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The article of impeachment against President Donald Trump that the House of Representatives is expected to approve tomorrow invokes Section 3 of the 14th Amendment, a little-discussed provision originally aimed at former Confederates. As relevant here, Section 3 says “no person” may “hold any office, civil or military, under the United States,” who, “having previously taken an oath as…an officer of the United States…to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

I understand why House Democrats might want to cite a specific legal provision as justification for Trump’s second impeachment after catching flak for not doing that the first time around. But I’m not sure this is a can of worms we want to open.

Under Section 3, the impeachment article charges, Trump disqualified himself from office by inciting his followers to violently obstruct the congressional affirmation of President-elect Joe Biden’s victory last Wednesday. The article also cites Trump’s “prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election,” specifically mentioning the January 2 telephone call in which he pressured Georgia Secretary of State Brad Raffensperger to overturn that state’s election results.

Those actions, the article says, “threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government.” Trump “thereby betrayed his trust as President, to the manifest injury of the people of the United States.”

Trump’s conduct last Wednesday, when he inflamed his followers with his oft-repeated fantasy of a stolen election and urged them to “fight like hell” against an “egregious assault on our democracy” that was about to destroy the country, was manifestly outrageous and irresponsible. At the same time, his speech, which on its face advocated nothing beyond peaceful protest, did not qualify as incitement to riot under federal law. Nor did it exceed the bounds of constitutionally protected speech as described in the 1969 Supreme Court case Brandenburg v. Ohio, which said even advocacy of illegal behavior is covered by the First Amendment unless it is not only “likely” to incite “imminent lawless action” but also “directed” at doing so.

Trump’s conversation with Raffensperger, during which he suggested that the secretary of state could face criminal prosecution if he failed to “find” the votes needed to change the outcome of Georgia’s election, was clearly an abuse of power. But it is doubtful whether it violated any criminal statutes, given Trump’s apparently sincere (though utterly groundless) belief that he was trying to correct election fraud rather than encourage it.

None of this means that Trump cannot be impeached for such conduct, since impeachment is not limited to statutory crimes (as even Rudy Giuliani, Trump’s lawyer, has conceded). But is it accurate to say that Trump “engaged in insurrection or rebellion” against the Constitution when he persistently pressed his delusional claim that he actually won the election by a landslide, even after all the states had certified their results?

If so, wouldn’t the Republican members of Congress who supported his cause by objecting to electoral votes for Biden without a plausible argument that they had not been properly certified also be disqualified from office by Section 3? The Washington Post reports that some Democrats “want to use the 14th Amendment against members of Congress who supported the baseless allegations that the election was stolen from Trump and the demonstrations that led to the deadly attack on the Capitol.” Section 3 expressly applies to “senator[s] or representative[s].” Under a broad reading of “insurrection or rebellion,” legislators who use fiery rhetoric while violating their oath to “support and defend the Constitution” (pretty much all of them) would be ineligible to remain in Congress.

The history of Section 3 does not illuminate its reach very much. In a recent paper that he describes as “the first detailed account of Section Three,” Indiana University law professor Gerard Magliocca says the provision “disappear[ed] from constitutional law” after the postbellum controversy over how to treat former Confederate leaders, which began with tough enforcement, followed by congressional amnesties.

But Washington Post reporter Michael Rosenwald describes a subsequent episode that should give pause to those who favor a wide interpretation of Section 3. “In 1919,” Rosenwald notes, “Congress barred Victor L. Berger, a socialist from Wisconsin, from occupying a House seat following his opposition to the United States entering World War I.” The rationale for disqualifying Berger suggests how Section 3 could be abused to punish dissenters.

A special House committee concluded that Berger, “because of his disloyalty, is not entitled to the seat to which he was elected, but that in accordance with the unbroken precedents of the House, he should be excluded from membership; and further, that having previously taken an oath as a Member of Congress to support the Constitution of the United States, and having subsequently given aid and comfort to the enemies of the United States during the World War, he is absolutely ineligible to membership in the House of Representatives under section 3 of the fourteenth amendment to the Constitution of the United States.”

If speaking out against a senseless war counted as giving “aid and comfort” to America’s enemies (which tracks the Constitution’s definition of treason), what unanticipated results might flow from defining Trump’s two-month refusal to admit defeat as “insurrection or rebellion”? While alleging abuse of power or manifest unfitness for office unmoored to specific constitutional or statutory violations also creates a risk of unjustified, politically driven impeachments, the requirement of a Senate supermajority for removal is a pretty good safeguard against that danger. And the latter approach does not open the door to casting out senators or representatives based on differences of opinion.

South Texas College of Law professor Josh Blackman and Seth Barrett Tillman, a lecturer in the Department of Law at Maynooth University in Ireland, argue that Trump cannot be impeached based on his constitutionally protected speech. George Mason law professor Ilya Somin disagrees, because “high government officials don’t have a First Amendment right to be protected from firing based on their political views.” That principle, he says, “applies to presidents facing impeachment no less than other officials.”

Somin’s argument that presidents can be fired for speech that would not justify criminal prosecution comports with the more general understanding that impeachment is an appropriate remedy for serious presidential misconduct even when it does not technically violate the law. I think that is what we have in this case.

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Some have argued that it is futile or pointless for the House to consider impeaching President Trump again because it would be impossible (and perhaps unfair) to have a rushed trial prior to he leaves office on January 20. These arguments are understandable, but they are also wrong.

The claim that Congress loses the power to impeach and convict a federal officer once they have left office is belied by history and precedent. The Senate has conducted multiple impeachment trials of individuals who had left office. As Professors Brian Kalt and Frank Bowman wrote in the Washington Post:

the history, structure, rationale and application of the Constitution’s impeachment clauses provide powerful evidence for “late impeachability.” This evidence includes precedents: cases in which the House has impeached and the Senate has tried people who had already left office.

We also believe that, while impeaching someone who has left office is usually pointless, in some cases — perhaps including Trump’s — it may serve important national interests. . . .

The two most important reasons to pursue a late impeachment are, first, to deter presidents’ misbehavior during their waning days in office, and second, to permanently remove them from public life if their conduct suggests they would pose a continuing danger to the country if they ever returned to a position of national authority.

Impeachment represents an important disincentive to presidential misconduct. It would be odd to think that such misconduct was no longer worth deterring once the president was a lame duck. But that would be the effect of declaring misconduct unimpeachable if it’s committed late enough in the term.

Impeachment—like criminal punishment—can serve several different purposes. One purpose is retributive, to punish bad acts. Another purpose is protective, to prevent the wrongdoer from committing additional wrongs and to protect the republic. This latter purpose is antiseptic and, where there is an ongoing threat, can justify taking more rapid or expeditious action than if the purpose is simply retributive. And if the purpose is to make clear that certain conduct is unacceptable, and should disqualify someone from holding future federal office, an impeachment trial can be held after that person leaves office.

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A federal judge has ordered a stay preventing the Department of Justice from executing death row prisoner Lisa Montgomery today.

Even though William Barr stepped down as attorney general before Christmas, and even though President Donald Trump is in his office sulking, plans to execute more prisoners during the last days of the administration are still moving forward.

Montgomery is the only woman among the death row inmates the Justice Department scheduled for execution. Montgomery was convicted of choking a pregnant woman to death in 2004, then cutting the baby out of the woman’s body to pass it off as her own. The child survived, and Montgomery was convicted and sentenced to death by a unanimous jury. If the execution were to happen, she’d be the first female prisoner put to death by the federal government since 1953.

But her attorneys have argued that she suffers severe mental illness, a result of long-term sexual abuse at the hands of her stepfather, who was encouraged by her mother. Montgomery’s older sister has come forward to validate Montgomery’s claims and to detail the sexual abuse she also endured when the two of them were children.

Montgomery’s defense attorneys argue that her current mental state is so unstable that she no longer understands why the federal government seeks to execute her, and doing so would therefore violate her constitutional rights. Her attorneys brought in three experts, including a retired Federal Bureau of Prisons psychiatrist who used to treat her, to testify that her mental state is such that she cannot understand what’s happening to her.

Monday evening, U.S. District Judge James Patrick Hanlon for the Southern District of Indiana ruled that Montgomery’s lawsuit would likely succeed on the merits. Hanlon granted a motion to stay for a subsequent hearing to determine her mental competency.

Kelley Henry, Montgomery’s attorney, sent out a prepared statement that read in part, “Mrs. Montgomery has brain damage and severe mental illness that was exacerbated by the lifetime of sexual torture she suffered at the hands of caretakers. The Eighth Amendment prohibits the execution of people like Mrs. Montgomery who, due to their severe mental illness or brain damage, do not understand the basis for their executions. Mrs. Montgomery is mentally deteriorating and we are seeking an opportunity to prove her incompetence.”

The Justice Department is appealing the ruling, but if it holds, Hanlon’s order will likely prevent Montgomery from being executed before the end of Trump’s term. President-elect Joe Biden, a former supporter of the death penalty, now opposes it (and so does the Democratic Party platform). Even if a subsequent hearing leads to a judge giving the feds clearance to execute her, Biden may (and should!) commute her sentence to life in prison.

Montgomery is not the only death row inmate facing imminent execution in the last days of the Trump administration. Corey Johnson and Dustin Higgs have been scheduled for execution on Thursday and Friday, respectively. The two men tested positive for COVID-19 in December after an outbreak among staff and prisoners at the Terre Haute prison complex. Attorneys for Johnson and Higgs are trying to get injunctions blocking their executions in the U.S. District Court for the District of Columbia, arguing that executing the two men while they’re struggling with respiratory issues due to their COVID-19 infections would likely cause additional pain, violating their Eighth Amendment rights.

A judge hasn’t yet ruled on those requests, and the clock is ticking.

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The students were evacuated to the football field as Hazmat teams rushed to the scene. The local prosecutor was alerted, as were the police. Responders entered the building and went room by room. What calamity beset Haddon Township High School in New Jersey’s Camden County last week? A bomb threat? A gas leak? Anthrax?

Worse. Dinnerware.

Specifically, Fiestaware, the colorful plates that took the U.S. by storm during the Great Depression. A sophomore had brought a quarter-size piece to his science class, because some of the plates were originally glazed with a red color that contained uranium oxide (at least until our war effort required uranium for the atom bomb, at which point the government confiscated them). The student had received a Geiger counter for Christmas and was going to do a little experiment in class.

That was on January 4. His teacher thanked him for bringing in the sample. By January 8, someone had determined the plate was a biohazard.

At 11:15 a.m., The Chery Hill Courier-Post first reported, the students were evacuated. The sophomore (whose name was not disclosed to the media) wasn’t one of them because, due to COVID-19 protocols, he attends school in person only on Mondays and Thursdays.

But he did not go unnoticed. By 2:00 p.m. there were six vehicles, lights flashing, in front of the student’s home, including one from the Camden County Prosecutor’s Office, according to The Philadelphia Inquirer.

The teen emerged to explain that the whole response, “Was a dramatic over-exaggeration… I gave them a quarter-size [piece of plate] that was enclosed in plastic so it couldn’t be tampered with that gave off less radiation than most things you can find in an antique store. It was intended to be used as a source for calibrating Geiger counters.”

Instead it became a source for calibrating school board over-reactivity. While the evacuated kids were allowed back into school after half an hour, the school board released a notice that a student had brought a “potentially dangerous substance” into the school.

If I were a mom there, I’d assume the teen brought in a vial of ricin—not a chip off the most collected dinnerware in America.

No less dramatically, Haddon Township Superintendent Robert Fisicaro issued a statement announcing, “No injuries were reported.”

The prosecutor nonetheless asked the public to contact the police “if you have any information that could help this investigation.”

I actually do have some information: “There is no record of anyone ever becoming sick from manufacturing or using radioactive Fiestaware,” according to ScienceNotes.org.

The whole incident calls to mind the evacuation of Totino-Grace High School in Fridley, Minnesota, several years back because of a “chemical spill.”

That is, a student had broken a thermometer.

And frankly, both these incidents remind me of the kabuki concern shown by fire and police departments when a child is discovered waiting in a car for a short time, neither freezing nor boiling, while their parents run an errand. Here’s one example: A child who snoozed for 20 minutes while his parents bought Christmas lights was rushed to the hospital in an ambulance, even though everyone could see he was fine.

Sometimes, a wait is just a wait, and a plate is just a plate.

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Since joining the Arizona Supreme Court in 2016, libertarian litigator-turned-jurist Clint Bolick has made a name for himself as a judicial defender of constitutional rights. Justice Bolick did so again this week in a case that pitted the U.S. Supreme Court’s flawed Fourth Amendment jurisprudence against the more expansive privacy protections guaranteed by the text of the Arizona Constitution.

The case is Arizona v. Mixton. At issue was whether the police must get a warrant before obtaining a suspect’s I.P. address and internet service provider (ISP) subscriber information. With that info in hand, the police are able to determine which websites a suspect has visited. Taking its cue from the U.S. Supreme Court—which said in Smith v. Maryland (1979) that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties”—a majority of the Arizona Supreme Court ruled in favor of warrantless I.P. address and ISP data searches.

Writing in dissent, Justice Bolick faulted his colleagues for shortchanging the text and history of their own state constitution. As Bolick noted, according to Article 2, Section 8 of the Arizona Constitution, “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” But in the present case, the majority placed “the private affairs clause in lockstep with the less-protective Fourth Amendment as construed by the United States Supreme Court, thereby draining the meaning expressed in the clause and intended by its architects.”

To be sure, Bolick noted, “the federal constitution is the baseline for the protection of individual rights below which the states cannot go. But in our system of federalism, states are free to provide greater protections.” And the text of the Arizona Constitution, Bolick argued, most certainly does offer greater privacy protections than what the U.S. Supreme Court has allowed in its Fourth Amendment precedents.

In fact, Bolick wrote, those federal precedents should have had no sway in the present case. When the Arizona Constitution was adopted in 1912, Bolick noted, the term “private affairs” was widely understood “to broadly encompass personal and business matters, even if transmitted through third parties, thus making Arizona’s constitutional provision irreconcilable with the later-emerging federal ‘third-party’ doctrine allowing any information divulged to a third party to be obtained by the government without a warrant.”

In short, the framers of the Arizona Constitution “aimed, as plainly as they could, to protect our private affairs from unsupervised government scrutiny.” Unfortunately, thanks to “the majority’s non-textual opinion,” Bolick concluded, that meaning has been drained “from this essential constitutional protection.”

The Arizona Supreme Court’s decision in Arizona v. Mixton is available here.

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