[FRIAM] "SSRN-id3978095.pdf" was shared with you

Mon Jan 8 16:24:56 EST 2024

Agreed.

There is an even easier logic that _could be_ for these questions.  It would center on how much agency is given to a person by inhabiting an office, and where exclusion of the person needs to be done to keep that agency from enabling actions that destroy whatever system “the country” has collectively granted legitimacy.  In that priority, the looser the cannon, the more important to vet the pattern of directions in which it tends to point.

I expect we all know what the outcome will be.  Since current SCOTUS has demonstrated that some word-sausage can be composed and prepended to any predetermined agenda, and the participants in The Spectacle will provide an endless stream of entertainment commentary but not do anything, and the various chickens will squawk but not do anything, the majority will come up with something that may as well be random and then follow it by saying the electoral college will get to decide.

Quite apart from the question of “offices”, there was another side of the question that to me seemed sensible as reasoning.  The question of citizenship or age are matters of “record”, not exactly like “laws of physics”, but questions over which there has been little enough effort to claim reality doesn’t apply to them that there isn’t much “legalism” to deciding them.  In contrast, whether one is or is not an insurrectionist is explicitly a matter of legal decision.  One could say that, since states administer elections (federalism and all that), their own courts should be permitted to determine this question in whatever higgledy-piggledy way they like.  In other matters, the states-rights club like this line of sophistry.  But even within the constitution, there probably is a distinction between “administering” an election and dictating what the criteria for national-level elections even _are_; the states are not permitted (I imagine, but I am not a constitutional scholar) to decide that one state goes by Russian rules, another by Chinese rules, another by Finnish rules, and another by South-Sudanese rules).  And by that criterion, since this is an election to a national office, one could argue that the legal decision on whether X has or hasn’t engaged in an insurrection should probably be something determined and handed down in a federal court, which then supersedes idiosyncratic state-level court decisions.  Would have been nice if we didn’t have two years of foot-dragging and procrastination before any of that movement started, so we could have such a decision in place now to refer to.  But if SCOTUS wanted to do something that wasn’t transparently contemptuous toward the concept of law, they could rule that the federal indictments on insurrection should be pushed to decision, and that decision should then dictate eligibility under the 14th in the “triggering” interpretation that is usually put forward.

On the current timeline, nearly nothing is going to get done before the republican primaries run.  But if enough pressure could be brought against the ones who keep upholding the delays, it could be done before the generals.  If the R party want to put him on their primaries, knowing that if he is convicted he is instantly disqualified from the generals, that is their business.  I have not heard anything to the effect that the constitution says political parties should be prevented from making self-defeating decisions toward their own stated goals, quite apart from whether the goals have any worth or value.  So they can take a roll at the casino, and bet over shooting themselves in the foot if they lose.  

Again, though, in a world now stuffed at the officeholder level by people who act always in bad faith, these arguments about sense or function are a pastime for the commentariat and other people who don’t really matter.

Eric

> On Jan 9, 2024, at 5:53 AM, Marcus Daniels <marcus at snoutfarm.com> wrote:
> 
> If Trump had been a staffer for a senator, he’d be SOL in this view?  If that’s a good predicate for disqualification, it seems weird to specifically not give an override to vetted individuals (appointed insurrectionists) versus unvetted-by-appointment yet vetted by prior election.  
>  
> From: Friam <friam-bounces at redfish.com <mailto:friam-bounces at redfish.com>> on behalf of glen <gepropella at gmail.com <mailto:gepropella at gmail.com>>
> Date: Monday, January 8, 2024 at 7:08 AM
> To: friam at redfish.com <mailto:friam at redfish.com> <friam at redfish.com <mailto:friam at redfish.com>>
> Subject: Re: [FRIAM] "SSRN-id3978095.pdf" was shared with you
> 
> The argument seems pretty clear to me. "Officer" is jargonal, not intuitive. Were I to read it charitably, I'd agree. Appointees are not elected. Electees should have more leeway than appointees ... like the difference between an elected Sheriff and her deputies. But like all dichotomies, this one is a bit false, especially given that the [Vice]Presidents aren't really elected at all. The Electoral College process feels more like a complicated appointment mechanism than an election.
> 
> Anyway, everything that document says is monastery quality sophistry. Were the "rule of law" actually like an axiomatic system, running it forward from start to finish would be formal and automatic. But it's just not that formal. It's cafeteria/buffet style; you can make anything you want out of it. Beware the monks claiming it's axiomatic ... and that they alone are qualified to turn the crank.
> 
> FWIW, I'm not familiar with Tillman. But Blackman's positions are one reason I unsubscribed from the Volokh Conspiracy RSS feed: cf. https://reason.com/people/josh-blackman/
> 
> At first, I read many of his posts with as much charity as I could. (Analyses and opinions, not so much the historical ones. He's a competent scholar.) Then I started skipping over them most of the time and focusing on the other posters that were more reason-able (Ha!). Then I finally couldn't take it anymore and removed the feed. [sigh] I'm not proud of that. My charity muscles are fatigued. Blackman's opinions feel, to me, similar the Johns' (Yoo and Rizzo) legal justification for waterboarding. It all makes me a bit queasy.
> 
> p.s. Here's a more reliable link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3978095 <https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fpapers.ssrn.com%2fsol3%2fpapers.cfm%3fabstract_id%3d3978095&c=E,1,yVVdfMyXttthQ6PJ0cfLv8uuYdH1ZpQ6MNi27OdumgDwHu5sP60_NoS882NpxTxX5zfkjD_vJgd2OmEKS_PmIt5oWkEz0uJNx4uOaT5SgXc5dd0,&typo=1>
> 
> On 1/6/24 10:16, thompnickson2 at gmail.com <mailto:thompnickson2 at gmail.com> wrote:
> > Hi, Everybody,
> > 
> > I have been curious about how (on earth!) the president could not be
> > considered to be an Officer of the United States.  After all, the
> > Constitution, Article II, tells us that "The President ...shall hold
> > office..."etc. This law review article  seems to be the source  I thought I
> > would post in in case anyone wants to read it. I won't get to it until later
> > today.
> > Nick
> 
> 
> -- 
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