The 14th Amendment has its moment

Dec 30, 2023

By Ryan Lizza, Rachael Bade and Eugene Daniels

Presented by The U.S. Chamber of Commerce

With help from Eli Okun, Garrett Ross and Bethany Irvine

Former President Donald Trump speaks.

The Supreme Court is now under intense pressure to settle the conflicting rulings about former President Donald Trump’s qualifications under the 14th Amendment. | Jim Vondruska/Getty Images

DRIVING THE DAY

TOP-ED — “How to Stand Up to Trump,” by DEBBIE DINGELL in NYT: “We have to stand up to bullies in this country, and we have to call out indignities.”

14TH AMENDMENT FALLOUT — Maine Secretary of State SHENNA BELLOWS’ decision to exclude DONALD TRUMP from the presidential ballot in that state is having widespread political and legal repercussions this morning.

— Bellows herself is under attack at home. Some Republicans in the state are calling for her impeachment. Trump, in his only social media comment about the decision as of this morning, simply posted a link to Bellows’ official website, which many critics interpreted as a message to his loyalists to attack her.

Bellows told CNN’s Kaitlan Collins last night that she has received threats. “Those threatening communications are truly unacceptable,” she said. “I certainly worry about the safety of people that I love, people around me and people who are charged with protecting me and working alongside me.”

— The Supreme Court is now under intense pressure to settle the conflicting rulings about Trump’s qualifications under the 14th Amendment. The plaintiffs in the Colorado case have asked the court to decide the matter under an extraordinarily aggressive schedule, with briefs due on Jan. 8 and oral arguments on Jan. 19. “Doing so would give the Court time to issue a ruling before Colorado voters begin receiving their ballots on February 12 and well before Super Tuesday, March 5,” they write.

Is that possible? “In Bush v. Gore they ruled in three days,” University of Notre Dame law professor DEREK MULLER told the Washington Post. “Is it realistic that they could issue a decision by mid-February? It’s completely realistic.”

— Gaming out how SCOTUS might deal with this explosive case has begun in earnest, with many court watchers predicting that the justices will, in the words of Harvard law professor NICHOLAS STEPHANOPOULOS, “take advantage of one of the many available routes to avoid holding that Trump is an insurrectionist who therefore can’t be president again.”

NYT’s Adam Liptak offers this wise analysis: “They will be reluctant to wrest from voters the power to assess Mr. Trump’s conduct, particularly given the certain backlash that would bring. Yet they will also be wary of giving Mr. Trump the electoral boost of an unqualified victory in the nation’s highest court."

Instead, Liptak surmises that Chief Justice JOHN ROBERTS will try to find consensus among his colleagues — or at least seek to avoid a naked split of Republican appointees against Democratic ones.

Among the exit ramps, he writes: “The justices could rule that congressional action is needed before courts can intervene, that the constitutional provision at issue does not apply to the presidency or that Mr. Trump’s statements were protected by the First Amendment.”

Also, expect to hear a lot more about a certain NEIL GORSUCH opinion.

— The recent 14th Amendment rulings are dividing the anti-Trump movement. Here’s a sampling of the recent reaction against the efforts to bar him from the ballot:

Sen. ANGUS KING (I-Maine): “I believe the decision as to whether or not Mr. Trump should again be considered for the presidency should rest with the people as expressed in free and fair elections.”
Rep. JARED GOLDEN (D-Maine): "I voted to impeach Donald Trump for his role in the January 6th insurrection. I do not believe he should be re-elected as President of the United States. However, we are a nation of laws, therefore until he is actually found guilty of the crime of insurrection, he should be allowed on the ballot."
CHRIS CHRISTIE: “It makes him a martyr. You know, he’s very good at playing ‘Poor me, poor me,’ he’s always complaining. The poor billionaire from New York who’s spending everybody else’s money to pay his legal fees.”
Gov. GAVIN NEWSOM: “There is no doubt that Donald Trump is a threat to our liberties and even to our democracy, but in California, we defeat candidates at the polls. Everything else is a political distraction.”
YASCHA MOUNK: “Attempts to disqualify demagogues with deep popular support often backfire. The only way to neutralize the danger posed by authoritarian populists like Donald Trump is to beat them at the ballot box, as decisively as possible and as often as it takes.”

WE ARE ALL 14A EXPERTS NOW — Finally, a note about the legal debate over whether the 14th Amendment’s insurrection language applies to presidents and vice presidents. In the NYT today, KURT LASH, a professor at the University of Richmond School of Law, makes the case against disqualifying Trump.

He too fears the anti-democratic implications of denying voters the right to support a leading candidate. “Let the people make their own decisions about Donald Trump,” he concludes.

He arrives at the position by arguing that Section 3 of the 14th Amendment is far too muddy.

“No person shall be a senator or representative in Congress, or elector of president and vice president, or hold any office, civil or military, under the United States or under any state,” Section 3 begins.

Why would the drafters specifically mention senators, representatives and electors, but not presidents and vice presidents? Isn’t it weird, as many proponents of disqualifying Trump argue, that the presidency is simply lumped in with the more vague category of “any office”?

This debate is no small thing. The courts in Colorado split on this question. The lower court said Trump was an insurrectionist as defined by the Fourteenth Amendment but that Section 3 didn’t apply to the presidency. The Colorado Supreme Court agreed Trump was an insurrectionist but also found that Section 3 covered presidents, and now Republicans in Colorado have asked the U.S. Supreme Court to specifically decide the question.

Lash and many other legal scholars say the ratifiers never made this clear. But some historical sleuthing by Steven Portnoy at ABC News this morning has uncovered an important piece of evidence that seems to contradict that view.

In a key exchange that Portnoy found in the 1866 Senate debate, Sen. REVERDY JOHNSON (D-Md.) asked why the offices of president and vice president had been omitted.

Sen. JUSTIN MORRILL (R-Vt.) quickly clarified, Portnoy notes: “'Let me call the Senator's attention to the words 'or hold any office, civil or military, under the United States,' Morrill said, ending the discussion on that point.”

A second quote unearthed by Portnoy sheds light on another major question the courts have grappled with: Was Section 3 meant simply to bar insurrectionists associated with the recently concluded Civil War? Or was it a prospective prohibition for insurrections yet to come?

Here’s what Sen. PETER VAN WINKLE (R-W.Va.) had to say about that: “This is to go into our Constitution and to stand to govern future insurrection as well as the present; and I should like to have that point definitely understood.”

Good Saturday morning. Thanks for reading Playbook. Drop us a line: Rachael Bade, Eugene Daniels, Ryan Lizza.

A message from The U.S. Chamber of Commerce:

Join us for the U.S. Chamber of Commerce’s annual State of American Business event January 11 to discover how innovation enables businesses to serve customers, solve problems and strengthen society. During our biggest event of the year, you will hear from U.S. Chamber of Commerce President and CEO Suzanne P. Clark and other leading CEOs highlighting how America’s free enterprise system is crucial for the long-term success of our country.

WHAT'S HAPPENING TODAY

At the White House

Biden and VP KAMALA HARRIS have nothing on their public schedules.

PLAYBOOK READS

Secretary of State Antony Blinken talks to the media.

Secretary of State Antony Blinken authorized the transfer of 155 mm artillery rounds and associated equipment to Israel. | Pool photo by Jonathan Ernst

9 THINGS THAT STUCK WITH US

1. MORE ARMS TO ISRAEL: The Biden administration announced yesterday that Secretary of State ANTONY BLINKEN had authorized the transfer of 155 mm artillery rounds and associated equipment to Israel via the use of an emergency authorization, which side-steps the usual congressional vetting process for weapons sales, WaPo’s John Hudson and Mikhail Klimentov report: “The $147.5 million sale comes as Israel steps up its intense bombing campaign in the Gaza Strip, and as the Biden administration’s rhetoric surrounding the conflict emphasizes the importance of Israel minimizing casualties and scaling back its offensive.”

More: “A State Department spokesman said that ‘given the urgency of Israel’s defensive needs, the secretary notified Congress that he had exercised his delegated authority to determine an emergency existed necessitating the immediate approval of the transfer.’”

2. 2024 BY THE NUMBERS: Steve Shepard is out with a look at the 24 numbers that will shape the presidential election, including the number of possible Trump convictions before Election Day, the number of states visited by Biden in the final two months of the campaign and the number of states with abortion ballot measures: “Will a challenger emerge who can pose a significant threat to Donald Trump’s renomination? What are the signs that a rematch of the 2020 election might end differently? And which party will have the upper hand in the pitched battle to control Congress? There are key data points that will answer all of these questions, if one knows where to look.”

3. HALEY’S COMMENT, CONT’D.: NIKKI HALEY is facing her first real moment of withering scrutiny in the 2024 presidential campaign following her Civil War comment last week, and “it couldn’t have come at a worse time,” Alex Isenstadt and Natalie Allison write this morning: “Haley’s halting and convoluted response to a town hall questioner — and her ensuing attempts to clarify her comments … put a harsh spotlight on her, arguably for the first time during the primary … And for Haley, the timing and location carried outsize significance. With Trump building wide leads in the three other early primary states — Iowa, Nevada and South Carolina — New Hampshire has emerged as the key battleground in the effort to slow Trump’s momentum.”

4. RACE FOR THE PRIZE: Trump’s scramble to lock up enough delegates to win the GOP nomination by March isn’t just about getting a jump on the general election, The Messenger’s Marc Caputo reports, but a legal strategy “aim[ed] at the Democrats trying to block him from the ballot” as well as those who are prosecuting him criminally: “Once Trump wins the majority of delegates, advisers say, it will fuel his argument that the cases against him are partisan ‘election interference’ — an accusation Democrats deny — because he will no longer be the theoretical Republican nominee for the White House he’ll be the de facto nominee.”

5. SO NICE, LET’S DO IT TWICE: “2024 is the year of the rematch — and not just for president,” by NBC’s Alexandra Marquez: “Just as the presidency could come down to a repeat matchup, which party controls the House in 2024 may rest on whether voters in key districts stick with their 2022 picks or move in a different direction when confronted with the same congressional candidates. … [M]embers of Congress and repeat challengers running in expected rematches say the issues at the top of voters’ minds are largely the same as in 2022, setting the stage for similar debates two years later.”

6. CORPORATE PUNISHMENT: “Biden administration readies a big swing at big businesses in 2024,” by Josh Sisco: “[T]he Biden administration is set to accelerate several of its biggest antitrust fights in 2024 with an intense lineup of lawsuits and investigations. … A look at the potential 2024 calendar shows the sweep and ambition of what Biden’s top lieutenants have been up to when challenging corporate giants — chiefly LINA KHAN at the Federal Trade Commission and JONATHAN KANTER at the Department of Justice.”

7. WHAT ZACK STANTON IS READING: “Mutiny Erupts in a Michigan G.O.P. Overtaken by Chaos,” by NYT’s Nick Corasaniti: “The Michigan Republican Party’s revered two-day policy and politics gathering, the Mackinac Republican Leadership Conference, was an utter mess. … For some Michigan Republicans, it was the final straw for a chaotic state party leadership that has been plagued by mounting financial problems, lackluster fund-raising, secretive meetings and persistent infighting. Blame has centered on the fiery chairwoman, KRISTINA KARAMO.”

8. OOPSIE DAISY: Former Trump lawyer and fixer MICHAEL COHEN claims he unknowingly sent his attorney fake AI-generated legal citations that he found online, AP’s Larry Neumeister reports: “The AI-generated cases were cited as part of written arguments attorney DAVID M. SCHWARTZ made to try to bring an early end to Cohen’s court supervision after he served more than a year behind bars. Cohen had pleaded guilty in 2018 to tax evasion, campaign finance charges and lying to Congress.”

9. FOR YOUR RADAR: “Shelling kills 14 in Russia’s city of Belgorod following Moscow’s aerial attacks across Ukraine,” AP: "Shelling in the center of the Russian border city of Belgorod killed 14 people, including two children, and injured 108 others Saturday … Russian officials accused Kyiv of carrying out the attack, which took place the day after an 18-hour aerial bombardment across Ukraine killed at least 39 civilians … Western officials and analysts recently warned that Russia limited its cruise missile strikes for months in an apparent effort to build up stockpiles for massive strikes during the winter.”

A message from The U.S. Chamber of Commerce:

CLICKER — “Matt Wuerker’s Best of 2023,” edited by Matt Wuerker — 22 funnies

Matt Wuerker cartoon for New Year

Matt Wuerker

A message from The U.S. Chamber of Commerce:

GREAT WEEKEND READS, curated by Ryan Lizza:

— “The Most Dangerous People on the Internet in 2023,” Wired: “From Sam Altman and Elon Musk to ransomware gangs and state-backed hackers, these are the individuals and groups that spent this year disrupting the world as we know it.”

— “POLITICO’s 2023 Backhanded Awards,” by Matthew Karnitschnig: “Here’s one accolade nobody is lining up to receive.”

— “The Fools, Frauds, Losers, and Crooks of 2023,” The New Republic: “These are the people who made the world worse this year—plus a few who fought the good fight.”

— “NR’s Biggest Stories of 2023,” by National Review’s Judson Berger: “The rubric I developed to compile this year’s list weighs factors including but not limited to audience reach, general impact or significance, and whether the piece eventually led to a heartfelt response by musician Jack White.”

— “2023’s Most Under-Covered Stories,” by Reason’s Matt Welch, Katherine Mangu-Ward, Nick Gillespie and Peter Suderman: “So long, 2023! What fresh hell awaits us all in 2024?”

— “The Best Documentaries of 2023,” by Brady Langman for Esquire: “This year, Patrick J. Pespas stole our hearts, Michael J. Fox delivered his signature charm, and Sam Pollard gifted a transformative film about the Negro leagues.”

— “The Best Movies of 2023,” by Richard Lawson for Vanity Fair: “Vanity Fair’s chief critic lists the best movies of 2023, from Past Lives and May December to Poor Things.”

— “Best Music of 2023,” NPR: “It’s not just the number of songs that has changed. There are no rankings here — in fact, the 123 songs below appear in a different order each time you load the page.”

— “The Best Comedy Specials of 2023,” by Vulture’s Kathryn VanArendonk: “The best hours reached for transcendence through gravity and sheer goofiness, often at the same time.”

— “Our 9 Most Popular Travel Stories of 2023,” by Tasha Zemke for Outside magazine: “From the most beautiful hikes in the world to advice on tipping, these are our most-read articles of the year.”

— “81 Things That Blew Our Minds in 2023,” The Atlantic: “Where The Atlantic’s Science, Technology, and Health reporters found wonder this year.”

— “Behold — the Best Space Images of 2023,” by Scientific American’s Phil Plait: “This year’s most interesting space images include infrared views of galactic ‘bones,’ an asteroid’s double moon, Jupiter’s giant polar vortex, and more.”

— “We told their stories in 2023. Here’s what happened after we published,” by WaPo’s Sydney Page, Peter Hermann, Olivia Diaz, Gregory Schneider and Ellie Silverman: “As 2023 came to an end, Washington Post reporters returned to some of the people (and animals) in the D.C. region who made headlines, the subjects that informed, entertained and helped define a year in local news that never let up.”

— “The Lives They Lived,” NYT Mag: “Remembering some of the artists, innovators and thinkers we lost in the past year.”

PLAYBOOKERS

TRANSITIONS — America’s Credit Unions is bringing in a slate of new leadership: Jill Tomalin will be EVP, Carrie Hunt will be chief advocacy officer, Anthony Demangone will be chief membership and engagement officer, Eddie Rivera will be COO and CFO, Meghan Burris Small will be chief comms and marketing officer, and Todd Spiczenski will be chief association services officer.

ENGAGED — Max Tanner, an associate attorney at Sher Tremonte, and Leah Finnegan, a freelance writer and editor and former editor-in-chief of Gawker, got engaged Thursday after their nightly viewing of “Law and Order.” They met on Bumble. Instapics … Another pic

WELCOME TO THE WORLD — Andy Morimoto, director of climate policy at Edelman Global Advisory, and Brooke Morimoto, senior director of member experience with Charles Schwab subsidiary Family Wealth Alliance, on Thursday welcomed Oliver Miles Morimoto, who joins big siblings Rosemary, Charlotte and Taylor. Pic … Another pic

— Steve Roberts, partner at Holtzman Vogel, and Thayer Roberts, SVP at Thorn Run Partners, recently welcomed Stephen Roberts. He joins big sister Samantha.

HAPPY BIRTHDAY: Reps. Mike Bost (R-Ill.) and Tom Tiffany (R-Wis.) … Sean Hannity … Maine Gov. Janet Mills … Tammy Haddad … former Secretary of State Mike Pompeo … Kevin Smith of Humana … Lauren Claffey Tomlinson … POLITICO’s Jennifer Scholtes and Philip Harman … Matt Latimer … Bill Thorne of the National Retail Federation … Heather Reid … Justin Thomas Russell … Noelle Straub … Shannon Gilson of Apple … Nick Schmit … WaPo’s Courtney Beesch … Bob Cochran … former Air Force Secretary Heather Wilson … Udai Rohatgi … Jim Billimoria of Rational 360 … Maria Elena Salinas … former Rep. Marty Meehan (D-Mass.) … Hari Sevugan … Voters of Tomorrow’s Santiago Mayer (22) … Philippa Martinez-Berrier … Megan Porter of Rep. Troy Balderson’s (R-Ohio) office … Meredith Vieira (7-0) … Marcia Kramer of CBS New York … Michael Rekola … Jack Deschauer … Seth Wyngowski of the U.S. Embassy in Estonia (34)

THE SHOWS (Full Sunday show listings here):

ABC “This Week”: Rep. Mike Turner (R-Ohio). Trump White House panel: Alyssa Farah Griffin, Cassidy Hutchinson and Sarah Matthews. Panel: Donna Brazile, Sarah Isgur, Rachael Bade and Rick Klein.

CBS “Face the Nation”: Sen. Lindsey Graham (R-S.C.) … Denver Mayor Mike Johnston … Chicago Mayor Brandon Johnson … David Becker.

CNN “State of the Union”: New Hampshire Gov. Chris Sununu … Rep. Jamie Raskin (D-Md.) … Sen. Chris Murphy (D-Conn.). Panel: Scott Jennings, Kate Bedingfield, Kristen Soltis Anderson and Karen Finner.

CNN “Inside Politics Sunday”: Panel: Eva McKend, Zolan Kanno-Youngs, Catherine Lucey and Josh Dawsey.

FOX “Fox News Sunday”: Rep. Henry Cuellar (D-Texas) … Rep. Tony Gonzales (R-Texas) … Jared Bernstein. Panel: Mollie Hemingway, Jeff Mason, Julia Manchester and Juan Williams.

NBC “Meet the Press”: Sen. John Fetterman (D-Pa.) … Utah Gov. Spencer Cox … Colorado Gov. Jared Polis. Panel: Victoria Garrick Browne, Patrick Kennedy and Shairi Turner.

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Send Playbookers tips to playbook@politico.com or text us at 202-556-3307. Playbook couldn’t happen without our editor Mike DeBonis, deputy editor Zack Stanton, producer Andrew Howard and Playbook Daily Briefing producer Callan Tansill-Suddath.

Correction: Yesterday’s Playbook misspelled Kristen Soltis Anderson's name.

A message from The U.S. Chamber of Commerce:

Join us for the U.S. Chamber of Commerce’s annual State of American Business event January 11 to discover how innovation enables businesses to serve customers, solve problems and strengthen society. Our biggest event of the year draws a virtual audience of more than 10,000 people from across the nation and around the world, from small business owners to Fortune 500 CEOs, community leaders, and policymakers. You will hear from U.S. Chamber of Commerce President and CEO Suzanne P. Clark and other leading CEOs highlighting how America’s free enterprise system is crucial for the long-term success of our country.