139 Comments

Do we have a strategy to challenge Project 2025? If not, we need one, to pursue now, and not unless and until Trump or someone like him is elected.

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Yes! My Congressman Jared Huffman heads the House committee that is working on countering Project 2025.

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"The one point where it is helpless, though, is when judges refuse to read and apply its plain language." I wish I had faith that a majority of the Supreme Court justices will apply its "plain language."

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There is every reason to believe that the SCOTUS will twist the wording of the Constitution as they have done in cases involving the First and Second Amendments. Regarding the First, in their Citizens United ruling, a footnote to a memorandum was used as the basis for a ruling that corporations are people and that money is equivalent to speech. (But of course corporations are not people at tax time, and cannot be sent to jail for the crimes they commit.) Regarding the second, the SCOTUS in effect erased literally half the text, shortening

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

to

"The right of the people to keep and bear Arms, shall not be infringed."

profoundly changing its meaning. The Second amendment, in the context of Article 1, Section 8, specifically giving Congress the authority

" . . . To provide for calling forth the Militia to execute the laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming and disciplining the Militia. . . . "

which, to me anyway, says that the core purpose of the Second Amendment is defense of the Constitution. Moreover the words of Article 1 Section 8 deny legitimacy to any paramilitary group not organized by Congressional fiat. Proud Boys? Oath Keepers? Lock em up!

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Jan 27·edited Jan 29

I read Justice Scalia's majority opinion in DC v. Heller a few months after the decision was announced. I was appalled by the twisted logic he used in applying English Common Law to the second amendment so that the end result was "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home" (https://supreme.justia.com/cases/federal/us/554/570/#tab-opinion-1962738).

After the Whiskey Rebellion of 1794, George Washington referred to the participants derisively as "self-created groups."+ I'm assuming his attitude was a reflection of what was commonly understood at the time--that any militia must be *well regulated,* that is, under the direction and control of either the individual states or general government.

+ I can't cite the source because too many years have passed since I read it. But I do know that Washington was not someone you'd want to trifle with, especially if you were of the lower orders. This was a time of strict social hierarchy. African Americans are right when they say they were not included in the "We the people" in the preamble to the constitution, but neither were the white non-land owning classes. One doesn't even have to use legal arguments against those who would claim that militia groups created by the riff-raff would have been acceptable in the eyes of Washington and his contemporaries.

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There is a good podcast The Gun Machine that deconstructs the tendentious construction of facts around English Common Law and guns; in Bruen decided in June of 2022, they court, specifically Clarence Thomas who wrote the opinion, relied on faulty translations of the facts going back to the early 17th century, which was the English case law that justified his opinion regarding right to carry laws and places where it could occur.

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Kit, this is the crux, will the judges apply the law or will they act like we expect; as political operatives willfully participating in a long term plan to reverse the course of history to allow the monied class to return the “land of riches” to the authoritarian rule of its infancy?

My bet is that they smell their role in the New Gilead as extremely enticing; “What Be Honor without the Power to Wield It?”

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This is the crucial question. I'm going to go out on limb and say the Court, in a 5-4, 6-3 or 7-2 decision, will prohibit Trump from holding office *unless* Congress by "a vote of two-thirds of each House, remove[s] such disability."

Here's my reasoning:

1. The William Baude & Michael Stokes Paulsen paper titled "The Sweep and Force of Section Three" sent a clear signal to the conservative members of the Court that they can ban trump from office. Baude and Paulsen, both highly respected members of the Federalist Society, vetted, promoted and supported Gorsuch, Kavanaugh and Coney-Barrett to the Court. Since I believe Roberts is a constitutionalist, I believe he will side with the liberals on the Court. Alito and Thomas are both immoral seditionists and lost causes. So that then leaves Gorsuch, Kavanaugh and Coney-Barrett as the final decision-makers. I'm guessing at least one of these three justices will heed Baude & Paulsen's signal and rule against Trump.

2. I find it hard to imagine that the justices will say that the President is not an "officer of the United States" when he swears an oath to "faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Art. 1, Sec. 1. As the Respondents (Anderson/CREW) note in their response, "By definition, one who “defends” something “supports” it. Samuel Johnson, A Dictionary of the English Language (5th ed. 1773) (“defend”: “to support”); Noah Webster, An American Dictionary of the English Language (1857) (“defend”: “to support or maintain”). If anything, the President’s oath is more demanding than mere “support.”

3. However, I also think the Court will tread a thin political line by saying that while Trump is prohibited from "holding" office, he can still run for president since, if he is elected, the next Congress can "remove such disability" by a two-thirds vote. This will then (a) leave the decision whether to place Trump on the ballot based on their particular State constitution; and, if placed on the ballot, (b) leave the decision to the voters whether to elect a man who is prohibited from holding office unless the next Congress overrides the prohibition. This will result in one of the most consequential Congressional elections since the civil war.

This is my non-legal take on how the the Court will "apply the plain language" of Art. 14, Sec. 3. We'll see . . . .

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The ARE originalists, so it should be a no brainer to them. Oh wait! Originalists only when it suits them.

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This is the crucial question. I'm going to go out on limb and say the Court, in a 5-4, 6-3 or 7-2 decision, will prohibit Trump from holding office *unless* Congress by "a vote of two-thirds of each House, remove[s] such disability."

Here's my reasoning:

1. The William Baude & Michael Stokes Paulsen paper titled "The Sweep and Force of Section Three" sent a clear signal to the conservative members of the Court that they can ban trump from office. Baude and Paulsen, both highly respected members of the Federalist Society, vetted, promoted and supported Gorsuch, Kavanaugh and Coney-Barrett to the Court. Since I believe Roberts is a constitutionalist, I believe he will side with the liberals on the Court. Alito and Thomas are both immoral seditionists and lost causes. So that then leaves Gorsuch, Kavanaugh and Coney-Barrett as the final decision-makers. I'm guessing at least one of these three justices will heed Baude & Paulsen's signal and rule against Trump.

2. I find it hard to imagine that the justices will say that the President is not an "officer of the United States" when he swears an oath to "faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Art. 1, Sec. 1. As the Respondents (Anderson/CREW) note in their response, "By definition, one who “defends” something “supports” it. Samuel Johnson, A Dictionary of the English Language (5th ed. 1773) (“defend”: “to support”); Noah Webster, An American Dictionary of the English Language (1857) (“defend”: “to support or maintain”). If anything, the President’s oath is more demanding than mere “support.”

3. However, I also think the Court will tread a thin political line by saying that while Trump is prohibited from "holding" office, he can still run for president since, if he is elected, the next Congress can "remove such disability" by a two-thirds vote. This will then (a) leave the decision whether to place Trump on the ballot based on their particular State constitution; and, if placed on the ballot, (b) leave the decision to the voters whether to elect a man who is prohibited from holding office unless the next Congress overrides the prohibition. This will result in one of the most consequential Congressional elections since the civil war.

This is my non-legal take on how the the Court will "apply the plain language" of Art. 14, Sec. 3. We'll see . . . .

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founding

I agree that Trump and followers should be held accountable for their actions and that Trump should go to jail. However, hashtagging lock them up bothers me. It feels like stooping to their fascist level. Living in a rural area, lock her up signs during 2016 were so many (along with vote Trump signs) it was like the pictures of living in fascist Italy or Germany with Swastikas and so it is unfortunately quite triggering.

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I remember it well. Difference is Trump’s #CriminalEnterprise should be locked up. 😉

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founding

When we do the same thing it reinforces that what they do is ok. It shouldn't be encouraged.

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Giv’em a taste of their own medicine as white glove treatment only encourage the criminals.

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founding

It's better to put them away and try to keep it calm so they forget. Simple actions for simple minds could prevent a civil war.

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founding

Interesting about Civil War happening in the U.S. It's best we celebrate calmly without provoking the Trump crowd more.

https://youtu.be/Yilgr2SJ3xQ?si=D-C3JiT1cCmH_RH0

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Forget what? I suggest we take away their guns too.

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founding

There are so many guns it would be impossible or it would have already happened. Plus many thoughts of U.S. invasions have been discouraged by the sheer overwhelming number of guns. Thus, Putin took the psychological warfare method of dividing and weakening the U.S. during 2016 instead. Listen to Yuri Bezmenov a KGB defect during the 1980s who tried to warn the west about this KGB strategy and read (it's an audio book) Tsun Tzu's, The Art of War. It's quite interesting how Putin pulled this off, and something to be very cautious about.

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founding

Forget Trump and crew.

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To be locked up in a constitutional democracy requires trials, courts, and juries, thankfully. The irony should not be lost, in 2016 the lock her up was based initially on the use of private servers and the erasure of 30k emails; in 2024 its based constitutional principles that if over looked or denied, brings into sharp relief the systemic flaws within our judicial system.

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JudgevLuttig called the logic of disqualificatio "unassailable ", as indeed it is. It certainly seems to be broadly convincing. A recent ABC/Ipsos poll had approval of Supreme Court upholding Anderson at 56%. I think that is because the analog of that logic is all but universally understood and accepted, that is, rulebreakers must be expelled from the game to protect it. Many may remember the case of Pete Rose who the Commissioners of baseball were forced to ban for gambling. No one wanted that to happen, but it was understood and accepted. There was no vote, such matters cannot be at the whim of a vote. So it will be in this matter, if the Court has the sense to act.

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I am pessimistic. In a country that allows a political candidate to raise money for a political campaign that is then used to pay the bond in order to appeal a legal judgement, there is little hope for justice.

Are none of those small donors to Trump’s super PACs protesting his use of their donations for personal expenses? Can this really be legal?

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It seems like someone should be contesting the existence of the Republican Party. No tax deductions for donations to the party because it is not constitutionally sound. Perhaps the moment to do that is when either Trump or Haley becomes the nominee, then point out the things they do that are unconstitutional. Should also be used as a means to get rid of members of the Supreme Court.

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We can’t change the alternative reality Trumpers, fascists and domestic terrorists, but make sure they are held responsible for their actions. #Lock’emUp!

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Have to agree with Vicki Disrud: #Lock'emUp! is deeply offensive.

It inverts the rule of law by advocating the verdict before the trial, and the sentencing before the verdict.

To invert the rule of law is to introduce chaos and mob rule. It's what used to happen on the Roman Saturnalia when the established order was turned on its head for a day.

This slogan appeals to deeply atavistic tribal instincts which prevailed prior to the coming of Christ. It is literally the language of "us and them", the casting out of the foreigner who did not belong by blood to the tribal unit. Hereditary bloodlines are the stuff of the Old Testament. Belonging by virtue of being a citizen is compatible with the New Testament.

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Criminals belong in jail. If you find that offensive, you live in the wrong country.

May the guilty pay!

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Kirsten, you are making yourself both judge and jury and worse, punishing without trial by use of that slogan.

I live in Australia not the US, and we have a phrase for what you are advocating by the slogan "LockemUp!" It is, KANGAROO COURT.

This is what happened in my country when groups of squatters rode out in parties, hunted down the local Aboriginal tribes, and murdered them.

It was their view that nice white farmers whose sheep were being stolen shouldn't have to put up with that sort of thing. Many wanted the "abos" locked up. Some took the law into their own hands and administered summary justice. We saw massacres—mass murders—across our continent. The oldest cultures on earth were decimated.

I think you would do well to watch your words more carefully. Don't incite the racist mob! That slogan is deeply offensive to civilised proceedings.

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Take your BS elsewhere.

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Kirsten, I give up!

Your postings are abusive, ill-mannered and uncouth. I don't care what your ethnic credentials and family experiences are, it doesn’t give you the right to treat others in this discussion like dirt.

Your throwaway, uninformed, nasty putdowns do you no credit. They reveal an authoritarian mindset that brooks no argument. You are absolutely right, all the time, and anyone who questions you is suspect, and told to piss off.

You appear to exhibit the classic psychological hangover of people who lived too long under Soviet rule: a deep inability to breathe freely in the atmosphere of a liberal democracy and give others the space to do the same.

So learn to address others with courtesy and respect.

Learn to go for the argument, not the person.

And don't call other people trolls unless you are sure of your ground.

I will not have your lies blacken my good name.

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Take your idiocy elsewhere.

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You argue for the sake of it, but are unable to accept intelligent debate.

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I’m not arguing with trolls.

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Sure, and may they first be arrested, tried and convicted.

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That’s what usually happens to criminals in the USA 😉

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Yes. And hopefully heard by a judge and jury of honorable, fair minded people without an agenda of their own.

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Suggesting punishment for lawbreakers is hardly tribal.

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The central strength and weakness of all democracies ever since the ancient Athenians invented it on a substantial scale is its insistence on individual rights. One cannot have a democracy without protection for individual rights, but at the same time, when individual rights are placed above the safety and stability of the community they can lead to some of the kinds of issues we face today. But of course there is a much older political debate going on in the background - that of the proper place of the individual within the state. This has always resulted in a state of greater or lesser tension between the two, not helped by the fact that it is individuals who make up the state. In the Declaration, Thomas Jefferson, a radical if ever there was one, noted that it is the right of the individual to alter or abolish the form of any government that does not secure the rights of the individual to life, liberty, and the pursuit of happiness. So what happens when half of a state's individuals decide that the government is not only not protecting these right for them, but is at the same time actively promoting the rights of the other half of the individuals who make up that state. If insurrection against this apparent discrepancy is the wish of a substantial portion of the individuals, how can they not be justified in pursuing that end. Whose rights are the proper rights? This is one of the central conundrums of all democracies.

The Founders did take some of this into account, particularly in the Establishment Clause of the First Amendment, which is now under constant attack by Christian Nationalists, aided and abetted by the conservative wing of the current Supreme Court. But what protects us from a man who has convinced his supporters that their Constitutionally protected rights are under attack and that, as all through history including our own their only defense is insurrection, or at least voting into the Oval Office a man who is promising to enforce those rights by prosecuting those who oppose them? Is it is a right in a democracy to end that right in the voting booth.

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While it's wonderful that a wide audience has the opportunity to read Timothy's views, I believe his writings on the intent, purpose, meaning and history of Article 3 of the Fourteenth Amendment are really intended to be read by a limited group of people, namely, the nine Justices of the United States Supreme Court and particularly those comprising the conservative wing of the Court. What Timothy is artfully doing is crafting and presenting arguments that, if read by the Justices, will compel at least five of them to conclude that Trump must be held to be disqualified under Article 3. Timothy's writings invite the Supreme Court's conservative Justices to employ the interpretational theory they proclaim they are bound by---originalism---and then demonstrate that, under that theory, only one conclusion is permissible, namely, that Trump is disqualified. Timothy then puts on the squeeze by demonstrating that any departure by the conservative Justices from their darling theory would be hypocritical in the extreme. Nice job Timothy. My concern is that the conservative majority might not be embarrassed by proof that they are acting hypocritically.

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Part of what first got Hitler elected was fear of radicals and Communism, which Hitler exploited. Trump almost won reelection in 2020. Why was that? He should have been the dream candidate to run against. But the far left did everything they could to get him the win. It looks like this time they will succeed. The Republicans right now are using the border crisis to hold up funding for Ukraine. This helps Trump and Putin. The extreme right will always use the fear of hordes of illegal immigrants to rile up people. Reducing the flow of border crossings does not make you a bigot. The people most in favor of open borders (for us) are likely Russian trolls.

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Except that the GOP has been the main barrier to border reforms for decades (including against Republican presidents) and is now very openly blocking them. Bidan has to overcome this terrible hypocrisy and the Dems and everyone who sees this happening need so do everything to exppose it..

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Yes but the Republicans aren't the only hypocrites. The Dems need to do everything to blunt this weapon that the Republicans are using to such great effect. For example, when the Dems deny there is a problem at the border people will just turn them off. And they won't believe any thing else they have to say.

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Absolutely. The US needs to also work with Mexico on programs to enourage Latino migrants to stay there, where the language and culture are theirs. Education, jobs, housing.

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I hope You are filing an amicus brief with the Supreme Court?

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Terrific analysis and writing. Thank you, Dr. Snyder.

It’s stunning that Substack, with the exception of Snyder’s “Constitutional Self-Defense” this AM, is DEVOID of comments which document what happened yesterday at the U.S. Supreme Court:

CREW filed its BRIEF (70 pages) Friday on “Merits of Disqualification.”

CREW’s Brief supports the Colorado Decision and opposes Trump’s appeal of the Colorado Supreme Court’s decision.

In a short 2 weeks, the Court will hear arguments.

So far, Substack seems to be oblivious to all that.

Am I wrong?

https://johnadamsingram.substack.com

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founding

Following the suggestion of Mark R. Graber, Regents Professor of Law at the University of the University of Maryland, there is in fact something that reads like an enabling statute for Section 3 of the 14th Amendment. A provision of the 1862 law Abraham Lincoln based The Emancipation Proclamation (talk about provenance!) and which survives in pertinent part to this day, the Second Confiscation Act of 1862, re-enacted by Congress in 1907 and last amended in 1994, 18 USC Section 2383, Rebellion or insurrection:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

https://www.govinfo.gov/content/pkg/USCODE-2010-title18/html/USCODE-2010-title18-partI-chap115-sec2383.htm

That said, the statute is getting little play in the current debate, probably because it’s found in Title 18 (Crimes) and may be read to require a criminal conviction, which is s pity, because the Emancipation Proclamation certainly did not.

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I have a question. But first I should stipulate that, in my opinion, Mr. Trump clearly incited and directly participated in insurrection, and also, the constitutional language is unambiguous.

The problem is that my opinion that trump meets the requirements for disqualification is not yet a legal fact. He must be judged guilty by an impartial criminal court. Just because over half the country believes him guilty as sin simply doesn't count. In the eyes of the law, Mr. Trump is presumed innocent until proven guilty.

I know, very difficult to swallow, but removing Trump from the ballot simply because a lot of people believe him guilty and no trial needed is commonly referred to as a lynching.

I predict the Supreme Court will make a similar argument and invalidate Colorado's action.

Once Trump is brought to trail I have every reason to believe he will be found guilty. Of course, it is his strategy to delay, delay, delay, until after January 2025, and if he is successful he will, through various shenanigans beat the rap. The very best assurance that Trump gets what he deserves is for the country to deny him the Presidency. In that case, all 91 indictments will proceed apace.

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founding

"A constitution can defend itself against almost any threat. The one point where it is helpless, though, is when judges refuse to read and apply its plain language. As German judges have just reminded us, the relevant verdict has to be issued at the relevant time."

Did the Velvet Revolution, the Maidan -- perhaps even the American Revolutionary War -- teach us that when our institutions fail, the people must rise up to preserve democracy?

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The obvious difference is that the Maidan uprising was telling the truth. Trump's agitations are lies.

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founding

I must have been unclear -- I meant that Maidan was the people insisting on preserving their democracy, similarly perhaps to the Americans during the Revolutionary War -- when institutions failed to try to continue to preserve people's rights, the people rose up. The constitution might not be helpless if We the People persist in a government of, by and for Us.

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Now I see your point. Thanks, Roxanna.

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Jan 27·edited Jan 27

Lidia—You missed my point. The slogan suggests punishment before being found to be lawbreakers, before even being brought to trial.

Punishment of the outsider by virtue simply of being an outsider is indeed characteristic of tribal behaviour.

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