The Lawfare Podcast: Sam Moyn and Ilya Somin on Disqualifying Trump Under Section 3

[Audio Excerpt]

Sam Moyn: When you have millions of Americans, I don't know if they're ready to take up arms in defense of Donald Trump's candidacy. But, I think we should be very wary of just the possibility that this kind of decision could look unholy to tens of million of our fellow citizens.

[Main Podcast]

Hyemin Han: I'm Hyemin Han, Lawfare Associate Editor. This is the Lawfare Podcast for February 2nd, 2024.

Next week, the Supreme Court will hear argument in Trump v. Anderson, former President Donald Trump's appeal of the Colorado Supreme Court's historic decision taking him off the state's presidential primary ballot. In determining whether the Colorado Supreme Court erred in ordering Trump excluded from the state's ballot, the Supreme Court faces one of the most fraught questions facing our democracy today.

I asked two legal scholars, who couldn't disagree more with one another, whether they think the Supreme Court should disqualify Trump under Section 3 of the 14th Amendment. Sam Moyn is Chancellor Kent Professor of Law and History at Yale University. He thinks the Supreme Court has to unanimously reverse the Colorado Supreme Court's decision and keep the current Republican frontrunner on the ballot. Ilya Somin is Professor of Law at George Mason University and B. Kenneth Simon Chair in Constitutional Studies at the Cato Institute. He thinks the Supreme Court should take Trump off the ballot despite its facially anti-democratic optics. We went through the legal questions in front of the Court, the political and philosophical implications of disqualifying Trump under Section 3, and the interplay of law and politics that overlays it all.

It's the Lawfare Podcast, February 2nd: Sam Moyn and Ilya Somin on Disqualifying Trump under Section 3.

I want to be clear up front for listeners that the focus of today's episode is on the political and philosophical arguments surrounding disqualifying Trump under Section 3, and it is not a debate on the legal merits of disqualification. But, I do think to understand each of your precise political arguments, it's important to start on the legal merits, especially in terms of how your assessment of the legal merits informs your political recommendations.

Ilya, could you start us off by laying out what the Colorado Supreme Court decided and what questions are in front of the Supreme Court in the appeal?

Ilya Somin: Sure. So, the Colorado Supreme Court was deciding both state and federal questions, though what's before the federal Supreme Court now is purely the federal side of it. It comes down to whether Trump is disqualified from being on the ballot for the Republican primary for president in Colorado because of Section 3 of the 14th Amendment, which says [that] no person who previously held various federal or state offices and took an oath to support the Constitution and then engaged in insurrection or gave aid and comfort to the enemies of the United States, that if such a person who previously held various offices engaged in those activities, then he or she could no longer hold various offices in the future.

And this is combined with a Colorado state law, which says that in order to be on the ballot in Colorado, you have to be qualified for the office that you're running [for]. Not all states have laws like that. So in some states, Section 3 challenges to Trump's eligibility have been turned back because the court said, "Well, just to be on the ballot, you don't necessarily have to be qualified for the office you hold. Or, alternatively, even if you have to be qualified in order to be on the ballot for the general election, you don't necessarily have to be qualified to be on the ballot for a party primary like the GOP primary in the presidential election."

So the Colorado court held that the process that was used to disqualify Trump was permissible under Colorado state law, and also that Colorado required people who are going to be listed on the ballot for a primary to be eligible for the offices for which they run. And they also reached several issues about the interpretation of Section 3 itself. Those issues, unlike the Colorado state law determinations, will likely be reviewed by the federal Supreme Court. One is they concluded that the attack on the Capitol in January 6, 2021 was an insurrection. More controversially, they concluded that Trump engaged in the insurrection by inciting it and also by the fact that while the attack on the Capitol was going on, he was calling up various members of Congress, urging them, to continue to urge them, to overturn the electoral vote count. And so, he was in effect using the violence as leverage to try to get Congress to do his bidding and keep him in power.

They further ruled that the president is quote, "an officer of the United States" and therefore, Section 3 applies to him. Trump's defenders argue that the presidency is not one of the offices of the United States, and therefore the Section 3 does not apply to the president, even if he does engage in insurrection. They ruled that Section 3 is self-enforcing, which in plain English means that courts can enforce it on their own and state governments can enforce it on their own. They don't need special implementing legislation by Congress. And they also ruled that disqualifying Trump does not violate his First Amendment rights and that the amount of process that he was given was enough to meet due process requirements.

I think that covers the major legal issues at stake in the case, in my view. And we can get into details later for interested. But, in my view, the Colorado Supreme Court was right on pretty much all of these points. On some of them, I think it was very obviously right. Though I think, to my mind, there is a tougher question about did Trump engage in the insurrection or not. On the other hand, I don't think it's really a close call that the president is covered under the phrase "officers [of the] United States. And similarly, I don't think it's a close call that January 6th was an insurrection. And I think also there is a strong case that Section 3 is self-enforcing. Finally, I should add that the--I believe it also ruled that in order to be disqualified for engaging in insurrection under Section 3, you do not have to have previously been convicted of the crime of insurrection or of any other crime necessarily. I've written a piece about why I think that ruling is correct, and indeed I'm submitting an amicus brief in the federal Supreme Court that is devoted to that specific question.

Hyemin Han: Thanks so much. And you started to touch on this, but could you overview what you think are the strongest and weakest parts of the ruling/the argument for disqualification legally?

Ilya Somin: To my mind, while there's a bunch of arguments against disqualification, most of them are just pretty bad. The one I think that poses the toughest challenge and that is least clearly wrong is the argument that even if there was an insurrection, that maybe Trump did not engage in it because obviously Trump didn't personally engage in violence. He didn't personally come to the Capitol at all. He didn't even, in so many words, say, "Go attack the Capitol" to the people who did it. And therefore, there is at least a somewhat plausible argument that he didn't engage in the insurrection. However, I think on balance, that argument is overcome by the fact that he incited and encouraged the attack on the Capitol, not just on the day of January 6th, but over a period of many weeks when he promoted violence to try to overturn the election result. And, most damningly, when the attack was going on, instead of trying to stop it, or even instead of just sitting around and doing nothing, he continued to call members of Congress to try to get them to overturn the election result, and that is effectively using the attack as leverage to try to overturn a result.

In this respect, he's similar to the Hamas political leaders who may not have been directly involved in the planning of the attack on Israel and the taking of hostages, but they are now using that attack and the hostages as leverage to try to get Israel to make concessions and release imprisoned Palestinian terrorists. To my mind, those Hamas political leaders are clearly engaging in terrorism, even if they weren't directly involved in the attack, and similarly, Trump was engaging in insurrection by using the attack as leverage to try to gain his ends, which of course are the same ends as those of the attackers themselves.

Hyemin Han: Sam, what do you think are the strongest or weakest points of the legal argument?

Sam Moyn: So, I approach this very differently because my main concern, as we'll talk about later, is who ought to decide whether Trump becomes president again? And so, when I think about these arguments, it's not that I think they're weak individually, but I think the most important point for me is that Colorado has to prevail on all of them for it's decision to be upheld. And I analogize the situation to a kind of heptathlon, except one in which I have to win each and every race. And even if I enter pretty confident that I can win each one, there could be a 10 or 20 percent chance that I lose. But if I lose one, I lose the whole competition. Now, that's, I think the real legal problem that there's just a list of objections to applying Section 3 to Trump. And there are some minor ones Ilya didn't even mention, like the fact that the text applies to holding office, prohibits insurrectionaries from holding office, not for running.

And so, I myself think probably the self-execution argument that Ilya mentioned is probably a little bit stronger than he mentioned, and I think it's really especially, for a court that at least selectively takes precedent seriously, to remember that there's really one big precedent on the meaning of Section 3, and it's called Griffin's case. And I'm not saying it's a super strong precedent because it was just one justice, the Chief Justice Samuel Chase, deciding it. But that single precedent says that Section 3 has to be implemented by Congress. So I guess my general answer to the question is that Ilya's probably right, that few of the arguments are that strong, but that's not really what matters. It's that most of them have some weakness, and there's, I think, enough chance that the Supreme Court can lean on one of them to give Trump an out that this really becomes a political case. The Supreme Court is going to be making a political decision, and that's, I think, what we should talk more about than the technical legalities.

Hyemin Han: Right. We'll definitely get there for sure. I do want to ask though about the January 6 was or was not an insurrection question. Do you think that's easy or more difficult than folks are putting out?

Sam Moyn: Not at all. I think Ilya is probably correct that that's going to be the hardest one for the advocates of disqualification to win for for a couple big reasons. One is that there's really no consensus in the legal materials we have about how to define the word "insurrection" quite apart from what it means to engage in it. And then there's this underlying factual reality, which is that Trump did certain things and whether those count, whatever one's definition of insurrection as engaging in it or aiding and abetting it or giving aid and comfort to it, I think is just subject to an enormous national disagreement. Add to this that in Colorado, there was a bench trial that determined this and that no one, even of the near-thousand who have been already held accountable for January 6th, has been indicted for insurrection under our federal insurrection statute. And I think you do get maybe more considerable doubt about that element of the case than the others on the list.

Hyemin Han: What about the question about whether the president is an officer of the United States.

Sam Moyn: If this weren't so momentous, I think that one would be more amusing. If you just look at the 14th Amendment and read the third section, I think the ordinary person would immediately conclude the president's not covered just because he's not mentioned specifically. And to me, it is very revealing that-- and we have to account for the fact that the section reads, "No person shall be a senator or representative or elector of the president or vice president," before we get to the disputed language that the section also covers anyone who holds any office or is an officer of the United States. And I think it's amusing because a lot of liberals have suddenly dug out a lot of history, partly on the strategic ground that the justices who will be deciding this, that, I think the pivotal ones, are conservative originalists.

But, as in so many such cases, there are arguments on both sides about what the language of the amendment meant in 1868. I stand more with the ordinary person who would read this provision and assume the president's not covered. I think that's a fair inference, although I realize that the intensity of the argument is really on this other matter of whether people in 1868 would have the view that the presidency is an office or the president is an officer. And I'll take Ilya's view that on that point, the bulk of the evidence might well suggest that the president counts, but optics are everything. And the fact that there is such a dispute, not just as to the facts of what happened on January 6th, but what this provision means is, to me, the really important thing.

Hyemin Han: Ilya, do you have anything you want to say in response?

Ilya Somin: A couple points. One is in my view, what an ordinary person would think is exactly the opposite, that it says anybody who's, quote, "an officer of the United States" is covered, surely that includes the person who holds the highest and most powerful office in the land. And indeed, when I mentioned this officer argument to non-lawyers or non-scholars, most of them have trouble taking it seriously because they think it's just very obvious that the person who holds the single most powerful office is covered. Moreover, if you take the view that he's not covered, you get the ridiculous and idiotic anomaly that an insurrectionist postmaster would be covered by this, or an insurrectionist low-level bureaucrat, but an insurrectionist president gets off scot-free, which is just ridiculous and insane from the standpoint of both ordinary meaning, but even such canons of interpretation as the canon against absurdity. Now, maybe you could overcome this through a deep dive into original meaning evidence, which in theory could show that actually officers were considered as a term of art that excludes the president, but on a sort of ordinary meaning, read by a person who's not steeped in these materials, it seems obvious that if anybody's covered under the phrase, "officer of the United States," it would be the person who holds the single most powerful and most important office.

On the issue of insurrection, I think it's important to distinguish between the question of what is an insurrection and whether Trump engaged in it. I think there is overwhelming evidence that what happened on January 6th meets even a relatively narrow definition of insurrection. That is the use of force to seize government power. But, there is also original meaning evidence suggesting that the understanding of insurrection in the 1860s was actually broader than that. But, you don't need to make that argument for January 6th to qualify. However, as I mentioned before, it is a closer question whether Trump engaged in the insurrection. I think he did, but I think that is a tougher issue than the other.

Related to this, I think there's a distinction between civil processes and criminal ones. And there are many situations where people can be civilly held liable in various ways or subject to civil disqualifications, even if they haven't been criminally convicted. O. J. Simpson is a great example. He was actually acquitted at his criminal trial of killing his ex-wife, but he nonetheless later was held civilly liable for it. It's a different proceeding with different standards of proof and different Rules in some respects. And so the fact that Trump or other people were not charged with insurrection, I think is not dispositive of whether they engage in it from the standpoint of Section 3.

Finally, I do take the point that as a practical matter, given that there's a lot of arguments on the other side, now we have to win one that increases their chance of winning. But on the other hand, if you throw a lot of bad arguments on the wall, that doesn't necessarily mean that you deserve to win. It is also true that there's a lot of disagreement over all of this, but the fact that there's disagreement does not mean that both sides have equally good arguments. There are many examples in history, including in constitutional history, where there was a big argument over something and a lot of people believed arguments which were badly wrong. Sometimes even just a point of being ridiculous and stupid. Public opinion and sometimes elite opinion as well can be wrong about things. And so, the fact that there is controversy as a practical matter, maybe that would give the court pause. But in terms of what morally and legally they should do, the mere fact that there's a lot of people who may hold wrong beliefs about this set of issues is not a reason to indulge them. Indeed, the whole point of Section 3 disqualification is to keep from power people who are menaces to the Republic, who have some significant popular support. If they didn't have any popular support, or if there wasn't any chance they could be elected or appointed to office, there would be little or no point to disqualifying them in the first place.

Hyemin Han: Sam, do you want to respond to that before we go?

Sam Moyn: No, I have minor differences with Ilya on these matters, but I have a major difference, which is that I am not as much of a legalist. If it were the case that there were an extraordinarily good reason to elect a 34-year-old, and that person was enormously popular, I'm not sure I need the Constitution to stand in the way or the Supreme Court to enforce it. If there were a need for Barack Obama to come back and the American people wanted him, since, after all, a fourth-term president beat the Nazis before the prohibition on that, of third and fourth terms, was amended into the Constitution, once again, I'm not sure that the Constitution is in the end what matters. And so, to me, Section 3 is just a kind of special case of this political question of what should the American people do in the future? And the reason it's special is because unlike the prohibition on 34-year-olds and third- or fourth-term presidents, it's just much less clear than in those cases that the Constitution even applies directly to this situation.

Hyemin Han: So are you saying that there's not really a need for a Constitution in general, or that in certain areas we should be more willing to disregard it?

Sam Moyn: Yeah, I've written in the New York Times, with a colleague that having constitutions is not great. We do in this country, and so I want to respect that fact. To me, the arguments against constitutionalism in general apply with special force to this situation. After all, we have a national conversation about the future of the country that has been diverted for a great many people into lawyering up to decide what was going on in the 1860s and what this obscure provision in 1868 mean.

And the likelihood is that this case, Trump v. Anderson, is going to be consigned to an obscure footnote to the 2024 election because the Supreme Court will block in some way what Colorado has done, or certainly any national implications for it. But the fact that the Constitution is being treated as a kind of diversion from our national decision about how to get rid of Trump is, I think, unfortunate, and the Constitution is directly implicated in that fact.

Hyemin Han: Ilya, is there anything you want to say in response?

Ilya Somin: Yeah, I don't think it's unfortunate at all. Sam and I have broader disagreements over the value of constitutionalism in that I think constitutionalism, while certainly not always great--and there are certainly bad constitutional rules--I think it's generally a valuable institution. First, because even if we are going to have a so-called national conversation, there have to be sort of rules of decision-making, by which that conversation happens, and constitutions can do that. They set out electoral rules, rules for which offices have which powers, and so on.

But second, both political theory and [inadudible] experience show that there are many situations where it's good to have constraints on what political majorities can do. And this is not an insight peculiar to the U. S. Constitution. Most liberal democracies actually have at least some significant constitutional constraints of that kind. And they are desirable because there are systematic flaws of pure democracy or pure majoritarianism, whatever you want to call it, which have to do with voter ignorance, bias, panic, and hatred and fear arising from emergencies and other pathologies. And some of those constraints take the form of protecting particular types of individual rights, freedom of speech, freedom of religion, rights of due process, rights of property and contract and others. Some of them may take the form of structural constraints or separation of powers. But some of them in Section 3 and the 22nd Amendment are examples of this, take the form of constraints on who is allowed to wield political power because certain categories of people pose a threat to democratic institutions themselves, either because of structural reasons. With the 22nd amendment, the concern is the president can go on serving indefinitely, that he or she then can consolidate power and become a dictator. Or, alternatively, as in the case of the people banned by Section 3, their track record shows them to be a menace because they engage in insurrection before, and therefore, could abuse the powers. of office to do so again or otherwise undermine the republic.

And other democracies, including some that American progressives admire, have adopted rules that disqualify certain kinds of people or certain kinds of political movements from holding power because they're a menace. Germany, for instance, after World War II, they banned the Nazi party from contesting elections. Israel has banned certain racist political parties from contesting their elections in Eastern Europe. A number of countries enacted lustration laws, as they were called, which banned former members of the communist secret police from ascending to political office. If Russia had been wise enough to enact a similar law, it might have been spared the dictatorship of former KGB Colonel Vladimir Putin.

So, Constitutionalism is not always good. And I certainly don't claim that every constitutional rule in the U. S. constitution is a good idea. There are some of them that I myself find objectionable. But overall, it is desirable to have constitutional constraints that protect us against the abuses of democracy and also, in some cases, protect democracy itself from subversion and overthrow, such as by people who by their track record, like Donald Trump, have shown that they are a menace to democracy, and therefore it is desirable to have rules which barred them from getting a second bite at the apple.

Hyemin Han: Now to move to the political arguments, I want to take stock of where each of you land precisely. Ilya, it seems like you think that the legal argument is pretty strong minus the question of whether Trump engaged in insurrection. And Sam, it seems like you're kind of agnostic on the legal arguments because of your overarching view of this. But, the part that you think is weakest is about whether or not January 6th was an insurrection, especially given the national disagreement on that point. Does that sound accurate to you both?

Sam Moyn: Well, I was playing fair and and by the rules in engaging in the legalistic discussion. But, the view I hold is actually a little bit different, which is that law is a continuation of politics by other means and this isn't some idiosyncratic theory. This podcast is actually named after that view; the word "lawfare" means weaponizing law to achieve political ends. And I believe that it's best to see this suit in continuity with the attempt to circumvent Trump and tame him or get rid of him altogether from American politics through legalistic means that have generally intensified the problem and made him more popular. Now, among those different means, I think there are some that are preferable, like impeachment. And I would have no trouble with a criminal charge of insurrection against Trump, which has, it's worth noting in the insurrection statute, the consequence if a jury convicts him, of barring him from political office.

I think my trouble with the legalistic case is not in the details. It's about the optics and the effects of this kind of move in a country in which Trump is so popular, and in which these kind of resistance strategies have made him more popular, even as Joe Biden has seen his popularity tank. And I think that ought to be very much in the foreground of any conversation about the law, since law is just part of a political ecosystem, no matter what.

Hyemin Han: On what you just said, isn't there a meta problem with letting Trump kind of evade what would be otherwise a disability to his ballot access just because he's popular? I definitely understand what you mean in terms of law curtailing popular will. On the other hand, isn't there also a good argument that he's an elite rich guy, who has somehow gotten some popularity--which, by the way, New Hampshire and Iowa, he won, but it's not overwhelming, right. So what's the best way to respond to that?

Sam Moyn: By popular, I mean relative popularity in it. He has a commanding lead in the Republican nomination contest, and polls suggest that he has even odds of winning the general election. One of the more striking facts I have read lately is that Joe Biden's approval ratings are lower than Trump's after January 6th, and that's the political situation to which I'm referring. Now, of course, I would love to live in a world in which he were unpopular, and actually, I would have fewer problems with legalistic techniques of facing Trumpism if they made him less popular and, in a sense, easier to remove. But in the end, there are ways of getting rid of him besides this. And the most obvious, is actually taking a case to the American people that this person doesn't deserve to be president again. He already lost once, and if he lost, especially if he lost decisively a second time, it would do far more than any of the legalistic techniques to, I think, get the country beyond the age that this charlatan has defined.

Hyemin Han: But what if someone responds to that and says, "It's not a method or a tactic, it's more application of law." Definitely take your point that someone had to bring this case. There had to be activation energy there, and that could itself be the point of lawfare, lowercase L. But what if someone's just like, "No, this is not a ploy. It's simply that he needs to be held to account. And the fact that he is popular shouldn't be the reason why he gets off scot-free." When someone like, say, Madison Cawthorn back in 2022, the Fourth Circuit says he would have been subject to Section 3 disqualifications. It never reached the merits.

Sam Moyn: It's a reasonable question. And I have a few quick thoughts in response. One is that law is part of politics, and mindlessly following the law, even when it's clear, is not always the best course. And I don't know, it's hard for me, I'm not a political strategist, exactly what the effects of mindlessly following the law, if that's the view you're presenting, would be, but it's worth discussing.

And then, as we've covered, this is a law on which there's a fair amount of disagreement about how to interpret it. Section 3 is not self-interpreting, and so what's actually happening is giving the Supreme Court final authority to make a big political decision. Now, I don't think the analogy is perfect, but people on my side of politics, liberals and the left, were appalled when, based on the same amendment, in Bush v. Gore, the Supreme Court picked a president with arguably millions of lives affected, possibly if you read certain history books, lost in consequence.

And to make another analogy, this particular amendment, which almost no one knew Section 3 was part of it until a few months ago. A few voices in the wilderness cited it starting on January 6th, and a few scholars have ever studied it. And for the Supreme Court to bring it to the very center of American politics, I think is a big political event, and therefore, one that ought to be debated. How do we achieve the just results we want? That's not always a question of following the law and especially one that basically no one knew about and that the Supreme Court gets to decide what it means.

Hyemin Han: Ilya, do you have anything to say in response?

Ilya Somin: Yeah, a few thoughts. First, I think it is entirely legitimate and reasonable to use legal means to protect ourselves against flaws of democracy, and in this case, also to protect ourselves against ways in which the democratic process could imperil itself. Section 3, that's the whole point of it, to protect against the ascension to power of people who have shown by their track record that they are willing to engage in violence to undermine the Constitution and overthrow our democratic system. And I talked earlier about how many democracies around the world use legal techniques like that to protect the political process, including against its own excesses.

I don't find it all that compelling to say, "Well, why can we use this now when very few people have even thought about it for a long time?" That's because there was no need to think about it during long periods of time when there was no significant threat that somebody who had been engaged in insurrection would ascend to power, just like you probably don't give much thought to your fire insurance during the long stretches of time when there's no fires at your house and there's no significant risk that a fire is going to occur and so forth. But that doesn't mean you shouldn't use your fire insurance policy if a fire does break out. And the same thing applies here. We have a president who used force and fraud to try to stay in power when he lost an election. That is the kind of thing that Section 3 is supposed to protect us against, and we can use it for that purpose. And while courts are certainly imperfect institutions, courts are likely to do a better job of giving objective interpretations of legal rules of the game than if we leave it purely to the political process or if we leave it to some other kinds of actors.

At the same time, that doesn't mean that we should rely only on legal means to combat Trump or other problems of his movement. The one means doesn't exclude the other. We should use both legal and political means. And in fact, most successful efforts in American history to strengthen principles of constitutional law to protect democracy and also to protect human rights usually involve the combination of both legal and political action.

And I think the same thing can be true here. The Section 3 litigation is just one part of what can be a broader effort to combat this menace, but it's not a part that should be dispensed with. There is no reason to somehow, abjure this tool merely because it hasn't been used much in a long time, or because it involves judicial intervention. I agree, there can be cases where, as Sam put it, mindless adherence to law is wrong, like if a law is deeply unjust, or if obeying the law would cause some horrible catastrophe. But there should be at least a strong presumption that we will obey constitutional rules of the game, because it's valuable to have that as an institution. And I don't think that presumption is anywhere close to being overcome in this case.

I would finally add that it's actually a myth for the most part that legal efforts to combat Trump have actually made him more popular. There's no evidence, except for one case I'll mention in a moment, there's no evidence that any of those legal efforts have actually made Trump more popular than before, with the exception of the New York criminal indictment against Trump last year, which he did indeed get a spike in the polls when it happened with other criminal indictments against him. There was no spike at that time. Similarly, his impeachments didn't make him more popular, nor is there any evidence that the use of Section 3, which has been in the news lately, that that has made Trump more popular. It's arguable it also hasn't in many cases made him less popular, but it's just not true that this somehow contributes to his political success. So I think there is every reason in both legal theory and democratic theory and political theory and also just sort of practical, pragmatic strategy to make use of this legal tool, which is there precisely for the purpose of keeping such dangerous people out of power. And it's valuable to use it precisely in those instances where otherwise they are popular enough that they have a real chance of attaining power. If we're talking about people who have little or no chance of being elected or appointed to office anyway, then disqualification has little point.

Hyemin Han: I would love for you to engage with what I think Sam is saying though, about the fact that using both the legal and the political in this case wouldn't be feasible because once you use the legal, a. k. a. once you disqualify Trump, there's just really no way to kind of salvage the political case against him when all of his supporters are just gonna say, "Well, it's moot because the Dems or whoever, the elites in power have taken him off through law." Do you think that that's not a problem?

Ilya Somin: I think it's not a significant problem for two reasons. One is if you remember what happened after the 2020 election, his hardcore supporters said that he was unfairly kept out of power even when he lost an election just by normal means. So we're talking about a movement that much of which is not willing to accept normal election results. That's all the more reason to prevent their leader from contesting elections in the future, because he is committed to undermining the electoral process.

Secondly, removing Trump from the picture, obviously doesn't end the broader political debate about what you might call the MAGA movement or right-wing nationalism in the U.S., whatever you want to call it. And obviously, that would have to continue to be fought in other ways. It's not like absent Trump Republicans have no options out there by which they can pursue some of the kinds of policies that Trump advocates and the like, so this is actually narrower than some things which other democracies have done, which you just ban entire political movements because they're inimical to democracy, like the ban on the Nazi party and the communist party in West Germany after World War II, or like some examples in other countries that we can name. By comparison, barring one person who has a demonstrated track record of using the threat of force and fraud to try to overturn election results and keep them in power, that, by comparison, is actually a relatively modest measure.

Hyemin Han: Sam, do you want to respond to that?

Sam Moyn: Well, there's so much Ilya said. I do want to note, since he's repeatedly referred to it, that militant democracy arguments, namely, having special rules that are justified even when they violate rights in the name of protecting democracy or the regime of rights, they're persistently controversial. And one reason is that they provide tools for lots of actors and they have been deployed not just in some of the more defensible cases that Ilya mentioned, but in ones where just political enemies get pursued as threats to democracy. And the future is unpredictable, but it will be fateful to, in this country, to allow, even for the best of reasons or for a good cause, the disqualification of one person because it will lead to more, in just the same way as the practice of impeaching presidents has led to a lot more. That doesn't mean I agree that we never have recourse to that tool as was tried both times unsuccessfully with Trump. But it does mean that the choice should give us pause.

I also think that it's really important to consider relative popularity. So, my answer to Ilya's point that none of the so-called legalistic techniques have intensified Donald Trump's popularity is that actually it doesn't seem to have damaged him profoundly. And not just the hardcore of his base, but millions of Americans voted for Trump in spite of all the things that were done to him over the course of his presidency. And after January 6th, there seemed to be millions of Americans who were supporting him, whether because they don't think he did anything wrong, or because they think that his attempt to perpetuate himself in power is in some sense forgivable, given the political options they have.

And here I just think a good analogy is to the Supreme Court's intervention in the United States v. Nixon, which effectively ended Richard Nixon's presidency. And to me, the difference in the Supreme Court's role in that case is that there was a political consensus, indeed, basically an elite consensus, including leaders of the Republican Party that Nixon had to go. What we have in this situation is very different. Conservatives, including Libertarians, Conservatives like Ilya, have just lost access to control over the Republican Party. And it's been visible from really the start of Trump's political significance in this country that a lot of people, call them "never-Trumpers'", main goal is to get their party back. If this disqualification goes through, more than that, you're going to have millions and millions of voters who have had their preference in voting deprived from them. Now, if they respond the way Ilya predicts and just accept it on his account, they're not going to accept the blockage of Trump under any circumstances. But I think what he's really saying is that if they just allow this to happen, then I think Ilya will have been proved right, that invoking Section 3 is a risk worth taking.

But I'm not so sure that if this is seen by the right as, if you will, its version of Bush v. Gore, when the Supreme Court acted politically, that it's gonna just sit idly by. Section 3 was passed after a civil war, once the violence had been unleashed with hundreds of thousands of dead. This is a very different situation. When you have millions of Americans, I don't know if they're ready to take up arms in defense of Donald Trump's candidacy. But I think we should be very wary of just the possibility that this kind of decision could look unholy to tens of millions of our fellow citizens. And they might rightly ask, "Well, why didn't you campaign against the man? Why didn't you find popular enough policies to prevail against him decisively? You did in 2020. Why not 2024?" And if the answer is Biden has made mistakes, that's the political reality that needs to be addressed.

Hyemin Han: So quickly, on the "looks unholy" part, though, this is a court that's given us Dobbs. Should it also not give us a disqualification on the originalism merits?

Sam Moyn: I think that's a fair point, because after all, Bush v. Gore was Conservatives choosing a conservative president. This would be a case of Conservatives choosing, or at least, being seen potentially to help a liberal president survive. And I do think that's a really important difference. And again, I'm just calling for considering possible consequences and how things will look to those we want to consider themselves American citizens served in some sense by the system. And so, I guess my worry is that even in this circumstance, this way of getting rid of Trump will, let's say, confirm the populist narrative that elites just won't allow tens of millions of people to express their political opinion. And Ilya says they can still vote for Republicans, but, other ones who's aren't disqualified. But to me, trying to place myself, as difficult as it is, in the shoes of people on the right, I want to vote for who I want to vote for, for the reasons I want to vote for them. And I've already processed, I've already interpreted January 6th, I've already processed it politically and the question is, who do I think should be president, Biden or someone else? And I want to get to decide who that someone else is. That's why we have democracy. For all Ilya's insistence that we ought to have limits on democracy, I think a lot of people actually want to have democracy.

Hyemin Han: Ilya, could you please respond?

Ilya Somin: So there are two aspects of this. One is the issue of the threat of violence, and on that I would want to make a couple points. First, these people responded with violence even after their guy lost a perfectly normal election by norm, under normal rules and the like.

Sam Moyn: A tiny number of people relative to the million who voted for him.

Ilya Somin: Yeah, but a large number of other people supported it and wanted to make excuses for it and so forth, so we cannot assume that they would be more violent in response to this than they would be in response to him just losing a normal election. Second, we should not give in to the threat of violence. If we say "We are not going to do what is otherwise legal and right because people who are evil and misinformed and under delusions will engage in violence in response," we in effect create a giant heckler's veto over the entire functioning of our liberal democratic system. We should instead say, "We are not going to give in to violence," just like we should not give into terrorism. And indeed, this would be a form of terrorism that we should instead say that if people engage in terrorism, they will be suppressed and that should be the line. Yes, there are risks associated with that, but the risks on the other side are much greater if we give the threat of terrorism and violence a veto power over the functioning of our legal and political system.

Now, there is the other issue, setting violence aside of, well, people would perceive this as illegitimate and so on. And I think here, I would make a couple of points. One is we have many constraints on democracy built into our system and many of them, not all, but many of them are desirable and useful, despite the fact that all the time, many people object to them on various grounds. Second, it's important to remember that most people are not as engaged in politics, as intensely committed to it, as either Trump's most hardcore supporters, or for that matter, to people who probably listen to this podcast. So the number of people willing to take up arms just because they get angry about the disqualification of a presidential candidate they like are likely a small fraction of the population. That makes it different from something like the Civil War, where a large part of the governments of various states in the country were willing to rebel and take up arms and the like. And I think, therefore,, it's preferable to exercise the constitutional safeguards we have and use them rather than to be intimidated either by the threat of violence or by the threat of public opinion.

At the same time, as emphasized before, that doesn't mean you rely purely on litigation or legalistic action. You should do other things too. There are other kinds of reforms that I've advocated and others have advocated that can make the political system function better and reduce the dangers that are built into it in various ways. But, I think we should remind the side of the political spectrum that constantly says, "We are a republic and not a democracy," that that means, among other things, that certain kinds of people who are a threat to the Republic are not allowed to hold power. And we should also not allow ourselves to be intimidated by threats of violence and terrorism, because if we do allow ourselves to be cowed by that, then that's an extremely dangerous situation.

Finally, we should note that any danger on this side should be weighed against the danger of what if Trump does return to power and is able to use it for the purposes of undermining liberal democracy further in various ways that he has already promised to do. I would rather deal with a menaced democracy that is not in power and it just involves some isolated violence, than deal with it with a person like that actually sitting in the White House.

Sam Moyn: Again, I think Ilya's presenting a powerful case, but I just want to raise two cautionary notes. One is that the rather extraordinary confidence in his predictions of what's likely to happen. And I think we should have much more pause about any course of action we might take because the future's very hard to predict, and the idea that this ruling is likely to be accepted, however glumly, by his supporters because they aren't as politically mobilized as during the Civil War, even as Ilya also claims that any threat of violence is likely baked in anyway, given January 6th, it all seems pretty speculative to me, and I would like a lot more evidence before I were so confident on any of those points.

But the bigger, I think, reservation I would have is that I just have a very different reading of recent American politics than he seems to have because, in my understanding, there is a revolt against elites going on, not simply in the United States, but in lots of so-called democracies because people don't believe either that they should be as subject to elite rule or that those elites are doing a good job. And it's really for that reason that I think it's been a gross error through lawfare, if you will, to play in, through our strategies of responding to someone like Trump, to the very syndrome that seemed to give rise to Trump and like politicians in the first place. Now, I take Ilya's point entirely, that it is very hard to avoid following the law. But in a case where the law is unclear, where the Supreme Court has been widely attacked, especially on the left lately, for its interventions in American politics, I think leaning into that technique of getting our way, even if it's precisely the right that has done so more regularly, is a mistake. And it's not as if an authoritarian future is a given because the 2024 election, like prior elections, is one in which we should be out there convincing our fellow citizens of what kind of democratic future to have, not protecting democracy, if by that you mean protecting people from getting their way in politics.

Hyemin Han: Ilya, do you want to respond to that?

Ilya Somin: Sure. So part of the whole point of having liberal democratic institutions, emphasis here in the liberal part, is in fact to put some constraints on democracy. And those constraints are all the more valuable in periods when a large part of public opinion favors harmful and illiberal measures.

But in this case, we don't even have to resort to this argument because, surely, if there's anything that's anti-elitist, it's keeping from power a member of the elite who was repudiated by the electorate, and instead of accepting his defeat and his repudiation, he instead sought to use force and fraud to keep himself in power. If there's anything that's more elitist than that, it's hard to say what that would be.

Sam Moyn: That then became enormously popular again, to the point of maintaining control of the Republican Party and seeming to draw even--

Ilya Somin: --with the one segment of the electorate, but unpopular with the majority of it. And I think this just goes to show the broader theme that sometimes one way to protect against harmful elites is also to put some constraints on their ability to hold power, including if even in situations where they might be elected to it. I would emphasize again also that there's just no evidence that, with the exception of the New York case--which is not even about January 6th or any of those issues, it's about sort of a kind of weird financial fraud--with the exception of the New York criminal charges, there's just no evidence that Trump's popularity has increased because of these legal efforts to combat him. Maybe you could argue that it hasn't decreased much either. But I don't think there's any contradiction between using, or even a trade-off, between using these legal efforts to combat him and using other tools to do so.

Sam Moyn: All that I'm saying is it's left him a viable candidate to beat Joe Biden with whom he's even in the polls, as of today.

Ilya Somin: And he would have been at least equally viable if there had never been any legal efforts against him at all. But I would add survey data does show that if he gets criminal convictions that might reduce his popularity at the margin.

Sam Moyn: I agree.

Ilya Somin: It's also, as for Section 3, so far, at least, survey data does not show that using Section 3 against him has somehow made him more popular. So, I certainly agree there's uncertainty. Nobody could be certain about what would happen in any given course of events. But to my mind, if there is uncertainty, then the default option should be to stick to constitutional safeguards and use them, rather than to, in effect, grant Trump a Get-Out-of-Jail-Free Card. Or in this case, a Get-Out-of-Disqualification-Free Card because of political conjectures that we might make.

I admit that if there's overwhelming evidence that if he gets disqualified that will lead to the collapse of the Republican civil war or whatnot, then you might make an argument we just have to disobey the law in this case, because disobedience would be worse. But I don't see that evidence. And if anything, I think the available weight of evidence is more the other way. So if we're talking about what should be our default option in the event of uncertainty, then a default option should be to follow the Constitution.

Hyemin Han: So I think what's really interesting is that both of you are presenting, in some ways, your own version of a populist argument, an anti-elite argument, even though the the core problem with all of this is that it is being seen as some sort of elitist contortion of the law to get Trump off the ballot. Why do you think it's the case right now that the never-Trumper Republicans find allies in the Democrats, and MAGA Republicans find allies in someone like Sam Moyn, who doesn't want to see the Constitution be used in this way? Is this something that you think is generally happening in terms of the legal political sphere, or is this a purely Trump problem?

Sam Moyn: So I want to correct your question on, which is a great one, on one minor point, which is that I'm not an ally of macro-Republicans. I'm saying that they should be opposed politically by offering the American people a better political option. My general narrative would be that it appears that Trump, like Bernie Sanders, was kind of a response to a long-term proximity of the two parties in their policies, and that starting in 2016, there was a revolt against both parties. Now it was more successful, at least more quickly, in the Republican Party, and never-Trump Republicans lost their relevance in their old party and have had much more influence joining with centrist Democrats in what had been the adversary party.

And I do agree with you, Hyemin, that I think this kind of consideration does you know explain at least some of my resistance to the resistance of which I think this Section 3 agenda is the latest phenomenon because it's about seeking a quick fix to the challenge of broadening and shifting our policies beyond those that enrage so many millions, both right and left. And it seems to me that for all the rhetoric about the Constitution and democracy that the never-Trump movement has deployed, what it's really saying is that it wants to dodge the challenge of populism and find a quick fix for it.

I'm with Franklin Roosevelt, who in 1937 said those who prate, talk endlessly about saving democracy, really mean democracy the way it was before without envisioning a new form of it that is more popular. And I think my worries about the Section 3 strategy is that it will just intensify the problem and not solve it.

Hyemin Han: Ilya?

Ilya Somin: So two things. It is not my view--I don't think it's also the view of most other people when I use Section 3, though I can't speak for all of them--but it is certainly not my view that we can solve all the problems posed by Trumpism or for that matter, by Bernie Sanders and others, by disqualifying Trump. There will still be what I regard as a deeply harmful sort of ethnonationalist movement on the right, one that wants government to have way too large a role in the economy and in our culture and our society. And there's also a problematic movement on the left represented by Bernie Sanders.

Much of my academic and other work is, in fact, about the broader challenges posed by these kinds of things. I'm even the co-author of one of the reports in the National Constitution Center Guardrails of Democracy project. I'm part of the Team Libertarian report. They're also liberal and conservative teams, and we outlined their various reforms that we believe are needed to improve our political system and its functioning and the like. I've also written an entire book called "Democracy and Political Ignorance," which is about the broader challenge of what we might call populism and ignorant public opinion and how we can protect liberal institutions against various challenges.

So it is not at all my contention that Section 3 is somehow a complete fix for these problems. It pretty obviously is not. At the same time though, Section 3 can serve the limited purpose of disqualifying one particularly menacing individual and other purposes and other more structural improvements I think can and should be pursued by other sorts of means. I think the parallel to FDR in the 1930s actually cuts the other way, because yes, there was a lot of dissatisfaction certainly with the Great Depression. On the other hand, by breaking constitutional bonds, FDR actually did a lot that was harmful, including various measures that did much to prolong the depression and actually make people more miserable. I don't have time to go into all of them, but I would just mention a particularly famous example, the Supreme Court decision of Wickard v. Filburn, which severely undermined federalism and constitutional constraints on federal government power--

Sam Moyn: That's a great case.

Ilya Somin: --by saying that Congress's power to regulate interstate commerce could be used to restrict the growing of wheat that never was sold in any market, interstate, never even moved out of state. The whole point of that was to raise the price of wheat, thereby raising the price of food in the middle of a depression where millions of people are already having trouble making ends meet, and even in more extreme cases, suffering from malnutrition. So the fact that we have various problems in the political system, and that many people want change, isn't necessarily a good reason for breaking constitutional bonds or for ignoring them. If anything, I think the experience in the 1930s suggest that doing that is actually pretty awful. We would have been better off without the Agricultural Adjustment Act that made millions of people even poorer, and in some cases made them suffer from malnutrition even more than they would have otherwise.

Hyemin Han: Sam, do you want to respond to that?

Sam Moyn: Well, I think this is probably a pretty root disagreement because I think what Ilya is saying is that economic liberals should contain democracy or dispense with it, insofar as that's feasible. And I have the reverse view that Liberals, like me, have to campaign for their values and in popular discussion and win some lose some, the people will make mistakes. I don't think as many of Franklin Roosevelt's choices were mistakes, but the difference between Ilya and Franklin Roosevelt is one of them was elected four times, often by immense national majorities. And Donald Trump, the one time he's been in power, was a minority rural president. So maybe we should fix the Constitution to make sure that never happens again.

But regardless, I think I'm not in position to tell the people what they should do. They get to decide what their future is. And we have to live with it and try to change it, and not adopt techniques to get our way that actually make it less likely that our views prevail. We should engage honestly and fairly and not seek alternatives to democracy, or actually should try to have more of it than we've ever had.

Hyemin Han: So it seems like a good time now to then ask how to actualize both of your positions. I think Ilya's position, of course, will require the Supreme Court to cut the legs out from under the current Republican favorite, and Sam's position requires a kind of legal off-ramp, that I'm not sure is immediately obvious. So could both of you tell us what you think is the best way for the Supreme Court to rule, given your political thoughts?

Ilya Somin: So I think the federal Supreme Court should just simply affirm the decision of the Colorado Supreme Court. What that means in terms of Trump's ballot access and the like will vary by state. And some states, many states, do have rules saying that people who are unqualified legally for the office that they're running for are not eligible for the ballot, and therefore they wouldn't even be able to [run on] the ballot. There are other states that might not be true. But I think the practical result is that Trump would be unable to gather sufficient electoral votes to win the election. And therefore, there would be great pressure on the Republican party to choose a different nominee. If they chose not to do that, well, it's their own fault for choosing somebody who's unqualified legally, just as if the Democratic party were to nominate Barack Obama, who I think is vastly more popular than Biden is, but Obama is disqualified under the 22nd Amendment. But if the Democrats were to choose to nominate Obama anyway, that would be the Democrats' fault. It would not be something where the court system should give them a pass.

There is, of course, a broader issue of how to structure and reform political institutions generally. And here, I think, Sam and I have a broader disagreement about the validity of constitutional constraints on political majorities that goes beyond simply the specific details of those constraints that FDR broke or that were broken or undermined in some ways at various points in history. But I think many on the political left, maybe not Sam, but many others, do accept the need for a variety of different constraints on the powers of political majorities. For instance, they were very angry at the Supreme Court when it overturned Roe v. Wade, and they want protection for a variety of different kinds of rights.

So, if you accept that, then I don't think it's possible to just simply stand on the notion that political majorities should just get whatever they want because there are other, sometimes more important, values at stake. But in this case, it's something that protects the political majority's own future rights to have a democratic process for those issues that are decided by political majorities. Here, it's not even just an example of using legal means to protect other liberal values that might trump democracy. It's using legal means to protect democracy itself against those who have proven themselves to be a menace to it.

Hyemin Han: Thanks. Sam, what's your answer to the question?

Sam Moyn: So, I'll make two quick points. One is about the consequences of affirming the Colorado decision, and the other is about my preferred alternative. So, on the first, I don't want to undercut the reason for having this conversation, but we may have overhyped this decision because, for one thing, we can speculate that the states that Trump needs to win the the Electoral College are not going to disqualify him anyway. But, regardless, I think it's very important to note that the Supreme Court has to accept the facts that the Colorado Supreme Court did, as determined by the Colorado Trial Court, and no state can disqualify Trump even with Colorado's decision affirmed unless, it goes through its own process, which would include its own factual determination of what happened January 6th, and it would then have help with the legal consequences. But, it would not just immediately lead to a banning of Trump from ballots across the land.

Now, my preferred resolution, I don't have a strong view because I hate Supreme Court fan fiction. But, it seems to me that the self-implementation argument that Ilya mentioned at the top is the one that is best, all things considered because would be like the Supreme Court, as it happens in the case of Wickard v. Filburn, basically transferring authority over our future to the Congress. Self-implementation would be basically saying it's going to be up to Congress, not so much what Section 3 means as when it applies, what's required for it to apply, whether it applies at all in this country. And that would be the outcome I think most resonant with the democratic option that I've been defending on the podcast.

Hyemin Han: Well, we'll leave it there. Thank you both so much for your time and for being willing to put your opinions on the record on such a fraught question.

Sam Moyn: Thank you.

Ilya Somin: Thank you.

Hyemin Han: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad-free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter through our website, lawfaremedia.org/support. You'll also get access to special events and other content available only to our supporters.

The podcast is edited by Jen Patja Howell, and your audio engineer this episode was Noam Osband of Goat Rodeo. Our music is performed by Sophia Yan. As always, thank you for listening.