Jon Wiener: From The Nation magazine, this is Start Making Sense. I’m Jon Wiener. Later in the show: the case for disqualifying Trump as a candidate, based on the 13^th Amendment banning those who have engaged in insurrection from holding public office, goes before the Supreme Court this week -historian Sean Wilentz has our analysis. But first: Some questions for Senator Jeff Merkley of Oregon–he’s one of our leading progressives. That’s coming up – in a minute.
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Senator Jeff Merkley of Oregon was recently honored by The Nation magazine as one of the progressives who give us hope in 2024. He was one of the first members of the Senate to call for a ceasefire in Gaza. He’s also one of the Senate leaders of the climate movement, and he’s fought for humane and responsible approaches to immigration, including paths to citizenship for undocumented people. Now he’s got a new book out. It’s called Filibustered!: How to Fix the Broken Senate and Save America. We reached him today in our nation’s capital. It’s an honor and a pleasure to say: Jeff Merkley, welcome to the program.

Jeff Merkley: Thank you so much, Jon. Good to be with you.

JW: Let’s start with America’s support for Israel’s war in Gaza. Two weeks ago, the Senate voted against a measure introduced by Bernie Sanders that would’ve made military aid to Israel conditional on whether the Israeli government is violating human rights in its war in Gaza. The vote was 72 against 11 in favor. You were one of the 11. First of all, was this a proposal to cut funding for Israel’s war in Gaza?

JM: Actually, all this measure did was require a report within 30 days on the humanitarian circumstances as impacted by the war. I think the argument for fully understanding the impact of what’s going on in Gaza is extremely important. It’s really a moral responsibility for us as Israel’s premier partner, as a top provider of financial aid and top provider of military assistance, to understand exactly what we are tied into, and particularly, as we resupplied weapons to Israel in the middle of the conflict and did so, the administration did so, bypassing Congress, the circumstances that we now see in Gaza, the result of deliberate choices by the Netanyahu government to allow only a trickle of aid. So hunger has progressed to where 90% of the population gets less than a meal per day, a huge amount of water contamination. A lot of the population does not have clean water, which is a precursor to disease, illness, so forth.
You have tremendous number of injuries from the bombing, of course, tremendous number of deaths, some more than 26,000, more than 18,000 women and children, two to three times that many. In terms of serious injuries, the vast bulk of the hospitals shut down, only 14 remaining, often not having antibiotics, not having anesthesia, not having the medic equipment they need, not even having the food to feed their patients, a point that was made to doctors who came out of Gaza when I was at Rafah Gate. It’s so hard to get food, water, and medical supplies through Rafah Gate or through Kerem Shalom Gate, but once they’re inside, it’s so hard to get it delivered without deconfliction. By deconfliction, I mean basically coordinating with the suspension of military activities along the path to warehouses so that supplies can be safely delivered to hospitals and warehouses. You combine all this together, and the humanitarian workers who have been in the worst conflicted zones in the world told Senator Van Hollen and me that this was far worse than anything they’d ever seen anywhere.

JW: So you have been to the Rafah crossing, this is between Gaza and Egypt. It’s one of the very few ways for anyone to get into Gaza. Tell us a little more about your visit there.

JM: Senator Van Hollen and I felt like we should really try to understand the humanitarian issues, and the best way to do that is to go to Gaza. We tried to get into Gaza. We tried every possible strategy, but quite frankly, none of the governments wanted to risk letting two senators in. We were the only two members of Congress, I believe, who have made it to Rafah Gate. At Rafah Gate, you can talk to the people who are coming out of Gaza through the gate. You can talk to the truck drivers waiting to get in. You can talk to all the humanitarian aid workers who are seasoned professionals about what’s going on inside.
So it was a powerful insight, and what came out of that was an understanding of the many, many barriers that Israel has set up to efficient delivery of aid: truck drivers who have to stay with their truck for a week from the time they pick up a load, get it inspected, and get permission to enter into Gaza, and then great difficulty transferring to Palestinian trucks. They don’t want their own trucks damaged. Palestinian trucks, Palestinian drivers who know the area, those drivers having enormous difficulty figuring out how they can safely deliver aid. The result is that even though there have been some modest improvements, like opening Kerem Shalom, the number of trucks stayed way too low to provide the basic necessities. So that is the big message, that it is a clear strategy both in terms of a convoluted inspection process and a failure and deconfliction to make it very hard to deliberate.

JW: You called for a ceasefire back in mid-November. You were only the second senator to do that. Dick Durbin of Illinois was the first. Even now, in February, only five senators have called for a ceasefire. The five, just note, include Elizabeth Warren, do not include Bernie Sanders. Are  there any prospects for more support in the Senate for a ceasefire?

JM: The call for a cessation of hostilities has come with many different words. Some have used the term “humanitarian pause,” some have called for “cessation of hostilities.” Some have called for a ceasefire with conditions. Indeed, no ceasefire would be sustainable if there’s not a release of hostages if there’s not a transition in terms of Hamas controlling Gaza. So the reason I wanted to use the term “ceasefire” was because of the horrific damage to civilians. The US, time and time and time again, called on the Netanyahu government to use a much more targeted approach. The US went through this in Fallujah. We used an untargeted approach and then stopped and said, “No, this is not okay,” the amount of damage that’s being done to civilians, and then spent months working out a much more targeted strategy in that war. But despite the president, President Biden, and the Secretary of State, Blinken, and the Secretary of Defense, Austin, and many other members of the Biden team really weighing in, Israel has said, “No, we’re going to continue this strategy with its massive civilian casualties, massive hunger, massive potential for disease because that’s what we want to do.”
So they’ve just basically given the stiff arm to the Biden administration. It’s why I’m now calling on the Biden administration to launch Operation Gaza Rescue, that is direct provision of aid to the hospitals, the 14 remaining hospitals, direct provision of food and water at various points along the 40-mile coastline, because we are tied into this catastrophic humanitarian collapse in Gaza, and we all have a responsibility to say we tried to solve it through guiding and encouraging, urging Israel to change its strategy, that has failed. That has failed, and we are going to directly intervene now and supply massive quantities using our military assets for sea offshore delivery.

JW: Young people, of course, have been the people in the streets demanding a ceasefire, and in the past, young people have been a crucial part of Democratic victories going back to Obama. But now a lot of young people say they won’t vote for Joe Biden in November because of his support for Israel’s war on civilians in Gaza. A lot of young people call it a war crime. Many are calling it genocide. What do you say to them about voting for Biden in November?

JM: I think our young folks are very attuned to the issues of justice. They’re very attuned through the Me Too movement for the treatment of women, very attuned to the treatment of minorities, including Black Lives Matter, and they see that you have a powerful player and a weak player, and the powerful player is Israel and the weak player are the Palestinians. To see this level of carnage inflicted on civilians is just shocking to them, as it’s shocking to me and to many Americans, but our younger Americans particularly are, ‘What is going on here? Wait, we’re supposed to be the folks on the side of stopping humanitarian disasters, not contributing to those disasters?’ And there’s an expectation that because of our close relationship with Israel, we should have the leverage to have changed this.
Again, team Biden has urged, pleaded, the president would be happy to, I’m sure, talk about the many difficult conversations he’s had with Netanyahu. But the net result has been Netanyahu essentially saying, ‘We’ll adjust a few little things to make you happy. But you know what? In the big picture, we’re saying no. We’re going to continue absolute trickle of aid.’ Insufficient to meet the demands of 2.2 million people, with huge percent who are dislocated and huge percent hungry, huge percent not having water, huge percent suffering from injuries, and not having the medical care they need.

JW: Let’s talk about Senate politics, something you’ve devoted a lot of your time to over the last decade. In your new book, Filibustered, you call the Senate a “disillusionment factory.” Please explain.

JM: When you’re campaigning for office, if you’re running because you believe in a certain set of factors, you say, “Here are the healthcare policies I want to pursue, and here’s how we can do better for education, and here’s how we can do better on civil rights, voting rights, and housing, which is so exorbitantly expensive. Yes, we can tackle climate. We can have better policies in the environment, better policy in climate.” But all of that is a mirage because in the Senate, when Democrats are elected to majority, they do not still have 60 votes, which is this number that’s required to close debate on a policy bill. I was at an event at John Legend’s house, and after several senate candidates had presented their vision of what they were fighting for, he said, “How are you going to accomplish this, given the filibuster?” And his question was exactly the question that should be asked everywhere, at every meeting with people running for the Senate, “You have this vision, but are you going to reform the filibuster, so you actually have a chance to implement these laws?”
There is a cycle in democracy, a vision laid out by candidates. You elect them, they have a majority, they do the laws that they said they were going to implement, and then if you like what they did, you reelect them. If you don’t, you throw the bums out. That cycle is completely broken. Now on the Republican side, that cycle is not broken because Republicans are campaigning on social issues, saying, “We’ll put in judges to basically implement judicial decisions that support conservative cultural issues, and we’re going to give – we’re going to help all these different sectors of the economy. We’re going to help out the rich Americans with these tax provisions and all the different sectors of the economy, corporate economy through tax provisions that help them and them and them.”
They can deliver because Republicans did, in 1996, a nuclear option that converted a filibuster-free pathway that was designed for only one purpose, had 100 senators who supported it in 1974. That one purpose was deficit reduction. Through a nuclear option, they converted that to a pathway for tax cuts for millionaires, billionaires, and corporations, which actually increased the deficit. So they can deliver, the Republicans can deliver on their agenda. The way I frame this is from Mitch McConnell’s, the leader, the Republican leader of the Senate. From his point of view and his leadership team, they’re in the position of saying, “Let’s flip a coin. Heads I win, tails you lose.” When the majority, they can deliver their agenda. When they’re in the minority, they can obstruct the Democrats agenda. For Democrats to stand for this is absolutely insane. Every Democratic candidate for the Senate has to understand this and has to be held to account. Are you going to reform the filibuster? And I’m not arguing for getting rid of it, but I am arguing for talking filibuster, where there would be wider leverage for the minority but not a veto.

JW: When I was a kid, there were filibusters by southern opponents of civil rights, but they had to give speeches. They had to stand on their feet and talk for hours and hours. Now, senators don’t have to talk at all. How did that happen? Why is that a filibuster?

JM: Yes. So it is a very curious situation because when people hear filibuster, they picture Mr. Smith goes to Washington before the civil rights filibusters, that really went on from 1891 on through 1964 to stop anti-lynching legislation, to stop poll tax, getting rid of the poll tax, to stop any form of civil rights for Black Americans. The filibuster, that was almost exclusively used for the issue of blocking civil rights for Black Americans. It evolved from Southerners feeling like they had tried a strategy that some of our history buffs will recognize the word nullification, that is saying the United States is an association of states. So any federal law a state doesn’t like, they can nullify it. This ended when Calhoun led nullification on behalf of South Carolina against taxes that they considered helped the northern economy and hurt the southern slave economy. Andrew Jackson, interestingly, because he had 100 slaves, he came from a slave state, said, “No way, that’s not the vision of America.” And he essentially declared war on South Carolina, and South Carolina relented.
So without nullification, how was Calhoun and others going to stop civil rights legislation? They would talk it to death, but they had to hold the floor, or the question would be recalled. But so you saw this change starting in post-1964, ’65, where the filibuster lost a lot of its racist taint and it started to be used on all kinds of issues. Instead of just being used on final passage of bills, it started to be used on motions to proceed to bills. It started to be used on amendments, started to be used on nominations. Really, Mitch McConnell’s the one who drove it into the realm of really blocking all of Obama’s nominations. So you have this device, which takes up two days before you can even vote on closing debate. You file a petition. It takes two days; you have to have another 30 hours to debate. This started to get out of hand in the early ’70s.
So you had 12 of these motions to close debate cloture motions. You had 12 of them a year in ’71, ’72, ’73, and then 34, I believe it was, in 1974. People are like, ‘Oh, this is outrageous. Almost one a week. This is terrible.’ And so they decided to reform it and lower the number of votes required to close debate from 67 to 60. But there’s a little twist that’s hard to explain, but essentially the denominator was changed from senators present and voting to senators who are serving, which meant that if a senator didn’t show up, suddenly they were an automatic ‘No’ vote, which meant there were no talking required.
You could have a vote 59 to 0 to close debate, and 59 fails. So this meant the no-effort filibuster, and with it being no effort, the use of it vastly increased. So it exploded. So this was a major backfire of a reform championed by Mondale, and was seen as a big success at the time. Essentially, if you make something that it’s that easy to obstruct, that was so tempting that it was adopted and spread and has made just a complete paralyzed mess of the Senate.

JW: Your proposal is not to make the Senate a Democratic institution where majority rules. Your proposal is to reinstate the talking filibusters. It seems like a pretty mild proposal to me. What would it take to pass that? I understand it’s been voted on and came pretty close to passing already.

JM: So it is a form, a modified form, of a talking filibuster. In the past, the talking filibuster meant you had to hold the floor continuously, but you could do different motions to go to different topics, to adjourn, to recess. You could employ a quorum call to burn time. All of these things meant that it was relatively easy for those who argued for more debate. They had to keep one person present speaking, but the majority who wanted to close debate had to keep a quorum present.
So even in the past, the talking filibuster put a huge burden on the majority and a very low burden on the minority, but at least it was done in public. At least it was a public battle fully exposed to the American people who could say, ‘They’re heroes. They’re bums.’ Could weigh in, and so forth. What I’m proposing is a form of the talking filibuster that says, “We go to the issue of debating final passage of a bill that we only do so after there’s been an opportunity for germane amendments on both sides of the aisle.” So senators can reclaim some of the power they had through amendments. Once you’re on that question, a final passage, every senator can speak twice as long as they want, but only twice.
That’s been in the rules since the founding of the Senate. It’s still in our rules today under Rule 19. So that means the debate, if every senator speaks five hours twice, 10 hours times 100,000 hours, now you’re talking about 40 days. You could have a very, very long public debate. But there is a pathway that encourages compromise because the majority can’t afford to be on an issue for that many weeks. The minority has the burden of really sustaining continuous debate, and the majority doesn’t have to keep a quorum present. So it creates an incentive for both sides of compromise. But if there’s no compromise worked out, then eventually you could have an up-and-down vote.

JW: I understand that this proposal itself cannot be filibustered. Is that right?

JM: You raise an interesting point because there are two ways to modify the rules. You can have a debate over a rule change, which can be filibustered, or you can adopt the template developed by Robert Byrd. When people say, “Robert Byrd, what? Robert Byrd, he was the major leader of the defender of the filibuster to block civil rights.” He was also majority leader starting in 1977, and the Republicans tried to block the legislative process time and again. So seven times Robert Byrd said, “You know what? I’m going to make a point of order reinterpreting the rules so we can go forward.” And then he had the votes to sustain a majority supporting his reinterpretation. That is the nuclear option pioneered by Robert Byrd, which people will be shocked to find out.
So using that template, you can, in fact, go forward. That’s what we attempted to do in January 22 in order to pass the For the People Act, my bill that took on gerrymandering and dark money and protected the registration and ballot boxes. That bill was rewritten. We gave it a new name, Freedom to Vote, and we needed 50 votes to follow the Robert Byrd template. We were two votes short. We did not get Joe Manchin of West Virginia. We did not get Kyrsten Sinema of Arizona. So we came within two votes of launching the first true-talking filibuster. So there is hope.

JW: So there is hope. Since then, I understand, the victory of John Fetterman in Pennsylvania makes it 49 votes for your proposal. Joe Manchin is leaving the Senate. He’ll be replaced by a Republican. Kyrsten Sinema is running for reelection as an independent, opposed by Ruben Gallego. We need Ruben Gallego to win. You could have 50 next January.

JM: It is possible. This is the worst national chess board, if you will, for Democrats in a very long time. We have currently 51 Democrats and Independents. We would have to win. West Virginia is no longer on the map. So that means 50. We’d have to win seven out of seven races, including difficult places like Ohio, Montana, Arizona, and truly purple states like Nevada, Michigan, Wisconsin, and Pennsylvania. So we’d have to go seven for seven to get that 50 that you’re talking about. But it is possible, and we are going to do everything we can to try to achieve that. Maybe there’s a miracle out there. There are some folks saying, “Hey, take a closer look at Florida and Texas.” And so every once in a while, there’s an unexpected opportunity, so we’ll see how those develop.

JW: One last thing before we let you go. Looking beyond next November to 2028, who will be the Progressive candidate in the Democratic primaries? Who will play the role Bernie did in 2016 and 2020? There is no obvious Progressive candidate anymore. Would you consider running in the presidential primaries in 2028? I noticed the Wikipedia page says that you were mentioned as a potential candidate in 2020.

JM: Yeah, back in 2020, I did explore it. Basically, if Bernie and Elizabeth had not run, there was a potential Progressive lane there. But I deferred to my colleagues who are far more charismatic and have a much bigger national megaphone.  And my assumption is, I’ll be trying to find someone else to carry that torch and doing all I can to help them out.

JW: Jeff Merkley, Senator from Oregon. His new book is Filibustered!: How to Fix the Broken Senate and Save America. Senator Merkley, thanks for all your work and thanks for talking with us today.

JM: You’re welcome. It’s been a pleasure to connect with you. Thank you.
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Jon Wiener: This week, the Supreme Court hears the arguments in a historic case: whether the Constitution prohibits Trump from running for reelection in November because he participated in an insurrection – which makes him ineligible under the 14th Amendment Section 3. For comment, we turn to Sean Wilentz. He teaches history at Princeton. His latest book is No Property in Man: Slavery and Antislavery at the Nation’s Founding. We talked about it here. He also writes for The New York Times, The New Republic, Rolling Stone and The New York Review, where the current issue features his essay about Trump and the 14th Amendment. Sean, welcome back.

Sean Wilentz: Great to be here, Jon.

JW:   The 14th Amendment Section 3 says that those who had taken an oath to support the Constitution of the United States are barred from holding office if they, quote, “Engaged in insurrection or rebellion,” close quote. Nobody really paid any attention to that clause until historian Eric Foner pointed out in The Washington Post just after the January 6th insurrection that it prohibits Trump from running again. Several states took up that idea, including Colorado, where the decision to ban Trump from the primary ballot was approved by the state Supreme Court. Trump appealed that to the Supreme Court in Washington, which is hearing arguments about it this week. I want to start with the significance of this case right now. It focuses on Trump, but the issue is bigger than Trump.

SW: Absolutely. I mean, the issue is as old as the Civil War and Reconstruction and the meaning of the Civil War. What those Amendments were about the 13th, 14th and 15th Amendments, they’ve been described as trying to, I don’t know, mollify the South or help bind up the nation’s wounds. That was not the case. It was trying to consolidate and formalize a social revolution, which was the evolution of slavery, and part of that was to make sure that implacable Confederates, who were doing their best to try to undo the abolition of slavery, come as close as they could to reinstalling slavery, to make sure that they would never have a chance to be involved in government again, to exclude them.
If they had taken an oath already to support the Constitution of the United States, in that case, if they then joined the insurrection, the rebellion, then they can never hold office again. That was the point, was to protect American democracy from things that mere electoral politics can’t protect it from. If these people could get elected, they could have done all sorts of terrible things. If you have engaged in an insurrection once, there is no reason to believe that you won’t do it again. That’s what the framers of the 14th Amendment understood, that’s what they said, and that’s why they passed this particular part of the amendment.

JW: I’d like to go through the arguments Trump and his defenders have made about why the 14th Amendment Section 3 does not apply to him. That’s the subject of your new article in The New York Review. Some of the arguments seem pretty ridiculous. Trump’s lawyers argue that he should not be kept off the ballot because the amendment bars people from holding specific offices, not from running for them or from being elected to them. Nevertheless, Ted Cruz and 178 other MAGA members of Congress argue in an amicus brief that, quote, “A candidate may be elected president even if he is not qualified to hold the office,” close quote. Wonder if you have any comment on that.

SW: My view is that these guys in splitting hairs, the way they have done it, managed to cut off Trump’s head because this is absurd. They’re seizing on what language they can in the Amendment and the wording of the Amendment. None of it makes any difference. The fact is, if you’ve done actually what the court tries to do, an Originalist reading of the language, of where it came from, in every single case, it makes it absolutely clear that 14th Amendment was drafted, was framed and ratified in order to prevent someone like Donald Trump ever being in office again. That is absolutely clear. They were looking to the future. They weren’t simply talking about the Civil War, what they call the Great Rebellion. They weren’t simply talking about that. They were talking about all eternity under the Constitution of the United States. If you are an insurrectionist, you cannot hold office. Very, very clear.

JW: The most significant argument made by Trump’s defenders is that what happened on January 6th was not an insurrection. It was something less than that, like, I don’t know, violent protest. But what is an insurrection? The question “what is an insurrection” is one that there’s a history behind.

SW: Yes, and as I said, as I wrote in the piece, a very distinguished, very able legal historian named Mark Graber at the University of Maryland has actually done the Originalist work for them. I mean, has gone back and tried to figure out, he’s gone back as far as Edward III in order to establish what an insurrection meant to the framers of the 14th Amendment, and there is a long history to it, but there’s a more immediate history to it. In particular, looking at decisions that John Marshall made, lots of things. He came up with a four-ply, there are four things that constitute what an insurrection is, and you’ll have it in front of you, Jon.

JW: Number one, an assemblage of people. Number two, engaged in resisting a federal law. Three, using force or the threat of force with intimidating numbers. Four, with a public purpose, an object of great public concern.

SW: Right. That fourth is really the thing that makes it so powerful. I mean, there are a lot of demonstrations and stuff that we can talk about that would have the first three, right? They’re trying to obstruct the government, but having a large public purpose, which goes to what Trump tried to do, which was to basically overturn a presidential election or at least to prevent the counting of the electoral college votes coming out of the 2020 election. That’s a great public purpose. The events of January 6th, but not just January 6th, everything leading up to January 6th fit those four to a T. Once again, Originalism actually works to Trump’s disadvantage, and if the court is going to go by its own theories of American jurisprudence, it has no alternative but to disqualify Donald Trump.

JW: Who was it who said that January 6th, quote, “Was a violent insurrection for the purpose of trying to prevent the peaceful transfer of power after a legitimately certified election,” close quote. Was that Bernie Sanders?

SW: [Laughter] No, no, no. It was none other than Senator Mitch McConnell of Kentucky. Now, one of the points I’m trying to make through all of this is that the Republican Party no longer exists. As you know, Jon, as an historian, parties come, and parties go in American history. There’s nothing sacrosanct about political parties. We had a Federalist Party. It died. We had a Whig Party. It died. Well, we had a Republican Party and it’s dead. It’s been dead since at least 2016, although maybe it took until a little bit later to get the obituaries written. But the fact is that is now the Trump party, the MAGA party, whatever you want to call it. There is no Republican Party that Trump’s trying to get the nomination for. Trump is the party, and it’s been that way for some time, and you can see it perfectly with Mitch McConnell. You quoted him absolutely right in the aftermath of the insurrection. He called it an insurrection. He said it very plainly, very clearly.
You also made reference to the MAGA congressman suit that Ted Cruz worked up. Mitch McConnell signed that amicus brief, which denies that Donald Trump was involved in an insurrection. The kowtowing, Trump is beyond kowtowing. They are now MAGA party members. The illusion that there is a Republican Party anymore means that all the trappings that we’re following up in this election year, the idea that there was an Iowa primary, it was a diversion, a chance for Trump to make a few more speeches, get some more money, more grift. There’s nothing like a competition here. Trump is the party. If we understand that, then we understand what the election’s about.

JW: After the argument that it wasn’t an insurrection, the lawyers have a second argument. Even if January 6th was an insurrection, Trump wasn’t part of it. His own brief says, quote, “Trump never participated in or directed any of the illegal conduct that occurred at the Capitol on January 6th. The speech that he gave to the insurrectionists before they marched to the Capitol didn’t explicitly encourage insurrection.” His brief says, quote, “Telling supporters to metaphorically fight like hell for their beliefs is not insurrection. In fact, it’s protected by the First Amendment.” Trump has a First Amendment right to argue that voter fraud was the basis of Biden’s victory. What do you say to that?

SW: What I want to say to that is first of all, that Donald Trump had been tweeting people to come to Washington where it would “be wild,” as he put it. Trump was perfectly aware what was going on and what was being plotted on January 6th and he helped plot it. It’s not just the events of January 6th. It’s everything that leads up to it. That’s what Jack Smith in fact, is investigating right now. The idea that he didn’t march to the Capitol as he had promised to do, but perhaps being too much of a coward to do so, perhaps, he didn’t do so. Nevertheless, everything leads up to it as well. That’s number one. Number two, he was aware that there were people in the audience, in his audience that had weapons, that were armed, armed to the teeth. He had been advised of that in advance of his giving that speech. When you tell a group of armed supporters to go to the Capitol and “fight like hell,” you are inciting an insurrection.

JW: Okay, here’s another argument: If the government thinks Trump is guilty of insurrection, he should be put on trial before a jury of his peers and given the right to defend himself. And indeed, the Jack Smith trial will decide that issue. And the Supreme Court should wait for that verdict before taking up the argument about disqualifying him as a candidate.

SW: Actually, Jack Smith hasn’t charged Trump with insurrection. So the trial, you’re not going to wait for it.  But it’s all irrelevant anyway because the fact is a conviction for insurrection is not necessary for disqualification under the 14th Amendment. I mean, they are very, very clear about that. Indeed, there has been already somebody disqualified from office, thrown out of office because of participation in January 6th, and that’s a county commissioner in New Mexico named Griffin, who was actually the guy who founded Cowboys for Trump, if I’m not mistaken, who was a county commissioner and a court just threw him out on the basis of Section 3 of the 14th Amendment. Are we supposed to believe that a county commissioner from New Mexico who was a foot soldier in January 6th, can be deprived of his job, can be thrown out of office on the basis, not of any conviction, he was not convicted of insurrection. He was just thrown out because he participated. It was automatic. They just affirmed what had already happened because he in effect disqualified himself by getting involved in the thing.
We’re supposed to get rid of this poor Cowboy for Trump, and yet the mastermind is allowed to get away with it? The guy who was behind the whole thing? Please, give me a break. This is a totally false argument. Immediately after the Civil War, there were several disqualifications. None of those people was either convicted of a crime, nor was it anything that Congress got involved in. This is about disqualification from office. This is not about punishment for a crime. This is a very, very different thing, so conviction of a crime has nothing to do with it.

JW: The New York Times Supreme Court reporter, Adam Liptak says the primary argument of Trump’s own lawyers was that Section 3 does not apply to Trump because, quote, “The President is not an officer of the United States as that term is used in the Constitution.” This is the primary argument.

SW: I know. It’s sad, isn’t it? It’s pathetic. Look, they have no choice here. If you have to seize upon the fact that the man who was ascending to the office of the presidency of the United States that he’s not an officer after he swore an oath to become an officer is really pretty lame. It’s true that the language of the 14th Amendment leaves the president out, and there were some people at the time in the Senate actually, if you want to get Originalist about it, in the Senate, Reverdy Johnson, who was a senator at the time, would’ve been Attorney General earlier, no big deal. He questioned – he raised the issues. I’m not sure that this covers the president and the vice president, and he was answered quite directly. Yes, it covers the president and the vice president. It was explained to him on the floor of the Senate why that was the case, and Reverdy Johnson then said, “Well, you know what? You’re right. I’m sorry. I got it wrong.”
It’s very clear that the framers of the Amendment were purposely including the president and the vice president as officers of the United States, or its officers under the United States in the wording, so they’re saying maybe he’s an officer of the United States, but not under the United. It’s incredible. I mean, this is the kind of shyster lawyering that we’re used to seeing on really bad TV shows. I mean, Joe Pesci does a better job than these guys are doing. That’s a movie I know, but still, it’s ridiculous. But look, ridiculous lawyering can get you far with the Supreme Court, as we saw in 2000. Ridiculous.

JW: We all know this court has a Republican-appointed majority. They seem unlikely to rule Trump off the ballot, and they will search for some way of doing that. What do you think about that?

SW: Probably likely. I don’t doubt it. The Supreme Court in 2000 already disgraced itself with Bush v. Gore, maybe the worst decision since the Dred Scott decision. They could do that again. But I wouldn’t have written the piece if I hadn’t thought that there wasn’t a possibility for some of the members, some of the conservative majority, to see their own place in history and to understand that if they were to try to find that sneaky corrupt way out, that they’re going to look very, very bad. I think some of the conservative justices, not all of them, I don’t think that Alito and Thomas give a hoot, but the others do. They might. They could. I’ve seen evidence that they could.
If not, well, then there’s another possibility, which is that we will have given Justices Sotomayor and Jackson and Kagan the materials for a really powerful dissent. As you know in history, Jon, I mean, sometimes dissents outlast the actual bad decisions. I think, look, what did Dred Scott do? Dred Scott elected Abraham Lincoln president for all intents and purposes. The narrow political thing does not necessarily play well politically. If this is shown to be, as I hope people will see, as corrupt decision as that would be, well then all to the good.

JW: Finally, there’s an argument that’s not really a constitutional one, but a political one: It would be better for American democracy if the voters rejected Trump than if the court prevented them from doing that. Voters should be given the opportunity, and the responsibility, of affirming the vitality of democratic elections as a way of defending the democratic process. Jonathan Chase, who’s the writer for New York Magazine, said that to disqualify Trump, quote, “would be seen forever by tens of millions of Americans as a negation of democracy,” close quote. So: let the people decide!

SW: That’s like saying that we would’ve alienated tens of millions of Confederates if we had not gone through with the abolition of slavery, so we should not alienate them. This is crazy. Actually, Jon, this is the most dangerous argument of all. It’s the argument that goes to the core of what American democracy is. People are saying that to disqualify Trump would negate democracy, not giving the people the chance. The fact is Donald Trump has already tried to negate American democracy, and he came perilously close to doing so. That was why the 14th Amendment was there, is that people who engage in these things should not be allowed to run for office again, should not be able to hold office again. The people who are saying this are claiming that the enforcement of the absolute clear letter and spirit of the Constitution of the United States is a greater threat to democracy than the candidacy of Donald Trump.
To argue this way is not only being misguided, it’s a fundamental misunderstanding of what American democracy is about. We have a Constitution. The Constitution lays out what in effect the rules are. The Constitution, in the aftermath of the revolution of the Civil War, the revolution of the abolition of slavery, understood that there were threats to democracy that required a constitutional solution, constitutional remedy. Democracy could be undone, and electoral politics cannot protect it. It required a constitutional remedy, and that’s what the 14th Amendment Section 3 is. To misunderstand that is to misunderstand what American democracy is all about. In fact, it enables the threats to democracy in which Donald Trump very much manifestly is, in the name of democracy itself.

JW: Trump’s own brief to the Supreme Court says that ruling against him would, quote, “unleash chaos and bedlam,” close quote. That sort of sounds like a threat, doesn’t it?

SW: It is a threat. It is a threat, and I’m sick of these people pushing us around. Are we supposed to quail in front of the Trump base? I mean, this actually makes me angry, as you can hear. I mean, I’m angry at people saying, “Oh, oh, oh, these people are going to kill people.” Yeah, they might. They might. But that’s their crime, and we’re the United States of America, and we can stop them. We are a government. Lincoln was criticized in 1860-61 for standing up to the Secessionists. “Oh, no. Oh, no. They’re going to do terrible things,” people said. And Lincoln said, “No. The tug must come.” Now is the time. We got to stand up to them now, or we’re not going to be able to stand up to them ever. Now is the time. I think that Trump is as much of a danger to American democracy as the Confederacy was, and I stand with Lincoln.

JW: Now is the time. Sean Wilentz. He wrote about The Case for Disqualification for The New York Review. Thank you, Sean. This was good.

SW: Thank you, Jon, as ever.