This Is Not About Donald Trump, Nor Should It Be

The Law Matters. The Constitution Matters. The Facts Matter

Full disclosure: I am not particularly a fan of Donald Trump.

I was less than impressed during the 2016 election over the Billy Bush tape episode.

I’m frankly not too impressed with the entire “classified documents” nonsense.

I consider him to be directly responsible for allowing the Pandemic Panic Narrative to run amok in this country in 2020, directly leading to a recession, massive violations of civil liberties and Constitutional rights across the country. His “Operation Warp Speed” gifted the world with the toxic and deadly mRNA inoculations which are demonstrably worthless against the SARS-CoV-2 virus while wreaking as yet unknown levels of damage on the human body.

I am far from enthusiastic about the prospects of a second Donald Trump Administration in the Oval Office.

However, when we assess the efforts by Jack Smith to convict Donald Trump on various federal crimes, the efforts by Fani Willis to convict Donald Trump of various state crimes, and the efforts by multiple states to exclude Donald Trump from the 2024 Presidental ballot, we must never forget one important fact: it’s not about Donald Trump.

Regardless of my personal opinion about Donald Trump the man—and the foregoing is every bit my opinion, neither more nor less—Donald Trump retains all the same civil liberties I do, and is every bit as entitled to the same protections under the Constitution as I am.

For that matter, the same can (and should) be said of Hunter Biden.

When people read the pontifications of lawyers, judges, and associated “legal scholars” regarding Donald Trump’s qualifications to stand for the 2024 Presidential election, we must not focus on Donald Trump, nor on Jack Smith, nor even on the political labels of “Democrat” and “Republican”. Rather, we should focus on the things that really matter here: the law, the Constitution, and the facts.

The debate that has been ignited about whether Donald Trump is or is not an “insurrectionist” is not about Donald Trump, nor should it be about Donald Trump. It must be about the law, the Constitution, and the facts, or justice can not be done.

Disturbingly, too many of the aforementioned “legal scholars” appear to be willing to overlook the law, the Constitution, and the facts on this topic. They seem to want to be all about Donald Trump instead.

I am not a lawyer. I have never been a member of any bar association. Yet I am quite convinced from my own readings of the law that this is not how the law is supposed to work. This is not what “the rule of law” is supposed to be.

It is unsurprising when the corporate media rhapsodizes about Donald Trump engaging in “insurrection” on January 6, 2021. The propagandistic corporate media being what it is, we should expect nothing less.

It is disturbing, however, when notionally “conservative” and other putatively dissident legal voices take up the “insurrectionist” rhetorical line, advancing the same arguments, while directly ignoring not only the plain text of the Constitution—and in particular the 14th Amendment—but also the relevant facts surrounding the riot at the nation’s Capitol on January 6, 2021.

In particular, we should be very troubled by claims such as those advanced by John Dean¹, the former White House Counsel to Richard Nixon. After Maine Secretary of State Shenna Bellows decided Donald Trump was disqualified from running for the office of President, Dean appeared on a CNN panel, giving support to Ms. Bellows decision.

Guest host Erica Hill said, “When we look at this perhaps not surprisingly we heard frequently from the Trump campaign slamming this decision saying in part, ‘Biden and the Democrats simply do not trust the American voter in a free and fair election.’ We’re hearing this, hey, leave it up to the voters to decide. Put somebody on the ballot and they’re tell you whether they should be in office or not.”

Dean said, “Well, they like to ignore the Constitution. We know that. I think the Maine decision is very solid. It was fully briefed. There is ample due process in this proceeding. And they just lost by a straight, honest reading of the 14th Amendment. Trump is in trouble. He’s in trouble wherever this is raised and addressed.”

He added, “So yes, the Supreme Court is going to have to weigh in on it. I want to see those strict constructionists and originalists get around that language. How are they going to do it? I don’t know. It looks so applicable Erica. I don’t know what they can do with it other than take him off the ballot.”

John Dean, we should remember, served a stint in prison for his role in the Watergate Scandal that ultimately led to the resignation of President Nixon. He has also voiced political opposition to Donald Trump in the past—which means we must consider the possibility of political bias in assessing his observations.

However, even a plain reading of the Constitution shows that the Maine decision is anything but solid.

Due Process? Maine Gives Trump No Process

Shenna Bellows, in her decision to exclude Donald Trump from the 2024 Presidential ballot, levied what is in effect an administrative “bill of attainder” against Donald Trump—a measure which is expressly prohibited by the Constitution and which has been applied to all levels of government by the Supreme Court since the earliest days of the Republic.

John Dean was a lawyer. He is trained in the law, and therefore he is trained in matters of Constitutional law. It is unfathomable that he is not familiar with the concept of a bill of attainder, or that it is still very much a part of the Constitution.

As I have previously argued, unless and until Donald Trump is both charged and convicted of the crime of insurrection, he cannot be considered an insurrectionist and thus cannot possibly fall within the parameters of Section 3 of the 14th Amendment to the Constitution.

Donald Trump has not been charged with insurrection. Donald Trump has not been convicted of insurrection. Mere presumption of innocence precludes the 14th Amendment being used against him at this time.

Moreover the presumption presented by Dean, that his is a “strict constructionist” argument regarding the Constitution, is itself factually false. His ignorance regarding bills of attainder alone suffices to demonstrate that.

A strict constructionist view of the Constitution does not merely look at a single Article or Amendment, but looks at the whole Constitution when applying it to a particular case. The strict constructionist view of the Constitution looks at Article 1 Section 9 as well as the 14th Amendment Section 3. The strict constructionist argument also looks at the Fifth and Sixth Amendments, to ensure that Donald Trump’s rights at trial are preserved. Looking at just the text of Section 3 of the 14th Amendment is the antithesis of a strict constructionist argument.

The presumption that a “plain reading” of the 14th Amendment automatically disqualifies Donald Trump from running again for the office of President is factually false. It is not just a weak reading of the law and the Constitution, it is a wrong reading of the law and the Constitution.

Remember: the law, the Constitution, and the facts are what matter. Not Donald Trump and not John Dean.

Likewise, we should be concerned that former Federal Appellate Judge J. Michael Luttig² ventures forth with such arrant opinions that the Colorado Supreme Court ruling against Donald Trump was “the opposite of politics.”

I would add that we are a nation of laws, not of men, and it is the Constitution of the United States that is providing the avenue for the disqualification of the former president. This is not politics. This is the opposite of politics. This is constitutional law. And right now, the courts — the state courts and eventually the Supreme Court — will be interpreting the Constitution of the United States without regard to politics, let alone partisan politics.

While Luttig may wish to appear to be taking the high-minded legal scholar road, he unfortunately has not been nearly as high-minded in the past. This is meaningful because in the same Politico interview where he called the Colorado decision the “opposite of politics”, he also claimed that he did not “do” politics.

I’m agnostic on that. I do the law, and they can do politics, so it was a matter of indifference to me whether they agreed with my conclusion on the impeachment clause.

Except Luttig has done politics. In particular, he was extremely political when he testified before Congress in the aftermath of the J6 riot, as his own prepared remarks amply demonstrate.

A stake was driven through the heart of American democracy on January 6, 2021, and our democracy today is on a knife’s edge.

The war on democracy instigated by the former president and his political party allies on January 6 was the natural and foreseeable culmination of the war for America. It was the final fateful day for the execution of a well-developed plan by the former president to overturn the 2020 presidential election at any cost, so that he could cling to power that the American People had decided to confer upon his successor, the next president of the United States instead. Knowing full well that he had lost the 2020 presidential election, the former president and his allies and supporters falsely claimed and proclaimed to the nation that he had won the election, and then he and they set about to overturn the election that he and they knew the former president had lost.

The treacherous plan was no less ambitious than to steal America’s democracy.

These statements were delivered to Congress on June 16, 2022. Luttig has not been in the federal judiciary since 2006, and, aside from co-authoring a memorandum report released the month following his Congressional testimony refuting the arguments of ballot and election fraud in 2020, is not known to have participated in any formal legal review or judicial proceeding involving the J6 riot.

I do not doubt that Luttig believes these statements to be true. However, to call the J6 riot a “war on democracy” is the type of hyperbolic rhetoric that is exclusively found in the realm of opinion. His statement to Congress was demonstrably a political statement, not a reasoned legal analysis. Calling Trump’s actions “treacherous” at a minimum indicates a significant anti-Trump bias—a bias he expressly disclaimed in his Politico interview.

Recall my comments about Trump above. Like Dean and like Luttig, I, too, have biases. Everyone does. However, no one can honestly make effort to set bias aside if one does not first acknowledge that bias exists. My biases exist. On this Substack, I do my best to set them aside and look at the facts—what can be documented, supported, and proven. Luttig would do well to do likewise.

We should also be concerned by Luttig’s own rather Orwellian pronouncements on the law—namely, one need not be convicted of insurrection to be disqualified as an insurrectionist under the 14th Amendment.

It’s just that since the Colorado decision, a lot of commentators have been arguing that the Constitution empowers Congress to serve as the primary check on the executive, and that an impeachment and conviction from Congress would have been a better solution than kicking it to the courts.

Yes, that is correct as a matter of constitutional law. In fact, Section 3 of the 14th Amendment is self-executing, which means that congressional action is not required. Nor is it required that the former president be convicted of the criminal offense of an insurrection or rebellion against the United States under Title 18 USC 2383.

Read that last sentence again: “Nor is it required that the former president be convicted of the criminal offense of an insurrection or rebellion against the United States under Title 18 USC 2383.”

For clarity, let us review what the actual text of Section 3 of the Fourteenth Amendment says:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The operative phrasing here is “shall have engaged in insurrection or rebellion….”

Luttig is correct in one regard: Section 3 is self-executing. Any person covered by Section 3 he has engaged in insurrection may not be a Senator, Representative in Congress, elector, or hold any office, civil or military, under the United States, et cetera. That disqualification is automatic and proceeds directly from the text. No enabling legislation is required by Congress.

However, “shall have engaged in insurrection or rebellion” is not a self-evident proposition, nor can it ever be. This phrasing can never be “self-executing.” Rather, whether or not a particular act or series of acts constitutes an insurrection is something that must be adjudicated in a court of competent jurisdiction.

Let us remember what the legal definition of “insurrection”³ is:

A rising or rebellion of citizens against their government, usually manifested by acts of violence.

Straight away, this definition is problematic for the events of January 6, 2021. That many of the participants were chanting “Stop The Steal” alone is highly dispositive that the motivations of those participants were to prevent what they believed was an egregious fraud being perpetrated. It is strong evidence that, in their minds, those participants were defending the government rather than opposing it. As former Assistant Attorney General for the District of Columbia Jeffrey Scott Shapiro noted in an op-ed to the Wall Street Journal, actual rebellions such as Shay’s Rebellion and the Whiskey Rebellion were not so well-intentioned:

A real insurrection would have required the armed forces to quell an armed resistance. Actual insurrections—apart from the Civil War—include Shay’s Rebellion in 1787, in which thousands of insurrectionists tried to seize weapons from a Massachusetts armory after months of planning to overthrow the new revolutionary government, and the Whiskey Rebellion in 1794, in which 500 armed men attacked the home of a U.S. tax inspector in Western Pennsylvania. Both events required President Washington to quell the insurrections with thousands of armed troops, who killed several resistors.

Even if one assesses that the 2020 election was fairly held, and that the outcome was wholly legitimate and free from taint, that does not alter what the intention of the J6 protesters demonstrably was, by their own spontaneous utterances.

What is even more damning for Luttig is that his own political rhetoric delivered to Congress in June, 2022, is itself testimony against the notion of the J6 riot being an insurrection:

Called to Washington D.C. that day by the president, the president himself, and the president’s followers, supporters, and allies gathered near The White House for a “Stop the Steal” rally. The president maintained at that rally that the 2020 presidential election had been “fraudulently stolen” from him. The president addressed his faithful followers thus: “We’re going to the Capitol. . . . We’re going to try and give them [the Republicans in the Congress, presumably] the kind of pride and boldness that they need to take back our country. . . . We will never give up. We will never concede.”

As Luttig himself concedes, Trump maintained—and maintains to this day—that the election was “fraudulently stolen”.

As I noted the other day in relation to Jack Smith’s ongoing prosecution of Donald Trump, the great unanswered question here is “What if Trump is right?”

Is Jack Smith Afraid To Prove His Case?

Let me be clear: I do not claim that Trump is right. I am merely positing the hypothetical, and noting that Luttig’s claims before Congress, much like Smith’s indictments of Trump in federal court, hinge on the presumption that the hypothetical is false.

Yet if Donald Trump is right, then his actions on January 6, and those of his supporters, again could not possibly be an insurrection. Opposition to a massive election fraud would be an unequivocal defense of government, not a rejection of it. In similar fashion, if Trump believed (and believes) there was a massive election fraud, and if supporters believe likewise, their motivations again become a defense of government and not a rejection of it. Even if, upon subsequent examination of all available evidence, those actions were proven to have been misdirected, such error does not alter—cannot alter—in even the smallest particular the motivation behind them.

All of these aspects of the J6 riot are questions that must be adjudicated in a court of competent jurisdiction. They cannot be presumed to be answered by extrajudicial fiat, and all such attempts to do so—such as the Colorado and Maine decisions to bar Donald Trump from the ballot—are by definition unconstitutional bills of attainder which are absolutely not tolerable within this Republic. The Constitution leaves ZERO room for debate on that point.

These are essential facts that directly bear on the question of whether Donald Trump is or is not an insurrectionist. These are the facts—and the law—which is relevant in deciding whether or not Donald Trump is qualified per Section 3 of the Fourteenth Amendment to the Constitution to run for President of the United States.

Remember: the law, the Constitution, and the facts are what matter. Not Donald Trump and not J. Michael Luttig.

Both John Dean and J. Michael Luttig are familiar with the factual record here. They are fully aware—or should be fully aware—that Donald Trump has not been charged with insurrection. They are fully aware—or should be fully aware—that Donald Trump was acquitted of incitement of insurrection at his second impeachment trial.

They are fully aware—or should be fully aware—that no one involved in the J6 riot has ever been charged with insurrection.

They are fully aware—or should be fully aware—that the question of whether or not the J6 riot constituted an insurrection has never been adjudicated in a court of competent jurisdiction.

They are fully aware—or should be fully aware—that, absent such adjudication, the mere presumption of innocence that is every American’s inalienable right in every court in the country is itself an absolute bar to applying Section 3 of the Fourteenth Amendment against Donald Trump. Until such time as J6 is properly adjudicated an insurrection, Donald Trump is, in the eyes of the law, presumed not to have engaged in an insurrection and therefore cannot be disqualified under the Fourteenth Amendment.

They are aware—or should be aware—that they are advancing arguments that are not only legally flawed but factually false. One would think they would be remembering enough of their own earlier commentaries and statements indicating bias to take extra care to ground their reasoning in specific facts, specific citations of the law, and specific application of the Constitution.

Yet they are not doing so. Rather, they are merely declaring with extreme hubris that “The Fourteenth Amendment disqualifies Donald Trump” without providing even a soupcon of legal reasoning or factual analysis. At the risk of engaging in a bit of hubris myself, I dare say that my recent articles on this point contain more factual elements than J. Michael Luttig’s intemperate testimony to Congress from June, 2022.

When Chief Justice John Marshall wrote in Marbury v Madison⁴ that the role of the courts was to “say what the law is”, he did not mean that judges get to make up the law, or that lawyers can arbitrarily decree “the law” for us all. Rather, he made it very clear that the “rule of law” is when the plain text of the entirety of relevant law is rationally applied to the relevant facts before the court, and it is the role of the jurist to ensure that rational application.

It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.

Every judge, every lawyer, every legal “expert” pontificating on CNN, MSNBC, Fox, and all the rest of the corporate media outlets would do well to remember Marshall’s essential dictum. We as ordinary citizens would do well to remember it as well, and pay close attention to when the “experts” are straying outside Marshall’s brightly drawn lines. It’s not who says it that matters; it is what they say, and the facts, the evidence, and the law that they bring to bear that matter.

The great danger of allowing men like John Dean and J. Michael Luttig to pontificate unchallenged regarding the qualifications of a Presidential candidate is that they are straying beyond those clear judicial boundaries. Such pontifications make a mockery not just of the Constitution, but of our entire judicial history. Such pontifications substitute the rule of law in this country with the rule of lawyers.

I, for one, would much rather place my faith in the law rather than in the lawyers.

1. Editors of Encyclopaedia Brittanica. “John Dean.” Encyclopaedia Brittanica, 2023, https://www.britannica.com/biography/John-Wesley-Dean-III.

2. Federal Judicial Center. History of The Federal Judiciary | Judges: Luttig, J. Michael. https://www.fjc.gov/node/1384136.

3. "insurrection." West's Encyclopedia of American Law, edition 2. 2008. The Gale Group 29 Dec. 2023 https://legal-dictionary.thefreedictionary.com/Insurrection

4. Marbury v. Madison, 5 U.S. 137 (1803)