Trump and the 14th Amendment

You’d have to be consciously avoiding the news not to be aware of the discussions about how former president Donald Trump could be ineligible to become president again because of Section 3 of the 14th Amendment to the United States Constitution, which says:

Section 3.
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, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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. But Congress may by a vote of two-thirds of each House, remove such disability.

14th Amendment – US Constitution

Let’s put aside the substantive question of whether Donald Trump did indeed take an oath under these circumstances, and whether he actually engaged in insurrection or gave aid and comfort to enemies. Rather I want to look at the mechanics of how such a determination might be made.

Legal experts are saying that the section is “self executing” just as the constitutional requirement for natural born citizenship, age and residence is self executing. They argue that no conviction of the crime of insurrection is required and that a state authority charged with determining who is on the ballot can simply make the decision.

Over 212 lawsuits were filed in attempt to prevent Barack Obama from becoming president because, the suits alleged, Obama lacked the natural born citizen requirement. The result of that effort is instructional because only one judicial decision made by an administrative law judge in Georgia found Obama eligible, and all the rest were dismissed or it was determined that no state official was required to make a decision. State secretaries of state have said that the decision is left to the political parties who put forward candidates, or dodged the question in other ways.

The first lawsuit challenging Trump lawsuit was rejected by a Florida court for lack of standing (that means the person bringing the lawsuit didn’t qualify as someone who could sue). The second was in Colorado where state law explicitly allows voters to bring a lawsuit. It might survive and be heard, and perhaps the validity of the process tackled by the U. S. Supreme Court. It’s a messy approach, because each states’ laws are different, and state secretaries of state are political people. Fifty cases, plus appeals, is rough. Nevertheless, this is what the pundits are concluding is the avenue to resolution. I think it will be a mess.

I think there is another way. Those talking about resolution by the courts fail to consider another amendment to the U. S. Constitution, the 20th, that says in Section 3:

Section 3.

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

20th Amendment – US Constitution

That is, the Congress is explicitly directed by the Constitution to consider qualification when declaring the next president.

The Documents: Richard Nixon, Hillary Clinton, Joe Biden, Mike Pence, et al. and Donald Trump

Richard Nixon

I’m old enough to remember the Watergate Scandal, the Committee to Re-elect the President (CREEP), dirty tricks, and some White House documents Nixon took with him when he resigned. Richard Nixon took a trove of documents home with him and later donated them somewhere and took a whopping income tax deduction.1

Recently Donald Trump defended himself by giving the Nixon example, saying Nixon took records valued at $18 million when he left office and cited the Presidential Records Act.2 There is, however a fatal flaw in Trump’s argument, namely that the Presidential Records Act (1978) did not exist when Richard Nixon took his papers with him. At that time, presidential records belonged to the president. Starting with president Reagan, presidential records belong to the United States. And I’ve never seen any suggestion that Nixon took classified records, only his own papers and the infamous White House tapes. In any case, Nixon was pardoned for everything, known or unknown, he did.

Hillary Clinton

As most know by now, Hillary Clinton used a private email address to conduct official business, and in the conduct of that business a few emails were sent to her that were classified. To put this in context, emails were at that time becoming a regular form of communication. Clinton’s predecessor Condoleezza Rice didn’t use email at all. Colin Powell rarely used it. Clinton used a server of her own to host her emails for some of that period, and a commercial hosting company for a later period.

There were some problems with Clinton’s emails. First, there is a federal records retention statute requiring that official government business records be archived. Clinton believed that her communications with others in the White House and at the State Department, the official emails mixed in with her private ones, would be archived by the White House and State Department servers; however, due to flaws in those systems, many of those emails were not not saved.

The second problem is that a few of those emails were either classified when she received them or contained information that was classified later. Some of those classified emails were improperly labeled. Clinton was of course authorized to have those emails, but her custodianship of them was negligent and careless, and left them open to hacking by those not entitled to them. While there is no proof that Clinton’s server was hacked, some experts think it very possible.

Some make a big deal of Clinton using acid to destroy her server to hide the emails, something that didn’t happen. At the time that Clinton’s private email address was hosted by a commercial company, her office directed the company to purge old emails after some period of time. The hosting company didn’t purge the emails as requested. Later when Congress started investigating, they asked Clinton to preserve any records, and her office contacted the hosting company asking them to retain everything. A technician at the hosting company then realized that he had failed to carry out his earlier instructions, and hurriedly purged the old ones, and erased the disk drive with commercial software called “Bleach Bit.” It’s a commonly used free tool.3

The important thing about the Clinton matter is that a bipartisan Congressional committee investigated the matter in extreme detail, including receiving testimony from Clinton herself and the technician that deleted the emails, testifying under a grant of immunity. They concluded that Clinton was negligent, but not criminal in her actions. That is, an investigation was done, and no charges were found appropriate.

Joe Biden

Joe Biden had an office in DC connected with the University of Pennsylvania. When he became president that office was no longer used and it was cleared out. The clean-up discovered some classified records from his term as vice president. Biden’s attorney immediately contacted the National Archives and the records were quickly returned.4 Some additional classified records were discovered by Biden’s staff in his garage at his Delaware home. They also were returned quickly. A Department of Justice investigation determined that the classified records were there unintentionally and that no laws had been broken. It was an honest mistake — a big mistake, but not a crime.

Mike Pence

Former vice president Mike Pence found some classified records at his home, and they were quickly returned. Again, the Department of Justice investigated found that the records were moved unintentionally and that no laws were broken.5

Two other cases

Before moving on to Donald Trump, I want to mention two other cases involving classified material. The first is that of a US Navy sailor, Kristian Saucier. For unproven reasons, Saucier took photographs with his phone of engineering areas of the nuclear submarine on which served. Even having the phone on board was against regulations. He tried to cover up what he did by throwing the phone in a dumpster. The phone was retrieved and Saucier was court martialed and received a sentence of one year in prison. Saucier’s case became a cause célèbre for conservatives — if Clinton can do it, so can a US Navy Sailor. Trump issued a pardon to Saucier based on the “Clinton got away with it” rationale.6

The other case involves a Department of Defense executive assistant in Hawaii, who took some documents labeled Classified and Secret home with her. A co-worker came across them at a party at the woman’s home and reported it. She was convicted and received 3 months in prison and a $5,500 fine.7

Both of these knew what they were doing was illegal.

Donald Trump

The forty-four page indictment of Donald Trump puts it better than I could, and makes is plain why Donald Trump does not belong in the company of careless and sloppy classified document handlers, but among the criminal ranks of those who intentionally and willfully took classified documents.

I’ll just summarize:

  1. Trump ordered that classified documents be removed from the White House.
  2. He refused to return them when requested by the National Archives for many months.
  3. He intentionally did not return all the documents.
  4. They were stored at a resort where many people came and went, including foreign nationals. Some were in a bathroom. Some on a stage. Some in a storage room.
  5. He took some of them with him to his winter home in Bedminster.
  6. He directed that documents be moved so that an attorney responding to a subpoena for the documents wouldn’t find them.
  7. He personally went through the documents, and willfully retained some of them.
  8. He causes false statements to be made to the court representing that all documents were returned.
  9. He admitted that he knew he had classified documents, and showed them at least superficially to people who had to authorization to see them.

Trump knew what he was doing. He knew it was a crime. But he thought he was a star, and could get away with things others to go jail for. The disheartening thing is that far too many Trump followers agree with him.

Comparing Votes to Voters in Pennsylvania

Those following the Biden election fraud conspiracy theories will be familiar with the claim made by a group of Republican Pennsylvania legislators that there were more votes than voters in the election. President Trump himself tweeted it, putting the number at 205,000.

The (exaggerated number) comes from comparing the Pennsylvania Statewide Uniform Registry of Electors (SURE). It would make sense on the surface that the number of people who voted as recorded in the state voter registration system should equal the number of votes cast. The problem is that the Vote totals are carefully counted and certified, and the SURE database is something that appears to be aggregated over time, and not up to date.

I purchased a copy of the SURE data released on December 28, 2020 and I found that it’s still being updated, based on the record change dates in the file for people who voted in the 2020 presidential election. Here is the recent record change summary:

Record change dates for Pennsylvania SURE data for persons recorded as voting in the 2020 Presidential Election

I looked at those voters in SURE that voted in the 2020 election and compared it to the current (January 1, 2021) unofficial election results from the Secretary of State’s website and found that at the county level, there were sometimes more votes than voters, and sometimes more voters than votes. In short, the two databases really don’t correspond well. My results are here.

Trump dumber than many of his followers

When looking at the 2020 election fraud conspiracy theories, some are dumber than others and some are more simply debunked than others. One of the dumbest and simplest to debug is the claim that there were more votes than voters in Pennsylvania.

The claim takes the number of absentee ballots requested in the Pennsylvania primary election and compares it to the number of absentee votes cast in the general election. Oops. If one takes the number of absentee ballots requested for the general election, then it is smaller (as it would have to be) to the number of absentee ballots cast.

This was of course debunked by the journalists who do this for a living:

These debunking articles are a month or more old today, as Trump continues to repeat them

And just in case it gets deleted, here’s a picture:

Open letter to Lindsey Graham, chairman of the Senate Judiciary Committee

Dear Senator Graham:

I was extremely troubled to hear press reports that President Trump was considering appointing Sidney Powell as a special prosecutor to investigate fraud in the 2020 election.

As you are probably aware, Powell was responsible for filing lawsuits fancifully called the “Kraken” in four states. In the Georgia lawsuit, signed by Powell, a false statement appears in the complaint describing an affidavit filed with the suit as that of “a former US Military Intelligence expert” when in fact, the affiant Joshua Merritt was never in military intelligence. Further the affidavit included with the Kraken lawsuits also contains the same false statement. Powell attempted to conceal the identity or Mr. Merritt even from opposing counsel.

Either Powell suborned perjury or she was grossly negligent in vetting her affiant. In either case, such a person is unfit for a position of trust under the United States, and particularly unfit for the job of investigating such a sensitive issue as election fraud.

Two Presidents

This article is reprinted from my post at

The reader can take comfort from the fact that I am usually wrong predicting Donald Trump.

Let’s start with an iconic photo of Lyndon Johnson taking the oath of office as president upon the death of John F. Kennedy.

Lyndon Johnson takes the oath of office

The woman administering the oath of office was federal district judge Sarah Hughes. There’s nothing in U. S. law requiring the president’s oath of office be administered by the chief justice of the Supreme Court or even a federal judge; it can be administered by anyone who is authorized under law to accept an oath.

History is not my strong suit, but I recall that in the 14th century, the Roman Catholic Church had two popes. (There was a plague too.) There were two claimants to the throne of St. Peter, and for political reasons some supported one, and some supported the other.

Could not Donald Trump, again, declare that he won the election, and find some justice of the peace to swear him in? Could some red state legislature then vote, saying that Pope Donald was the real president, and swear allegiance to him? Could Trump surround himself with supporters, and he appoint them to “cabinet positions,” and start calling world leaders declaring Biden not the real president? Would we have “divided government” to a degree not seen since the Civil War?

Trump doing that seems insane, but so does what Donald Trump is doing now with his election conspiracy theories.

Whether Trump will try to get himself sworn in president in January is unknown, but be prepared for 4 years of “Biden is not really president” on the Internet, as we had 8 years of “Obama is not really president” from the same crowd.

Sidney Powell unleashes the #Kraken

After weeks of Trump attorneys alleging fraud in press releases, but not in court, we finally have a lawsuit that alleges specific fraud from Attorney Sidney Powell and L LinnWood in Georgia representing Republican elector candidates in the 2020 Presidential election.

Powell has billed her 104-page filing in US District Court, Northern District of Georgia, Atlanta Division the “#Kraken” and the interested reader could try reading it. It’s painfully bad in places; for more on that, see Mike Dunford’s “The Kraken Lawsuit Was Released and It’s Way Dumber than You Realize.”

It is somewhat confusing exactly where this lawsuit was filed.

I will expand this article when I have had a chance to dig into the specifics, but there is one wildly implausible claim in it. It claims that Dominion Voting Systems adulterated the results of the election by switching votes in at least sufficient quantities to change the outcome. The scheme involves the ghost of Venezuelan strong man Hugo Chavez connecting to voting machines through the “internet of things” and flipping voters from Trump to Biden. It also claims that the hand recount was adulterated by election workers, who sorted ballots into piles for different candidates and put Trump votes in the Biden piles. Now someone explain to me how the machine totals end up closely tracking the manual recount across the state. There is no mechanism through which the totals could be made to match without controls and conspiracies so large that it strains the imagination.

Dunford notes that the Georgia lawsuit made repeated references to Michigan, an obvious failure to proofread when using one state’s complaint as a basis for another.

Rudy Giuliani and “The Kraken” (not an authentic image)

The Kraken – Michigan (aka King v. Whitmer) suffers from similar production problems. One of the affidavits in the Michigan suit reportedly details fraud in Edison County, a county well known for fraudulently claiming to be in Michigan rather than New Jersey.

All in all, #Kraken lawsuits were filed in four states: Arizona, Georgia, Michigan and Wisconsin. They were all dismissed.

Deja Vu All Over Again


It’s been 12 years since I started the Obama Conspiracy Theories blog as the Birther movement started gaining a foothold in the public mind. I watched as one post on a right-wing forum grew into a movement that consumed 51% of the Republican Party and put a birther in the White House.

Thankfully Donald Trump is on his way out the door, but as he leaves, he ushers in a new era of conspiracy theories, largely about election fraud, but also Deep State, Obamagate, laptops and whatever else comes along. Rather than the usual crew of birthers, we have a new conspiracist source QAnon, bolstered by the junk news organizations, One America News Network, Newsmax, Newsbusters and the Epoch Times.

Let’s see where this goes.