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Introduction

I had thought The Minnesota Series was done. Across four reports (I, II, III, IV) this publication had published a book’s worth of legal analysis, curatorial journalism, and futurist “foresight” modeling on what’s now happening in Minneapolis and what we can expect will happen next, based on the words and actions of the key players there.

But it wasn’t enough. Actually, as it turns out, it wasn’t nearly enough. The situation in Minnesota right now is well beyond anything that could have been contemplated even a week ago. It looks to be the premeditated opening salvo of the end of our nation as we know it.

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{Author’s note: The first, second, and third entries in this ongoing Proof series on the death of Renee Good at the hands of ICE agent Jonathan Ross are here, here, and here, respectively.}

Introduction

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{Author’s note: The first entry in this Proof series on Renee Good is here. The second is here.}

Introduction

“We had whistles. They had guns.” —Becca Good, widow of Renee Good (link)

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{Note: If you missed the first entry in this series on the shooting of Renee Good, you can find it here.}

Introduction

Forty-eight hours after the shooting death of Renee Good, the actions of ICE agent Jonathan Ross—and his direct and indirect bosses Donald Trump, J.D. Vance, and Kristi Noem—are revealed to have been (and be) more horrifying that we’d realized.

Below are five new developments that transform what was already an unspeakable tragedy—the unjustified killing of a 37-year-old Minnesota mother by armed, masked, insignia-less government forces executing an unprecedentedly unjust, quota-driven mass deportation scheme the likes of which Trump said he wouldn’t pursue as he was running for President of the United States back in 2024—into an abiding national emergency that’s genuinely terrifying for those who care about American democracy.

The Five Worst Post-Shooting Developments—of Many

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{Note: Readers unfamiliar with this author’s background as a criminal defense attorney and former federal criminal investigator can find his long-form biography at this external link.}

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Introduction

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The List

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Introduction

The Basics

Here is the 165-page DOJ filing on January 6 just released.

Below you will find the person or company each redaction refers to; there are 90 different redaction codes in all.

This Proof report is being updated live, so please keep checking back for new data.

Process

This project will unfold over hours, as the number of names in the filing is large. 80+ persons in the document have been identified.

The entries below are subject to change, and should be deemed preliminary until they receive an asterisk notation after them (🔅).

All companies and persons listed are presumed innocent of any wrongdoing unless and until proven otherwise in a court of law.

Key

Symbols used in the Proof report below include all of the following:

🔅 = An entry that is complete.
🚩 = An entry that is remains underway. There are only 2 remaining as of this edit.
🔁 = Only the order of these names—that is, the coding for each—remains unknown.
📶 = An entry that is nearing final status.
🔠 = Multiple potential hits means no certainty is possible; all probabilities are listed.
5⃣ = Asserted the Fifth Amendment to avoid answering any questions about January 6.
🔰 = Star witness for the government, based on frequency of appearance and nature of usage in the filing. Key witnesses certain to be hostile to the prosecution not included.
☢️ = A reported Cooperating Individual (CI)—a bad actor who’s being prosecuted but who may also be working with DOJ to evade significant consequences for their actions.
🔴 = The party affiliation of this individual is the Republican Party.
🔵 = The party affiliation of this individual is the Democratic Party.
🟤 = The party affiliation of this individual is independent, former GOP, or unknown.
⚫️ = A person who’s been convicted and incarcerated, whether or not they’re still held.

The List

Unredacted Parties (2)

UP1: Donald Trump, Former President of the United States
UP2: Mike Pence, Former Vice President of the United States 🔰

Donald Trump’s Formally Identified Co-Conspirators (6)

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Donald Trump has spent over a year telling the voters he needs to have vote for him in November to stay out of state and/or federal prison for the rest of his natural life that his political rival Joe Biden—and President Biden’s Attorney General, Merrick Garland—are puppeteering the two federal criminal cases remaining against him: one in Florida and one in Washington.

In court, Trump is saying exactly the opposite—meaning that he either doesn’t believe what he’s telling voters or doesn’t believe what he’s been representing to U.S. courts.

The Trump claim, in court, is that Special Counsel Jack Smith isn’t just too independent of the Biden administration and the Biden Department of Justice, but so independent that it’s illegal. In short, what Trump is saying in federal court is a grenade-toss aimed squarely at the center of the rhetoric he’s using to try to get reelected and avoid prison.

Which is why it’s so stunning—if also predictably hypocritical and deceitful—that the man celebrated a judge he appointed tossing out a federal criminal case she’s been delaying and mishandling from the start in a way many attorneys deem corrupt not by acknowledging what the ruling actually said (that Jack Smith is too independent of any Biden appointee or Biden himself), but reiterating his entirely distinct public rhetoric.

It is galling—yet somehow also par for the course—that a man infamous for lying or else invoking the Fifth Amendment under oath in court proceedings is in this post confirming for all America to see that he again lied in court by making claims about Jack Smith he now swears to voters he doesn’t actually believe.

Donald Trump insisting, in his usual, shrieking all-caps-punctuated terms, that “the Democrat Justice Department coordinated ALL” the criminal cases against him—putting aside for the moment that there’s no evidence of this at all, that it doesn’t even make sense given that several of the cases referenced are state cases, or that some of the cases pre-date Jack Smith’s appointment—means, and unambiguously, that he now claims DOJ in fact has precisely the level of control over Smith he was demanding it have (and claiming it didn’t have) in the remote Florida district court where his Stolen Documents Case is being heard.

In short, if what Trump says above is true, it means his case was wrongly dismissed; if it’s not true, he’s lying to voters about major felony charges against him—charges that historically have led to prison time for other defendants—which in itself would seem to suggest a “consciousness of guilt” over his gross misconduct in stealing classified documents from the White House and then publicly claiming he’s entitled to sell them.

But it gets worse.

The order just issued by a Trump appointee who’s rather universally seen as also a Trump partisan wasn’t only timed in such a way that its release kicks off the RNC in Milwaukee with a major Trump victory; wasn’t only timed in such a way that it gives the man who made it possible—the man who appointed its judicial author to her job—a new argument to make, and to have others make, at every speech at the Convention; wasn’t only timed in such a way that the inevitable appeal of it by Jack Smith can’t possibly move through the federal courts in time for this trial to happen pre-election even if Judge Cannon’s ruling is overturned; but was issued on grounds that now likely destroy the only other federal criminal case Mr. Trump has remaining: the one in DC.

Had Judge Cannon found a way to do the bidding of a man she hopes will appoint her to either a federal circuit court (or even the Supreme Court) that only encompassed the proceedings in the case before her—the Stolen Documents Case—it would have been a massive boon to Trump, but not necessarily a career-making one (keeping in mind that Trump has a demonstrated history of rewarding corrupt public officials in Florida, from making the man who protected him from fallout over his friend Jeffery Epstein’s child sex-trafficking, Alexander Acosta, his Secretary of Labor, to hiring as his lawyer Florida’s former corrupt Attorney General, Pam Bondi).

So that’s not what the judge did.

What Judge Cannon did is find a pre-textual basis to end Trump’s Florida case that also now requires that the same question—whether Jack Smith was legally appointed and is legally performing his duties—be presented and dealt with in the D.C. federal criminal case over January 6, which as it happens was the only case Trump still faces that until today had a chance of being heard pre-election.

In short, if Smith is an illegal player in Florida, he’s also an illegal player in D.C. And once Trump raises this newly minted issue in D.C.—which he will once SCOTUS stops artificially holding onto its recent presidential immunity decision for the maximum duration it can (refusing to send the ruling back to Judge Tanya Chutkan in D.C. for further proceedings is another under-reported SCOTUS gift to Trump)—either Judge Chutkan will agree with Judge Cannon and drop Trump’s D.C. criminal case or she will contradict Judge Cannon and create a need for SCOTUS to step in to resolve the divergent holdings in two federal jurisdictions. Either way, Trump wins, as we’ve already seen that SCOTUS will hold up any case of his five to ten times longer than it would for any other litigant, and Election Day is now well under 120 days off.

{Note: While some say this ruling by Cannon could lead to Jack Smith getting his wish that she be replaced on the case, that would be an extraordinary and unlikely remedy by the federal circuit court overseeing her, and in any case still wouldn’t produce a pre-election trial. And if Trump wins in November, he’ll unilaterally and corruptly order his new DOJ to end all cases against him, claiming as he does so that the very voters he’s lying to right now assented to him ending all cases against him simply by voting for him. See how that bait-and-switch works?}

It’s now clear that American voters will be asked to decide on the fitness for office of a man with 54 untried felonies, and because major media persistently wrongly deploys the “innocent until proven guilty” mantra of our justice system—to be clear, a mantra that only applies to jury duty, as voters are allowed to judge a man however they wish—it is likely that few in the media will point out that no responsible voting population can ever vote for a man with 54 untried felonies. To do so is civic malpractice. More likely, what we will hear from American major media is that Trump looked like a real badass in photos taken immediately after his attempted assassination in Butler, Pennsylvania.

And those are some great photos.

They’re great photos of a rapist, fraudster, serial sexual predator, public incest-ideator, serial adulterer, pathological liar, malignant narcississtic sociopath, human trafficker, war criminal, misogynist, homophobe, antisemite, transphobe, Islamophobe, con man and xenophobe with 54 pending felonies and a history of bribing public officials and receiving bribes from others.

Indeed, a recent Supreme Court ruling on Bribery that was made possible by judges Trump rammed through Congress in contravention of all nomination conventions made clear that bribes can be legally given to a politician provided the repayment for them occurs after the fact, so for all we know a newly emboldened Judge Cannon is just honoring that ruling by doing Trump a lawless “in-kind” solid now that she absolutely expects will be well-rewarded down the line.

And who knows? Maybe it will be. In a corrupted democracy with unequal application of the law—which America now is—anything’s possible and everything is permissible.

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The news seems simple enough: in a shocking 9-0 decision, a Supreme Court with six extremely conservative members just protected an important aspect of abortion rights—access to an abortion medication that’s safe, universally used, and now accounts for the majority of abortions in the United States. Indeed, the drug mifepristone is safer than childbirth or abortion-by-procedure, and the only reason anyone would oppose its sale is because it makes abortions accessible to women, and there are ideologues in America who would rather that women be at the mercy of fate rather than enjoy self-determination.

But today’s Supreme Court decision wasn’t shocking for its unanimity on a hot-button political question, but for a very different reason.

The basis for the unanimous Supreme Court decision in FDA v. Alliance for Hippocratic Medicine (AHM) had nothing to do with the merits of the case, which saw the far-right anti-abortion Alliance for Hippocratic Medicine arguing that the U.S. Food & Drug Administration (FDA) improperly approved mifepristone many years ago and claimed standing to file a lawsuit over this—“standing” being the notion in the law that a given litigant can claim to be an injured party, and therefore has a legally cognizable right to take a matter to court—on the basis that some of its doctors might be forced to treat women harmed by mifepristone against their personal convictions. The problem, of course, is that mifepristone is actually so safe that it’s safer than penicillin or Viagra.

But that wasn’t the basis for AHM losing its case today; rather, AHM lost because the Court found it didn’t have standing to bring this case at all. And that’s what’s shocking.

Specifically, it’s shocking that the Supreme Court even allowed a case to come before it in which all nine Justices believed the moving party didn’t have standing to bring the case in the first place.

Why? Because standing is the first thing decided in every court case, and it is almost always the easiest thing to determine. Which means—given that the Supreme Court takes a vanishingly small number of cases each year, and most cases that come to it take years to get there—that the Court took up an issue that it knew in advance never should have entered any court in America and did so to the detriment of countless other actually worthwhile cases it could have taken.

Why in the world, then, should the Court choose to have this case be one of the only ones in America it hears this year—when there are thousands upon thousands upon thousands of worthy litigants begging for its attention?

One argument, a procedural one, would be that the Court was forced into this position.

Like almost all far-right Trumpist litigants in this era of out-of-control ideologically driven “lawfare”—a phenomenon complained about exclusively by, yet simultaneously almost exclusively caused by, supporters of Donald Trump—the plaintiffs in this case forum-shopped their way to a federal judicial district in north Texas. North Texas is a region of America now so radicalized by Trumpism and—even more troublingly—by QAnonism that its courts can reliably be expected to launch to the appellate pantheon of our legal system new causes of action that ten years ago wouldn’t merely have been laughed out of court, but would have been deemed ridiculous even by far-right activists.

So it’s little surprise AHM won here at the district court level, and only slightly more surprising that Texas’s federal district courts now feed into what the Trumpists have constructed as one of the farthest-right federal circuit courts in America—meaning that all concerned knew that AHM’s rather silly district court victory, when it was appealed, would likely be heard by a panel of Republican-appointed judges. And so it was. In this instance, it was two Trump appointees (and being a Trump appointee has, over the last five years, become the dominant predictor of a federal judge’s lawlessness and/or incompetence) and one George W. Bush appointee.

You won’t be surprised to learn that, in this case, the two Trump appointees granted the FDA’s appeal in part—on the rather obvious if technical grounds that the period for the AHM to challenge an FDA approval made many years ago has lapsed—but also allowed new restrictions on mifepristone to stay in place while the full circuit heard the FDA appeal. Meanwhile, the Bush-appointed judge would have “stayed” (delayed) the lawless district court order so the case could be heard in a reasonable timeframe and at a reasonable pace by the full circuit, a view which—had it prevailed—would have led to AHM being tossed out of court at the circuit level. In that scenario, the Supreme Court would have had no need to hear the case that it decided today at all.

What Trump’s two activist judges were doing, of course, was making a decision that couldn’t possibly be defended—not only ruling for AHM in part but refusing to give their circuit colleagues time to hear the case in the normal course of business—so the FDA would be forced to appeal to the Supreme Court on an accelerated basis (because the district court and circuit panel decision upset the status quo in a way the FDA, but not AHM, had to address immediately), thereby fast-tracking case with no business being in court at all to a U.S. Supreme Court that, as we can tell from its unanimous decision ending the case on standing grounds, had no interest in hearing it right now.

In essence, the Trumpists manufactured a way for a wholly meritless case to jump to the front of the nation’s queue of civil appeals in the hope that doing so would get six (or at least five) Trumpist justices to effectively outlaw most abortions nationwide.

But for all that, the six Trumpist justices didn’t say “no” today. They merely noted that this particular case shouldn’t and couldn’t be brought by these particular litigants.

So a second, alternate view of today’s events would suggest that the Court should have acted much quicker and earlier to keep this case at the circuit level and deny AHM oral arguments or a published Supreme Court decision on a case that should never have been allowed into the district court due to its glaringly obvious standing issue.

So why didn’t it do so? Why treat an obviously illegitimately brought case as legitimate?

The answer lies in the 9-0 decision written by longtime Republican political operative-turned-SCOTUS Justice Brett Kavanaugh.

Recognizing, as does everyone in the legal field, that the Trumpists have now created a special pipeline just for themselves that fast-tracks far-right schemes through far-right activist judges in Texas to a far-right Supreme Court, Justice Kavanaugh wrote his opinion aware that the fact that he was writing such an opinion at all meant that the pipeline run by his former GOP-operative colleagues is humming on all cylinders.

He is aware, in other words, that there is really no way, anymore, to stop a meritless (indeed improperly brought) civil case in its tracks if the MAGAs want it heard by the Supreme Court—especially as there will always be at least a four-person grouping at the Court (Justices Clarence Thomas, Samuel Alito, and two of Brett Kavanaugh, Neil Gorsuch, John Roberts, and Amy Coney Barrett) to vote to take such a case even when it’s patently meritless. {Note: Four Justices must want to hear a case for it to be heard.}

Which is probably why Kavanaugh used his written opinion not to criticize the deeply offensive and outrageous political scheme now being perpetrated and expanded upon by the MAGAs—what I will here call the “Texas Pipeline”—but rather the opposite: to offer them advice on how to exploit our broken, far-right appellate system more efficiently. Indeed, Kavanaugh’s opinion explains to the Trumpists exactly how they’ll need to proceed to get this sort of ploy to work better next time, and of course he was more than willing to join his peers in ruling on this silly case on the basis of standing because—as he and the other ultra-conservative members of this Court are only too aware—ruling in this way leaves the mifepristone issue wholly unresolved, and thus available to come before the Court again. And that appears to be what Kavanaugh and the other five far-right judicial activists on the present Supreme Court are intending.

Keep in mind that it’s become an article of faith on the Right that not only will Trump win the presidency in 2024; not only will the next Justice to retire be chronically ill progressive jurist Sonia Sotomayor; but that the Trumpists in Congress will (a) block any Democratic president from ever getting another SCOTUS nominee confirmed (unless the nominee is replacing a Democratic president-appointed Justice), and (b) will make sure that all Trump nominees are confirmed during the maybe-forever dictatorial regime Trump plans on establishing should he win in November. It isn’t a coincidence that Trump got three SCOTUS nominees seated in just 48 months in office; that was just as cynically and unethically orchestrated as MAGAs’ “Texas Pipeline” is.

So Kavanaugh knows it’s better for this case to come back with no standing issues and perhaps a year from now. So that’s what he and his peers on the Court orchestrated.

They have avoided the creation of any thorny precedent that could hamper such a case down the line; they have made themselves—and therefore, by extension, Trumpism—seem “reasonable” on the matter of abortion in an election year in which their patron Trump is on the ballot and they very much need the abortion issue not to harm him politically; they have bought themselves more time to get to see the back of Justice Sotomayor (necessary because the Trumpist bloc is aware Justice Roberts might not be with them on mifepristone, and that a shocking development could still see one more far-right Justice peeled away, therefore dooming their end-abortion-nationwide cause); they have used a published opinion to send a legally sanctioned message to their ideological peers about how to enhance and properly use the Texas Pipeline in the future; and all it cost them was a ridiculous 9-0 decision on standing that only attorneys would immediately see confirms that the U.S. justice system is utterly destroyed.

Again, this can’t be underscored enough: a case in which standing is found by a 9-0 vote not to exist getting to the Supreme Court is as blaring a warning klaxon as, say, a new restaurant serving ten plates of raw fish to ten food critics it knew were coming.

We might expect such a restaurant to shut down for a period of time after a colossal, even unprecedented mishap of that sort—simply to get its affairs in order—and by the same token, SCOTUS ruling unanimously on a very basic standing issue means that something is gravely wrong with the process by which civil cases are moving through our justice system.

While this bizarre 9-0 decision suited the needs of the Court’s Trumpist bloc just fine because—as we’ve lately seen—it fundamentally doesn’t care how the Supreme Court is perceived so long as it retains absolute power to advance Trumpism nationwide (either through decisions or, when possible, by sending matters to a Congress in the hands of Trumpists), a 9-0 decision on standing is actually not just an unmistakable sign of a broken Court but a whole legal system in unprecedented procedural distress.

Simply put, the Trumpists have weaponized our justice system and turned it into a vehicle for lawfare. Which is precisely why the Trumpists are accusing their political enemies of…

…weaponizing our justice system and turning it into a vehicle for lawfare.

It has now become maybe the most foreseeable rhetorical move among the MAGA “movement”: falsely accuse your political opponents of doing what you yourself are doing in order to make it that much harder for them to credibly accuse you of what you are indeed up to. Rhetorically speaking, this is the cousin of another maneuver: letting your opponent win battles you not only don’t care about but are, in fact, clandestine victories for you so that when the chips are down and a matter you really care about is on the table you can claim to have been rational and reasonable and fair all along. The decision in the AHM case is just this: a strategy session for the Texas Pipeline dressed up as a victory for abortion rights, against the backdrop of a justice system so utterly deranged by far-right ideological pap that a case that should have been laughed out of district court ended up serving as a useful SCOTUS planning sesh for MAGA radicals.

It is not wrong for progressives to be happy when Hell fails to get ten degrees hotter.

But it is not cause for optimism, either.

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UPDATE (May 30, 2024): Donald Trump has been found guilty on all 34 felonies.

Introduction

Some startling numbers tell the story: 1,910 tweets, over 8 threads, totaling 94,750 words—the equivalent of a 392-page novel. 18.1 million views on Twitter. And an estimated reading time of seven or eight hours.

It’s been a pretty eventful three weeks for the public-facing side of this publication.

As many of you already know, the ongoing “Trump Trials” series in the Law Section of Proof has been following the civil and criminal cases of Donald Trump for months, sometimes with public reports and sometimes with reports for paid Proof subscribers.

However, during Mr. Trump’s current trial in Manhattan on 34 Falsifying Business Records felonies amplified from misdemeanors to felonies under an Election Fraud statute—a trial that is resolutely not a “hush-money case” as major media has framed it for mercenary, profit-oriented reasons—Proof has put most of its analysis online on social media for free. These analyses have been shared tens of thousands of times and read by many millions of people around the world, per publicly available site-visit data.

The problem is that the links to these hundreds-of-posts-long analyses will invariably disappear from ready accessibility over time.

The Proof report below provides quick-links to all of these analyses—some of which you may not even have seen when they were first posted—to ensure Proof subscribers can always easily access them. As ever, the goal of these analyses (seven in total at present, but this archive will be added to in real time as or if applicable) is to marshal my discrete areas of expertise in order to provide a view of the Trump trials you won’t find elsewhere. Specifically, these analyses bring to bear my eight years researching Mr. Trump (his life both as a politician and as a private citizen) as a multiple New York Times-bestselling Trump political biographer and presidential historian; my decade of experiences as a former federal criminal investigator and criminal defense attorney (experiences that include multiple homicide cases that resulted in acquittals); and my status as a former journalism professor at an R1 public-flagship research university (University of New Hampshire) who has been a working journalist for three decades.

Some of you may know that one of my areas of academic research as a cultural theorist—extending to my work as a professional culture critic at various publications over the last fifteen years—is metamodernism, which gave rise to my interest in curatorial journalism, another significant component of how I cover Donald Trump that differs from many other historians, non-fiction authors, lawyers, journalists, and academics.

A central tenet of curatorial journalism is that not only does the journalist aggregate reliable major-media reporting from across the world that goes back decades and crosses all interdisciplinary lines, but the also journalist—because their work involves curating rather than reporting—is free to do at volume what increasingly journalists in our postpostmodern-cum-metamodern world are starting to do anyway: distinguish between objectivity and neutrality (the former is critical, the latter a deceitful pretense) and between professional sourcing ethoi and mere access journalism (the former requires a journalist to neither uncritically repeat nor implicitly condone nor make journalistic use of statements by demonstrated bad actors and deceivers, while the latter is not really journalism at all—inasmuch as it elevates the career prospects and clickability of the journalist over providing its readers with accurate, transparent, and reliable data).

With all that said, the Trump Trials Public Archive: Manhattan Trial Edition can be found in full below.

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1

In Trump v. Anderson (text), the United States Supreme Court ruled 5-4 that Congress must make “some kind of ‘determination’” that an individual has “engaged in” the act of “insurrection” before state officials are empowered to remove such a person from a federal general election ballot pursuant to such federal guidance and Section 3 of the Fourteenth Amendment to the United States Constitution.

The Anderson majority made clear that the only question before it in the case was the “single question”, “Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?” Having concluded that it did by a 9-0 combined vote—its 5-4 majority vote establishing one reasoning for why the Colorado Supreme Court had erred, a question beyond the one posed to the Court—the Court ordered that Donald Trump’s name be kept on Colorado’s primary ballot.

Trump thereafter, on March 6, 2024, became the presumptive 2024 Republican Party nominee for the office of President of the United States.

The 5-4 Anderson holding on why the Colorado Supreme Court erred in the Trump ballot-access case—as opposed to the unanimous decision as to the fact that it erred—was clear in its view that “The [U.S.] Constitution empowers Congress to prescribe how those determinations [that an individual has engaged in insurrection] should be made” (emphasis supplied).

But the five Anderson-majority justices—who many now say issued a ruling that seems to contradict the above statement by indeed prescribing, in place of its admission that it’s really Congress’ prerogative to do so, “how those [disqualification] determinations should be made”—did not, in fact, issue as narrow a decision as many seem to believe.

Indeed, it seems even Anderson’s legal team is misreading the opinion by taking one sentence in a longer paragraph out of context. Here is the full paragraph in question (with quotations unbolded and three key words, instead, in bold; citations omitted):

The Constitution empowers Congress to prescribe how those determinations should be made. The relevant provision is Section 5, which enables Congress, subject of course to judicial review, to pass “appropriate legislation” to “enforce” the Fourteenth Amendment. Or as Senator Howard put it at the time the Amendment was framed, Section 5 “casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendment are carried out in good faith.”

Note that the Trump v. Anderson Court says Section 5 “enables” but does not require Congress to “pass ‘appropriate legislation’” to enforce Section 3 of the Fourteenth Amendment, as in fact Section 5 of the Fourteenth Amendment “empowers Congress to prescribe” how it will make a determination that a person has engaged in an act of insurrection under Section 3.

In discussing how Section 5 provides guidance for Section 3—the latter the section that arguably disqualifies Trump from the presidential ballot—the Anderson Court expands on the example it’s provided of Congress “pass[ing] ‘appropriate legislation’” by clarifying that this is just one from a larger panoply of options, as in fact it is in far broader terms (the Court notes, citing the late Senator Howard) that Section 5 “casts upon Congress the responsibility of seeing to it…that all sections of the [Fourteenth] [A]mendment are carried out in good faith.” No mention is made, by Senator Howard or the Anderson Court, of legislation being the only way Congress can “see[ ] to it” that the Fourteenth Amendment is honored, as of course—not to be facetious—by way of example Congress could pass an additional constitutional amendment to honor the intent of the Fourteenth Amendment. Or it could files articles of impeachment that explicitly state their intention to honor the Fourteenth Amendment—as it so happens the 2021 articles of impeachment against Donald Trump did in their very first paragraph.

We will return to this last observation in a bit.

While the Anderson Court does thereafter observe that another United States senator, Senator Trumbull, correctly noted in the congressional record that (as all agree) the Constitution doesn’t specify a “mechanism” for enforcing Section 3 of the Fourteenth Amendment—which lack of specification Senator Trumbull believed “necessitated” the passing of a “bill” as a promising means of remedying that fault—Sen. Trumbull is not quoted for the proposition that this was the only allowable solution, merely for his belief that legislation would be an appropriate solution to the problem. And indeed Sen. Trumbull, whom we’ll discuss in more detail infra, may have only intended to say—as a third of the Anderson Court observed in its writings on him—that legislation was simply a more “speedy” way of achieving ends also achieveable via other means.

But certainly it may have been the case, indeed for the past many decades, that many members of Congress have agreed that new legislation is an appropriate means—if not the only allowable one—to establish a “mechanism” for the enforcement of Section 3 of the Fourteenth Amendment.

Then Trump v. United States, scheduled for oral argument this April 25th, came along.

2

In Trump v. United States, Trump contends that indictment by the executive branch (DOJ) under a federal criminal statute (thus, congressional legislation) is actually not the appropriate mechanism, in the first instance, for the federal government to pursue redress against a President of the United States who’s committed a crime—including a crime falling under the umbrella of insurrection. Rather, Trump contends in Trump v. United States, the mechanism of first resort Congress has in addressing the issue of whether a president (or former president) has engaged in a crime answering to the constitutional definition of “insurrection” is impeachment.

Of course, Trump v. Anderson, which establishes as a constitutional floor that a vote of Congress sufficient to pass legislation—thus, a majority vote—is required to find that an individual engaged in insurrection under Section 3 of the Fourteenth Amendment, is now settled law.

By comparison, Trump v. United States is still pending.

So the argument made by litigant Trump in Trump v. United States, that impeachment is the appropriate context for Congress to meet its new constitutional floor (a majority vote) to find that an individual has engaged in insurrection under the terms of Section 3 of the Fourteenth Amendment, remains on the table. And in fact, SCOTUS has already demonstrated its interest in this novel argument by agreeing to conduct an oral argument on Trump’s claim rather than upholding a unanimous ruling already made on the question by the U.S. Court of Appeals for the District of Columbia Circuit.

What Trump cannot do, post-Trump v. Anderson, is argue before the court that a higher percentage of Congress—a super-majority, rather than a mere majority—is required in an impeachment proceeding to find (in the case of acts of insurrection) a president committed such offenses in a way Section 3 would recognize. Anderson has settled that question by allowing that a majority vote of Congress—such as would be required for the passage of new legislation—is sufficient to make such a determination.

3

In view of the foregoing, Trump and his legal team are now estopped—as litigants in Trump v. Anderson—from making any claim in Trump v. United States other than that a majority vote of Congress in an impeachment proceeding adjudicating Incitement of Insurrection is sufficient for “Congress” to “determine” that a person has “engaged in” an act of “insurrection” such that they are blocked from presidential ballots under Section 3 of the Fourteenth Amendment.

And on January 13, 2021, a majority of the United States House of Representatives (232-197) voted that Trump had engaged in the act of Incitement of Insurrection.

And on February 13, 2021, a majority of the United States Senate (57-43) voted that Trump had engaged in the act of Incitement of Insurrection.

At stake in these two votes were much more than one constitutional determination.

While the House voting, by a majority, that Donald Trump had engaged in the act of Inciting Insurrection was sufficient to impeach him, in the Senate a two-thirds vote was required on the question of immediate removal from office. Indeed, many senators who voted on the matter of immediate removal from office elected not to vote to convict former President Trump on the grounds that immediate removal from office was no longer possible—as Trump was no longer President of the United States by then.

But in light of the ruling in Trump v. Anderson, we now see that also at stake in those 2021 votes was the constitutional question of whether Congress would issue a vote sufficient to enact legislation (again, a simple majority vote) determining that Trump had indeed committed an act of insurrection. The House had already made such a vote in impeaching then-president Trump by a majority vote on January 13, 2021; the issue in the Senate was whether the Senate would match that majority vote with one of its own in also finding that former president Trump had engaged in an act of insurrection.

And it did so, by a vote of 57-43.

The moment Congress established its final vote (289-240) on the question of whether President Trump had engaged in an act of insurrection, Section 3 of the Fourteenth Amendment had been duly sprung by a mechanism that was, appropriately, wholly under the control of Congress, which the Court in Trump v. Anderson held is “enabled” to set up any “mechanism” that “see[s] to it….that all the sections of the [Fourteenth] [A]mendment are carried out in good faith.” One such mechanism, all parties agree, is the mechanism of impeachment, which is expressly authorized by the Constitution.

4

The 5-4 Anderson majority repeatedly underscored that its task was not to establish a single mechanism for Congress to discharge its duty under Section 3 of the Fourteenth Amendment. And in any case, the Anderson Court certainly could not remove existing constitutional mechanisms, such as impeachment, without expressly holding that it was doing so—which it did not do or express any ambition to do. But what it could do, and what it did do, is establish the exact percentage of Congress needed to spring a constitutionally sound enforcement of Section 3 of the Fourteenth Amendment. And in Anderson, that percentage was set at a simple majority of both houses of Congress.

To return to the Anderson Court’s self-limiting of its own holding (as opposed to dicta), consider the following words from the Anderson ruling setting the terms of the ruling:

1. “The single question [before us is]…‘Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?’”

2. “This case raises the question whether the States, in addition to Congress, may also enforce Section 3.”

We could also consider, as another way of making the same observation on the limits of the Anderson holding, whether dicta in the case confirm that the Anderson Court did contemplate impeachment proceedings as an allowable mechanism for addressing “officeholders who may be violating Section 3.”

And what we find is that the Court in fact did so (emphasis supplied):

As an initial matter, not even the respondents contend that the Constitution authorizes States to somehow remove sitting federal officeholders who may be violating Section 3.

This unambiguous reference to federal impeachment proceedings underscores that the Anderson Court was not only mindful of the constitutionality of impeachment proceedings as to Section 3-related offenses but also of their preeminence as effective proof that only Congress is authorized to employ mechanisms in the enforcement of Section 3. States cannot conduct impeachment proceedings against federal officials.

The Court specifically pointing to federal impeachment proceedings as confirmation of the both special and irreplaceable mechanisms that Congress has to enforce Section 3 is essential to its answering of what it called the “single question” before it in Anderson.

As already observed, it is a misreading of the text of Anderson to say that it prescribes legislation, rather than impeachment, as the only means of enacting a Section 3 ballot removal. Putting aside the facial infirmity of such a reading—which places a holding issued (and then read in a very particular way) in 2024 over an explicit provision of the Constitution as written in the late 1700s—even in Anderson we find no support for it.

Consider these additional words from Anderson, all declining to make legislation the exclusive means for enforcing Section 3 (emphasis supplied):

• “Congress…enjoys power to enforce the [Fourteenth] Amendment through legislation pursuant to Section 5.”

• “[T]he Fourteenth Amendment grants new power to Congress to enforce the provisions of the Amendment against the States.”

In acknowledging that Section 5 of the Fourteenth Amendment granted Congress “new” power to enforce that Amendment, the Anderson Court made clear that there could also be “older” powers—powers already present in the Constitution, like the congressional power of impeachment—to enforce the provisions of Amendments.

And indeed no one can doubt that merely by creating (say) the federal court system, which every day enforces (say) the Fourth and Fifth Amendments to the United States Constitution, the unamended text of the Constitution in fact created what would by 1866 have been deemed “older” powers for enforcement of its Amendments.

Just so, in writing that “States did disqualify persons from holding state offices following ratification of the Fourteenth Amendment, [and] [t]hat pattern of disqualification with respect to state but not federal offices provides ‘persuasive evidence of a general understanding’ that the States lacked enforcement power with respect to the latter”, the Anderson Court finds—unambiguously—that the history of Section 3 establishes Congress as having an “enforcement power with respect to [Section 3 provisions related to federal offices]” and there being, as well, a “general understanding” of this fact. Did this general understanding arise only after 1866? No, as evidenced, at the risk of seeming coyly reductive, by the fact that States did not try to impeach or otherwise disqualify federal officials in the first half of the 1800s, either.

So any new enforcement power acknowledged by the Anderson Court could only arise from an existing Article I congressional authority that pre-dates Anderson. This further confirms that the Anderson Court could not rule, and did not intend to rule, that new legislation has to be passed in 2024 (or sometime thereafter) for Congress to possess “enforcement power with respect to [the provisions of Section 3 relating to federal offices]”, as if that were so Congress would have lacked such power, contra Anderson, from both 1789 through 1866 and from the passing of the Fourteenth Amendment in 1866 to the present day. That would be a nonsensical claim with a nonsensical result.

In fact, the “enforcement power” the Anderson Court acknowledges Congress had in (say) 1867, 1877, 1914, 1951, 1979, and 2006 could only have come from impeachment, as to date, the Anderson Court holds, there’s been no legislation from Congress specifically related to the enforcement of Section 3. Impeachment is the only possible location for a power, therefore, that the Anderson Court has unambiguously identified as already extant and resident in Congress. Indeed, it was this already extant power the Anderson Court cited in disqualifying any state enforcement of Section 3. As the Court wrote, Congress—and only Congress—“has long given effect to Section 3 with respect to would-be or existing federal officeholders.”

{Note: Lest any skeptic note that the example the Court gives for this last observation was a piece of legislation passed in 1870—four years after the Fourteenth Amendment was written into law—it still could not be the case, nor does the Court say that it was the case, that in 1866, 1867, 1868, 1869, and the early days of 1870 Congress lacked any power to enforce the Fourteenth Amendment because it hadn’t yet passed new legislation related to it. During any one of those years, Congress possessed the power of Section 3 enforcement via the authority to conduct federal impeachment proceedings. Nor is this merely an academic point—given that an impeachment proceeding for a sitting president was held during that very period of time, and neither the Anderson Court nor the current litigants in Trump v. United States contest that the February 24, 1868–launched impeachment trial of President Andrew Johnson—had it led to his conviction, and had it been brought for Incitement to Insurrection—would have precluded him running for office again. The question then, as now, is only what type of vote was required to spring such a preclusion. Anderson establishes a majority vote as sufficient.

Just so, lest a skeptic now remark that the Anderson Court cites an 1862 legislative act that arguably constituted the sole mechanism of Congress’s Section 3 enforcement powers in the years between 1866 and 1870 (inclusive), note that the Anderson Court calls the Confiscation Act of 1862 merely one that “effectively”—not expressly— “provided an additional procedure [for Congress] for enforcing disqualification.” The very fact that this 1862 act, which “made engaging in insurrection or rebellion, among other acts, a federal crime”, only “effectively” and “additional[ly]” constituted an enforcement mechanism means that it provided only a non-exclusive way for Congress to identify an insurrectionist. This in fact underscores that in 1862 impeachment proceedings were another way for Congress to make such a finding and had long been so. Had the 1862 act “formally” (de jure) rather than “effectively” (de facto) provided an enforcement mechanism for Section 3—the Anderson Court implicitly concedes—the text of the act would have said that it was the only way for a person to be disqualified from a federal ballot. Just so, the Anderson Court wouldn’t have written “additional” if there were no existing procedure for Congress to enforce disqualification in 1862. But there was: an impeachment.

But the Anderson Court did write “additional,” no matter how it paws at the dirt on the issue by somewhat lamely noting that “a successor to [the] provisions [of the Confiscation Act of 1862] remains on the books today.” Even the Court acknowledges that neither this successor nor its antecedent created an exclusive mechanism for Congress to enforce Section 3. This confirms that impeachment proceedings always constituted—and are—such a mechanism.}

In short, the question has never been whether federal impeachment proceedings against a president can spring an enforcement of Section 3, only whether a majority vote in such a proceeding is sufficient to establish a federal ballot disqualification.

5

Opportunistic readers of Anderson contend that its finding that (emphasis removed) “Section 5 limits congressional legislation enforcing Section 3, because Section 5 is strictly ‘remedial’” means that Section 5 limits Congress “to” legislation in enforcing Section 3, though of course that is neither what the Court said nor what it could have said. Why the latter? Because the very reason that Section 5 limited “only” legislation enforcing Section 3—not other means of enforcement, like impeachment proceedings—is because Section 5, as a section in a constitutional amendment, couldn’t have revoked congressional authority to disqualify candidates from future office via impeachment proceedings without expressly making that critical alteration to the text of America’s founding document, which not only didn’t Section 5 do but which no party (either the Anderson Court or Trump, qua litigant, in Trump v. Anderson or Trump v. United States) says it did.

In understanding how and why the Anderson Court established a mere majority vote of Congress rather than a super-majority vote for purposes of Section 3 enforcement, we need merely look at the text of Section 3, which says that “Congress may by a vote of two-thirds of each House [of Congress], remove…[the ballot-access] disability [of ‘having engaged in insurrection or rebellion against the United States’].”

It would be senseless as a matter of constitutional interpretation—to turn slightly on its head an observation made by the three concurring justices in Anderson—for the percentage of Congress required to establish a disability to be exactly the same as the percentage required to remove it. Indeed we find the opposite pattern established via our existing constitutional framework. To wit:

• A majority vote is needed to impeach a federal officeholder, while a two-thirds vote is needed to convict them;

• a majority vote in the Electoral College is needed to elect a president, while a two-thirds vote is needed to remove that president from office;

• a majority vote is needed to pass a bill through Congress, while a two-thirds vote of Congress is needed to overcome a presidential veto;

• probable cause is needed to indict a defendant and place them on bail, while unanimity among jurors is needed to convict or acquit a defendant and end bail; and

• a two-thirds congressional vote is needed to propose a constitutional amendment, but a three-quarters vote of all extant U.S. states is needed to ratify such an amendment.

In constitutional jurisprudence, we see this pattern repeated over and over: the initial vote percentage launching a matter requires a larger subsequent percentage to undo.

It is in this context that the Anderson Court established that a majority of Congress is required to establish any ballot disability which (under Section 3) a two-thirds majority of Congress could thereafter remove.

We might even approach this matter from a third perspective, as a means of checking our work as constitutionalists. Given that it takes two-thirds of the Senate to remove a sitting federal officeholder from office who has been (as the case may be, depending on the office) elected by the People of the United States or appointed by a President of the United States who was ex ante elected by the People of the United States, would it make any jurisprudential sense, or would it instead establish a nonsense, for a POTUS candidate without such status—that is, someone who merely, by their own bald claim, meets the bare-bones requirements for an office established in our Constitution—to also enjoy a mountainous “two-thirds” protection from being removed from a ballot?

By analogy, would our Constitution envision both convictions and initial arrests only being allowable by proof beyond a reasonable doubt? It can scarcely be contemplated.

Nor must we contemplate it, given the “majority vote” rule established in Anderson.

We might even say wisely established in Anderson, as Anderson brings disqualification into conformance with the other “stepping stone” or “step-up” processes cited above.

Indeed, even the dicta in Anderson confirm the reasoning the Court was supplying in coming to its conclusion. Consider the Anderson Court’s discussion of the vote that’s required by Congress to remove a ballot disability (emphasis added, citations omitted):

[The] final sentence [of Section 3] empowers Congress to “remove” any Section 3 “disability” by a two-thirds vote of each house. The text imposes no limits on that power, and Congress may exercise it any time, as the respondents concede. In fact, historically, Congress sometimes exercised this amnesty power postelection to ensure that some of the people’s chosen candidates could take office.

There are two points to make in response to the above excerpt.

First, we here see the Anderson Court tying a Section 3-related vote of Congress to the special status a candidate achieves in the popular imagination by virtue of being—critically, “post[-]election”—one of “the people’s chosen candidates”, in other words precisely the status (and presumably the protections) a pre-election candidate who has merely self-declared themselves eligible for office shouldn’t enjoy under Section 3 in the context of the Anderson rule. This further underscores that the apparent distinction in Anderson between a majority vote cast by Congress pre-election and a vote cast by Congress with “no limits” and at “any time” post-election is consistent with the fact that “the people” have spoken as to the latter candidate. In 2024, candidate Trump is manifestly in a “pre-election” status, having declared himself eligible for office under Section 3 irrespective of a past majority vote passed by Congress as to whether he had engaged in insurrection (which a majority of both Houses of Congress found he had).

Returning to the excerpt above, we must note, secondly, the Anderson Court’s finding that the Constitution places “no limits” on the “exercise” of Congress’s powers under Section 3 of the Fourteenth Amendment. This certainly isn’t congruent with a reading of the Anderson holding that contends that the Anderson Court—far from finding “no limits” on the “exercise” of Section 3 congressional powers—in fact says Congress must exercise that power via one type of congressional action (i.e., legislation rather than impeachment). The Anderson ruling becomes a nonsense, from this perspective.

{Note: Nor can we say the Court already addressed the impeachment mechanism in Anderson, as it manifestly did not. Nor could it have, as it was the Anderson ruling itself that reopened the matter of Donald Trump’s 2021 impeachment trial and the many votes pertaining thereto.}

And in fact such a reading is further discredited by the Anderson Court’s finding that any argument that Congress might be “forced to exercise its disability removal power before voting begins” is constitutionally “implausible” because there’s no evidence in the Constitution for any entity being able to place “such a burden on congressional power with respect to candidates for federal office.” This dictate would seem to apply with equal force to judges. If Congress is sufficiently protected in its “congressional power with respect to candidates for federal office” that it can never be “forced” to exercise that power in a particular way “before voting begins,” how could we possibly read Anderson as holding that the Supreme Court can and indeed must rule Congress in exactly this way? Either it is “implausible” that the Constitution would allow an entity to “force” Congress to suffer a “burden” on its “congressional power with respect to candidates for federal office”, or it isn’t; and in fact Anderson holds it to be especially implausible that such a burden could be imposed such that Congress must act “before voting begins”—though this is precisely the understanding of the Anderson ruling some take, inasmuch as some deem Anderson to foreclose any understanding that Congress has already acted, or could still further act, to deny Trump a place on federal ballots.

{Note: The Anderson Court finds this logic sufficiently compelling that it repeats it later on in Anderson, writing that “the notion that the Constitution grants the States freer rein than Congress to decide how Section 3 should be enforced with respect to federal offices is simply implausible.”}

6

Throughout Anderson, the Court is profoundly invested in ensuring that a consistent standard is established for any federal mechanism seeking to enforce Section 3.

This is a problem for those who read Anderson as devising a majority vote for one kind of Section 3 enforcement (congressional legislation) but a far higher standard—a two-thirds vote—for a much older, a universally agreed upon, and indeed a never-contested means of Section 3 enforcement (congressional impeachment).

When the Anderson Court writes of its abiding concern that, if Section 3 enforcement were simultaneously the jurisdiction of both the States and Congress, “Some States might allow a Section 3 challenge to succeed based on a preponderance of the evidence, while others might require a heightened showing”, it is expressly terming such a state of affairs constitutionally infirm.

No argument has been advanced, either in the Anderson ruling or by any litigants in the case, for why one Congress would be permitted to erase a two-thirds Section 3 enforcement vote by a prior Congress by a simple majority vote that establishes new legislation with respect to the previously impeached-and-convicted person. In fact such a reading of Anderson, or our Constitution, would fly in the face of Section 3, which establishes the same standard for removing a ballot disability (a two-thirds vote) as for establishing it in the first instance through a post-impeachment conviction.

Such evident symmetry made sense—and still does, now that Anderson unambiguously has lowered the standard for establishing a ballot disability to passing new legislation via simple majority.

This lowering, in order to preserve the constitutional framework established more than 160 years ago, necessarily lowers the standard for establishing ballot disability via impeachment to a simple majority as well. The alternative would create precisely the bizarre imbalance between Congresses that Anderson says cannot be allowed to exist between States. In fact, in practice the former imbalance would exceed the latter in egregiousness because it would, for the first time, create a lower standard for removing a disability as for establishing it in the first instance. As noted above, the history of American jurisprudence confirms that our rule of law takes the opposite approach.

A reading of Anderson that prospectively concludes it is now easier to remove a ballot disability via a simple majority in Congress than it originally was to erect it via what would be (were it to ever happen) the first successful conviction of a U.S. president via impeachment in American history would be like concluding that, instead of probable cause, the standard for arrest should be beyond a reasonable doubt whereas the standard for conviction at a first-degree murder trial should be a preponderance of the evidence.

In short, it would turn our nation’s constitutional framework upside-down—a result that longstanding and never-contested maxims of constitutional interpretation forbid.

Anderson does not, of course, have any such intention: its meaning is plain and the rule it establishes is clear.

And applying that rule to Mr. Trump, we find that he’s already suffered disqualification from the presidential ballot in 2024—and for all general election cycles thereafter.

7

The notion that Trump has already experienced disqualification is one that satisfies the professed anxieties of the Anderson Court in every particular. Indeed, the Court was—among other anxieties enumerated above—especially concerned by the prospect of a Section 3 enforcement occurring after a presidential election vote had occurred:

The disruption [to “the behavior of voters, parties, and States across the country, in different ways and at different times”] would be all the more acute—and could nullify the votes of millions and change the election result—if Section 3 enforcement were attempted after the Nation has voted. Nothing in the Constitution requires that we endure such chaos—arriving at any time or different times, up to and perhaps beyond the Inauguration.

Some readers of Anderson take this to mean that no new legislation can be passed by Congress attempting to add to the existing (impeachment) mechanism for enforcing Section 3 once the first primary voter has voted in a given election cycle. Putting aside that such a view of Anderson empowers state political parties to set their first primary date as early as possible to protect their candidates from legislative disqualification—exactly the sort of “chaos” Anderson aims to avoid—we might add that federal officials such as Rep. Jamie Raskin (D-MD) already take a different view, one more in line with Anderson, in seeking to quickly pass new congressional legislation prior to the next Election Day (that is, November 5th of 2024) that specifically relates to Donald Trump.

These efforts are undoubtedly well-intentioned. But they also seem to be unnecessary.

An act of Congress, in the form of new legislation, is eternally subject not just to the prevailing political whims but also—if it must be passed “pre-voting”—the power of a political party to curtail it in ad hoc fashion by expediting even a single primary vote; the ability of a minority in Congress, indeed perhaps even a single individual, to block the timely passing of such an act via filibuster; or the promise of a sitting president to veto it (should Congress have a majority in favor of a given bill but not a vetoproof one).

In contrast, a Section 3 enforcement achieved via majority vote at an impeachment trial is definitionally “pre-voting.” It would therefore be impossible for a political party to set a primary in the next presidential election cycle prior to such a vote. Nor could a president then being subjected to the impeachment process use his or her veto power to end the Section 3 enforcement at hand. Nor can an impeachment proceeding be interrupted by filibuster. Indeed, impeachment is so clearly the preferable Section 3 enforcement mechanism that we can find no evidence in Anderson or anywhere else than anyone thinks otherwise. The premise is so taken for granted in the litigation that led to Anderson that it literally appears to go without saying.

Nor need the Anderson Court, or any future court, apprehend some notional future in which majority disqualification votes at impeachment trials that clearly allege acts of insurrection become commonplace—as in the nearly quarter-millennium history of the United States, such an occurrence has happened only once (and not coincidentally, after the only armed attack on the Capitol ever waged by a domestic paramilitary force).

There’s simply no precedent in American history for spurious use of impeachment as a Section 3 enforcement mechanism. Further, any threat, by any party, to spuriously use impeachment as a means of Section 3 enforcement would definitionally be an illegal attempt to overthrow a democratically elected government, and thus be definitionally a Criminal Conspiracy. By comparison, there is, quite troublingly, no constitutional or statutory prohibition on a political party with a majority in both Houses of Congress spuriously seeking to preclude a person from future public service via legislation, as the filibuster is only an optional extraconstitutional procedural device and the extant prohibition against bills of attainder requires there be allegation of a criminal offense.

8

Much of the confusion caused by the Anderson decision stems from the fact that all nine members of the Court agree with its holding, but only five with one particular reasoning for such a holding. This reasoning is nevertheless seen as binding, of course, because there are five adherents to it—a majority of the Court. So we must now turn to precisely what those five members of the Court have actually agreed upon.

We begin with the Court’s own statement on this point (emphasis supplied):

[The concurring justices] object only to our taking into account the distinctive way Section 3 works and the fact that Section 5 vests in Congress the power to enforce it.

Thus ends our analysis of the distinction between the nine justices’ points of concord and the particularities of their 5-4 disagreement. The five justices hold—by their own grammatical emphasis in the sentence above—that “Congress” (and only “Congress”) has the power to enforce Section 3. This is the very same position taken by this essay.

Only Congress has power to pass federal legislation; this is true. By the same token, only Congress has authority to launch and exercise the impeachment powers that no one appears to have ever disputed are a co-extant mechanism for enforcing Section 3.

And yet, despite this—and this author cannot explain why it should be so—it appears the only place in Anderson we find the submission that only legislation is acceptable as a means for Congress to enforce Section 3 is in the ruling’s concurring opinions, which fact naturally encompasses the observation that these views don’t hold force of law.

Justice Barrett, in her solo concurrence, writes that the petition in Anderson “does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced. The majority’s choice of a different path leaves the remaining Justices with a choice of how to respond.” But the Justice doesn’t quote what language in the majority opinion she’s referring to in making her extraordinary claim regarding “exclusivity.”

A search of the entire text of the Anderson decision brings up only two appearances of the word “exclusive”—the one by Justice Barrett, and another in which the majority simply confirms that States have “exclusive” sovereign power over their own elected offices (not a contested point in Anderson).

So we must review, instead, the 22 instances of the word “legislation” in Anderson to deduce what precisely Justice Barrett is referring to. We find only ten such instances in the majority’s written decision, and only four that answer to her claim above: (1) the majority noting, as uncontested fact, that “Section 5 confers on Congress ‘power to enforce’ those [Section 3] prohibitions, along with the other provisions of the Amendment, ‘by appropriate legislation’”; and (2) the majority noting that the Constitution “empowers Congress to prescribe how those [Section 3 prohibition] determinations should be made”, with the “relevant provision” of the Constitution for such empowerment—not such prescription but such empowerment—being Section 5.

{Note: The third and fourth of these four uses of the term “legislation” will be discussed anon.}

The former of the first two uses of the term “legislation” is again uncontested—as it just quotes the plain language of Section 5—whereas the latter is considerably more complicated, because if Congress’s “empowerment” to enforce Section 3 (passed 1866) resides only in the passing of “appropriate legislation” under Section 5 (passed 1866), it means that the United States Congress, which impeached Andrew Johnson in 1868, didn’t have the power at that time to, by convicting him, preclude him from running for President of the United States again. Why? Because it didn’t pass post-1866 legislation that the Anderson majority recognizes as qualifying under Section 5 until 1870.

Which means, of course, as we cannot read any Supreme Court decision in a way that renders it nonsensical, that in fact the Anderson majority must have held that Section 5 is only the “relevant provision” for attempts by Congress to “prescribe” enforcement mechanisms for Section 3, not for Congress to enforce Section 3 at all—as clearly our Congress possessed the plenary power in 1868 to enforce Section 3 (passed in 1866) by impeaching and convicting Johnson, which notably it only failed to do by one vote.

While the word “legislation” again appears in the Anderson Court’s citation of a single senator’s formally expressed opinion, during the 41st Congress (1869-1871), that the U.S. Constitution “provided no means for enforcing” 1866’s Disqualification Clause (contained in Section 3 of the Fourteenth Amendment), that senator—Senator Lyman Trumbull of Illinois—not only sat as a juror at President Johnson’s 1868 impeachment trial but cast a vote in it (as it happened a vote to acquit him, meaning Trumbull knew that but for his vote Johnson would have been convicted). There can be no conclusion, therefore, but that by 1868 Senator Trumbull had acknowledged that there were means established in the original text of the U.S. Constitution for disqualifying a president from future office. He sat on a jury empowered in precisely that way. But in fact the full story of Senator Trumbull even more compellingly makes this point, beyond his mere presence on the Johnson jury and his willingness to cast a vote as a member of it.

9

Per the text of The Opinion of the Honorable Lyman Trumbull (1868), Senator Trumbull voted to acquit President Johnson because he felt the evidence of criminal conduct by Johnson was not just insufficient but actually nonexistent. This led him, ironically, to publicly confirm a belief that impeachment of Johnson would disqualify him from future office, thus establishing his correct view that impeachment was a de facto enforcement mechanism for Section 3 (which had been passed two years earlier):

Blinded by partisan zeal, with such an example [as the hypothetical conviction of President Johnson at his 1868 impeachment trial] before them, they [a future majority of the House and two thirds of the Senate] will not scruple to remove out of the way any obstacle to the accomplishment of their purposes, and what then becomes of the checks and balances of the constitution, so carefully devised and so vital to its perpetuity?

Had Senator Trumbull believed that convicting President Johnson on May 26, 1868 did not preclude Johnson from simply running for President of the United States again in the next election—then scheduled for November 3, 1868, just 160 days hence—would he have said that convicting Johnson “remove[d] out of the way any obstacle to the accomplishment of [Johnson’s political opponents’] purposes”? Of course not. Nor would he have insisted that he had to vote to acquit Johnson, lest “the checks and balance of the constitution” be “all gone”—for indeed if convicting Johnson at an impeachment trial merely delayed the continuation of Johnson’s political project for only 160 days, it would in no sense eviscerate the checks and balances in the United States Constitution.

And would Senator Trumbull have uttered the lines, in support of his vote to acquit Johnson, “In view of the consequences likely to flow from the day’s proceedings….I tremble for the future of my country”, were those consequences just a five-month abatement of Johnson’s term in office? Once again, we must answer “Of course not.”

But in fact we needn’t be so precious—or so focused on Senator Trumbull—as all this.

We need simply look at the full text of Section 3… of Article I of the Constitution.

Section 3 of Article I says that “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.”

So Senator Trumbull had no doubt whatsoever that, in 1868, impeachment for an act of insurrection was a valid enforcement mechanism for disqualification of a President of the United States from again holding any public office in the United States. It was for this reason that he “trembled” for his country at the prospect of removing Johnson from office and thereby permanently ending his political career (rather than merely for five months). It was for this reason that he claimed that convicting President Johnson would permanently remove him as an obstacle to the designs of his political opponents. It was for this reason that he said convicting Johnson would permanently—and not just temporarily—end all of the checks and balances provided for within the Constitution.

While the senator wasn’t sitting in judgment of a case involving an act of insurrection (which of course would have only diminished, not heightened, all of his objections), Article 10 of the original articles of impeachment against President Johnson in 1868 did allege a president had “with a loud voice [and] certain intemperate, inflammatory, and scandalous harangues….utter loud threats and bitter menaces…against Congress [and] the laws of the United States duly enacted thereby, amid the cries, jeers and laughter of the multitudes then assembled and within hearing”—which certainly sounds like an allegation that is at least adjacent to the “incitement of insurrection” then-president Donald Trump was alleged to have engaged in on January 6th, 2021.

But there are two other relevant references to “legislation” in the Anderson ruling.

The majority notes that as and when Congress elects to pass legislation to enforce Section 3, it “‘must tailor its legislative scheme to remedying or preventing’ the specific conduct the relevant provision prohibits”, and that this “legislative scheme” must reflect “‘congruence and proportionality’ between preventing or remedying that conduct ‘and the means adopted to that end.’” Rather confusingly worded, these two statements seem to import that, perhaps to honor the concerns expressed in 1868 by Senator Trumbull, Congress’s attempts to enforce Section 3 must be “tailor[ed]” to prevent “specific conduct” and employ a means that is appropriate and proportional to the end intended—a fairly standard test for the constitutionality of a federal action.

Which begs the question, are articles of impeachment part of a “legislative scheme”?

Certainly, none doubt that an article of impeachment meets the Anderson standard of being tailored to prevent specific conduct and—where the allegation involves an act of insurrection—is definitionally proportional to preventing any recurrence of the conduct at issue. But, again, are impeachment articles part of a “legislative scheme”?

They are.

By its very definition, a “legislative scheme” involves multiple actions by a legislative body rather than just one; there is, for instance, no single statute Congress could now pass regarding enforcement of Section 3 that would by itself constitute a “legislative scheme.” So that requirement of Anderson is either already present because Congress has passed more than one statute the Court deems relevant to judicial consideration of Section 3 (for instance, the Confiscation Act of 1862 and the Enforcement Act of 1870) or because of one or both of these acts, coupled with the power of impeachment granted exclusively to Congress—the federal legislative body the Constitution erected in Section 1—together constitute a preexisting “scheme.”

The only thing we know for certain is that, as already noted, Anderson could not mean that some single future congressional act would alone constitute a legislative scheme under Anderson, and that in fact it’s considerably more likely a coupling of statutory authority and legislative powers—e.g., a statute and the Impeachment Clause—form such a “scheme” than that only one genus of already exercised federal authority does.

Impeachment proceedings—which involve more than articles of impeachment and a subsequent impeachment trial, but also investigatory processes preceding the former that necessarily require the exercise of the congressional subpoena power—aren’t just inarguably a legislative function, but inarguably constitute legislative acts when and as, as was the case in the articles of impeachment brought against Donald Trump in 2021, they propose the “disqualification [of Donald Trump] to hold and enjoy any office of honor, trust, or profit under the United States.” That proposal for a legislative act by Congress at the conclusion of the impeachment trial of Donald Trump turned the article into just what Sen. Trumbull acknowledged the 1868 articles of impeachment against then-President Andrew Johnson were: a legislative action that was “fraught with greater danger” than even some “recent legislation” intended to curtail and limit Johnson’s power, which legislative action was made up of legislative “acts” that would together function as an “instrument” to “produce…a result” more far-reaching than any statute. In short, we find in the words of Trumbull the Anderson Court sought to adhere to (despite their lack of legal authority) no evidence that Trumbull deemed impeachment less a part of a legislative scheme than a statute, but rather a greater one.

Indeed, Senator Trumbull’s speech, in contextualizing impeachment within a political framework of other legislative acts such as federal statutes, arguably gifted us as fine a description of a multi-part “legislative scheme” that is intended by certain legislators to “produce” desired “results” as we could hope to find in the congressional record.

We might go so far as to say that Trumbull voted to acquit President Johnson because he saw Johnson’s impeachment proceedings as part of a “legislative scheme” whose intended “result” he had decided was unacceptable.

10

Had the authors of the 1868 articles of impeachment not asked for President Johnson to be disqualified from future office, but merely precluded from the presidency for as brief a term as five months—give or take a couple weeks—and had the authors of the 2021 articles of impeachment not asked for President Trump to be disqualified from future office, not only would both have failed to meet the Anderson test for a legislative act (that it be “tailor[ed] to specific conduct” and “congruen[t] and proportional[ ]” to the conduct), but these articles arguably wouldn’t have comprised a legislative scheme at all, as they would have been focused exclusively on a present change in status—the removal of a president from the White House—rather than a future legislative “result” (a disqualification from public office for the duration of a politician’s life or until its revocation through a two-thirds vote of Congress under Section 3 of the Fourteenth Amendment).

But in fact the authors of the 2021 articles of impeachment against Donald Trump did frame those articles as a legislative act, and therefore as part of a legislative scheme whose process—the vote threshold it requires—the holding in Anderson has revisited.

Conclusion

The unanimous holding of Trump v. Anderson is easy to find in the Court’s written opinion, just as it should be: “[T]he responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States.”

The Anderson Court doesn’t express here that it’s creating a new authority, but rather that it’s merely recognizing an old one. And while it acknowledges that authority has in the past, and could in the future, be exercised via congressional legislation, it does not—and could not—concurrently state that this is the only path Congress can take in enforcing Section 3 of the Fourteenth Amendment, as that would be manifestly untrue.

Neither the Anderson Court, nor any of the litigants in Anderson or Trump v. United States, contest impeachment as a Section 3 enforcement mechanism. In fact, Trump himself, in the latter case, expressly insists on it to the exclusion of any other option.

The Anderson litigants should therefore file for a rehearing in the case on precisely these grounds: that their understanding of Section 3 enforcement post-Anderson now incorporates not just the Trump filings in Trump v. United States but the decision of the Supreme Court to hear those latter arguments rather than dismiss them outright.

This isn’t a proposal to have the Anderson litigants fruitlessly appeal to the three justices who concurred in the holding of Anderson but demurred from its reasoning.

In fact, those justices’ demurral doesn’t touch upon the primary subject of this essay.

In a concurrence apparently written by Justice Sotomayor, the three justices often termed “liberals” by commentators make clear their view that the majority opinion in Anderson only addressed “challenges [to Donald Trump’s appearance on the 2024 presidential ballot] that might arise in the future” (emphasis supplied), a view at odds with the one expressed here: that Donald Trump was already disqualified from the 2024 presidential ballot in the past, specifically as of February 13, 2021. This position doesn’t depend on any new “challenge” or (to again quote Justice Sotomayor) “future controversy” that might arise regarding Trump’s candidacy; rather, it relates to the question of whether the consequences of an event now over three years in the past have ever received a proper judicial dispensation by any court. As to this point, we can note that Sotomayor cites City of Rome v. United States (1980), which stands in part for the proposition that Reconstruction amendments, including the Fourteenth Amendment, “were specifically designed as an expansion of federal power and an intrusion on state sovereignty” (emphasis added).

This is precisely the view advanced in the instant essay. The impeachment power of the federal legislative branch preexisted the Reconstruction amendments, and thus the Fourteenth Amendment was “expanding” a disqualification-from-office legislative scheme that was already extant. That expansion underscored—rather than establishing as a sui generis revelation—the fact that such disqualifications from federal office are and always have been the exclusive province of Congress, not officials in the States.

In view of this, this author is as bewildered at the words of Justice Sotomayor as some of those of the Anderson majority. When Justice Sotormayor writes (emphasis added and internal quotes omitted), “[T]he majority says [Congress] must enact legislation under Section 5…to ascertain what particular individuals should be disqualified [from federal office]”, she’s making a claim we don’t hear from the Anderson majority.

Where in Anderson does it say that the only means for “ascertaining when particular individuals should be disqualified” from federal office is an as-yet-unwritten piece of federal legislation? No Supreme Court could rule this, of course—nor did Anderson—as to do so would be to erase all references to impeachment in the Constitution, for clearly impeachment may be used to “ascertain when particular individuals should be disqualified” from federal office. It must not be, but it may be; it is forever permitted.

May Congress enact legislation to ascertain which individuals should be disqualified from federal office? Yes. Must it do so before any person can be disqualified from federal office? No—and Anderson doesn’t say as much. It merely revisits the vote required for such disqualification, in doing so clearly lowering its threshold to a majority.

Just so, the new submissions made in Trump v. United States make clear that it is now Trump himself who has authored a new phase in the discussion of his disqualification from office—one that centers on impeachment and which puts in an immediate “state of play” precisely how Anderson inflects our understanding of that process.

As Justice Sotomayor rightly concludes—making a submission the five justices with whom she is disagreeing could hardly contest—the five-person Anderson majority “reaches out to decide Section 3 questions not before us, and to foreclose future efforts to disqualify a Presidential candidate under that provision” (emphasis added).

The effort to disqualify Donald Trump from federal office that must begin right now isn’t one that springs under Section 3, but Anderson and an impeachment proceeding that has already concluded. It can be raised by either the Anderson litigants or, for that matter, by any duly elected or appointed state elections official who has read Anderson and understands its import in the way I do and that I have exhaustively outlined here.

{Addendum: On social media, Attorney Tim Hogan offers an additional observation that is worth repetition here: “The parties [in Anderson] and SCOTUS seem unable to admit that Congress already passed two laws that can remove all insurrectionists from office and ban them for life: 18 U.S. Code § 2383 (Rebellion or Insurrection) and 18 U.S. Code § 2381 (Treason).” The larger question of whether it is accurate for the Anderson Court to remark, as it does, “Neither we nor the respondents are aware of any other legislation by Congress to enforce Section 3”, contributes to the essay above in this way: it makes it harder for the Supreme Court to substantiate any future claim, should it make one, that at present there is no “legislative scheme” involving enforcement of a Section 3 disqualification. In fact, besides the acts of Congress that the Anderson Court acknowledges were enacted in the 1800s, and the corollaries of these that the Court acknowledges exist still today, and the impeachment framework established by the original text of the Constitution in 1789 and never repealed or amended, such a scheme is evident, as Attorney Hogan notes, in federal criminal statutes that would be eligible for either independent enforcement by DOJ—contra the current claims by Trump qua litigant—or under the “high crimes and misdemeanors” language within the Impeachment Clause, which stands ready for use by Congress, in a well-integrated legislative scheme, should Congress choose to make any of its articles of impeachment dependent upon or reflective of the language of federal criminal statutes that allow for disqualification as a punishment.}

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Introduction

As America heads into Super Tuesday, Nikki Haley has just won her first primary—and in convincing fashion, getting nearly two-thirds of the vote in the Washington, D.C. Republican primary (which was only open to Republican voters) and all of the delegates awarded from the contest. She also won her first two endorsements from sitting Republican senators, both of whom represent Super Tuesday states (Susan Collins of Maine and Lisa Murkowski of Alaska). Meanwhile, a senator from another Super Tuesday state (Mitt Romney of Utah) has just announced that he will not vote for Trump under any circumstances, which is as close to a de facto endorsement of Haley as she could hope for. All in all, it’s a heck of a way for Haley to be heading into the biggest day on America’s political calendar short of Election Day itself.

While Haley recently lost financial support from—while retaining the endorsement of—a Koch-backed group, Americans for Prosperity Action, she still reported a strong February in terms of fundraising ($12 million), which, coupled with her strong January, brings her to nearly $30 million raised in just the first 60 days of 2024. Fundraising continues to be one of Haley’s strongest suits, along with avoiding the viral gaffes (if in fact they are only that) that have been plaguing the Trump presidential campaign.

Haley’s fundraising certainly compares favorably to the $50 million and counting that Donald Trump currently has in unpaid debts to his lawyers, which he’s trying to make his daughter-in-law co-chair of the Republican Party in order to start paying off using money from working-class Trump voters—something federal campaign-finance laws may not actually allow him to do.

With limited Super Tuesday polling available—pollsters tend to heavily poll the early-voting states but cut back significantly once states start voting in blocs—it’s very hard to get a handle on where Nikki Haley stands, support-wise, in Super Tuesday states.

But we know this: in the context of Trump having consistently underperformed pre-election polling in primary states by between 33% and 50% of his presumed pre-election lead, he leads Haley by only 8 in Virginia and only 17 in Massachusetts (and if the latter lead sounds significant, keep in mind that a pre-election polling lead of 20 points in neighboring New Hampshire resulted in only an 11-point victory there, so the Suffolk University poll in Massachusetts—taken well before Super Tuesday, and well before Haley’s convincing win in the Republican primary in D.C.—could well augur a single-digit race in the Bay State). Observers note, too, that another Super Tuesday state, Vermont, offers Haley an electorate much more similar to Virginia, D.C., New Hampshire, and Massachusetts than an evangelical voter-heavy state like South Carolina, and indeed Haley was already approaching a third of the vote in Vermont when it was last polled weeks ago (and Haley’s vote-share in the state rose from 19% to 31% between January 8 and February 19). Given that Trump often falsely alleges that his lead over Haley is between 60 and 70 points, it’s also worth observing that a January poll in Utah that almost certainly woefully undercounts her current strength there had her within 27 points of Trump—with Trump, notably, under 50% support—and a surprising poll in North Carolina had her close to 40% there a few weeks ago.

None of this is to say which states Haley will or won’t, or can or can’t, win come Super Tuesday. But it underscores that Donald Trump’s rhetoric, post-Michigan, about the GOP being “more united than it has ever been” doesn’t match the current reality.

In state after state, Haley has shown that she has between 25% and 45% of the GOP base: in New Hampshire, 43%; in Michigan, 27%; in Iowa, 19% (but with five since-defeated candidates still in the race); in South Carolina, 40%; and of course in D.C., a whopping 63%. And while one recent-voting state chose to hide its results by using “proxies” rather than votes to count them (Missouri), and another that just voted is so beholden to the insurrectionist cause Trump represents that Haley never stood a chance there (Idaho, where she netted only 13%, to the surprise of no one), the fact remains that Haley commanding between a quarter and a half of the GOP base isn’t actually the story of the supposedly non-competitive Republican Party primary so far.

No, the story is the staggeringly high percentage of Haley voters who say they’ll never vote for Trump.

Indeed, exit polls show that in certain states up to 60% of Haley voters will not vote for Trump no matter what, with the most common reason for this refusal being the unprecedented number of civil and criminal cases Trump is facing (and/or appealing) in state and federal courts, to include settled findings of liability for Rape, Fraud, and Defamation; pending allegations of election interference, obstruction of justice, falsifying business records, and the illegal retention of classified documents; and a litany of ancillary revelations connected to these cases involving (again) Fraud as well as Perjury and a dramatic revelation that Trump has nowhere near the amount of money he’s been telling his loyal voters for years that he has.

In all, Trump is facing 91 felony counts and (as explained below) over $625 million—not a typo—in civil judgments.

Is it any wonder that between 10% and 30% of all Republican voters are drawing a red line at supporting the man in November, making it almost impossible for him to win a general election? Certainly, conventional wisdom—given that Trump lost in 2020 by over seven million popular votes and 74 Electoral College votes—is that he’ll have to substantially increase his coalition of voters in 2024; yet every exit poll throughout the 2024 GOP primaries has shown him bleeding voters by the hundreds of thousands.

For this reason, the eve of Super Tuesday is a good time to assess the unprecedented avalanche of legal woes Trump faces as voters head to the polls in one of the biggest days of the year on the American political calendar. Voters who are understandably worried that Trump could be incarcerated in a state or federal prison by the end of this summer have a right to know if they are casting their ballot into the wind by voting for Trump on Super Tuesday, and to know (as would be almost as disturbing) if major media coverage of the race thus far has inaccurately assessed whether Nikki Haley still has a chance to win it. After all, in terms of the GOP delegates needed to win the race and the delegates actually won so far, neither Haley nor Trump is anywhere close to securing their party’s 2024 presidential nomination:

Major-media journalists presume that Trump will do well on Super Tuesday, but make this presumption exclusively based on a scant number of polls that were in most cases taken weeks before Super Tuesday, making their predictive value almost zero.

For now, what we know is that Trump has 20% of the delegates he needs to become the 2024 GOP presidential nominee, while Haley has 3.5% of the delegates needed.

We also know that it was Haley, not Trump, who won the most recent GOP primary, and that Haley is in the midst of receiving a spate of good news (not just her D.C. win but her Senate endorsements, her solid fundraising numbers, and a telling declaration of her independence in announcing that she’ll no longer commit to supporting Trump if he’s the GOP nominee). Meanwhile, Trump heads into a criminal trial on dozens of felonies in New York in just three weeks; is now caught up in a civil case in Delaware (see below) that is certain to reach at least the injunctive-relief stage in the next 17 days; and is down to the final days of his ongoing attempt to evade paying hundreds of millions of dollars in civil fines that he definitely doesn’t have the liquidity to honor.

Trump also has a criminal trial in Florida currently scheduled for May, a criminal trial in Georgia scheduled for August, and a D.C. criminal trial whose judge (Tanya Chutkan) has made clear she is willing to bring Trump to trial in September or even October, no matter how long the Supreme Court delays her case by pretending there’s doubt over whether a President of the United States has blanket immunity for crimes he commits and is therefore not an elected official but a king. (To be clear, if Trump’s argument were to succeed, it would mean President Joe Biden could cancel the 2024 election and even have his political rival assassinated without facing any criminal charges.)

It may also be worth noting that Haley consistently defeats President Biden by much more than Trump does in almost every poll. See for yourself (per Real Clear Politics):

Nikki Haley v. Joe Biden

Donald Trump v. Joe Biden

All of which raises a question so obvious that it seems bizarre anyone would deem it partisan: why is any Republican planning to vote for Donald Trump on Super Tuesday?

With significant Kremlin aid—as well as a clandestine propaganda campaign long since conceded by foreign agents hailing from Israel, Saudi Arabia, and the UAE— Trump won the presidency by a hair in 2016 (if 70,000 votes had landed differently, he would have lost the Electoral College, and he lost the popular vote by three million).

Trump then proceeded to shepherd the Republican Party to shocking losses in the midterm elections of 2018 and 2022; almost every special election held between 2016 and the present; and of course the 2020 presidential election—which he lost by over seven million popular votes and more than seventy votes in the Electoral College.

Now he’s clearly the less competitive candidate against Biden; is facing 91 felonies in four state and federal jurisdictions; has well over half a billion dollars in federal civil judgments he has no way to pay; may have to declare personal bankruptcy; may well—see below—face new civil and criminal cases in several jurisdictions; and, not for nothing, appears to be suffering more and more frequently from inexplicable mental lapses and speaking gaffes that have caused medical professionals to question both his mental health and whether he may be suffering from dementia. “#DementiaDon” now trends near-daily on Twitter, which is supposed to be a safe space for Trumpists.

Yet for all this, major media treats Donald Trump’s ascension to the GOP presidential nomination for the third consecutive election cycle—despite him never having won a popular vote—as a foregone conclusion. Could it be because journalists don’t realize that the man is facing more headwind than any political candidate in U.S. history, from his own terrible past performance as a candidate to mental health issues including sociopathy and malignant narcissism, from persistent allegations of prescription drug misuse (see here, here, here, here, and here) to third-party diagnoses of dementia, from federal criminal cases to federal civil cases, from state criminal cases to state civil cases, from business bankruptcy to personal bankruptcy, from dodgy head-to-head polling results vis-à-vis Joe Biden to a compelling Republican primary candidate he seems unable to shake, from $50 million and counting in unpaid legal fees to the possibility of a third E. Jean Carroll defamation case forthcoming (see below), from potentially disastrous civil depositions upcoming in a Delaware Chancery Court case to lingering questions about the answers he gave relating to his finances in a sworn deposition in 2022, from prospective mass defections among Haley primary voters in the 2024 general election to a prospective internal revolt at the RNC as he tries to turn an entire political party into his family’s personal piggy bank? It’s unlikely that full-time political journalists are unaware of any of this, but some Super Tuesday voters may be.

It is not too much to say that no political candidate in U.S. history has been larded down with as much baggage as Donald Trump is right now—and that’s without having yet mentioned that Trump is a significantly obese elderly man who subsists on Diet Cokes and Big Macs and gets his doctors’ reports doctored to hide from voters how bad his health is. (For that matter, who knows how many times he’s had COVID-19?)

The idea that none of this will catch up to Trump as the level of stress he faces increases exponentially in the coming weeks and months seems farcical on its face.

So will it catch up to him on Super Tuesday? Maybe, maybe not. But given voters’ right to know as much as possible about the candidates on their ballots on Super Tuesday, Proof hopes that the massive report and update on all Donald Trump’s pending cases below will be helpful to some voters. Along the way this report will consider, too, some emerging developments that have yet to flower but could also spell grave trouble for Trump. These assessments are made even more vital by a grudging acknowledgment from CNN today that the 2024 Republican Party primaries are still in their “relatively early stages”, and that the final GOP primary votes won’t be cast until June 4—three months from now (see the full GOP primary calendar at this link).

Even the New York Times—which has consistently implied in its straight-news reports that the GOP primary is already all but over—surprised its readers on Super Tuesday eve by reporting that Haley “could pick up a few more [primary wins] on Tuesday.”

State Criminal Cases

Georgia

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Introduction

Twice-impeached former president Donald Trump—who faces 91 felonies in three state and federal jurisdictions, hundreds of millions of dollars in civil judgments in two cases in New York, and future fallout with voters (particularly suburban women voters) from a recent federal court declaring him a rapist—is the prohibitive favorite to be the 2024 presidential nominee of the one-time self-professed “law and order” political party in the United States: the Republican Party.

He’s also a man who testified under oath, in a 2023 civil deposition in one of his two cases in New York, that he has $400 million in liquid assets free and clear to pay any civil judgment that may be issued against him in that state or anywhere else.

Unsurprisingly, no one believes him.

Not only is Donald Trump known to regularly lie under oath—Perjury offenses he inexplicably was never charged with, as indeed they went the same way as the ten Obstruction of Justice offenses the Mueller Report found in 2019 that were buried by then-president Trump’s handpicked Attorney General, William Barr—but Pulitzer Prize-winning Trump biographer David Cay Johnston recently told CNN that, far from having $400 million available to satisfy the civil judgments leveled against him, Trump may not even have $16 million in liquid assets right now. (A more generous appraisal from Forbes, which has consistently overstated Trump’s wealth in its annual assessments, holds that while Trump may have nine figures of liquid assets, he will still come up short if New York Attorney General Letitia James gets the $370 million award she seeks in the first of Trump’s two New York cases and Trump then loses his appeal of the $83.3 million judgment in his second New York case, which judgment may balloon to $92.5 million, due to interest costs, during the pendency of an appeal.) Nor can Trump raid his campaign coffers, as the Times confirms he has nowhere near even $83.3 million left in them—let alone the nearly half a billion dollars he may need.

Most Americans seem to be of the same view as Johnston, Forbes, and the New York Times. Given the number of times in the past that Trump has hidden the reality of his financial status—including his countless lies and obfuscations about his tax returns, which finally showed him to have been the least successful American businessman of the period from 1985 to 1994—the view that Trump will desperately need a massive infusion of cash in the next few months is now ubiquitous amongst the general public.

Indeed, in two polls taken on the Proof feeds at Threads and Twitter, readers sounded off about how much money they think Trump really has free and clear right now:

While certainly not scientific, the fact that more than 7,000 social media accounts voted on the poll questions above and that in each poll almost exactly 58% of voting accounts—a clear majority—said that Trump has 1/40th or less of the amount he says he does is, in the opinion of this bestselling Trump presidential historian, consistent with popular sentiment among mainstream American news consumers in early 2024.

The perception of Donald Trump as (a) illiquid, (b) cash-strapped, (c) debt-riddled, (d) financially desperate, and (e) willing to say or do anything to (i) hide his financial state and (ii) improve that state is one he’s worked diligently (if inadvertently) to generate.

So it would be astonishing if the American intelligence community was of a different opinion than so much of the country or, more conservatively, a Pulitzer Prize-winning journalist (Johnston) who has specifically made studying Trump’s finances his business.

Johnston’s view that Trump may not even have $16 million in liquid assets is not only consistent with what 85% of poll respondents said in the two polls above, but uniquely important to the circumstances in which Trump now finds himself. Why? Because $16 million is approximately the amount Trump would have to put up immediately to avoid paying the full amount of the federal judgment in the just-concluded second E. Jean Carroll Defamation case (hereafter referred to as “Carroll II”): $83.3 million dollars.

{Note: In Carroll I, a 2023 civil case involving allegations of Sexual Abuse and Defamation, Trump was found liable for both of these offenses—the first of which the court later clarified constituted “rape” as that term is commonly understood by laypeople—and fined $5.5 million.}

The Carroll II Judgment

Were Trump not planning to appeal the Carroll II judgment, he would have to pay it in full right now—or plead poverty to the court and establish some sort of negotiated payment plan, a decision that would reveal him to have committed Fraud and Perjury in the 2023 civil deposition in which he discussed having $400 million in liquid assets (for the record, an amount just under 500% of the amount he owes Carroll). Any such plan would also, almost certainly, require liens or forced sales of high-profile Trump-branded entities—the possession of which is part of Trump’s political persona and so considered critical by the candidate to his already shaky 2024 general election pitch.

But all this is moot: Trump has already announced he will appeal the Carroll II verdict.

What this means is that Trump now has two options: he can pay $83.3 million into a federal escrow fund to remain therein for the duration of his appeal of Carroll II—a process that could take years, during which time Trump would be responsible for the interest on the $83.3 million, amounting to about $10 million—or he could purchase a bond to cover that amount, a purchase that would cost him approximately $16 million (20% of the total jury award in Carroll II).

{Note: In Carroll I, which Trump is appealing, the judgment was $5 million. Trump has had to pay $5.5 million to an escrow fund, however, due to the aforementioned interest requirement.}

If Trump doesn’t actually have $83.3 million (or $92.5 million, with interest included) in liquid assets, which it appears hardly anyone thinks he does, he will have to opt for the second route described above. The problem, as NBC News legal analyst Katie Phang reported back in June of 2023 after Carroll I, is that it’s unclear whether Trump is able to secure an appellate bond given his current financial straits. And certainly if he was unable to do so in Carroll I—as Phang believes to have been the case as to a $5 million judgment, why would anything be better for Trump now, with an $83.3 million judgment?

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At 5:15 PM ET on January 26, 2024, just minutes after a federal jury awarded journalist E. Jean Carroll $83.3 million in her second Defamation trial against Donald Trump—the former president who had previously been found by a federal court to have raped Carroll and ordered to pay her $5 million in compensation for that and his subsequent Defamation of h…

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Introduction

In the State of Georgia, a new statute signed into law by the state’s Republican Party governor goes into effect in October 2023. The details of the statute are discussed in more detail here, but the upshot is that it allows an ostensibly nonpartisan but in fact political-appointee-filled, partisan “commission” (called the Prosecuting Attorn…

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Introduction

Ever since Donald Trump began colluding with the Kremlin via his two discrete (2013 and 2015) attempts to land a Trump Tower Moscow deal—an aim that he planned to achieve by dealing away American foreign policy—top Republican Party commenters have tried to ridicule, upbraid, and in some instances even cancel journalists, lawyers, and politic…

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