judge; and Republican former Virginia congresswoman Barbara Comstock.They set out their case Tuesday in a hard-hitting editorial in the New York Times:
      American democracy, the Constitution and the rule of law are the righteous causes of our times, and the nation’s legal profession is obligated to support them. But with the acquiescence of the larger conservative legal movement, these pillars of our system of governance are increasingly in peril. The dangers will only grow should Donald Trump be returned to the White House next November.
      Recent reporting about plans for a second Trump presidency are frightening. He would stock his administration with partisan loyalists committed to fast-tracking his agenda and sidestepping – if not circumventing altogether – existing laws and long-established legal norms.
      They cite Trump’s already publicized plans to appoint public officials investigate and exact retribution against his political opponents; remove federal public servants at will; and invoke special powers to seize control of First Amendment-protected activities, criminal justice, elections, immigration and more.The “guest essay” continues with praise for the few lawyers in the first Trump administration who stood up to his excesses, and a warning that legal checks and balances would be largely absent from his second:
      Alarming is the growing crowd of grifters, frauds and con men willing to subvert the Constitution and long-established constitutional principles for the whims of political expediency.
      The actions of these conservative Republican lawyers are increasingly becoming the new normal. Any legal movement that could foment such a constitutional abdication and attract a sufficient number of lawyers willing to advocate its unlawful causes is ripe for a major reckoning.
      Our country is in a constitutional emergency, if not a constitutional crisis.
      Good morning US politics blog readers! A group of prominent conservative lawyers is warning that democracy would be placed in unprecedented peril if Donald Trump returns to the White House next year, and that legal checks and balances on his conduct would be largely absent if he wins a second term.The dire predictions come in a hard-hitting opinion piece Tuesday in the New York Times.Trump, the former president and runaway leader for the Republican 2024 nomination, has surrounded himself with “growing crowd of grifters, frauds and con men willing to subvert the Constitution and long-established constitutional principles for the whims of political expediency,” they say, creating an unprecedented “legal emergency” worsened by their support of his unsuccessful efforts to overturn his 2020 election defeat.The authors, who include George Conway, ex-husband to Trump’s former senior adviser Kellyanne Conway, have formed an attorneys’ group called the Society for the Rule of Law Institute, which they say is needed “to bring sanity back to conservative lawyering and jurisprudence”.We’ll have a closer look at that coming up.Here’s what else we’re watching today on a quiet pre-Thanksgiving Tuesday in Washington DC:
      Joe Biden will host a White House meeting over efforts to stop the flow of fentanyl into the US this morning, before he and first lady Jill Biden head for their Thanksgiving break in Nantucket.
      There’s no action in Congress, but an election in Utah’s 2nd congressional district Tuesday will restore the House to its full complement of 435 members since Democrat David Cicilline of Rhode Island resigned in May. Republican Celeste Maloy is expected to handily beat Democratic state senator Kathleen Riebe.
      Wisconsin’s supreme court will hear oral argument in a high-stakes lawsuit seeking to strike down the maps for the state’s legislature. The result could bring an end to what may be the most gerrymandered districts in the US. Read more about that here. More

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      Trump appeals Colorado ruling that said he engaged in January 6 insurrection

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      Donald Trump appealed a ruling in which a Colorado judge said he could not be disqualified from the presidential ballot under the 14th amendment to the US constitution, even though he engaged in insurrection by inciting the deadly January 6 attack.The former president took issue with the finding that he participated in insurrection in connection with the attack on the Capitol staged by his supporters.“The district court ruled that section three [of the 14th amendment] did not apply to the presidency, because that position is not an ‘officer of the United States’,” lawyers for Trump said in a court filing, responding to the ruling last week.“The district court nonetheless applied section three to President Trump, finding that he ‘engaged’ in an ‘insurrection’. Should these findings be vacated because the district court self-admittedly lacked jurisdiction to apply section three to President Trump?”The group that filed the suit on behalf of six state petitioners, Citizens for Responsibility and Ethics in Washington (Crew), also lodged an appeal.It argued: “Section three of the 14th amendment, passed after the civil war, excludes from federal or state office those who engaged in insurrection against the constitution after previously taking an oath to support it.“Because the district court found that Trump engaged in insurrection after taking the presidential oath of office, it should have concluded that he is disqualified from office and ordered the secretary of state to exclude him from the Colorado presidential primary ballot.”The 14th amendment is otherwise generally known for extending equal protection under the law to all people in the US.Trump faces 91 criminal charges – 17 arising from attempts to overturn the 2020 election – and civil threats including a defamation trial arising from a rape allegation a judge called “substantially true”.Nonetheless, he dominates polling regarding the Republican presidential nomination and challenges the Democratic incumbent, Joe Biden, in general election polling.The Colorado suit is one of a number seeking to use the 14th amendment to keep Trump off the ballot. Judges have also ruled against plaintiffs in Michigan and Minnesota. Experts are split over whether the amendment should prevent Trump from seeking office again.Speaking to the Guardian this month, Eric Foner, the pre-eminent historian of the post-civil war era, discussed “the most important amendment added to the constitution since the Bill of Rights in 1791”.skip past newsletter promotionafter newsletter promotionThe question of whether the president is “an officer of the United States”, key to the Colorado ruling, “hasn’t been decided”, Foner said.“It certainly seems the normal understanding of the term ‘officer’ is someone holding office,” he said. “The president certainly holds office. When the constitution was ratified, there was no president … so it’s unclear … But I don’t see how you can … exclude the president from this language.“If you take the whole of section three, I think it’s pretty clear that they are trying to keep out of office anybody who committed the acts that section three describes.”But though Foner said January 6, when Trump sent rioters to the Capitol to stop certification of his defeat to Biden in 2020, was “certainly [an attempt] to halt a constitutional procedure”, whether it was an act of insurrection or rebellion remained open to question.Most experts expect challenges to Trump under the 14th amendment to reach the US supreme court. As there is no case law on the question, Foner said, legal challenges to Trump will inevitably “take a long time”.“It would be weird if Trump is elected next fall,” he said, “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.” More

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      Network of Lies review: Brian Stelter on Fox News, Trump and Dominion

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      This week, Rupert Murdoch formally stepped down as the chairman of News Corp. At the annual shareholder’s meeting, the 92-year-old media mogul inveighed against the “suppression of debate by an intolerant elite who regard differing opinions as anathema”. He also passed the baton to Lachlan Murdoch, his 52-year-old son, “a believer in the social purpose of journalism”.Murdoch also told those assembled that “humanity has a high destiny”. Unmentioned: how Fox News’s coverage of the 2020 election led to its shelling out of hundreds of millions to settle a defamation lawsuit from Dominion Voting Systems, or how other suits continue.Five days after the election, insisting Donald Trump could not have lost to Joe Biden – as he clearly did – Maria Bartiromo defied management to become “the first Fox host to utter the name ‘Dominion’”, writes Brian Stelter, a veteran Fox-watcher and former CNN host. “All gassed up on rage and righteousness, [Bartiromo] heaped shame onto the network and spurred a $787.5m settlement payment.”Bartiromo popularized the Trump aide Sidney Powell and her special brand of insanity. Their enthusiasm became fatally contagious. January 6 and the insurrection followed. Two and a half years later, Bartiromo is still on the air. Powell is a professional defendant. Last month, she pleaded guilty in Fulton county, Georgia, to six counts of misdemeanor election interference and agreed to six years of probation. She still faces potential civil liability and legal sanction.“What Bartiromo began on a Sunday morning in November … destroyed America’s sense of a shared reality about the 2020 election,” Stelter laments. “The consequences will be felt for years to come.”In the political sphere, Trump shrugs off 91 criminal charges and assorted civil threats to dominate the Republican primary, focusing on retribution and weaponizing the justice department and FBI should he return to power.With less than a year before the 2024 election, Stelter once again focuses on the Murdochs’ flagship operation. Like his previous book from 2020, Hoax: Donald Trump, Fox News and the Dangerous Distortion of Truth, Network of Lies offers a readable and engrossing deep dive into the rightwing juggernaut paid for by the Murdochs and built by the late, disgraced Roger Ailes.Now a podcast host and consulting producer to The Morning Show, an Apple TV drama, Stelter also has journalistic chops earned at the New York Times. He wades through court filings and paperwork from the Dominion litigation, talks to sources close to Fox and the Murdochs, and offers insight into the firing of Tucker Carlson, the dominant, far-right prime-time host who was suddenly ditched in April. Stelter’s book is subtitled The Epic Saga of Fox News, Donald Trump, and the Battle for American Democracy. He overstates, but not by much.Unlike Bartiromo, Carlson didn’t drink the Kool-Aid. He was sly and calculated, not crazy.“Carlson privately thought Powell’s ‘software shit’ was ‘absurd’,” Stelter writes about the idea that voting machines were outlandishly rigged. “He worriedly speculated that ‘half our viewers have seen the Maria clip’, and he wanted to push back on it.” But Carlson didn’t push back hard enough. He went with the flow.He now peddles his wares on what used to be Twitter, broadcasts from a basement, and hangs out with Trump at UFC. For a guy once known for wearing bow ties, it’s a transformation. Then again, Carlson also prided himself on his knowledge of how white guys ought to fight, an admission in a text message, revealed by the Dominion suit, that earned the ire of the Fox board and the Murdochs.In Stelter’s telling, Fox “A-listers” received a heads-up on what discovery in the Dominion case would reveal.“‘They’re going to call us hypocrites,’ an exec warned.” Plaintiffs would juxtapose Fox’s public message against its internal doubts about voter fraud claims. “It was likened to ‘a seven-layer cake of shit’,” Stelter writes.The miscalculation by Fox’s legal team is now legend. It led Murdoch to believe Dominion would cost him $50m. But even Murdoch came close to concluding it was “unarguable that high-profile Fox voices” fed the “big lie”.skip past newsletter promotionafter newsletter promotionStelter captures the Murdochs’ struggle to make money, keep their audience happy and avoid liability. It is a near-impossible task. The beast must be fed. There is always someone or something out there waiting to cater to Trump’s base if Fox won’t. After the 2020 election, Trump forced Fox to compete with One America News and Newsmax for his attention and his followers’ devotion.The Murdochs’ pivot toward Ron DeSantis as their Republican candidate of choice won’t be forgotten soon, at least not by voters during the GOP primary. Despite being assiduously courted by Fox to appear at the first debate, which it sponsored, Trump smirkingly and wisely declined to show. Fox still covers Trump’s events – until he plugs Carlson, the defenestrated star.Judging by the polls, none of this has hurt Trump’s hopes. He laps the pack while DeSantis stagnates, Nikki Haley threatening to take second place. At the same time, some polling shows Trump ahead of Joe Biden or competitive in battleground states and leading in the electoral college. For now, Fox needs him more than he needs Fox.In that spirit of “social purpose” reporting lauded by his dad, Lachlan Murdoch will be left to navigate a defamation action brought by Smartmatic, another voting machine company, and, among other cases, a suit filed by Ray Epps, an ex-marine who pleaded guilty to misdemeanor charges for his role in the January 6 insurrection but became the focus of conspiracy theorists. Sating the appetites of the 45th president and his rightwing base never comes cheap.In the Smartmatic litigation, Fox tried to subpoena George Soros, the bete noire of the right. It lost, but conspiracy theories die hard. US democracy remains fragile, the national divide seemingly unbridgeable. Expect little to change at Fox. The show must go on.
      Network of Lies is published in the US by Simon & Schuster More

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      Trump is facing multiple charges – but there is one that could seriously harm his reputation | Emma Brockes

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      We have been here before countless times: prematurely anticipating the end of Donald Trump on the basis of actions or implications that, for anyone else, would have proven fatal long ago. Quick recap: the former president is facing four separate criminal cases, involving 91 felony counts, in four separate states; plus a civil fraud case currently being heard in Manhattan; plus a second defamation suit brought by the writer E Jean Carroll, whom earlier this year Trump was found guilty of sexually assaulting and defaming and ordered to pay $5m. Plus a clutch of broken gag orders and the resultant fines.The question in all of these cases is less whether Trump will be found guilty than whether there is any outcome whatsoever that would be capable of preventing him from standing for president next year, or – the more depressing calculation, in some ways – of damaging his chances, if not. Trump voters have, historically, proven even more resistant than the rest of us to changing their minds when the evidence changes. And Trump himself has an almost preternatural gift for turning the most unpromising situations to his advantage. Even so, there may, within the detail of these extremely wide-ranging cases, be some aspects that are more harmful to Trump than others.For the former president, the most straightforwardly dangerous criminal trial – that is the one that is, simultaneously, the most serious and also appears to involve the most clear-cut evidence against him – is the so-called classified documents case, brought in Florida by special counsel Jack Smith. This case, which is due to be heard next May, ranges across 40 felony charges, the most serious of which carries a maximum penalty of 20 years in prison, which perhaps explains why Trump has described Smith variously as “deranged”, a “thug” and a “Trump hater”. Trump’s defence – that he “un-classified” the documents before removing them from the White House – is seemingly contradicted by, for example, audio evidence of Trump saying he could have declassified “secret” documents, but didn’t.And, yet, as a possible end to Trump’s political hopes the case isn’t as open and shut as it seems. For a start, it is slated to come before Judge Aileen Cannon, a Trump appointee, and to be heard by a jury that will be selected from Florida districts that voted heavily for Trump. It is also a federal prosecution, meaning that should Trump’s lawyers manage to push the start date beyond the November election, and should Trump be returned to office, he could conceivably instruct the justice department to shut the whole thing down until his tenure expires.That principle applies similarly to two of the other criminal cases: the hush money trial brought by Alvin Bragg, the Manhattan district attorney, which is scheduled for March next year and is in some ways the flimsiest of the four criminal trials, resting as it does on fiddly definitions around improper campaign donations. (Briefly: if Trump paid hush money to Stormy Daniels via his fixer, Michael Cohen, then lied about it, the DA’s office will try to contend that this constitutes not only a misdemeanour crime of cover-up, but a more serious felony entailing “intent to defraud” in the interests of furthering Trump’s election prospects. The $130,000 paid to Daniels may then be framed as an improper campaign donation.)Much more serious for Trump is the four-count indictment for election interference, also being brought by Smith, in relation to Trump’s actions in the run-up to the storming of the Capitol on 6 January 2021. The most damning of those charges – that Trump tried to subvert democracy and disenfranchise voters – is much harder to prove than anything he will face in the documents case. But, unlike Smith’s Florida case, this one will be heard in the District of Columbia, where the jury will be pulled from a population heaving with Democrats. It is also set for March, presenting the Republican frontrunner with mind-boggling logistical and psychological (where even to begin with this) issues.That leaves what, on the surface, looks like the most local and least impressive case against Trump, which is the Georgia election interference case, alleging a conspiracy to overturn the 2020 election result in Georgia via a pressure campaign and for which no date has yet been set. Oddly, of the four criminal cases, it is this case that is the most promising in terms of its potential to scupper Trump, purely because it has been brought under state not federal law, and as such lies beyond the reach of a sitting president.Those are the criminal trials. On the evidence of Trump’s polling numbers, which over the past year have risen undisturbed as the 91 indictments rolled in, there is nothing much on paper to indicate that Trump is in trouble. Indeed, if being described by a judge, as Trump was earlier this year, as guilty of rape isn’t a dealbreaker for his supporters, then the small matter of alleged treason isn’t likely to move the needle either.For my money, it is the current civil trial in New York, brought by the New York state attorney general, Letitia James, that threatens Trump’s reputation most acutely and right where it hurts. The suit carries no threat of prison or disruption to Trump’s presidential bid. But in the short term it does threaten to unseat his reputation as a businessman of any standing and strip him of his licence to operate a business in New York.A judge has already found him guilty of fraud and this hearing is purely to assess the level of damages. Unlike all the other legal actions against Trump, which he has apparently successfully been able to pass off as part of some vast conspiracy against him, the fraud case, in which it is alleged that he inflated the value of his businesses to secure better loan rates, lands differently. It makes Trump look shabby, small-time, crooked and crucially, given the nature of his appeal, not nearly as wealthy as he says he is.
      Emma Brockes is a Guardian columnist
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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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      Trump can appear on Republican primary ballot in Michigan, judge rules

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

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      White House berates Trump for echoing Hitler by calling opponents ‘vermin’

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      The Biden White House condemned Donald Trump for promising, if re-elected president, to “root out” opponents within US society he called “communists, Marxists, fascists and radical left thugs that live like vermin”.“Employing words like ‘vermin’ to describe anyone who makes use of their basic right to criticise the government ‘echoes dictators’ like Hitler and Mussolini,” the White House spokesperson Andrew Bates said, quoting Washington Post coverage of Trump’s remarks.“Using terms like that about dissent would be unrecognisable to our founders, but horrifyingly recognisable to American veterans who put on their country’s uniform in the 1940s. President Biden believes in his oath to our constitution, and in American democracy. He works to protect both every day.”Trump is the clear frontrunner to face Joe Biden in an election rematch next year, enjoying vast leads for the Republican nomination in battleground and national polls despite facing 91 criminal charges, including election subversion, and assorted civil trials including a defamation case arising from a rape allegation a judge said was “substantially true”.Trump leads or is close to Biden in numerous swing state polls.The former president spoke in Claremont, New Hampshire, on Saturday, in the middle of the Veterans Day weekend.“The threat from outside forces is far less sinister, dangerous and grave than the threat from within,” said Trump, who was impeached, for a second time, for inciting the deadly January 6 attack on Congress in an attempt to stay in power.On Monday, Bates said: “We do not comment in the 2024 presidential election.”But he added: “The nation just observed Veterans Day, recognising the sacred memory of every American who risked their lives to defend our freedom.”skip past newsletter promotionafter newsletter promotionReferring to previously reported remarks by Trump about US servicemen and women, Bates said: “Veterans who are absolutely not ‘suckers’ or ‘losers’ … as President Biden has said, deserve our greatest respect.”Trump has also said he would if re-elected consider suspending the US constitution in order to achieve his aims.Bates said: “Suspending the constitution would gut the protection of freedom that defines our country, and for which so many brave service members sacrificed everything. That abuse of power would put the rights of all Americans in unprecedented danger.” More

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      If Trump wins, US would look like Putin and Orbán’s ‘illiberal democracy’, Raskin says

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      If Donald Trump wins a second presidency, the US would resemble the authoritarian regimes of Vladimir Putin’s Russia and Viktor Orbán’s Hungary, a prominent Democratic congressman predicted Sunday.During an appearance on MSNBC’s Inside with Jen Psaki, Jamie Raskin invoked the names of some of the globe’s most powerful strongmen political leaders to characterize the threat posed by Trump’s status as the leading contender for the 2024 Republican presidential nomination despite the mound of legal problems with which he is grappling.“The role of the government in his view is to advance his political fortunes and destroy his … enemies,” Raskin said of the former president and reality television show host. “So what would a second term look like?“It would look a lot like Vladimir Putin Russia. It would look a lot like Viktor Orbán in Hungary – illiberal democracy, meaning democracy without rights or liberties or respect for the due process system, the rule of law.”Raskin added: “Their position is that they don’t accept elections that don’t go their way. They refuse to disavow political violence – they embrace political violence as an instrument for obtaining power. And then everything flows from the will of a charismatic politician, and that is Donald Trump in their book.”Raskin said another turn in the Oval Office for Trump would thrust the US “into a completely different form of government than any of us would recognize as continuous with the past”, one that instead would feel more familiar in Xi Jingping’s China or in Jair Bolsonaro’s Brazil before the latter man was ousted from office last year and then barred by his country’s courts from running for re-election due to abuses of power.The Maryland congressman’s dramatic admonition to Psaki came days after Trump went on Univision and suggested he would use federal investigators and prosecutors to pursue his enemies if he scores a victory in next year’s presidential election.On Saturday, Trump promised in a speech to “root out the communists, Marxists, fascists and radical left thugs that live like vermin” in the US. Many commentators noted how the term “vermin” echoed antisemitic rhetoric that the Nazis frequently employed to dehumanize Jews as they murdered 6 million of them during the Holocaust.Meanwhile, the New York Times reported Saturday that Trump – who routinely speaks fawningly of Putin and other autocratic world leaders – is “planning an extreme expansion” of the immigration crackdown that the Republican oversaw during the presidential term he won in 2016.The plan reportedly envisions sweeping raids that round up undocumented people in the US before detaining them en masse in sprawling camps while they await deportation. Among other measures, it also calls for a revival of his first-term ban against travelers from predominantly Muslim countries.Raskin served on the US House committee which investigated the deadly Capitol attack staged by Trump’s supporters on 6 January 2021, weeks after he lost the presidency to his Democratic rival Joe Biden.After a series of televised hearings last year, the committee recommended that the justice department file criminal charges against Trump. And since March, a combination of federal and state prosecutors have obtained more than 90 criminal charges in four separate, pending indictments against Trump accusing him of election subversion, retention of government secrets and illicit hush-money payments to a porn actor.He has also faced civil lawsuits over his business affairs and a rape allegation which a judge deemed “substantially true”.Trump has denied all wrongdoing and sought to portray himself as a victim of political persecution. Nonetheless, he has held commanding polling leads in the contest for the 2024 Republican White House nomination. And there is a consensus among experts that a rematch between him and Biden would be very close.The Republican National Committee chairwoman, Ronna McDaniel, on Sunday said her organization is ready to support and embrace Trump as its candidate if he clinches the party’s nomination.“The voters are looking at this, and they think there is a two-tiered system of justice,” she said on CNN’s State of the Union. “They don’t believe a lot of the things that are coming out in this. And they’re making these decisions. And you’re seeing that reflected in the polls.” More