The Decline and Fall of the Federalist Society’s Never Trumpers

A month later, however, he changed his tune. Calabresi wrote a letter to the Wall Street Journal opinion section, which is basically the NextDoor for Federalist Society types, to announce that he was actually wrong. He claimed that he had been persuaded by an op-ed there by former Attorney General Michael Mukasey that claimed Trump was not an “officer of the United States” and therefore didn’t fall under the amendment’s terms.

This was a highly dubious argument, as I’ve noted before, and did not make sense on its own terms. Why on Earth would the Fourteenth Amendment’s drafters disqualify ex-Confederates from serving as local dog-catchers but not as commander-in-chief?  The Supreme Court ignored that argument in Trump v. Anderson earlier this year, though it ultimately torpedoed disqualification on other (also dubious) grounds. Even so, Calabresi emphasized at the time that he was not changing course on how he viewed January 6 itself.

“Let me, however, be very clear about one thing. I am a Never Trumper,” he wrote on Volokh then. “I will vote for any Republican in the primaries over Trump or, if necessary for the Democratic Party’s nominee for President over Donald Trump. I am a Never Trumper because of the former President’s behavior on January 6, 2021 when he stirred up a crowd, started a riot on Capitol Hill to disrupt the counting of electoral votes, and then declined to call off the riot either with a Tweet or by calling out the National Guard.”

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