Today on Lawfare

Today on Lawfare

By Hadley Baker
Monday, September 26, 2022, 4:47 PM

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Why the Jan. 6 Committee Must Reinforce the 25th Amendment

John Rogan and Joseph J. Fins argued that the aftermath of the attack on the Capitol revealed the difficulties of invoking the 25th amendment, calling on the Jan. 6 committee to explain how the amendment works in its final report and propose legislative reforms to close gaps in its implementation. The committee will convene again for a public hearing on Wednesday, currently slated to be its final one.

The report should state unequivocally that the president remains out of power until the conclusion of the Section 4 process. It should explain that the president is not authorized to retake power immediately upon disagreeing with an inability declaration. Legislation is not needed to clarify the president’s status during the Section 4 process because the amendment’s text and legislative history are sufficiently clear on that point. The committee should suggest, however, that Congress pass legislation stating that acting Cabinet secretaries are eligible to participate in the Section 4 process.

Treason, Insurrection, and Disqualification: From the Fugitive Slave Act of 1850 to Jan. 6, 2021

Mark A. Graber analyzed the meaning of insurrection and rebellion throughout history, starting from the antebellum period to present day, and considered how this applies to disqualifying elected officials who participated in the Jan. 6 attack on the Capitol.

State v. Griffin is an important test case for efforts to disqualify elected or formerly elected officials who supported the Jan. 6 insurgents from holding or seeking public office—including any efforts to block Donald Trump from appearing on ballots in the 2024 presidential election. Although the Griffin decision is not binding law outside of a judicial district in New Mexico, Mathew’s opinion provides a foundation for current or future legal actions seeking to disqualify past or present Republican officeholders under Section 3 of the 14th Amendment. Citizens for Responsibility and Ethics in Washington, which litigated the Griffin case with assistance from prominent law firms in Washington, D.C. and New Mexico, and other public interest associations, is likely to bring lawsuits against other officeholders “leagued” in some way with the insurgents who invaded the Capitol grounds and building. (One such group has already written letters to all 50 secretaries of state urging them not to permit Trump’s name to appear on state ballots in 2024.)

How to Overcome the Pitfalls of the Saudi-Iran Dialogue

James Jeffrey and Bilal Saab analyzed the five recent talks between Saudi Arabia and Iran and how their contrasting goals have produced little progress between the two nations.

Since April 2021, the two sides have held five rounds of negotiations in Baghdad (a sixth was delayed in August due to Iraqi political turbulence), and in that time it seems that the main and perhaps only thing they’ve agreed to is an arrangement that will allow Iran to send thousands of its citizens to the kingdom to participate in the annual hajj pilgrimage. Though the cease-fire in Yemen between Saudi Arabia and the Iran-supported Houthis has been heralded as a breakthrough in the talks, its cause has less to do with positive Iranian intervention and more with the Houthis’ inability to seize the strategically important city of Marib. The central reason why the Saudi-Iran talks have yielded almost nothing is the vast and multifaceted asymmetry in the negotiations. There seems to be a fatal difference in perspectives over the very nature of the talks and their goals. The two sides have fundamentally different sets of demands and grievances. In the Arab world, this is called hiwar al-torshayn, or the “dialogue of the deaf.


The Lawfare Podcast: Roger Parloff Keeps His Oath: Benjamin Wittes sat down with Roger Parloff to discuss the recent convictions and sentencing decisions related to acts committed on Jan. 6, including this week’s anticipated seditious conspiracy trial for Stewart Rhodes, head of the Oath Keepers.

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