Given the looming possibility that the Senate will acquit Trump, it looks like the only remedy left to kill off any Trump 2024 campaign before it starts would be by way of Section 3 of the 14th Amendment, which stipulates that anyone who has previously taken an oath to support the Constitution and takes part in “an insurrection or rebellion” against the United States is disqualified from ever holding office again. Well, The New York Times just dropped an article that should make a very strong case for Trump beginning the insurrection well before January. Tomorrow’s edition will have a front-page story (above the fold, hopefully) that spells out how Trump spent 77 days attempting to overturn an election that he knew he had lost.
We already knew that Trump had let it be known as early as September that he would not accept any result other than his reelection. But it would be awfully hard to prove Trump engaged in election fraud and insurrection unless there was concrete proof that he knew he had lost. Well, the Old Grey Lady puts a precise date on when Trump’s legal team knew that he had lost—meaning that Trump himself almost certainly knew he’d lost. That date was November 12.
By Thursday the 12th of November, President Donald J. Trump’s election lawyers were concluding that the reality he faced was the inverse of the narrative he was promoting in his comments and on Twitter. There was no substantial evidence of election fraud, and there were nowhere near enough “irregularities” to reverse the outcome in the courts.
Mr. Trump did not, could not, win the election, not by “a lot” or even a little. His presidency would soon be over.
(snip)
As he met with colleagues to discuss strategy, the president’s deputy campaign manager, Justin Clark, was urgently summoned to the Oval Office. Mr. Trump’s personal lawyer, Rudolph W. Giuliani, was on speaker phone, pressing the president to file a federal suit in Georgia and sharing a conspiracy theory gaining traction in conservative media — that Dominion Systems voting machines had transformed thousands of Trump votes into Biden votes.
Clark and Giuliani got into a shouting match, but Trump ultimately sided with Giuliani. On that date, The Times writes, Trump and those around him began “an extralegal campaign to subvert the election”—and did so in a way that made January 6 “inevitable.”
Ken Paxton’s ridiculous attempt to have the Supreme Court throw out electoral votes in several swing states, for instance, was drafted by lawyers close to the White House—including Kris Kobach, the former operating head of Trump’s voter fraud commission. They knew that there was not nearly enough time for lawsuits to work their way through the courts before the Electoral College voted. So they hoped the Supreme Court, with its newly entrenched conservative majority, would step in. While Paxton was the first choice on paper to bring the suit after Kobach and his cabal drafted it, they initially turned to Jeff Landry of Louisiana due to concerns about Paxton being under criminal investigation. However, Landry balked, leading them to turn back to Paxton. We know what happened next—Paxton filed the suit, only to have the Supremes turn it down almost out of hand.
There’s more to this article, of course. But the fact that Trump’s legal team was well aware as early as November 12 that Trump had lost is critical. After all, if Trump was mounting an “extralegal campaign” from that date onward, the insurrection was already well underway before the January 6 rally. That takes it out of the line between protected speech and non-protected speech, and squarely into the line of unlawful action.
If Trump is acquitted in the Senate, we need to move quickly to find a 14th Amendment solution. Looks like the Old Grey Lady may have given us the blueprint.
