Colorado Accelerates Timeline and Scope of SCOTUS Review of Trump’s January 6 Conduct

Colorado just booted Trump from the ballot, building on the lower court ruling that no only was January 6 an insurrection, but Trump is an officer thereby disqualified to be President.

I’m not going to read the opinion closely — I’m sure the whole world will do that.

This ruling’s impact will be more important for the way it will accelerate and expand the scope of the Supreme Court’s review of Trump’s January 6 conduct. The state has stayed their decision until January 4, giving Trump time — but not much — to appeal.

Therefore, to maintain the status quo pending any review by the U.S. Supreme Court, we stay our ruling until January 4, 2024 (the day before the Secretary’s deadline to certify the content of the presidential primary ballot). If review is sought in the Supreme Court before the stay expires on January 4, 2024, then the stay shall remain in place, and the Secretary will continue to be required to include President Trump’s name on the 2024 presidential primary ballot, until the receipt of any order or mandate from the Supreme Court.

There’s a non-zero possibility this will lead SCOTUS to accelerate their consideration of the Absolute Immunity appeal, which is more important in the near and long term. After all, if Trump were found guilty, then states really could and should consider the 14th Amendment implications.

One more point: Because Trump will have appealed by January 4, he will be on the primary ballot, giving SCOTUS lots of time to consider this issue before the General. But it really does put the onus on SCOTUS to decide a lot of these issues quickly.

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307 replies
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    • Betty Lasley says:

      My disgust with and dislike for the folks who bought Don the cons B S in 2016 and voted for him grows daily as our country deals with the consequences . Maddening.

  2. EW Moderation Team says:

    Community members: A comment using a racist term has been removed because it set off a form of Denial of Distributed Service obstructing discussion about this post. Replies to that comment may no longer be visible.

    The topic of this post and thread is the state of Colorado’s state supreme court decision regarding Donald Trump’s eligibility to appear on that state’s ballot, and the effect this decision may have on SCOTUS review. Please stay on topic.

  3. Rugger_9 says:

    I concur with this post, because of the stakes. Defendant-1 is the presumptive GOP nominee and if several states do succeed in removing him from the ballot, he may not have enough electoral college votes available before the election even happens. There is also the problem of due process, anticipating bmaz here. What constitutes sufficient evidence to bar an otherwise qualified miscreant from the ballot, and where is that evidence objectively tested? It’s not too much of a reach to see bozos like Paxton, Rokita, DeSantis, et al, pulling similar stunts on specious grounds to kick inconvenient Ds off ballots if the rules are not clarified.

    SCOTUS will want to nip this question in the bud.

    • boatgeek says:

      At minimum, one could expect challenges to Democratic candidates for supporting BLM protests unless the rules are clarified. I am well aware that comparing those two is comparing apples and iguanas, but it’s a standard trope including for other J6 defendants.

        • Rayne says:

          Feds put up fencing and barricades to prevent protesters from exercising their First Amendment rights on White House grounds. Barr summoned all manner of BOP personnel, the military was on hand — a response well above and beyond that deployed for protest rallies. Overkill, since White House functions weren’t obstructed. If anything Trump acted like parading with an upside down Bible was in his job description.

          Made the response on January 6 look like invitations to sedition. /choir-preaching

    • P’villain says:

      “Nip this question in the bud,” indeed. This is headed toward chaos, and guess who benefits most from chaos?

      • Clare Kelly says:

        I respectfully disagree.

        This is among the methods to create order, the antithesis of chaos.

        I’m grateful to CREW, and to Marcy Wheeler for her cogent analysis.

      • hollywood says:

        I think some chaos will be alleviated when SCOTUS denies this (and any other ballot challenges prior to conviction). This will be one for the Don while the Court denies the absolute immunity claim.

    • myra_bo_byra says:

      IANAL but isn’t there a simple approach for the Supreme Court here (and in line with one of the dissenters to the Colorado Opinion): Concur that a President is an officer; Concur that if an officer engages is insurrection, they are ineligible for office per 14th amendment; Rule that determination of whether or not an officer engaged in insurrection must be made via a jury in a court of law, in accordance with the Due Process clause. Leaves it up to the outcome of the J6 case. Bottom line: They should accept cert and expedite their ruling regarding Presidential Immunity, let the J6 case proceed by ruling for Smith and the Prosecution, and let the chips fall where they may.

      • RationalAgent19 says:

        “Concur that if an officer engages is insurrection, they are ineligible for office per 14th amendment; Rule that determination of whether or not an officer engaged in insurrection must be made via a jury in a court of law”.

        Just want to point out that no such court of law determination was required for the confederate traitors whom this provision originally targeted.

        • jsrtheta says:

          Concur. Due process is required in cases involving rights.

          I am aware of no right to run for, let alone be, president. “Rights” is a term already tossed about with much abandon and damned little specificity.

        • nord dakota says:

          In Trump’s case, conveniently without the conundrum in the confederacy cases–whether having seceded, they remained officers.
          Trump didn’t attempt secession.

      • Thomas Paine says:

        So….if SC Smith is successful in prosecuting and convicting Trump during the WDC trial, does the government then move to invoke the 14th Amendment Section 3 to immediately bar Trump from Federal office ? How would this work ? Would such a motion be stayed until all of Trump’s appeals are adjudicated ?

        Are there any limitations on convicted felons holding Federal office ? (I don’t think there are, today, but I also don’t think you can get a security clearance as a felon.)

        I don’t understand exactly how this process would play out.

    • Super Nintendo Chalmers says:

      SCOTUS will overturn Colorado, using an Equal Protection Clause argument since different states have ruled differently regarding Dotard’s eligibility.

      • timbozone says:

        The Supreme Court isn’t obligated to take it up. They likely will though, although they have to rule or issue their own stay prior to Jan 5 to not cause chaos in Colorado’s primary processes. Further pressure comes from the other states in the US that might rule Trump is ineligible to be on their primary ballots as well.

        • c-i-v-i-l says:

          No, SCOTUS doesn’t have to issue its own stay by Jan. 4. The CO ruling says that “If review is sought in the Supreme Court before the stay expires on January 4, 2024, then the stay shall remain in place … until the receipt of any order or mandate from the Supreme Court.”

  4. Gil Bagnell says:

    This raises another question — did Trump screw up by intervening in the original lawsuit? By becoming a party he had the chance to contest the allegations in court, which gives weight to the Colorado S Ct’s ruling. Would he have done better to have stayed out of the dispute, so SCOTUS could say he didn’t have his day in court? Theoretically the findings of fact are set in stone on appeal at this point, though SCOTUS will do as it wants. It can get around it by defining “insurrection.” Had Trump not intervened, it could also have gotten out that way. But what process is correct to disqualify someone? Contested matter in state court would seem to be right.

    • mickquinas says:

      I’ve been thinking about something related, which might have been suggested by a comment on Brandi Buchman’s Xwitter thread announcing the decision.

      If Trump doesn’t appeal this to SCOTUS, then the decision stands in CO for the primary (and presumably the general), which he doesn’t need for the nomination and wouldn’t win in the general. If he does appeal, and they decide against him, it would seem to me that effectively disqualifies him nationwide for 2024, which is his strategy to “beat the rap”. Ordinarily it seems like his pattern is to contest everything, appeal everything, for the sake of delaying consequences and exhausting his adversaries. Should he be confident that SCOTUS will rule in his favor?

      • boatgeek says:

        Trump has to appeal. If he doesn’t, this decision will get cited as precedent in suits in all 50 states. While other states don’t have to respect CO’s decision, it would presumably be influential.

        Trump’s best hope now is likely that SCOTUS takes the case and is kinda slow in ruling.

        • boatgeek says:

          This is what I get for posting from a small screen where I can’t see the whole thought.

          Trump could obviously succeed if SCOTUS takes up the case and rules for him, quickly or slowly, narrowly or broadly. Also, there’s no way that SCOTUS can /not/ take up the case. There has to be a semi-uniform set of rules for disqualifying a person from office under 14A, even if there are nuances based on state law.

      • Troutwaxer says:

        As much as I hate to say it, the fair thing to do would be to rule that Trump has to be convicted in court of at least one crime out of a specific list of crimes which might relate to insurrection, (or be successfully impeached for similar.) Also rule that there is no presidential immunity, of course.

        • boatgeek says:

          Requiring a criminal conviction on a short list of federal crimes would be the simplest and cleanest way for SCOTUS to approach this.

          They could plausibly also allow for a civil action with evidentiary standards similar to criminal cases and a requirement of proof beyond a reasonable doubt, but I’m not sure if that would really add value. Likewise, they could allow conviction no state level crimes, but that might well be loosening the leash too far, allowing too much politicized action.

          • FrankTim says:

            The People – that is the Department of Justice as a stand in for the public writ large – does not have a right to a speedy trial. The Sixth Amendment is meant to protect the defendants from being held in pre-trial detention indefinitely, not to force them into a trial before their defense is ready.

            • SteveBev says:

              Nope

              Speedy trial is about prompt and orderly resolution of the matter- for the defendant, to avoid having the matter hanging over their head for an undue length of time, and IF they are in custody to avoid prolonged pre-trial detention, which is an incurable injustice should they be acquitted.
              The government as a party has an interest in prompt resolution, because their case may be damaged by delay (witness testimony becoming less reliable or persuasive due to passage of time, witnesses become unavailable due to death disillusionment, or other exigencies) The back up of cases causes problems of case management and efficient use of resources.
              The public at large has an interest in the efficient and effective administration of justice.

                • SteveBev says:

                  Oh I am sure you’re better placed to add subtract correct or amend in whatever tone best pleases you.

                  Over to you

              • FrankTim says:

                While I do not disagree with you that the government has an interest in a speedy resolution, any potential “right” to this must be enshrined someplace other than the Sixth – the text of which only mentions the rights of the accused.

    • timbozone says:

      ” How Appellate Courts are Different from Trial Courts

      At a trial in a U.S. District Court, witnesses give testimony and a judge or jury decides who is guilty or not guilty — or who is liable or not liable. The appellate courts do not retry cases or hear new evidence. They do not hear witnesses testify. There is no jury. Appellate courts review the procedures and the decisions in the trial court to make sure that the proceedings were fair and that the proper law was applied correctly. ”

      Ref. https://www.uscourts.gov/about-federal-courts/court-role-and-structure/about-us-courts-appeals

  5. Eric Arrr says:

    I’m confused – how can Trump appeal the decision in a case to which he’s not a party? The Colorado SoS, Griswold, is the respondent. As a layperson, I sort of expected that the right of appeal would belong to the state of Colorado, and it would be on Trump to file a new suit against the state demanding to be put back on the ballot?

  6. Alan Charbonneau says:

    “After all, if Trump were found guilty, then states really could and should consider the 14th Amendment implications.” Yes… if Trump were found guilty. Until then, I’m with bmaz on this one. I’m not a legal scholar, but it doesn’t sound much like due process to me. If he’s convicted of Jan 6 crimes, then this would be more justifiable. Until then, it seems to be a precedent that could easily be abused.

    • emptywheel says:

      Yes, the problem is timing. There really is no way to get a former President to trial in 2 years, in time to DQ them before the election season.

      But this may actually be really auspicious all around. Let SCOTUS decide absolute immunity quickly–frankly, an easier question than this is. Then see what a jury says. And THEN deal with this.

    • Tech Support says:

      My thoughts are similar to yours. I’m sure there will be no shortage of analysis in other venues about the CO court’s reasoning here, and I’m looking forward to reading it.

      I have to assume here that the justices are completely sincere in their verdict and are not floating something for the purpose of lighting fires in other jurisdictions.

    • sandman8 says:

      Doesn’t a due process argumeht here put “conservatives” on the side of arguing that due process applies to a right to hold national office? Wouldn’t Thomas, for example, logically argue against substantive due process in a case like this, if logic applied? Does Colorado’s refusal to put Trump on the ballot deprive anyone of life, liberty, or property? Voters could still write in his name.

      Just thinking out loud, but if Congress can kick members out without due process, maybe Colorado can keep people off the ballot without a prior conviction for insurrection.

      • Just Some Guy says:

        Colorado only allows write-in votes for candidates who have registered, which presumably now is barred for TFG.

      • Ginevra diBenci says:

        CO voters won’t be able to write Trump in if this is un-stayed. I mean, I imagine they will, but won’t be counted.

        • bmaz says:

          If the votes are not counted in Colorado, then all the bleating about Rule of Law will be proven to have been fraudulent.

          • P’villain says:

            Two separate issues. I think the CO Supreme Court decision is grievously wrong, but it exists and was duly entered. Unless and until SCOTUS reverses it, the legal status quo (aside from the stay) is that Trump is not qualified for the ballot. Therefore, according to CO law, the legal status quo is that write-in votes for him should not be counted any more than write-in votes for Mickey Mouse.

            This is all wool-gathering, though. I don’t think it will take long for SCOTUS to reverse this.

    • Footymann says:

      Yes, by all means, let us continue to abide in good faith as the rule of law was written to be. Right up until the time that Trump is re-elected and throws them all away. At least then we can take comfort in the fact that we acted in good faith and followed the rules to the very end.

      The very real danger of another Trump presidency outweighs our good faith arguments. We all saw what Trump did and did not do on January 6th. He is guilty of insurrection, trial or not. He repeatedly tells us what he will do if re-elected, and he continues to abuse our rule of law to achieve his dream of dictatorship.

      • dar_5678 says:

        “We do things wrong to prevent other people from doing things wrong” is not a great argument.

        It devolves to “we are better people than they are”, which sounds great but usually isn’t true, and never stays true for long.

        • SteveBev says:

          Entirely agree

          Footyman’s argument is at base a rehash of Trump’s populist appeal
          “When you catch someone in fraud you’re allowed to go by very different rules”
          – meaning there are no constraints except loyalty to me and the cause I espouse and your unfettered desire for retribution.

          The hallmark of democracy is adherence to the rule of law. Abandonment of the commitment to the rule of law is to abandon democracy.

          Democracies are entitled to adopt extraordinary measures to deal with extraordinary and or existential threats. But even then such emergency processes should be subject to legality, democratic scrutiny and control, principles of necessity and proportionality.

          Bending the law all out of shape to get the bad guys, especially by ad hoc manipulation of processes, principles and persons is always a very very bad thing.

          • Ruthie2rhe says:

            I started reading Terry Kanefield’s blog after seeing her in the comments section here; she repeatedly reminds her readers that the only way to keep democracy alive is through the will of the majority, exercised through democratic means.

          • Ruthie2the says:

            I started reading Terry Kanefield’s blog after seeing her in the comments section here; she repeatedly reminds her readers that the only way to keep democracy alive is through the will of the majority, exercised through democratic means.

            • myra_bo_byra says:

              She is exactly right. The will of the majority is the key to keeping democracy (small d) alive in America. The problem is the Electoral College, which enshrines the will of the states, not the will of the majority. Trump won election in 2016 without a majority or a plurality, via the Electoral College. If he wins again in 2024, it will likely be via the same outcome. I understand the issues for rural areas and small states if the Electoral College were somehow to be eliminated. But the problem remains: the Electoral College system is enabling minority rule. If this keeps up, it is not sustainable, and the likely backlash will be terrible for the future of our democracy and rule of law.

            • SteveBev says:

              The core of your argument appeared to be

              “The very real danger of another Trump presidency outweighs our good faith arguments.”

              Which I took to mean that the danger is so great that any means necessary to avoid it are justified.

              I apologise if I have misinterpreted your post, but in my defense, I wasn’t alone.

              FWIW I still don’t see how the clarification relates to the original post except tangentially

              • Robot-seventeen says:

                Ok. I’ll give it a try. How about no further action is required for a court to make a dispositive decision on the merits of the argument and grant relief? A trial or further legislative action isn’t required by the court or the parties initiating the action.

                • bmaz says:

                  How about all due process is required to strip a qualified, constitutionally, citizen of rights? How about that?

                  • Robot-seventeen says:

                    They did. That’s what the hearing, judge and appeal process is. You’re saying the plaintiff is responsible for showing a criminal conviction and I’m saying the amendment does not require it. Nor should it. Establish that as a bar and a host of “self-executing” provisions of law can be thrown into the dumpster.

                  • OldTulsaDude says:

                    Question: did confederate soldiers lose citizenship rights and that is why no conviction was necessary for 14th to be applied to them?

                    • Robot-seventeen says:

                      Not that I’m aware of. Confererate soldiers were citizens of another country at least until they were pardoned (methinks).

                    • timbozone says:

                      The provision doesn’t deprive someone of citizenship. Here’s the text of the 14th Amendment, Clause 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.”

                    • nord dakota says:

                      I don’t know how others have analyzed it all, but a recent New Yorker article re: Jefferson Davis, amendments that were considered and never happened, proceedings that were attempted but never happened, was dismaying to me.
                      And yet reading it brought home the fact that there is NO good outcome in the end for what Trump and his minions did.

    • PJB2point0 says:

      I guess I am mostly with you that the matter is far stronger after a 1/6 case conviction, if that happens. But, a majority of the Senate did vote to convict, which isn’t nothing. I know it is not to a criminal (beyond reasonable doubt) standard of proof (or any standard really) and is a political not judicial proceeding, but if we are worrying about a precedent that can easily abused, it does seem like there’s some barrier to that.

    • jsrtheta says:

      This is not a criminal case. “Due process” has limited application. There is no constitutional right to run for, let alone be, president.

      • bmaz says:

        Yes, there is such a right. For you to say there is not means you really do not know the Constitution at all.

        • OldTulsaDude says:

          I don’t understand the distinction you make. Why isn’t this an eligibility issue: you must be at least 35, you must be a citizen, you must not be an insurrectionist? Thanks.

          • timbozone says:

            States perform eligibility tests for appearing on their ballots all the time.

            The test in the 14th Amendment is just severe for insurrectionists, and only politically so, there being no fine or punishment beyond being able to serve in political office. The Amendment strongly implies that states should enforce it at the state level as it mentions officers and elected representatives in states as also being subject to the prohibition on serving if an insurrectionist. Further, the amendment appears to short circuit the ability of the President from summarily pardoning away the political prohibition on political office for any insurrectionists, leaving the waiver up to super-majorities in both houses of Congress for insurrectionists seeking relief of the prohibition.

            We live in interesting times indeed if an insurrectionist can appear on Presidential ballots when the 14th Amendment states clearly that insurrectionists cannot hold the office for which they might be selected by the Electoral College.

            • nord dakota says:

              That’s another thing. We don’t elect presidents, we elect electoral college delegates (or whatever term if delegates is not correct). So how does that all pan out? Who’s picking the delegates?

            • SteveinMA says:

              So as you suggested, I did read the Constitution, though may have missed something. As far as I can tell there is no SPECIFIC mention of one’s right to run for president, so I am thinking (again, possibly incorrectly) that you see an inferred right to run. In either case, could you quote the section in the Constitution that supports your view?

              • SteveinMA says:

                Or maybe it’s just the lack of due process by the CO SC in denying an otherwise eligible individual from running for President?

    • thequickbrownfox says:

      In 1892 five states refused to put Grover Cleveland’s name on the ballot. My home state was one of them. No need for the 14th amendment when there is precedence for states doing whatever they want.

      For the record, Cleveland was elected party nominee on the first ballot at the Democratic National Convention. No Democrat was on the presidential Ballot in Kansas in 1892.

      https://en.wikipedia.org/wiki/1892_United_States_presidential_election_in_Kansas

  7. Ebenezer Scrooge says:

    It’s a 4-3 decision. Much of the dissent focused on the scope of Colorado’s election law, which seems outside the Supreme Court’s remit, except to the extent it raises a Due Process problem. This is not an easy case.

    • Bill Crowder says:

      Intoning Rule of Law does not address the underlying political problem. The Colorado Supreme Court’s decision is measured and legally cogent. It falls well within what we broadly call Rule of Law.

      It also can lead to chaos.

      • timbozone says:

        Well, if you think about it too long, all the hard work of the past 250 years has brought us to this point?

  8. Tsawyer8 says:

    A bipartisan committe of congress held hearings for weeks and found sufficient evidence that DJT did participate in an insurrection or at minimum, gave aid and comfort to insurrectionists.
    Why was that not sufficient under thez14th Amendment?

    • likeagodcow says:

      I think because the hearings were to try to put out there what happened, but no one had any authority to end the proceedings by saying, “And therefore, he can’t run again” (not the same but similar to how the fact that Trump’s impeachments didn’t result in his conviction has nothing to do with any double jeopardy from criminal charges). From what I can tell, the main argument against these individual state actions is that instead, Congress needs to determine legislatively that a person is formally disqualified–which in theory they might do/have done based on the evidence from the hearings–and then what they say is the law of the land, but that was never going to happen from those hearings.

      • Gerard Plourde says:

        Congress doesn’t need to determine a person’s disqualification in this. The language of Paragraph 3 clearly states that a person who has engaged in insurrection is barred absent a supermajority vote by Congress to remove the disqualification.

        Further, while a criminal conviction for sedition would be absolutely dispositive, the District Court, making a factual analysis of admissible evidence rendered a judgment by clear and convincing evidence that not only was Jan 6 an insurrection, but that statements made by Trump throughout the election cycle evidenced his intent to refuse to allow a peaceful transition in the event he lost and that his statements following the election show his intent to manipulate or, in the most extreme case, to thwart the certification process.

        Those findings should be sufficient to support disqualification from office in accordance with Paragraph 3.

        • bmaz says:

          What a load of crap. This was not, and still is not, a “District Court” it is a local state court, now idiotically supported by…..wait for it….another state court. In a single state.

          • Troutwaxer says:

            I’m not sure I’d use the word ‘idiotic.’ The Colorado state courts had to rule on the question put before them, even if only to dismiss it, based on the evidence – and there’s plenty of evidence that Trump led an insurrection. But what good does dismissing this case do? That’s appealable too. So instead they tried the case, knowing it would be appealed, and let the Supremes make a ruling, which IMHO needed to happen anyway.

            It’s not so much idiocy as bowing to the inevitability of a particular kind of process. The idiots were the people who framed the Fourteenth amendment in such an unclear fashion. “Should be convicted of crimes involving insurrection in a State or Federal Court or before Congress” isn’t terribly difficult.

            • bmaz says:

              Naw, I will stick with idiotic. And, yes, dismissal would be far preferable. It is not just that something can be appealed, but what posture it is being appealed from.

              • timbozone says:

                I’m wondering if the Supreme Court is going to look at whether the Congress already did look at this in the case of Trump…and did not convict him in either of two impeachment trials. Seems like that’s not the same thing though as 2/3rds of the Congress agreeing that he should be eligible to be President again. Basically, it gets back into the hairsplitting of the record at the time the 14th Amendment was drafted/ratified, plus whatever chewing gum and pixie dust is available.

          • Gerard Plourde says:

            I wasn’t mistaken in my nomenclature. In Colorado, the state trial courts are called District Courts. (Fun fact – in my state of Pennsylvania and our western neighbor, Ohio, the trial courts are called Courts of Common Pleas, a wonderful medieval name that even the British have discarded.)

  9. David F. Snyder says:

    OT: The OIG released their report of NPS/Interior actions re J6.
    https. ://www .doioig.gov/ reports/special-review/review-us-department-interiors-actions-related-january-6-2021

    • Tim Benson says:

      Would a “man from China” be racist? The Chinese philosopher Sun Tzu wrote “The Art of War” 2,500 years ago. Is “Englishman” racist? I don’t KNOW. Sun Tzu was from China and a man. A term like “gook” is definitely racist. Is “Frenchman” racist?

      • freebird says:

        Observe some known bigots and see how they use the word. Ask some Chinese acquaintances and they will tell you.

  10. KittyRehn says:

    IANAL, but I am curious about the opinions of those who are. Bmaz (and others), do y’all think this ruling provides substance to the legal arguments favoring this use of the 14th amendment, or is this ruling just a bunch of hot air and ink (aside from the pressures it puts on SCOTUS to act quickly w/ regard to other cases)? I ask primarily because I have found the vigorous, if not sometimes heated, debate on the subject to be both compelling and informative, given that I am no legal expert or scholar (yet! Maybe one day.)

  11. NaMaErA says:

    Womp womp turns out when you try to overthrow a government (1) people notice and (2) consequences are dealt.

    Good riddance to a disgraceful candidate|human.

    • punaise says:

      If only it were that direct and simple… Even it does stick (and this layperson assumes it won’t) this backdoor way of getting rid of Trump politically is fraught with future unintended consequences, I fear.

      • NaMaErA says:

        @punaise I agree it likely won’t stick, but I remain convinced it’s incredibly important to test in — every possible jurisdiction & context — our ability to prevent TFG from running again, winning again, trying again to destroy our system of government, etc. NOT trying would be a travesty and obviously just encourage him & his sycophantic followers to try again.

        • punaise says:

          I get that, and I don’t disagree. Just conjuring up images of MAGA rioters / civil war – not kidding. (Is that too defeatist?).

          Plus the likelihood of having the tables turned in the future against “good” people/candidates.

          Sorry for the shortcuts in my comment – still at work!

          • Dedalus says:

            Far better to have disorder without him at the levers of power, no?

            [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. “Dedalus” is not your first username; you published a comment as “Carbon Bender” in 2018. You might consider returning to that since it’s compliant with the new 8-letter minimum. Thanks. /~Rayne]

            • punaise says:

              Trump back in power would be calamitous, agreed. Ranked possible outcomes, from worst to least bad? (other taxonomies are welcomed):

              1. Trump regains power through illegitimate means – democracy and the rule of law are dead. .
              2. Trump is legitimately re-elected – shudder! – democracy dies eventually because fascism..
              3. Biden is re-elected in legitimate but contested (of course!) circumstances. Democracy hangs by a thread.

              4. Biden is re-elected and everything is peachy-keen. Democracy is reinforced, we’re back from the brink. Trump accepts defeat and MAGA crawls back under their rocks.

              4. ain’t gonna happen. so are there any of the other scenarios where all hell doesn’t break loose?

              • Molly Pitcher says:

                Well aren’t you just Mary Sunshine today ! The rain must be getting to you punaise.

                Unfortunately I think you are right.

              • JACKZ_SR says:

                5. Biden is re-elected decisively – e.g. 55% of popular vote – and Democrats hold the Senate and win the House. This is enough to change the calculus of most “mainstream” republicans. They realize they will never regain power w/o abandoning MAGA/FASCism. What they do next (new party?) I don’t know.

                [Welcome back to emptywheel. Please use the same username and email address each time you comment so that community members get to know you. You commented last as “JackZ in SR.” Please pick a name and stick with it. Thanks. /~Rayne]

                • punaise says:

                  I don’t have the figures handy, but I read somewhere that Biden would have to get something like 52 – 54% (?) of the vote just to overcome the built-in small state bias of the Electoral College.

                  • Just Some Guy says:

                    That figure may not be correct as Biden won in 2020 with 51.3% of the popular vote, but hey, close enough!

      • SteveBev says:

        To the best of my recollection I have seldom if ever berated anyone’s post as an idiotic load of crap. And in particular not re 14 A s3 litigation.

        FWIW my thoughts on the litigation is that 14 A s3 exists and is there to be enforced. The mechanisms (plural) for doing so are obscure. Given the range of State and Federal officials and representatives involved there’s clearly a role for State Courts and legal processes to adjudicate.

        And with regard to elections to Congress and the Presidency, as Rayne points out, the responsibility for the processes are governed by States laws, albeit there are also federal interests and components in the processes

        Historical practice has shown a multiplicity of mechanisms were used to adjudicate the issues 14 A s3 throws up in individual cases.

        What present day legal processes are appropriate to determine such questions are obscure; thus it is unsurprising that novel/creative arguments are proposed to Courts. Each of these is IMHO merely an attempted entry point into the judicial process, with a view to SCOTUS ultimately weighing in on the scope of 14 A s 3, and the constitutionality of procedures for it’s enforcement.

        I am not attracted to the argument that prosecution and conviction for 18 USC 2353 insurrection is necessary or sufficient- it automatically bars anyone convicted from office, whereas of course 14 A s 3 is directed towards barring oath breaking officers who were rebels etc from office.

        It is not unreasonable IMHO, to require the highest standards of due process for determining participation etc in insurrection etc. Indeed the process should be scrupulous.

        Should Trump be convicted in DC of the crimes with which he is charged, which IMHO clearly encompass conduct within the contemplation of 14 A s3, then it should be a straightforward matter to open a civil process and plead the conviction as evidence.

        But that is not to say it is the only way to adjudicate whether he is to be made subject to the bar. What constitutes an adequate process short of one contingent on criminal conviction is precisely what is being debated and litigated.

        • Rwood0808 says:

          14A s3 reads “engaged in” not “convicted of” insurrection.

          I fail to see why he must be first convicted by Smith in order for Colorado to take action and barr him from the ballot.

          • SteveBev says:

            There has to be some adjudication by some body on the questions whether the conduct alleged occurred and indeed breached the proscription contained in 14As3.

            One such way of adjudicating such issues is by conviction of cognate offences in criminal proceedings. Such a conviction could be pleaded in civil proceedings dealing with the issue of the civil penalty of barring from office.

            I have not asserted that 14A s3 requires a conviction, nor that its terms mandate such proceedings as a condition precedent.

            However, modern understanding of what constitutes due process would require IMHO a very high standard of proof for accusations of such egregious conduct, and concomitantly exacting trial procedures and examination of the evidence.

            It seems you failed to read the last paragraph of my last post either properly or at all, so I have taken the liberty of elaborating upon it.

          • nord dakota says:

            Congress is not a judicial body except in regards to impeachment.

            My model for that is local city govt. They used to have a board which would issue fines for code violations (usually “nuisances”) and transfer them to county tax dept as special assessments. After many years, someone took it to the state courts and state supreme court said they could not do that as they were not a judicial body. So now they prosecute in city court. Although they can still have unpaid abatement costs (not fines) transferred as special assessments (which can lead to tax foreclosure) and do not require city court for that.

        • c-i-v-i-l says:

          The point of the original post was that several people were disqualified under 14 A s3 — many shortly after the Civil War — and if you look at the “Mechanism of disqualification” and “Convicted of a crime?” columns in the table in the linked discussion, the disqualifications mostly didn’t involve “the highest standards of due process” or convictions. I’m guessing that the authors of the Amendment’s text would have spoken out if they believed that the wrong standards were used at the time. And as Rwood0808 noted, “14A s3 reads “engaged in” not “convicted of” insurrection.” But, IANAL and no doubt there are things I haven’t considered. Would you say more about “It is not unreasonable IMHO, to require the highest standards of due process for determining participation etc in insurrection etc.”?

          • SteveBev says:

            Are you really really saying that the procedures to be adopted in determining present day applications of the 14 A s3 are those which obtained in the Reconstruction Era?

            Rules of Criminal and Civil Procedure, and Rules of evidence have considerably advanced and evolved since that time.

            The text is utterly silent as to procedures and mechanisms for enforcement, so surmising what the Framers intended would happen then or 150 years later is a fool’s errand.

            The historical practice could only be a guide, not least because some of the procedures are now obsolete and superseded.

            The distinction between “convicted” and “engaged” in is implicit in everything I wrote, and in subsequent reply to Rwood0808.

            The thrust of 14A s3 is that oath breakers who engaged in egregious conduct against the Constitution and Sovereignty of the US should pay a heavy civil penalty that could only be removed by a 2/3 majority vote. Clearly a matter of the utmost seriousness.

            It is rightly a matter for SCOTUS to determine what the constitution now requires as a matter of procedure to adjudicate matters of such weight today.

            • c-i-v-i-l says:

              First, thank you for saying more, and I agree that it’s good for SCOTUS to take this up.

              No, I’m not saying that the Reconstruction Era procedures should be adopted today. I’m still at a learning/figuring out what I think stage, not an “I think the procedures should be XYZ” stage. Part of the stage I’m at is learning what occurred historically and also how “Rules of Criminal and Civil Procedure, and Rules of evidence have considerably advanced and evolved since that time.”

              I disagree that “surmising what the Framers intended would happen then … is a fool’s errand.” Seems to me that historians often engage in this kind of work. Also, several Justices claim to be originalists, so in theory that’s what they’re going to try to do, and thinking about this issue will put me in a better position to think through their eventual opinion(s).

              • SteveBev says:

                Many of the Reconstruction era proceedings were writs of quo warranto.

                ie ousting from office a person who has obtained the position

                2 problems
                1 how far has the prerogative writ of quo warranto survived
                2 surely the text of 14 A s3 contemplates not simply removing persons from office that they are disabled from holding, but preventing them from entering any such office beforehand.

                • Rwood0808 says:

                  The only prior example of 14A related to Jan 6 is when Coey Griffin, a New Mexico county commissioner, was removed from office by a judge.

                  The judge did so WITHOUT a jury finding Griffin guilty of “engaging in insurrection” prior to his ruling. Griffin was charged with misdemeanor trespassing only and received a sentence of 14 days in jail and a $3,000 fine.

                  Despite Griffin not being charged with insurrection the judge removed him based on 14A. There was no appeal.

                  Why does/should 14A apply differently to trump?

                  • Rwood0808 says:

                    Correction: That should say there was no SUCCESSFUL appeal. Griffin appealed twice and was shot down both times by the New Mexico Supreme Court.

                    I would think this would only strengthen the Colorado case.

                    • bmaz says:

                      It has nothing to do with Colorado. Please refrain from trying too make readers of this blog dumber by your comments.

                  • Rwood0808 says:

                    Correction: That should say there was no SUCCESSFUL appeal.

                    Griffin appealed twice and was shot down both times by the New Mexico Supreme Court.

            • jsrtheta says:

              This is not a criminal case. Nor does it involve a deprivation of rights.

              Thus, of the two types of due process recognized, substantive and procedural, I have grave doubts either applies.

  12. Fiendish Thingy says:

    Lt. Gov of TX is already threatening to disqualify Biden if the Colorado ruling is allowed to stand.

    • John Paul Jones says:

      The 14th is very specific about what counts to disqualify: violating your oath, engaging in insurrection, etc.. In what universe does Biden qualify for any of those? Abbott is just blowing smoke.

      • Spencer Dawkins says:

        Actually, the Lt. Gov in Texas is Dan Patrick (oddly, Abbott gets a lot more press than Patrick, but Patrick’s position has more political power, go figure). But politically, Dan Patrick is close enough to Greg Abbott for our purposes.

        I would agree if we weren’t talking about Republicans in Texas, but we are. Google “Ken Paxton Kate Cox” for the kind of insanity that passes for due process in Texas – Patrick is just as partisan and extreme as Paxton. 🤬

        • P J Evans says:

          Craddick and his mid-session redistricting, back around 2005. (The former speaker, Pete Laney, was my rep when I lived in TX.)

        • tje.esq@23 says:

          Patrick is not an attorney. Paxton is, and must follow rules of professional responsibility for attorneys. BIG, meaningful difference for our discussion here.

          Abbott is also an attorney and former attorney general (served 12 yrs in that post) who took office as AG after Texas AG John Cornin was elected to the US Senate.

          If you watched Paxton’s impeachment trial, it was easy to conclude Lt. Gov. Dan Patrick, presider, looked “attorney-like,” but he had a former Tx judge sitting right next to him, providing prompt legal guidance.

      • Ithaqua0 says:

        In the universe inhabited by Texas Republicans, who are among the looniest, I’m afraid. Of course, it won’t pass muster at the Supreme Court, but…

    • 2Cats2Furious says:

      Source, please?

      It’s not that I doubt you, because Dan Patrick is awful, but my trusted news sources didn’t turn up any results. I’d like to see on what basis he thinks Joe Biden could be disqualified.

    • newtondoors says:

      A Chinese General some 2000 years ago wrote a book about war that includes the quote. How could he have been an Asian – American?

      Plus the site software spit up the Chinaman after I first typed it with a lowercase “c.” You can all kiss my ass.

      [Moderator’s note: Doubling down on racist language is no more acceptable than the first use. You’re done here. Comments encouraging this overt racist behavior will meet the trash bin. /~Rayne]

      • NerdyCanuck says:

        Well, simply saying “a Chinese general some 2000 years ago (can’t remember his name)” would have portrayed the same exact meaning (if not an even clearer one) with regards to the source of the quote, without the need for the racist/sexist terminology.

      • Ithaqua0 says:

        Lao Tzu, the (possibly mythical) author of the Tao Te Ching and founder of Taoism, from which the quote is drawn, actually. Believed to be 6th century BC.

      • Baltimark says:

        “The site software” did NOT offer that suggestion. Your prior use of that term in your browser seeded that autocomplete option.

        “If you know neither the enemy nor yourself, you will succumb in every battle.”
        — Sun Tzu

      • freebird says:

        At one time the use of that term might have been innocuous. Certain people used that word to denigrate the Chinese so now the word is a pejorative. Using pejoratives vitiates your argument even if it is otherwise valid.

  13. Carl Weinschenk says:

    This may be the Republican Party’s convenient way of ridding itself of this troublesome asshole, as somebody sort of said on MSNBC.

    • Rwood0808 says:

      Was thinking much the same thing. This could be the “out” they’ve been looking for. It removes trump while placing the blame on the Constitution and thus making it harder for the MAGAts to use it as a rallying cry.

      I imagine the Haley and DeSantis staffers are watching closely and already have contingency plans in place to leverage the outcome.

  14. pdaly says:

    I understand that using the 14th amendment to disqualify a candidate from holding office could be a potential slippery slope of unintended consequences if there are no legal processes in place to defend against such a charge.

    In this instance, however, Trump had an evidentiary hearing in the CO district court, and it appears he did not challenge the majority of the evidence. The CO Supreme Court writes in summary (starting on page 115 of the opinion):

    “¶221 We conclude that the foregoing evidence, the great bulk of which was undisputed at trial, established that President Trump engaged in insurrection. President Trump’s direct and express efforts, over several months, exhorting his supporters to march to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this country were indisputably overt and voluntary. Moreover, the evidence amply showed that President Trump undertook all these actions to aid and further a common unlawful purpose that he himself conceived and set in motion: prevent Congress from certifying the 2020 presidential election and stop the peaceful transfer of power.”

    They go on to address Trump’s claim that the court evidence fails to show he engaged in an insurrection:

    “¶222 We disagree with President Trump’s contentions that the record does not support a finding that he engaged in an insurrection because (1) “engage” does not include “incite,” and (2) he did not have the requisite intent to aid or further the insurrectionists’ common unlawful purpose.

    ¶223 As our detailed recitation of the evidence shows, President Trump did not merely incite the insurrection. Even when the siege on the Capitol was fully
    underway, he continued to support it by repeatedly demanding that Vice President Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes. These actions constituted overt, voluntary, and direct participation in the insurrection.

    ¶224 Moreover, the record amply demonstrates that President Trump fully intended to—and did—aid or further the insurrectionists’ common unlawful purpose of preventing the peaceful transfer of power in this country. He exhorted them to fight to prevent the certification of the 2020 presidential election. He personally took action to try to stop the certification. And for many hours, he and his supporters succeeded in halting that process.

    ¶225 For these reasons, we conclude that the record fully supports the district court’s finding that President Trump engaged in insurrection within the meaning of Section Three.”

    • phred says:

      Thanks for this pdaly. My understanding is that there was due process in Colorado where the trial judge concluded there was sufficient evidence that Trump engaged in insurrection.

      Jack Smith is not the only pathway to adjudicated due process.

      • bmaz says:

        Colorado should have its star removed from the American flag. This decision is such horseshit it is beyond belief.

        • Yargelsnogger says:

          I don’t know why you are so vituperatively opposed to defending our constitutional order against those who would undermine it.

          >The language of the 14th amendment is broad, it includes those who “given aid or comfort”.
          >It has been used in the past without requiring a criminal conviction.
          >It denies no one of life liberty or property if applied to them.
          >As the OP pointed out an evidentiary hearing was held and the judgement was based upon fact.

          Not everything needs to be adjudicated by a jury using the standards of a criminal trial. You should consider the possibility that the “idiots” here are not the people who drafted the 14th amendment, and just lived through an experience where our constitutional order was threatened.

          Before the state gets to imprison someone the burden of proof should be high and favor the defendant. But why wouldn’t we want to err on the side of caution in these cases and allow other forms of adjudication or a preponderance of the evidence standard (acknowledging that the issue probably should be clarified somewhat).

          Perhaps we need to be a little more vigorous in our defense of our system of government against those who would undermine it. Not allowing people to serve who have acted as Trump has or said the things he has about not respecting the results of an election that he loses seems like a very smart provision.

        • P J Evans says:

          AZ should, then, because of its electoral shenanigans in 2020.
          Be careful what you wish for; others may not see you as an authority.

          • bmaz says:

            Thanks. But what a load of crap. I have already talked to the germane authorities here. Have they pulled the ignorant bullshit of Colorado yet? No.

        • Kelly Canfield says:

          You needn’t ban me, as this will be my last post here ever.

          You sicken me with that comment. What a vituperative and bitter empty husk.

          • bmaz says:

            I would never ban you. But, hey, thanks for, after all these years, calling me “a vituperative and bitter empty husk”. Merry Christmas to you too Kelly. Fuck Colorado, making AZ and TX look better every day.

        • timbozone says:

          So it’s “not worth your time” rebutting specific passages in the Colorado Supreme Court’s decision…

  15. pdaly says:

    Noticed Justice Samour, dissenting about the self-executing argument of section 3 of the 14th amendment, paraphrases The Princess Bride in a footnote:
    “Much like Inigo Montoya advised Vizzini, “I do not think [self-executing] means what [my colleagues in the majority] think it means.” The Princess Bride (20th Century Fox 1987) (“You keep using that word [inconceivable]. I do not think it means what you think it means.”).”

    • P’villain says:

      Amusing footnote aside, Justice Samour’s dissent is right on; the CJ’s dissent is also strongly reasoned. I think they will carry weight at SCOTUS.

    • nord dakota says:

      When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less. ‘ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.

      Which will prevail?

    • Ithaqua0 says:

      I was so annoyed with the original post I more-or-less duplicated yours, as I was too annoyed to read all the responses (meaning yours of course.) My apologies.

  16. bloopie2 says:

    I read recently a book about the 2016 Fort McMurray wildfire, among the worst in Canadian history, which grew astonishingly quickly to a size requiring the immediate and total evacuation of an entire city. The difficulty that the book focused on was that nobody there could conceive that the fire might grow so powerful, so quickly; and, as a result, there was a potentially deadly delay in responding to the threat.

    The author analogized to “The Lucretius Problem”: Two thousand years ago, apparently, Lucretius wrote about the difficulty that humans have in imagining things outside their own experience; as an example, one would believe that the tallest mountain in the world will be equal to the tallest mountain that one has observed. In general, we assume that the worst-case event that has happened is the worst-case event that can happen; and we plan for that event, failing to understand that the worst-case event that happened in the past, itself surpassed another worst-case event that came before it.

    Some may be figuring that Trump is a worst-case scenario, and that therefore it is acceptable to take otherwise inconceivable actions against him, because we won’t really be setting a precedent — it’s not going to happen again. But Lucretius would remind us, “Yes, this hasn’t happened before; but do you really have good reason to think that it won’t happen again? What are you setting up for the future?”

  17. JAFO_NAL says:

    “But it really does put the onus on SCOTUS to decide a lot of these issues quickly.”

    So the possibilities are :(?)
    – SCOTUS sides with CO and Trump is off the ballot in all states.
    – SCOTUS rules against CO and Trump is allowed on the ballot in all states.
    – the case is thrown out because SCOTUS rules there needs to be a conviction for insurrection.
    – the case is thrown out after Trump is ruled to have immunity.

    • BriceFNC says:

      One further scenario, case not accepted by SC given fact that legislative solution built into 14:3 has not been implemented! Read last line of 14:3 carefully Seems the writers and adopters wanted legislative over ride provision…not a court ruling for over turning! Those who wrote Amendment set.bar very high to overturn. We all know two thirds votes in each house will be tough to reach but that is the bar set at adoption of 14:3!

      Issue “not ripe!”

    • emptywheel says:

      It won’t throw him off the ballot in all states. All states have different rules about how someone gets on the ballot.

      I really don’t think Trump will be ruled to have immunity. But if he is, Biden can just cancel the election bc he’ll be immune too.

      • Dedalus says:

        Are we sure about this, if the issue is decided on the basis of the 14th amendment, and not state election law?

        From my recollection of Con Law, if there are contrary interpretations of the 14th amendment among the states, the USSC definitively decides the Constitutional issue for all 50 states.

  18. David F. Snyder says:

    OT again: Biasberg put Scott Perry’s 1600+ text messages are back in play. A fun read: https:// www .dcd.uscourts.gov/sites/dcd/files/22-sc-2144%20-%20Opinion.pdf

  19. Ewan Woodsend says:

    in terms of unintended consequences, does this give legs to the double jeopardy argument ? By this I mean is it conceivable that his lawyers argue that his impeachment trial has been considered to be due process enough for it to have real important legal consequences in Colorado thus blah blah?

  20. tje.esq@23 says:

    Why do I feel this impending doom we’re facing a repeat of the 2022 Florida case where DeSantis removes a West Fla prosecutor, a federal judge agrees this was unlawful, but rules he may not lawfully reinstate the prosecutor, because says there is no {positive?} law in Fla that allows a judge to reinstate an improperly ejected public official from a lawfully elected position. In other words, too bad plaintiff-former-prosecutor! DeSantis wins after all! He’s allowed to disenfranchise your W.Fla voters for 3 more years in his quest to show whose King! (the modern Marbury v. Madison head spin)

    Perhaps because I lived through “we will not permit Florida counties of Volusia and Lauderdale to continue their ballot recounts, even if they can finish by Jan 6…..(because Gore might pull ahead). The uncertainty of this means we must stop and make it certain that Bush won” in 2000?

    Volusia, my home county, that I later traded for Shelby County, Ala. Ugh! I guess I was meant to be an election / voting rights lawyer?

    I feel dizzy and sick. Someone talk me down from here…

  21. lastoneawake says:

    Eugene Debs ran for president—while serving time in jail for violating the Espionage Act. He was not disqualified from running.

    So tell me again how the only proper way to disqualify Trump is to wait until he’s convicted of something?

    Because there is a clear precedent for letting a convicted, jailed felon run for president.

    Maybe dealing with new issues caused by this recent decision is preferable to going for the slam dunk—then watching as Trump 2.0 plays out, cuz you missed.

    Maybe we can add new, clearly stated qualifications for future situations, with a new congress that still accepts the rule of law.

    We certainly won’t be able to, if his crime organization masquerading as a party is voted into office.

    • dar_5678 says:

      A conviction is not inherently disqualifying. It depends on what you’re convicted of.

      And a conviction may not even be necessary, you just need to be found to have “engaged in” specific bad things, or “given aid or comfort to” specific people.

      14th Amendment, Section 3 (excerpted for clarity):

      No person shall … hold any office … 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. But Congress may, by a vote of two-thirds of each House, remove such disability.

      https://constitution.congress.gov/constitution/amendment-14/
      https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution

      (Hoping my assumptions about permissible HTML are correct, above.)

      • dar_5678 says:

        (self-reply)

        Clearly, espionage is not “insurrection or rebellion” — but also clearly, “aid or comfort”, and “enemies” are pretty squishy.

        But more importantly, my previous comment uses the phrases “found to have” and “specific”, which are more than the text says.

        This is the core of the issue I think. Someone has to decide. and it ain’t me or the blog commentariat.

        Colorado thinks they are qualified to advance the argument, but even they explicitly refer up to SCOTUS for correction, if it is to be forthcoming.

        We all wait.

      • FinbarLoftus says:

        Does “the same” in the 14th amendment’s “to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same” refer to the Constitution or to the United States? If the former, are there any significant implications? And is it possible to be convicted of a crime of insurrection or rebellion against the Constitution?

        • Rayne says:

          If an insurrectionist seeks to undermine execution of functions outlined in the Constitution, violating their own oath which is also outlined in the Constitution

          Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” (Article II, Sec. 1)

          it looks like a crime against the Constitution to me.

            • Rayne says:

              LMAO dude, it’s insurrection and rebellion which you’ll note were anticipated by the founders in the Constitution having been mentioned multiple times. You know how I feel about the T word when no enemy has been declared and there is no kinetic warfare.

              Loosen up the bone, Wilma, it’s a bit early for this. I’m still mopping up in Aisle 5.

        • SteveBev says:

          I should like to offer a further thought on the meaning of “against the same”

          The quote as discussed by Finbarloftus is IMHO incomplete because the next clause illuminates the meaning of the clause quoted

          “No person shall be … [X position] …who, having previously taken an oath, as …[Y position]…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.”

          The “same” and “thereof” each refer to the identical object.

          “Enemies” had and has a legal meaning in accordance with the Laws of War – meaning Nations and their citizens (or Groups and their adherents) in armed conflict against the Power and Authority of a Sovereign Nation State.

          So on such a reading “insurrection or rebellion against the same” and “enemies thereof” both mean against the Sovereign Power and Authority of the United States.

          • SteveBev says:

            None of which is to say that
            1 criminal conspiracy to thwart the constitutionally mandated process for the orderly transfer of governmental power,
            2 which conspiracy embraced and exploited the unlawful use of force to that end,
            3 is anything other than an insurrection within the meaning of 14th Amendment s 3

      • Fly by Night says:

        “And a conviction may not even be necessary, you just need to be found to have “engaged in” specific bad things, or “given aid or comfort to” specific people.”

        This. The 14th Amendment, passed in 1868, was designed to keep former Confederates out of office. A quick review of the history books reveals that not a single Confederate statesman or General was ever convicted of anything related to their wartime activities.

        The Supreme Court judges seem to hearken back to “what the framers intended”. Well, the framers of this amendment intended for insurrectionist activity, not convictions, to be the driving force. Both Colorado courts, despite their differing verdicts, both forcefully agree on Trump’s conduct. We shall see.

          • P’villain says:

            OK, so if as Rayne says in another current thread, “ad hominems aimed at contributors/moderators/community members are not acceptable,” then why is one moderator allowed to make comments like this willy-nilly? I know I’m not the only one who’s tired of reading it, over and over and over.

    • Just Some Guy says:

      As far as I understand it, Debs was not on every state’s ballot in 1920 while incarcerated. It appears he wasn’t on the ballot in Louisiana, Montana, New Mexico, South Dakota, Vermont, and Wyoming. I’m not sure if these exclusions were due to disqualification by state election laws or other reasons, but the former is certainly possible.

      • bmaz says:

        Were there formal findings? If you don’t know and can’t cite them, there were not, you are just making things up.

      • Scott_in_MI says:

        It’s remarkably difficult to find a quick answer to that particular question. The Socialist Party was experiencing something of a breakdown around the 1920 election – both the Communist Party USA and the Communist Labor Party of America were formed in 1919 by ex-Socialist Party delegates – so it’s entirely possible that the Socialists just didn’t have a state-level presence in those particular states, but this is speculation on my part. Interested to hear from anyone with more extensive knowledge.

        • Just Some Guy says:

          Very true. Another point to consider is that Debs was on the ballot in every state when he ran in 1912 — even in Oklahoma, which excluded Teddy Roosevelt!

        • nord dakota says:

          I’ll have to see what I can learn about this, but regarding the “Other Dakota”, that was about the time when we were really rolling socialism-wise.

          • Just Some Guy says:

            Debs got 4% of the South Dakota vote in 1912! Not too shabby. I read a paper yesterday that posited that, in Oklahoma, the two major parties enacted changes over that decade to election laws that made it more difficult for smaller parties to field eligible candidates in 1920. I don’t know if that assertion is factually accurate but it seems plausible, especially since the 1912 was fairly chaotic by “normal” American standards. I own a pretty decent book on the 1912 election by James Chace (a former professor of mine) that I’ll now have to dig up.

            Interestingly enough, when Debs ran from prison in 1920, he bested his 1912 vote total by 12k votes, but received a smaller percentage of the overall vote.

  22. Dedalus says:

    If those with lifetime tenure are afraid to hold the Rotten Orange to account, we’re all in serious trouble.

    Land of the brave, right? Right?

  23. Frank Probst says:

    Apologies if I get some of this wrong, but I’m trying to pull from different sources, and I’m not 100% certain that all of them are legit:

    Deadline to file to appear on the 2024 CO GOP Presidential primary ballot: Dec 11 2023 [presumably Trump met the deadline]

    CO Supreme Court 4-3 decision disqualifying Trump from appearing on the primary ballot: Dec 19 2023 (decision stayed until Jan 4 2024)

    Deadline to qualify for the 2024 CO GOP Presidential primary ballot as a write-in candidate [I’m not sure exactly what this means, but it’ll probably come up as a discussion point]: Dec 29 2023

    End of stay of CO Supreme Court decision: 4 Jan 2024

    CO Secretary of State deadline certify the content of the presidential primary ballot: 5 Jan 2024

    CO GOP Presidential primary: Mar 5 2024

    GOP National Convention: Jul 15-18 2024 [presumably the formal nomination happens on the last day, so Jul 18 2024]

    General election: Nov 5 2024

    • c-i-v-i-l says:

      Re: “End of stay of CO Supreme Court decision: 4 Jan 2024,” not necessarily:
      “If review is sought in the Supreme Court before the stay expires on January 4, 2024, then the stay shall remain in place, and the Secretary will continue to be required to include President Trump’s name on the 2024 presidential primary ballot, until the receipt of any order or mandate from the Supreme Court.”

  24. sohelpmedog says:

    If Trump is the Republican nominee and loses the election because he has been excluded from the ballot in certain states, as much as his loss is devoutly to be wished for, the consequences of such an election are likely to be far worse than what happened on January 6. In addition to the crazies, it is likely that even if the Colorado decision is legally correct, there is a good chance that it will seem unfair to a large part of the electorate.

    • earlofhuntingdon says:

      It doesn’t matter why Trump loses. If he does, his supporters and patrons will react the same way. Only their attempted excuses will be different.

      • Rwood0808 says:

        Exactly.

        In groups such as this, you have a militant arm eager to take action and secondary groups that will support group one logistically (money) and/or vocally (propaganda).

        Most of group one are in jail already, and those who had thoughts of joining them see that and are reevaluating their commitment. I don’t see the “civil war” they are calling for happening but isolated acts of violence by a few small groups could and probably will occur. The outcome of that is preordained.

        When your enemy is revealing themselves it’s best to let them.

        Let them come.

          • Nessnessess says:

            I know what you mean. But rather than incoherent, I see it as impressionistic. And as I read it, not too far off from what I see happening over the next year, as I peer into the gloom.

            This is ourselves under pressure.

        • earlofhuntingdon says:

          Your expectation of “isolated acts of violence” is Pollyannish and ignorant of the vast support from which Trump benefits.

          Jan. 6th resulted from months of intense planning among quite a few people. Sixty or so legal cases, which Trump lost, were orchestrated, funded, and supported by many. He benefits from a vast propaganda network. He benefits from an intense effort to plan for and staff a second administration, in which all guardrails will be bulldozed aside. The billionaire patrons and supporters who are doing all that will be relentless in getting Trump into the White House, by peaceful or other means. If he loses, for example, he will mount an order of magnitude more legal cases. And violence will not be isolated. Whether it will be successful is another matter.

    • Pam_in_CT says:

      Concur with earlofhuntingdon re “In addition to the crazies, it is likely that even if the Colorado decision is legally correct, there is a good chance that it will seem unfair to a large part of the electorate” — it’s only about the crazies.

      The way Bush / Gore played out “seemed unfair” to plenty of Americans, but nonetheless there wasn’t even a ripple of violence / force / threat thereoff to disrupt the peaceful transfer of power when the day came.

      And the crazies will react IF Trump loses; it makes no difference HOW.

      (Rayne, I just added underscores to my old name to comply with 8 characters; LMK if that doesn’t work)

      [Thanks for updating your username to meet the 8 letter minimum. Right now I believe this will work, will post an advisory if future coding work says otherwise. /~Rayne]

        • dar_5678 says:

          “How and why” only matters legally, and for the future of democracy etc.

          I agree with Pam: such niceties are not guaranteed to be part of the narrative fed to those ready to react violently to adverse news.

          • bmaz says:

            No, that is exactly what is supposedly protected. And if this shit maintains, count on me to be “one of the crazies”. I will do so in a heartbeat.

        • earlofhuntingdon says:

          It doesn’t matter to Trump’s cult. If he is denied what he wants, they will react the same way, using violence to give him what he wants, which they mistakenly believe will lead him to give them what they need.

      • sohelpmedog says:

        The point is not what the Trump crazies will do, that’s likely a given. What will matter is the reaction from the rest of the electorate to the crazies and if keeping Trump off the ballot in certain states is the cause of his loss, while of course any violence will be deplored, the reason for challenging the election may be understandable. Protesting the results of a fair election in 2020 based on the Big Lie was off the wall, whereas what might happen in 2024 -questioning the election results because of exclusion from the ballot in a few states – would not be off the wall. NB, bmaz: “if this shit maintains, count on me to be “one of the crazies”. I will do so in a heartbeat.”

    • Ewan Woodsend says:

      in fact he only needs to be on the ballot in one state. He can put placeholders in Colorado, California, and any other state but one. If the placeholders pledge that if they win their electors will vote for DJT, that’s that.

      • Just Some Guy says:

        Not quite. 33 states and the District of Columbia require electors to vote for their pledged candidate… but surprise! In many of those jurisdictions there is no enforcement mechanism (sounds familiar).

        In fact, Colorado voided an elector’s faithless vote in 2016.

          • timbozone says:

            Yeah, that’s why I didn’t comment about the difference between states as I didn’t have a good list of which states legally require faithful electors, etc. Because Colorado seems to require faithful electors may be why Colorado needs to get the application of the 14th Amendment correct to its Presidential elections.

  25. Badger Robert says:

    Thanks for pointing out the implications of the Colorado ruling.
    1. States have a substantial role in running elections.
    2. Disqualifying a potential tyrant is the type of state action against tyranny that was considered a natural right by James Madison. But this is partial secession from federal authority, done in a lawful and peaceful way.
    Due process? There was a law suit. The man being barred from running in Colorado appeared and participated. Colorado isn’t seeking to lock up the miscreant or confiscate his property. He didn’t get a criminal trial. But the right and duty to interpret the post Civil War amendments and protect Coloradoans like me from a wannabe tyrant is a state right contemplated even by the drafting generation.
    This is going to raise some pretty sticky issues about federalism, in my opinion.

    • StellaBlue says:

      When the !4th Amendment was written the country was in a chaotic period. It makes sense that they did not specify the exact process to remove an candidate for insurrection. Likely they realized that all the usual routes in normal times like bmaz would like may not be available. A state court criminal trial? The insurrectionists may have suspended the courts and so on. They may have left the language vague with the knowledge great flexibility may be needed in the future. If Trump is re-elected and assumes dictators like powers all the discussion about the exact nature of due process may seem like a lost opportunity.

        • Callender says:

          A cursory read of the dissents in this case (stronger than the majority opinion IMO)) shows me that the convoluted case in the Denver court denied Trump due process and that this provision of the constitution is not “self executing.” As my wife, who IAL often told me when she read pros and cons on cases, both sides were powerful and articulate. The first side often convinced her, then the opposing side made her change her mind,

          I hardly ever agree with BMAZ (he’s one of the reasons I avoid the comments on this site usually – he’s nasty). But he’s right on this.

          Everyone should read the whole decision AND the dissents.

          They’re powerful.

            • Callender says:

              There we go, disagreeing again. That’s our default, going back to Pelosi. You’re manifestly nasty, my friend – wait no – you aren’t my friend, thank God, but you are right in this case.
              Honest? Who knows. Not me.
              But you’re right here. And I agree with you.

      • Badger Robert says:

        ‘Agreed. Due process is what rich guilty people whine about. And the Constitution provides plenty of process. Revolutionaries in Europe who failed stretched rope, faced a firing squad, or sought asylum elsewhere. Its hard to convict the rich.

        • P’villain says:

          With apologies to Alphonso Bedoya, when I read this I heard:

          “Due process? We ain’t got no due process! We don’t need no due process! I don’t got to show you any stinkin’ due process!!”

        • earlofhuntingdon says:

          You’re conflating in a NY Post sort of way what the Constitution requires with the power of wealth to insulate itself from consequence.

          The criminal justice system does not deal solely with cases where the wealthy are defendants, something one might suspect, given that about 94% of criminal cases plead out.

  26. Scott_in_MI says:

    If you’re looking for a substantive discussion of both sides of the due-process arguments relating to section 3, I recommend reading both the majority opinion and Justice Samour’s dissent (which starts on page 146 of the PDF version of the opinion). For those keeping score on the pop-culture references in recent opinions, Samour quotes *The Princess Bride* in a footnote.

  27. RitaRita says:

    I wonder if only federal courts are enabled by the Constitution to determine whether someone has committed insurrection within the meaning of the 14th Amendment. Federal office, federal question.

    While deprivation of the right to run for office is not necessarily something that can result only after a criminal trial, it just seems that deprivation of such a fundamental right requires more than preponderance of the evidence.

    Trump, like Nixon, has certainly put this country’s system of law to the test and the test results are uncertain.

    • Ginevra diBenci says:

      “Federal office, federal question.” RitaRita, you put your finger on one of the many aspects of this nebulous issue that strikes me as germaine. My own guess is that SCOTUS will overturn Colorado’s high court on one of the technical issues identified by the dissenters–as they arguably should, because disqualifying any presidential candidate from the primary ballot absent a criminal conviction establishes a dangerous precedent ripe for future abuse.

      The validity of such a decision can only be grounded in a refusal to agree with Trump’s “absolute immunity” argument. The reason is obvious: if presidents are absolutely immune, they can (and will) foment insurrection without risk of disqualification or penalty. This can’t be the case should Colorado fall.

      • Rayne says:

        Changes to Article I, Section 4

        Section 4: Elections
        The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

        are up to Congress and they didn’t examine this when either Democrats or Republicans led both houses of Congress.

        Did the CO judge follow CO law? Can SCOTUS weigh in on that when the decision wasn’t intended to deny any protected class of voters their rights, only compliance with the state’s laws wrt manner of holding elections. The one hole might be that POTUS isn’t called out in Art. I Sec. 4, just Senators and Reps, but will SCOTUS insert itself into this hole literally making law when states’ control of elections hasn’t been questioned wrt POTUS?

        I want to point out an interesting void: note how quite GOP voters are in CO right now — a dog not barking. Why aren’t we seeing protests? It’s not as if they don’t squeal loudly about violations of their right to dominate the public sphere when it comes to trans/BIPOC/immigrants/women not staying in their white supremacist-approved boxes.

      • RitaRita says:

        I don’t think the language of the 14th Amendment requires a criminal conviction. But without the procedural and substantive process and protections afforded by criminal law, the disqualification will be seen as arbitrary and politically motivated.

        Regrettably, even with due process, Trump supporters would not accept any result that didn’t completely absolve Trump.

  28. Amicus12 says:

    The Roberts’ Court is despised by a large segment of the citizenry. It has enabled a society they find alien and hostile to their individual and societal interests, e.g., abortion, guns, wealth dominated politics/governance. And the Court is besmirched with sundry scandals.

    Against this backdrop, the Colorado decision, and the confluence of the decision with the pending cert petition on Trump’s immunity defense is likely not the happiest of news for the Chief Justice.

    Given his institutional concerns, Roberts will no doubt look for some sort of consensus decision across most or all the Court to address the Colorado decision. I could be completely off-base, but I doubt whether there is even a single vote on the Court to affirm the decision. But how the Court decides the matter will no doubt be highly influenced by the pending January 6 trial in DC. There is no doubt a significant number of justices who will want to decide the Colorado case in ways that foreclose the possibility of a re-visitation of the issue in the event Trump is convicted.

    But seeing how only four votes are needed for cert, Roberts could very well force the Court to address both the immunity issue and the Colorado decision concurrently if he believes it is in the institutional interest of the Court to do so. The grant of cert from the immunity decision could come as early as tomorrow or Friday if the USG waives its response or files a response post-haste.

    • P’villain says:

      Justice Samour’s dissent asserts that only a conviction under 18 USC Sec. 2383 (which is not a charge Trump currently faces) will suffice. That is a road map for SCOTUS justices who want to reverse without having the case come back later.

      • Amicus12 says:

        There are many ways to achieve that result. The pressing issue is what does Roberts see as his best path forward for handling these matters and what sort of internal politics will result in outcomes he believes are best for the Court. And that may well be addressing both cases in ways that leaves no one fully happy.

    • tje.esq@23 says:

      FIVE (5) votes for emergency review, called “application for stay.” You’ll know if this is the route Trump takes if “circuit justice” (Gorsuch, here, I believe) gets the case first. Because Colo already issued a stay, I think this frees Trump to potentially take (?) the standard “Petition for Certiorari” route, that, as you correctly state, takes 4 justices voting yes for cert to be granted.
      https://www.scotusblog.com/election-law-explainers/emergency-appeals-stay-requests/

      Amy Howe explains: “In many election disputes involving time-sensitive challenges to election procedures, there is not enough time for a lawsuit to go through this entire process before the election has actually occurred. Of course, the justices can expedite the process at any point – for example, they heard oral argument and decided Bush v. Gore in just a few days – but that kind of fast-tracking is highly unusual. As a result, many of the court’s rulings in election-law cases come through the emergency appeal process rather than through the normal certiorari process.”
      https://www.scotusblog.com/election-law-explainers/the-certiorari-process-seeking-supreme-court-review/

      • Amicus12 says:

        Yeah, Vladeck also has a comment up on “X” that it takes five votes for a grant of cert directly from a district court. So maybe so.

        There are many ways all of this could go.

        It’s possible that the Justices will be happy to have the expedited process play out at the D.C. Circuit. If that happens, and the DC Circuit issues an airtight narrow affirmance of the district court’s decision, that could be the end of the road. Trump simply assumes that if the D.C. Circuit rules against him that the Court will grant cert. That’s a significant gamble. Frankly had he believed in hits immunity claim, rather than pursue a strategy of delay he should have supported the USG’s cert petition.

      • Amicus12 says:

        Wow. Score one for bmaz’s recommended approach, Smith & Co. have already filed their reply. And it’s a scorcher. They hammer the theme that needs to be hammered.

        “The charges here are of the utmost gravity. This case involves—for the first time in our Nation’s history—criminal charges against a former President based on his actions while in office. And not just any actions: alleged acts to perpetuate himself in power by frustrating the constitutionally prescribed process for certifying the lawful winner of an election.” Reply Brief at 2. https://www.supremecourt.gov/DocketPDF/23/23-624/293970/20231221105032440_United%20States%20v.%20Trump_CBJ%20Reply.pdf

        The matter is now properly before the Court for decision.

    • thequickbrownfox says:

      I don’t know how the SC is going to reconcile this, 14th amendment aside, because states have refused to place duly nominated, by the Democratic National Convention, presidential candidates on their ballots before (Lyndon Johnson, Truman, and Garfield).

      The Republican, Lincoln, was not on the 1860 ballot in Alabama, either.

      The ‘state’s rights’ SC is between a rock and a hard place, and they’ve done it to themselves, with rulings on voting rights and gerrymandering. They’ll have to twist themselves into legal pretzels to determine that a state cannot do what has already been done in national elections for president. Colorado, determining for itself, that Trump isn’t to be placed on the presidential ballot, is historically a state’s decision, and Court’s haven’t interfered.

      We live in ‘interesting times’.

  29. gertibird says:

    Maybe this will get the SCOTUS to expedite this decision and it’s decision to decide Trump’s immunity and also decide that expediently. If so, Jack Smith can proceed with his trial against Trump before the election and then decisions can be made based on the results of the trial.

  30. Error Prone says:

    Minnesota previously ruled to not remove Trump from the State’s primary ballot, so there are conflicting State decisions. https://www.seattletimes.com/nation-world/nation/minnesota-supreme-court-dismisses-insurrection-clause-challenge-and-allows-trump-on-primary-ballot/

    Filing in Minnesota allowed the case to directly reach the state’s Supreme Court because challenges to ballot qualifications are expedited. That link is given because it noted:

    “There is no state statute that prohibits a major political party from placing on the presidential nomination primary ballot, or sending delegates to the national convention supporting, a candidate who is ineligible to hold office,” Chief Justice Natalie Hudson ruled.

    That begs the question about the general election ballot, where a primary winner for both parties advances automatically, apart from any Republican Party decision after the primary.

    A decision to not decide, yet.

  31. McKlem!! says:

    What will it say about the SC if they overturn the Colorado decision? That Trump was not part of the Jan 6 insurrection? That Jan 6 and Trump’s other efforts to steal the 2020 election were appropriate and legitimate? That it is OK to willfully ignore parts of the Constitution?

    I don’t think this is the open and shut case that many believe it to do. The Court does not want to rubber stamp or encourage illegal actions. They could let Colorado stand and say it is up to each state to decide.

    [Thanks for updating your username to meet the 8 letter minimum. Caveat: use of exclamation marks in usernames may not be supported by future coding changes to the comment system. /~Rayne]

  32. Hairy Chris says:

    No idea how this will pan out but it should be interesting seeing what the constitutional originalists and states rights advocates make of it.

    Oh, sorry, I forgot that they’re only originalists & states rights fans when the decisions are going their way.

  33. Andrew Dabrowski says:

    What do you think about the argument by one of the dissenting judges that this finding should wait until after Trump has been convicted of criminal participation in Jan6?

      • ColdFusion says:

        How would you recommend this be done in time for the election? Trump, especially, has much practice in running out the clock and causing delays. The People have a right so a speedy trial, yet with all the delays it’s possible there would never be a trial before he dies after another 4 years in office.

        • Capemaydave says:

          Trump’s game, consistent with most authoritarians in modern times, is to use the rules of law against rule of law republics.

          A most interesting battle for more than a century in the west.

        • xyxyxyxy says:

          Most likely, nothing will be done in time for the election.
          All the trials will take forever, his lawyers, like with the NY fraud trial, will stand up and yell of unfairness every minute, they’ll have turkeys chirp, chirp, chirp or yup, yup, yup as witnesses, everything will be appealed to the highest court.
          As Marcy keeps writing/saying, get everyone you know and don’t know to register to and vote.
          There is no savior for us except us.

        • Doug_Fir says:

          NAL, but I believe it’s the accused who has the right to speedy trial, not The People.

          https://en. wikipedia.org/wiki/Speedy_Trial_Clause

          Link broken with a (space) after “en.”

          • bmaz says:

            First off, until you say affirmatively that you are a lawyer, I assume you are not.

            The constant bullshit of “INAL” is incredibly tiresome. And, no, all have a right to speedy trial unless waived. And you do not need to “break” links to Wiki.

          • earlofhuntingdon says:

            Obviously, YANAL. The state also has multiple interests in a speedy trial. Among them are the prompt and equal administration of justice and deterring future criminal conduct. Evidence goes stale, witness memories fade, other cases compete for scarce resources.

  34. HorsewomaninPA says:

    A few observations (NAL)
    * 14th amendment says “hold”, not run for. Even if Trump was on the ballot and ended up winning, he could be prevented from actually taking office? Who would do that?
    * It also states that “shall have engaged…”, not “tried and convicted of…”
    * It also says, “…or rebellion…”.
    To allow someone to hold public office who has engaged in a rebellion is a non sequitur. It would mean we would willingly want that person to rebel again. It just makes no sense. It also makes no sense to seek an office just to blow it up.

    • xyxyxyxy says:

      For decades the Republicans have been running on their desire for/and pushing for smaller government i.e. seeking office to blow government up, which could possibly blow their jobs up.

  35. Robot-seventeen says:

    I want to make sure I get this straight. According to some, “self executing” means that the plaintiff has to bring a conviction by a jury attesting to the guilt of the defending party before relief can be granted to the plaintiff? In fact, the court can’t even countenance the grievance until such time?

    So, if I’m a Arapaho tribe whose been forcibly removed from their land by the Federal Government, which had previously signed a self-executing treaty to the effect saying I owned the land, I have to first have a ruling from the Federal Government provided by a jury trial finding they have broken the treaty? The court is barred from making such rulings?

    That makes less than zero sense but maybe I’m missing something.

    • earlofhuntingdon says:

      “Self-executing” normally means that a provision of a constitution does not require subordinate, implementing legislation to create rights enforceable by an individual.

      • Robot-seventeen says:

        Hmmm. Thanks for the reply.

        So the SC is looking at a case they have to decide two primary issues on:

        Whether the 14th Amendment means what it says regarding “self-executing” as it relates to accusations and a finding by a lower court absent a criminal conviction.

        Whether the President and Vice President are constitutional officers of the US government.

        If they aren’t constitutional officers and aren’t bound by it, it seems to me they have no authority regarding any other Article 2 powers. If so, that’s a big bag o’ worms.

        Better them than me – although I’m sure I’m oversimplifying it.

        • earlofhuntingdon says:

          One could hold a constitutional office without being an “officer of the United States,” as defined in the Constitution or by statute. Interpreting who is an officer of the US, as used in a less than precise manner in the 14th Amendment, is something the S.Ct. has finally been asked to do.

          The 14th specifies one way to enforce the 14th: through congressional action. The Court has to determine whether that’s the only way, at least for purposes of section three.

          • David Brooks says:

            Surely the 14th (at least section 3) only gives Congress the right to undo the disability. There’s no other mention of Congress.

            It’s like the Emolument Clause in that regard. Congress can permit the President to accept emoluments, but otherwise the ban is also self-enforcing (and has apparently been simply ignored by Trump).

            • earlofhuntingdon says:

              Always good to read the whole thing. This section applies to the whole of the Amendment:

              Section 5.

              The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

              • P’villain says:

                This is the fulcrum of Justice Samour’s argument in dissent. Samour believes this is an exclusive grant of enforcement authority, and that 18 USC 2383 is the sole exercise of that plenary authority, both of which I question.

        • Bad Boris says:

          Section3 of the 14th is clear enough.

          Both the Colorado lower court and its Supreme Court held ( after what has been described as 3 days worth of prosecutorial and defence testimony and evidence ) that Trump engaged in insurrection, hence is disqualified from holding office.

          The Roberts court will do whatever it wants here. But I see no way out for SCOTUS on the immunity question, lest they baldly torture both language and logic as was done re 2nd Amendment and in Bush v. Gore ( perhaps even echoing their insipid assurance that particular ruling was a ‘one time thing.’)

          But I have hopes that the electorate is finally starting to see, and MSM is begrudgingly starting to report on, Trump’s early onset dementia.

          A good friend, one with over a decade’s experience in geriatric medicine, told me what I’ve read by numerous other mental health pros – Trump’s dementia includes frontal lobe pathophyiology. I’ve gone through this with a parent – they flat out deny saying what several people heard them say; forget otherwise known facts
          ( where they’re at ); poor judgment; impulsivity; unrealistic assessment of their condition.

          Trump’s condition is worsening.

          Moreover the constant Adderall use has aggravated Trump’s well-known dual incontinence ( which may or may not also be exacerbated by the dementia). This is a long documented problem, going back to his ‘Apprentice’ days where a particular individual was assigned to Trump to change his diapers while on set. It’s still ongoing. One assumes his current ‘body man’ now has that unpleasant duty. According to those on Trump’s fringe the odor, combined with the chemical smell of his sweat, is grossly overwhelming.

          This has not yet been widely disseminated by the media, perhaps based on the same reasoning that MSM initially refused to call out Trump’s lies as lies.

          But it needs to be done soon; these are not unimportant personal peccadilloes, but grave outward manifestations of Trump’s unfitness for any office, much less the presidency.

          The public should be informed, in detail, and soon. I’m confident that even the Kool-Aid drinkers will change their tune when they find out how Trump really is. And we won’t need to bother SCOTUS from their navel gazing.

          [Moderator’s note: FYI this comment was held up in auto-moderation because of a keyword — think drugs. /~Rayne 6:39 pm ET]

        • bloopie2 says:

          Article 2 Section 1 states that “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; … .” How can someone holding what the Constitution itself calls the “Office of the President” not be an “officer of the United States”?

            • dopefish says:

              Isn’t Commander in Chief a civilian office, not a military office?

              Isn’t that why the U.S. is described as having civilian control over its military?

  36. Veritas Sequitur says:

    Thanks to the Colorado Supreme Court for its decision to responsibly curb a destructive megalomaniac dangerously running amok across the country’s political landscape. As a septuagenarian life-long litigant, serial abuser of the legal system, & corrupter of the judiciary he has been a beneficiary of endless process; process here, process there, process everywhere. Some may say undue process. Those institutions that stand idly by may make some sort of claim to legal high ground, but they sadly fail on ethical and practical grounds to effectively safeguard domestic tranquility for the people. That monumental failure is tantamount to malpractice.

    • bmaz says:

      Yes, thanks for a local county court for helping determine national politics, and thanks for an ignorant state court for perpetuating it. What a triumph of justice!

      • David F. Snyder says:

        “Necessary repercussions are manageable.
        Inevitable repercussions are expensive.
        Unnecessary repercussions are dangerous.“

  37. tje.esq@23 says:

    Taking an exceptionally broad view, Congress passed 14.3 to prevent an official who once swore to uphold the U.S. Constitution, and then failed to do so, from getting a chance to violate their oath again serving in that (or another) public office, and subsequently mess up the U.S. government — and US residents’ lives, too — with his NEW ‘disloyal’ conduct.

    AND TRUMP IS PUBLICALLY, loudly, and specifically declaring — sarcastic or not — his oath-violating plans for his 2nd round in the presidency. Assuming candidates for office say what they mean, and mean what they say, as courts are called to assume when considering a candidates’ word, you wonder if this case being upheld — or SCOTUS declining to even hear it — is a no brainer?

    • tje.esq@23 says:

      My post above called to mind this piece about Trump in Austrailia’s version of the Onion, or New Yorker’s Borowitz report — a publication called The Shovel. It was published in Aug 10, 2022, just after the FBI search of Mar-a-Lago while the MAGAots were still in a state of outrage.

      The Shovel’s View on the Donald Trump FBI Raid

      We are certainly no fans of Donald Trump – let’s make that clear from the outset. But yesterday’s raid by the FBI on the er president sets a dangerous precedent.

      A precedent which now means that anyone who evades taxes, attempts to undermine an election, sexually assaults women, manipulates the value of their assets, uses state resources to enrich themselves or aids and abets the overthrow of a democratically elected government will be subject to investigation.

      Is that the world we want to live in? Where anyone accused of insurrection can be subject to questioning from law enforcement officers?

      It’s a slippery slope. Before we know it, regular citizens accused of defrauding the government, concealing evidence, manipulating financial documents, tampering with witnesses or perverting the course of justice will also be held to account.

      Or to put it another way, if we simply shrug our shoulders and fail to question the actions of the FBI, soon any old Joe Citizen who is suspected of ripping classified government documents into small pieces and flushing them down the toilet will be obliged to answer to law enforcement, as well as their plumber.

      If we don’t ask the hard questions about the potential motives of the FBI now, soon any one of us who buries our ex-wife in a small grave at the side of their golf course in order to gain a tax concession will be treated with suspicion.  

      As Trump supporters put it so clearly yesterday, if this can happen to a President, it could happen to anyone who has committed insurrection, assault or fraud. That’s a chilling thought.  

      We are on new ground here. As Donald Trump himself made clear, this is the first time a former president’s home has been raided. Proof, if ever we needed it, that the FBI shamefully only targets people who it considers to have committed a crime. Who gave FBI director Chris Wray that authority?

      As we made clear earlier, we’re certainly not Trump supporters. But in today’s partisan world, it would be easy to fall into the trap of cheering on the FBI’s actions, without taking a step back to look at the bigger picture.

      If Trump goes to jail, it opens the door for every lying, corrupt, perverted piece of shit to go to jail too. Is that what we want?

      Original is here https://theshovel.com.au/2022/08/10/the-shovels-view-on-the-fbis-raid-on-donald-trumps-home/

  38. Robt. P._18NOV2023_1041h says:

    Any new thoughts on Baude and Paulsen in light of this?

    [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security **as indicated in the first post of this thread.** Because your username is far too short and common (there are a number of community members named Robert or a variant) it has been temporarily changed to match the date/time of your first known comment until you have a new compliant username. Thanks. /~Rayne]

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