Anaya Nolan
Professor Elizabeth Joh's podcast, What Trump Can Teach Us About Con Law, explores how the Trump administration pushed constitutional limits and raises new and challenging issues. One such issue is treason, which has been a key topic in Trump's 14th Amendment appeal to the Supreme Court. Trump is appealing a Colorado ruling that the 14th Amendment bars him from holding office due to his involvement in the January 6, 2021, insurrection. While Trump's actions may not meet the legal definition of treason, the discussion around his appeal sheds light on the historical understanding of treason and the intent to block traitors from serving in government.
| Characteristics | Values |
|---|---|
| Subject of a podcast | What Trump Can Teach Us About Con Law |
| Host of the podcast | Professor Elizabeth Joh |
| Co-host of the podcast | Roman Mars |
| Basis of the podcast | One of Professor Joh's tweets |
| Focus of the podcast | How the Trump administration has pushed constitutional limits |
| Topics covered | Presidential immunity, suing the president in civil court, withholding federal funding |
| Trump's actions | Engaged in insurrection before, during, and after January 6, 2021 |
| Trump's supporters' argument | Trump's actions don't amount to engaging in insurrection |
| Trump's response to treason charges | Waving constitutional technicalities, barely refuting charges |
| Trump's lawyers' response | Perfunctory efforts to deny culpability, focusing on technicalities |
| Supreme Court's decision | Trump remains on the presidential ballot |
| Supreme Court justices' opinion | Trump is a "domestic threat to democracy" |
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What You'll Learn
Presidential immunity and when a president can be sued in civil court
The concept of presidential immunity and when a president can be sued in civil court has been a topic of debate for years. While the Constitution does not explicitly address presidential immunity from criminal or civil lawsuits, the principle of presidential immunity has evolved over time through the Supreme Court's interpretation of Article II. The term "presidential immunity" can be misleading, as it does not imply that a president is entirely immune from civil or criminal liability. Instead, it refers to the long-standing tradition that a president acting within the scope of their authority is generally shielded from lawsuits based on that authority.
The Supreme Court has ruled that the president can be sued for their private acts, including those committed before and during their presidency. This means that the judiciary can hold presidents accountable for their personal actions, just as they would for any other citizen. For example, in Clinton v. Jones (1997), the Supreme Court held that President Bill Clinton could not claim immunity from a sexual harassment lawsuit based on his conduct before assuming office.
However, when it comes to official acts, the president enjoys immunity from civil liability. This immunity extends to the "'outer perimeter' of their official duties, encompassing acts that may not be directly related to their core responsibilities but still fall within the broader scope of their presidential role. This immunity is intended to prevent distraction and distortion in the execution of presidential duties and to safeguard the functioning of the government.
The issue of presidential immunity gained significant attention during the Trump administration, with several civil cases filed against him in connection with the events of January 6, 2021. In Trump v. United States (2024), the Supreme Court ruled that presidents are presumptively immune from criminal prosecutions for official acts within their constitutional authority. However, this immunity does not apply to unofficial acts, and the court returned the case to the lower courts to determine whether Trump's actions on January 6 fell within the scope of official acts.
The debate surrounding presidential immunity highlights the delicate balance between holding the president accountable and ensuring the effective functioning of the executive branch. While immunity is intended to protect the office of the presidency, it is not absolute, and the judiciary plays a crucial role in defining the boundaries of presidential immunity and ensuring that justice is served.
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Whether Trump's actions constitute treason
The question of whether or not Donald Trump's actions constitute treason has been a topic of significant debate and legal discussion. The focus of this debate revolves around Section 3 of the 14th Amendment, which disqualifies past and present officeholders who engage in insurrection or rebellion against the United States.
Trump's actions, particularly in relation to the events of January 6, 2021, have been characterised by some as inciting and participating in an insurrection. The Colorado Supreme Court agreed with this assessment, ruling that Trump was constitutionally disqualified from holding office due to his engagement in insurrection before, during, and after that date.
However, treason, as defined in Article 3 of the Constitution, involves levying war against the United States or aiding and comforting its enemies. A key aspect of treason is the intent to betray the government. While Trump's actions may be considered insurrection, they may not meet the strict definition of treason as he did not personally attack a police officer or aid a foreign nation. The people Trump urged to march on the Capitol were American citizens and thus, constitutionally, could not be considered enemies of the United States.
In response to the treason allegations, Trump and his lawyers have relied on constitutional technicalities and asserted various arguments unrelated to the charges. They have barely refuted the accusations of treason, and their defence implicitly recognises the difficulty of denying Trump's role in the insurrection. Despite this, the US Supreme Court has ruled that Trump should remain on the presidential ballot, with six justices refusing to comment on the treason allegations.
In conclusion, while Trump's actions have been widely condemned and deemed insurrectionary, legally defining them as treasonous is more complex due to the specific requirements of treason under the Constitution. The debate highlights the nuances of constitutional law and the challenges of interpreting and applying historical legal concepts to modern political contexts.
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The limits of executive power
One of the key issues is the interpretation of treason in the context of Trump's actions before, during, and after January 6, 2021. While Trump did not personally attack a police officer or aid a foreign nation, he did urge a march on the Capitol. Legally, Trump did not offer "aid and comfort" to "enemies" of the United States as those involved were American citizens and therefore could not be enemies of the state. However, this brings up the question of whether Trump's actions constituted insurrection and if he should be disqualified from holding office under Section 3 of the 14th Amendment.
The Colorado Supreme Court agreed with the argument that Trump should be barred from office, while other states disagreed. The distinction between treason and insurrection is crucial, as established in case law and legal treatises from the American Revolution to the end of Reconstruction. Treason is defined in Article 3 of the Constitution as "levying war" against the United States, and those who engage in treason are traitors, not accessories. The Republicans who framed Section 3 of the 14th Amendment intended to include insurrection as a form of treason, with statements such as "cuts off the traitor from all political power in the nation" highlighting their intent to block traitors from serving in government.
Trump's lawyers responded by citing constitutional technicalities and claiming that he should be exempt from disqualification, rather than refuting the charges of treason. The Supreme Court's decision to keep Trump on the presidential ballot relied on these alleged constitutional rules, avoiding the issue of defending against treason allegations. This has led to a debate about the limits of executive power and the role of the judicial branch in interpreting and ruling on the Constitution.
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The 14th Amendment and disqualification from office
The Fourteenth Amendment's disqualification clause prevents public officials who engage in treason from holding future public office. This amendment dates back to the Reconstruction Era, aiming to prevent members of the Confederacy from reclaiming power after the Civil War. Section 3 of the Fourteenth Amendment, also known as the Insurrection Clause or Disqualification Clause, disqualifies any person from holding federal or state military or civil office if they have engaged in insurrection or rebellion against the United States. This includes swearing to support the Constitution and then acting against it, as well as aiding enemies of the nation.
The disqualification clause has rarely been applied, and most of those disqualified were not convicted of a crime. In 1919, for instance, Congress refused to seat U.S. Representative Victor L. Berger due to his conviction for "being disloyal to the United States" and "giving aid and comfort to a public enemy." The clause remained relatively obscure until January 6, 2021, when supporters of then-President Donald Trump stormed the United States Capitol building. This raised questions about Trump's eligibility for office under Section 3, as his actions were deemed to constitute insurrection.
In the case of Anderson v. Griswold, the Colorado Supreme Court ruled that Trump was disqualified from holding office under Section 3 and could not be listed on the state's presidential primary ballot. This decision, along with similar rulings in other states, has roots in the Constitution's definition of treason and Congress' intent to block traitors from serving in government. However, the issue of Trump's eligibility under the 14th Amendment is still being debated, with some arguing that his actions did not amount to engaging in insurrection.
While Section 3 of the 14th Amendment allows Congress to bar someone from holding office, the courts can overturn that decision. Additionally, Congress can remove the disqualification bar with a two-thirds vote in each House, as seen in the Amnesty Act of 1872 and broader legislation in 1898. The disqualification clause of the 14th Amendment highlights the checks and balances in place within the US political system, demonstrating how constitutional provisions can be used to hold even the highest officials accountable for their actions.
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The definition of treason and insurrection
The definition of treason
Treason is defined as the offence of attempting to overthrow the government of one's country, or of assisting its enemies in war. It can also refer to the act of levying war against a country or giving aid and comfort to its enemies. The framers of the U.S. Constitution intended to define treason narrowly, in order to restrict Congress's power to change the definition and the proof required to establish charges of treason.
The treason clause in the U.S. Constitution protects against a corrupt executive or Congress from expanding the definition of treason. It also prevents Congress from changing the requirements for securing a conviction. The Constitution states that treason can only be committed by levying war against the United States or by giving aid and comfort to its enemies.
The definition of insurrection
Insurrection refers to an act of revolting, especially violently, against civil or political authority or an established government. It can also refer to the crime of inciting or engaging in such a revolt. Insurrection may facilitate or bring about a revolution, which is a radical change in the form of government or political system. In the United States, insurrection against the federal government is a crime and can result in imprisonment and fines.
Insurrection has a long history in world politics, and it has often been used by presidents to invoke the Insurrection Act, which authorises the president to deploy armed forces to suppress insurrections and repel invasions. In recent years, there have been several notable instances of insurrection, including the 2020 Capitol attack by supporters of Donald Trump, and the 2020 protests against police brutality and anti-Black racism.
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Frequently asked questions
The podcast is a weekly, casual class that uses the activities of the executive branch under Trump to teach listeners about the US Constitution.
Trump is appealing a Colorado ruling that the 14th Amendment bars him from holding office because he engaged in insurrection, a form of treason, before, during, and after January 6, 2021.
Treason is defined in part by Article 3 of the US Constitution as "levying war against the United States".
One question that has been raised is whether a president can withhold federal funding from cities that refuse to cooperate with his immigration policies.
