Okay, and now,

you know, it's a little tricky because now you want to say, okay, here's a little bit about the story, but you're not actually telling the story. So this

is this is a section called the in the summary of arguments. And again, the Supreme Court's rules for a brief say, we not only want you to tell us the interests of the the amicus, but then we want you to summarize

the argument before you make it. In part one of what follows, we briefly tell the story of the first insurrection of the 1860s. And audience, you recall that we alluded to this in our last episode, this

idea of the first insurrection. What's that the first insurrection? I didn't know that we're two interactions. Right, capital F capital I, that's how we introduce it, the first insurrection. And then there's a second insurrection. So

this is the insurrection before the second insurrection of the 1860s, typically known today as the Civil War. In that first insurrection, high level executive officials in Washington, DC, violated their sound constitutional oaths as part of a concerted plan, not just to hand over southern forts to rebels. That's bad enough, I guess. But also in the Sis and I, but also to prevent the lawful inauguration of the duly elected Abraham Lincoln. The parallels between this insurrection in late December, 1860, in January 1861, and the more recent Trump fueled insurrection of late December 2020, and January 2021, are deeply and decisively relevant to today's case. Okay, now comes out, well, I think is an important parenthetical. You say throughout this brief, we accept the factual findings of the trial court regarding these events.

Our audience knows that I always thought that Bowdoin Paulson, our friends, ideally needed to write a second article all about what Trump did and didn't do in the days up to and even after January 6th. And they didn't quite do that. They, you know, covered lots of issues. Their article is 130 pages by said, that's what we need actually more on. You've given us all sorts of great legal analysis about what an insurrection is and isn't and how it applies against presidents and how you don't need a congressional statute before it can be implemented and how it's not just about the interactions of the 1860s, but all future insurrections. You've done a spectacular job of analyzing all these issues, but I want to hear more about how then Trump flunks 14, 3, now that I understand your great analysis of 14, 3. But now Andy, we're in a different situation and this brief doesn't do what I told you know, Bowdoin Paulson to do. I said, well, why not? Are you a hypocrite? You're telling them to do the work and then you don't do it in the no, because the key intervening event is an adjudication in Colorado by a trial judge where both sides were allowed to be heard and present evidence. And that trial judge made very elaborate findings, findings of facts that are typically binding on appellate courts. And so the basic outline of our brief is I'm going to tell you what the easy case was for disqualification under 14th Amendment Section 3, the easy case, the core case, easier than, wait for it, easier than Jefferson Davis disqualification, easier than Robert E. Lee's disqualification is the disqualification in the first that arose, the properly arose because of actions in what I'm calling the first insurrection. It's not the Civil War. It's an insurrection that was led by people in James Buchanan's cabinet who did things and who failed to do things in order to prevent a lawful transfer of presidential power. And that's what looks exactly like January 6, what Trump did. It may not look like the Civil War, but it's exactly what happened in what I'm calling the first insurrection before Lincoln's inauguration, trying to prevent Lincoln's inauguration. And the reason that's even worse in some ways than what Jeff Davis did, or Robert E. Lee did, is these people are in office and using the powers of their office to actually war against the Constitution. Jefferson Davis didn't quite do that. He was a senator in 1860, early 1861, but he wasn't able to do much as a senator to prevent Lincoln's inauguration. And Robert E. Lee was just a mid-level, although very impressive, military officer, and he didn't use his powers of mid-level military office to undermine the Constitution and prevent Lincoln's lawful election. And indeed, he doesn't go against the United States until Virginia secedes after Lincoln's inauguration. Oh, but these Buchanan officials whose names I didn't know before, they were using this cabal, this of Buchananites, who are using their high executive powers to prevent the lawful transfer of power. And that was the core case of 14-3. These are people equivalent of Jeff Clark and Donald Trump.

And

now all I have to do to complete the argument is to show you that, yes, Donald Trump was just like these folks, but I don't need to do it in a law review article or in a brief. The trial judge already did all of that. So all you need to do is just think about the Buchanan insurrectionists in this first insurrection and just compare it to the findings of fact that the trial court has already made, and the case is done.

I think that it's important to, you say it's the easy case. I think that it's important to divide that statement into two parts. One part is that the first insurrection of 1860 is

the

easy case for the application of 14-3. So in other words, that's what they had in mind that caused them to write 14-3. That's part one. You have to establish that.

Alongside. I mean, there were two insertions and both of them were central. Right. It's not as if they forgot the Civil War. No, no,

I understand. But what the point is that just talking about this one, but this one was what they had in mind. They may have had other things in mind too, like this is like the Civil War, but they had this in mind. And it's a match. That's number one. Number two, then you show that this is like what Trump did, which is kind of very obvious when you know that. But those are two separate things. So it's not just the fact that they're similar. It's also the fact that this was what the 14-3 has in mind. It forms such a perfect fit that it's easy to lose sight of the fact that these are two different things that you're proving here.

Right. Andy, I think the next paragraph is also maybe worth talking about. The audience should know that I wrote these words before certain pundits said certain things in the press. And the classic example of a really smart person saying genuinely less than smart things is Russ Douthit in The New York Times. This was a piece that he wrote after the first draft of this brief was done. And it appeared, I think, under the heading, January 6 was not an insurrection because he was measuring against the Civil War and saying it doesn't look anything like the Civil War. And he was building on some ideas by our friend Steve Calabrazi who was quoted and maybe even hyperlinked to, but definitely quoted by names mentioned by name by Russ Douthit. And this next paragraph, which is written before Russ Douthit's piece in The New York Times, is a direct response to him. And I'm trying to actually put myself into the mind. And this is what's building on our earlier podcast. Why are all sorts of smart people brushing off Bowdoin Paulson? And I think in part, it's like they've never heard of 14, 3. But then when they do think about it, they think, oh, it's only about the Civil War. And this doesn't look anything like the Civil War itself where more than half a million people died. That's their kind of gut instinct. And so they're then looking for ways to just, you know, toss society and give the back of the hand to this thing that they think is only about a Civil War. So that's the next paragraph. And you want to read that for

us, please? Yes.

If one thinks, as do many journalists and noise makers lacking historical expertise, that section three was only about insurrections akin to the Civil War, then the Trump fueled insurrection of 2020 to 2021 pales in comparison. The invocation of section three looks rather cutesy, a gimmick of clever lawyers and law professors. But if one understands, as did all the men who drafted and ratified section three, that before the giant insurrection that began in mid April, 1861, there was a smaller one that was also of central concern than the matter looks entirely different. Yeah. Okay. So that's that's the point that you're

right now. You have the theoretical apparatus to scaffolding the lawyerly analysis for the first part. Now, I'm going to tell a story, but now you know why it would matter. If you think that the framers of the 14th Amendment are only thinking about stuff like the Civil War, well January 6 doesn't really look like that. But if you understand that even before Lincoln's inauguration, there was an earlier insurrection, a failed insurrection, but in certain respects, but an insurrection. And then it's almost identical to what folks like Jeff Clark and Donald Trump did. Wow.

That's

a different that's a different way of conceptualizing the facts as found by the trial court in this case.

And when you hear the facts, you know, you'll be outraged, you know, the idea that these things went on, even though 150,000 people didn't die immediately as a result of this. Okay. So here's the next paragraph. And we're not going to read the whole brief. No, not at all.

And Andy, by the way, I think there's a footnote at a certain point. I learned about all this because I'm writing a book about America's constitutional conversation between 1840 and 1920. And I have a chapter on the Lincoln Douglas debates, and it ends with Lincoln's election in 1860 as president. But then I have to explain, you know, what happens there after and between that and Lincoln's inauguration, there are some important things that have to explain. Oh, these states purport to a seat, a seat, and oh, Buchanan's administration is handing over the keys to the fort. And oh, they're trying to prevent the lawful inauguration of Abraham Lincoln. And some of this stuff I just hadn't studied with great care before, but I had to do it in a book that has to explain how you got from point A to point B to point C in America's constitutional saga. Right. That

footnote comes later in the actual argument rather than the summary of argument. Okay. So now you say, and you again, I italicize this first sentence, today's facts, are remarkably similar to those of the first insurrection of the 1860s. In a crucial mid February, 1868, Senate discussion about a particular officer under President James Buchanan, Senator Jacob Howard. Now Jacob Howard is very important in the authorship of the 14th Amendment passionately explained that this ex officer should never sit in the Senate precisely because long before Fort Sumter fell, this powerful oathbreaker, one of the nation's quote, principal public functionaries, unquote, had been part of a cabal, quote, endeavoring to beleaguer the city of Washington with the design of seizing it, and at all events preventing the inauguration of President Lincoln in the succeeding march, unquote. Sound familiar? Okay. It doesn't say that I did. Okay. Yeah. Later in this key debate, which revolved around a test oath law, closely analogous to section three, then a few months shy of official ratification, that is section three was a few months shy of official ratification. Senator Oliver Morton, likewise blasted several of Buchanan's cabinet members. These oathbreakers Morton thundered had abandoned their posts while publicly proclaiming and here's the quote, that secession was right and that southern states ought to be allowed to break up this union and form a new government without opposition. Those things went on until the 4th of March, 1861, when there was scarcely anything left of this government, as we all know, to protect the inauguration of President Lincoln. That's the end of the quote. So another one was very little was very little was left to protect the inauguration.

Yeah, and note the language as we

all

know. Wow. That's for my narrative purposes, that's kind of important. He's saying like everyone remembers this. We all know that. And that's

1868 that he's saying that. Looking back and

he's saying, let's not forget what happened before Lincoln's inauguration.