SCOTUS Rushes to Grant Trump Protections After It Refused to Rush to Ensure Due Process

Unsurprisingly, after declining to rush to make sure Trump got due process before a jury of his peers, SCOTUS granted cert to the appeal of Trump’s disqualification by Colorado.

The case will be heard on February 8.

Update: Rick Hasen, who is very smart on these issues, notes that SCOTUS did not hone the issues it will review.

I’m more surprised that the Court did not better focus the questions to be briefed. Trump’s question presented is a blob of a question on disqualification. The challengers to Trump had written 7 questions presented in the alternative. In the Colorado challenge, which does not seem to have been granted by this order, they raised three questions, which somewhat overlap with Trump’s claims.

This seems like it could be a free-for-all in arguments and briefing. I take the failure to hone it down due to lack of consensus on the court or time for there to be serious research on these issues.

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114 replies
  1. Rwood0808 says:

    According to Alina “parking garage” Habba its already a done deal. She said the quiet part out loud telling us Kavanaugh owes trump.

    “You know people like Kavanaugh ― who the president fought for, who the president went through hell to get into place ― he’ll step up.”

    • Operandi says:

      Trump, though brutish, has proven himself to be a formidable manipulator. He has time and again gotten a panoply of folks to debase themselves on his behalf. I do not know how that man commands such loyalty, but he demonstrably does. So I do not bet against him lightly.

      And yet, I cannot imagine a tactic more likely to set a federal judge against you, much less a Justice of the Supreme Court, than bragging to the newspaper that said judge is in your pocket. This is the strategy I would come up with if I was told I needed to lose an otherwise unlosable vote.

        • GlennDexter says:

          I had the same exact thought remembering Harlan Crow’s answer about whether he’d be friends with the Thomas’s if Clarence was not a Supreme Court Justice. He just wasn’t sure….

      • Ginevra diBenci says:

        I don’t think he’s such a formidable manipulator, although those who know him personally say he can be charming and persuasive.

        I think he lucked into being able to exploit the gullibility of voters who believed what Mark Burnett showed them on TV; the lazy, feckless posture of the supposedly respectable press; widespread, unacknowledged racism and misogyny; and a profound and pernicious tendency in American culture to succumb to authoritarianism–a tendency that we have long denied because it contradicts the story we like to tell about ourself.

        The Trump success story is centrally one of enabling and complicity. He has vastly benefited from and furthered the erosion of a shared set of facts–what we know as truth–and in doing so leeched from our language much of its meaning. That is what we must start recovering first.

    • SteveBev says:

      The Alina Habba comments appear to be part of a deliberate strategy that exert pressure on SCOTUS, with thinly veiled threats.

      This messaging strategy has involved
      1 Maggie H reporting on CNN the concern of Trump and insiders that conservative judges have a tendency towards trying too hard to appear neutral and thus may end up wrongly deciding cases against him
      2 Habba gets on Fox News and is asked simply to comment on the Maggie H clip. She agrees with her ‘friend Maggie’(confirming she was MaggieH source?), that Trump has said this many times. She repeats the claims then adds – it is not a partisan political matter. “As an American I and every other American can see” the right legal ruling would be to rule in Trump’s favour. Implying that it is a matter of patriotism, as well as legal duty.
      3 Habba going on Fox again to repeat all of the above message, then adding the stuff about Kavanaugh who is referred to as a justice Trump fought like hell to get appointed. Again the message concluded by referring to the expectation of American people.
      4 Trump in his speech in Iowa rinses and repeats the same message referring to Kavanaugh.

      This IMHO is veiled threat to SCOTUS justices and in particular Kavanaugh.
      In the same vein as “If Mike Pence does the right thing, then we will win” etc.

      • Ginevra diBenci says:

        Trump has never “fought like hell” for anyone except himself. The question is whether Kavanaugh realizes that, and how many threats he receives from followers of the terrorist dispatcher Trump.

        It might be interesting to see how SCOTUS responds to rightwing threats of violence, as differentiated from the ones they whined about after Dobbs leaked.

        • SteveBev says:

          “Fought like hell” might have a very particular meaning in context

          Obviously it may mean no more than that Trump expended political capital on his behalf.

          But there is also an innuendo that in the process of defending Kavanaugh team Trump became privy to information which was suppressed at the time but could be embarrassing in the extreme if it saw the light of day now.

          • David F. Snyder says:

            Not just “in the process of.” The Putin Technique: only consider those you have compromising dirt on and that can be compromised on the key issue of putting personality over principles.l, when needed.

          • Ginevra diBenci says:

            SteveBev, both you and David Snyder raise a crucial point I was overlooking/underthinking. It certainly lies within Alina Habba’s skill set to repeat very specific (or even not so specific) code on her master’s behalf.

            And you are both right: Roy Cohn taught Trump to seek out and maintain close hold on the darkest dirt regarding both enemies and “friends”–especially the friends. Friends like Kavanaugh might need their arms twisted at any time in the future.

            To quote Amiri Baraka: “As now.”

  2. Frank Anon says:

    It has the same feel as Bush vs. Gore, a surprising rush to hearing, a disbelief they would do what we all knew they would do

  3. TPA_kyle says:

    So if Thomas recuses/is forced to recuse, and the decision is 4/4 does it go back to the Colorado decision without further opportunity for appeal?

    • boloboffin says:

      He won’t voluntarily recuse. No one will force him. But even so, I doubt it will be 4-4. At best it would be 5-3 to tell Colorado to shove that decision in the trash.

  4. tcblue says:

    that’s funny kyle. no chance thomas recuses himself
     
     
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    • PhoebeP says:

      I don’t see Dump as being able to respond. He doesn’t read, he doesn’t write– he is the quintessential uneducated squeebog who doesn’t deserve a spot for his purposes. Whatever they might be.
       
       
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  5. vigetnovus says:

    Even more egregious to me is the granting of cert in the Idaho ER doctor abortion case while the case is still pending before the 9th circuit bc the 9th circuit ruled that the Idaho abortion ban law must be stayed pending appeal due to it conflicting with Federal emergency care statutes.

    So making sure abortions can be banned is an emergency for this SCOTUS, but ruling on whether the ex-president is a monarch is not… Got it .

    • earlofhuntingdon says:

      But accepting cert. before the 9th Cir. decides the appeal is a nice rebuttal to Trump’s argument that Jack Smith acted inappropriately in asking for the same consideration. But law and consistency are not things that Trump or some of the Supremes consider important.

      • Benji-am-Groot says:

        Speaking of consistency, since the ‘originalist’ slant cited by Thomas and his ilk in overturning Roe has been established can the same originalism argument be used against the former guy in Colorado – after all since abortion is not mentioned in the constitution but insurrection is, in the 14th Amendment Section 3?

        Consistency indeed from a lay standpoint.

        As Rayne correctly points out below – the SCOTUS cannot deny the fact that States run elections.

        I for one am very curious how Thomas and Alito will rationalize their stance in overturning Roe with Colorado dumping the Orange Florida Man from their ballot if they overrule the Colorado Supreme Court decision.

        • timbozone says:

          They won’t give you any satisfactory rationale, they’ll just do it. That’s how power, showing off power works.

          • P’villain says:

            I once worked for a politician who said, “If isn’t really power if you can’t exercise it arbitrarily.”

    • c-i-v-i-l says:

      A useful background discussion of the Idaho and Texas abortion/EMTALA cases: https://stevevladeck.substack.com/p/bonus-60-emtala-abortion-and-the

      Also from Vladeck (tweeting): “Court also freezes lower-court decision that had blocked Idaho’s law insofar as it conflicts with federal statute. The order doesn’t just grant certiorari “before judgment”; it sets the dispute for oral argument during the Court’s April 2024 session—setting up a decision this term (alongside mifepristone).”

      These (and other) anti-abortion laws/rulings make me furious.

      • gertibird says:

        Me too. These anti abortion laws seem more about dominance, control and cruelty to women than anything else. I watched on a MSNBC Diane Walters interview the women in Texas who have filed a law suit against these laws whom needed emergency abortions, couldn’t get them in TX and their husbands. The one question I was waiting for her to ask but she didn’t was : Does this change how you will vote in the 2024 elections? Especially I would have like to hear their answers as it is men who are the majority of Republican voters and it is men writing and enforcing these laws.

      • Ginevra diBenci says:

        Thanks to all on this comment thread for this update. This one escaped me, and it’s crucial–both in itself and for context with the post.

        • P’villain says:

          Same here – I was unaware of this new outrage. I grieve that people will suffer as Alito continues to walk this SCOTUS into an electoral buzz saw.

      • GlennDexter says:

        Instead of calling it anti-abortion, let’s call it what it is – anti-women’s healthcare.

        • Rayne says:

          While the Idaho law in question affects bodies of persons with a uterus directly, the entire movement is anti-reproductive health, period.

          Clarence Thomas spelled this out in the Dobbs decision, that the right-wing was going after decisions related to birth control like Griswold v Connecticut.

          • RipNoLonger says:

            So I had a vasectomy at 25 in the early 1970s with two children already conceived. Perhaps a bit impetuous, but seemed right at the time.

            Was I offending these current SCOTUS anti-reproductive health rules? I’m not a Catholic like many of these SC lords/lady and I didn’t ask that Church for permission. Wondering if I may be considered anti-reproductive also?

          • Honeybee says:

            Guess I think Griswold is about whether Big Brother is welcome in our marital (or non-marital) bedrooms. Or maybe in our genetics. Brave new world.

            • Rayne says:

              Roe was about privacy; so was Griswold. But this iteration of the court doesn’t want to touch privacy — they want to tackle the states’ right to regulate control of its citizens’ bodies claiming the Constitution doesn’t specifically call out persons’ rights to reproductive health care.

              • Honeybee says:

                True. I guess citizens’ bodies can include their unique signatures, however. Maybe it’s because I read that piece today on a company making millions selling DNA tests to Chinese police in Tibet.

              • Ginevra diBenci says:

                They won’t go after Viagra or Cialis, however, because the bodies they want to control belong to those whom they perceive as requiring their oversight: women, gay and trans people, those who aren’t white, children of working/reproductive age, and the poor, especially the homeless.

                Why control the bodies of white men? Especially white men with guns? They have rendered those normative. Hence the rest of us, who don’t fit the norm, must be regulated.

  6. Rugger_9 says:

    As a practical question considering how broadly the court invited briefing, how long can the court delay things after 08 FEB? I’m speculating that the lack of specificity is intended to invite the immunity claim in which will then be used to stay all other prosecutions until after the elections (primary and general). Whether it is a temporary one or not, if SCOTUS holds everything in abeyance that accomplishes what Defendant-1 wants anyhow.

    Overreach on and expansion of a question put to SCOTUS is already a well-established play for this majority on several other cases.

    • Peterr says:

      They can delay it as long or as little as they want.

      Hanging in the background, though, is US v Nixon, which SCOTUS heard DURING THE SUMMER (!!) (July 8), and then ruled within three weeks (July 24). The Burger Court enjoyed its summer break as much as any SCOTUS court, but they realized that the stakes of the case before it mandated that they come back, hear the case, and rule quickly. See also Bush v Gore, where the Court heard arguments on Dec 11 and ruled on Dec 12.

      Should today’s SCOTUS drag their feet, the parallels would get thrown in their faces every day that their decision did not come down.

      • FLwolverine says:

        “ the parallels would get thrown in their faces every day”

        Is it too cynical to ask what possible difference could that make to this court?

        • Les TreBony says:

          Precisely. Too many, especially in media, continue to believe that the right is capable of shame. Despite the evidence. Perhaps they recall that the first McCarthy’s downfall was showing a modicum of human emotion. Roy Cohn learned and taught Trump, who perfected the current shamelessness.

        • boloboffin says:

          Not at all.

          For instance, the way the Court treated stays and injunctions in the leadup to Dobbs made it very clear in retrospect what the Court meant to do. They have done it again in the various challenges to EMTALA and abortion care. By lifting the injunction against the Idaho ban, this Court has made it very clear that federal law be damned: state laws banning abortions hold the trump card. The decision has been made. Only the formalities have to be observed at this point.

          You may not share my depth of cynicism here, but I wouldn’t put it past this Court to hear the oral arguments in the Colorado case and then delay an announcement until Trump is already the GOP nominee and the general election ballots are finalized. God, at that point they might even have the audacity to declare the issue moot.

          • gertibird says:

            Yes, they did exactly that is TX vigilante law SB 8. Also in some ways with Trump’s tax releases. They held that until it didn’t really matter as everyone had already moved on.

      • Shadowalker says:

        “ Should today’s SCOTUS drag their feet, the parallels would get thrown in their faces every day that their decision did not come down.”

        They already did. By federal law, Colorado’s ballots have to be printed and sent out to absentee/overseas military no later than January 19. Which means Trump will be on the primary ballot, regardless of how SCOTUS rules, which is likely to be released after the primaries.

  7. MsJennyMD says:

    Interesting considering it is Republican’s in Colorado who brought the lawsuit in the first place.

  8. sohelpmedog says:

    Considering that there are cases pending in 19 other states to disqualify Trump pursuant to The 14A,
    that may put some pressure on the S.Ct. to rule quickly before more states rule in favor of disqualification. I don’t think that what the S. Ct. will do will be particularly influenced by states’ decisions, but it may affect the timing of a decision. The more state decisions finding that Trump engaged in insurrection, probably the better even if it doesn’t keep him off the ballot. The one thing that’s clear is that the ultimate decision is not going to be anything like Justice Robert’s Umpire calling balls and strikes (a fiction in any event but science fiction with this court.)
     
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  9. Operandi says:

    Personally I think something as important as a federal presidential election can’t be entrusted to 9 unelected hacks with serious conflicts of interest and an unenforceable joke of an ethics code. Better to leave this question to state election officials who tend to either be directly democratically accountable or report to someone who is.

      • JustAPerson says:

        Not hacks – but six are clear and dangerous ideologues.

         
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  10. Skillethead says:

    What I’m confused about is the mechanism for disqualifying Trump. In Colorado, it went to the state’s supreme court; in Maine, it seems to have been the secretary of state who made the decision. What keeps Texas from deciding that Biden shouldn’t be on the ballot?

    And I’m also not sure why this is a state-by-state approach. I understand states control elections, but the 14th seems to be talking about a general qualification to run, like being at least 35 years old. Something the states can’t overrule.

    Gonna be some late nights for the Federalist Society to figure all this out and let five Justices know what to do.

    • Rayne says:

      It’s simple; read the Constitution and you’ll see exactly why the state-by-state approach, which also means each state may take a different approach.

      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. …

      Emphasis mine. Congress has legislated regulation with regard to civil rights but does not tell each state how it will run their elections.

      Consider that elections are not solely for the purposes of selecting federal officials but state and local elected officials. Of course the states will run their elections their own way.

      Which entity in each state determines qualification/fitness is reflected in the decisions you’ve seen already: in Colorado the final arbiter was the state supreme court but they didn’t actually make the initial decision. In Michigan the case went to the state supreme court but the court pointed out the decision was political and performed by the parties (a problem with state law which could and should be fixed). Maine may yet have gone to its supreme court but only after the SOS made the decision.

      You might better ask why we are relying on a legal safety net at the last moment before the election season kicks into high gear rather than law enforcement and legal system as well as media ecosystem and political party system which should have kicked Trump to the curb back in 2015-2016. The problem before us is far larger than the 14th Amendment.

      • Skillethead says:

        I fear it is not that simple at all. To begin, Article 1, Section 4 concerns the election of Senators and Representatives, not Presidents. Furthermore, it only assigns Times, Places, and Manner of holding the election, not who is allowed to be on the ballot. It’s actually Article II, Section 1, Clause 2 that describes the state role in electing the president:

        “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . . .”

        Now, this seems to vest more power to the states. But does each state have a system for determining who has met the standard for disqualification through insurrection? Or are they winging it because it’s never really come up before?

        I’ve read a lot about this, and different legal scholars have taken very different opinions on the issue. What I cannot see is SCOTUS saying, “Yeah, we’re good with any Secretary of State saying, ‘Person X was an insurrectionist, so I’m saying they can’t run.’ No legal recourse for the person disqualified.”

        Sadly, I have little faith in SCOTUS coming up with a decision other than “What’s best for Trump? How can we work this out so that it has some fig leaf, but keeps Trump on the ballot.”

        I do agree the problem is far greater than the 14th. But I would lay most of the blame here on a large segment of the American population, not the media or the parties. And that is deeply disturbing.

        • Rayne says:

          Then make the effort to read further to Article II, Section 1 regarding electors, keeping in mind the Representatives and Senators certify the votes of the electors chosen “in such Manner as the Legislature thereof may direct” through elections executed in the manner “prescribed in each State by the Legislature thereof”.

          There is NO fucking guaranteed right to run for POTUS or any other federal elected position. That false premise also needs to be dispatched; rights are inherent to an entire population, not distributed by qualifications. POTUS candidacy must meet qualifications which SCOTUS can’t deny, just as they can’t deny states run elections.

          • Skillethead says:

            Really no call to be rude. As you might imagine, I have read all of Article II, Section 1, and it does not say what you quote it saying. The correct quote can be found in my post above. Article II talks about state legislatures appointing electors. Furthermore, nothing in Article II says anything about votes being certified by congress. That requirement came decades later.

            Now, those are quibbles to be sure, but the underlying point, and the one I was making in my original post, is that none of this says anything about how someone is to be determined to be disqualified from being president due to participating or supporting an insurrection. Most surely Article II doesn’t as it doesn’t anticipate an insurrection. When that Amendment was passed, the insurrection in mind was clear to everyone, as was having participated in it. But we are well past that and have no clear direction as to how such disqualification should occur.

            As to whether there is a right to run for president, shouting and profanity only win the day in certain circles. The Constitution says that anyone meeting the simple qualifications can run. That sounds like a right to me. The fact that the 14th Amendment adds the insurrection disqualification is an excellent example of “the exception that proves the rule.” How can you be disqualified if you weren’t qualified in the first place?

            • earlofhuntingdon says:

              Surely, you meant to say that the laws governing this issue were the whole Constitution and other applicable laws. The question is a tad beyond a short list of “simple qualifications” listed in one section.

              Exceptions that “prove” the rule, test the rule, owing to the difficulty of applying their facts in a way consistent with the law and past decisions. They don’t illustrate it.

              And which part of the Constitution sounds right to you? One can meet your simple list of qualifications, but still be found ineligible to run for or hold office owing to not meeting other criteria. The Fourteenth Amendment was meant, for example, to deal with more than the problem of former Confederates (which it doesn’t mention), seeking to run for and hold office in, and thereby subvert, the govt of their old enemy.

              • Skillethead says:

                Hey Earl, There are several definitions of “exception that proves the rule.” Fowler prefers the one I used, which is the older one. But I think that the one you are arguing for is used more often today. Comes from the Latin: exceptio probat regulam in casibus non exceptis

              • Honeybee says:

                You are so right, and yet judicial, policing and congressional (and state legislative) posts were filled with such folks who proceeded to reinforce the status quo. I would say the amendment that made most of them more nervous was the fifteenth. They were incensed and anxious about the black (male) vote.

              • Honeybee says:

                Yes, I think of the 14th amendment “disabilities” of a certain New York financier who conspired with a foreign nation to aid the nation’s enemies – blockade running with military supplies for the Confederacy in the case of Col. Henry Fitzhugh. It did not stop his eventual success as a New York banker. This is our history.

            • Rayne says:

              Oh honey you haven’t seen rude. You’re lucky I haven’t gone nuclear so far on your excessively wordy whining.

                • timbozone says:

                  You seem to be missing that you have to be 35 to be President of the United States. Initially, it is the states that make that determination, pre ballot. And the requirement to be 35 is in the Constitution. Therefore, initially, it falls on the state to make determination of eligibility to the office of President. Or so has been the assumption for 200+ years now.

                  Further, you must be a naturally born citizen of the US to be eligible to be President. Again, initially, it is the individual states that weed out scofflaws who attempt to get on the ballot in violation of the Constitution.

                • Rayne says:

                  Or I will not admit to something I’m not, and two, you can stop being a dick. Your 55 comments to date haven’t made you indispensable.

                  • Dustbowl Observer says:

                    I am reminded of a story Ron White, the Texas comedian, tells. He says he was on a high school debate team. After a heated exchange with the other side, he yelled: “Oh yeah? F**k you!” He was immediately dismissed from the team. That stunned him.
                    “I thought I won!”

        • earlofhuntingdon says:

          Absolving the press and political parties of being behind the confusion would be to absolve the teacher for the ignorance of their students. The GOP, in particular, is a rabid propagandist, untethered by facts or truth. The media often regurgitate their propaganda without context. They wash their hands of their obligation to inform their readers when they frame the problem as a disagreement among equals, when one side, but not the other, is abhorrently wrong.

          It would also be incorrect to say that an aggrieved candidate is left without “legal recourse.” That’s exactly what they – and Trump – had through the state court system.

          That state laws and their application will not generate uniform decisions is built into the system. The Supremes will have to find the hook of a federal question on which to hang their decision. Here’s hoping their decision is more rationally based than their decisions about abortion or guns.

          • Skillethead says:

            I think your points on the media and the GOP are well-taken in general, although I have seen more efforts recently to correct that.

            But I disagree with the notion that it is incorrect to say that a person disqualified is without legal recourse if a Sec of State can simply declare a person as disqualified. (Wow, a lot of negatives in that sentence!) With Trump, it’s easy to come down on one side of the argument, but I worry about precedent.

            • earlofhuntingdon says:

              Is Trump appealing a decision by the SecState of Colorado or a series of decisions by the state courts?

              You may be thinking of Maine. But your argument really seems to be about the manner in which each state writes its election laws. They have considerable discretion over that, so long as they comply with state and federal constitutions.

              • Skillethead says:

                Trump is appealing in Maine as well as Colorado. It seems that Maine’s law says that if there are challenges to a candidate, the Sec of State holds a hearing and then makes a determination, which is what she did.

                So the question in Maine is whether SCOTUS will find this approach to be constitutional and whether Trump has some mechanism for appeal within the Maine legal system.

                This will be an interesting one!

  11. Konny_2022 says:

    From Marcy’s Hansen quote:

    Trump’s question presented is a blob of a question on disqualification.

    The wording of the question presented to the Supreme Court (p.(i ) of the petition):

    Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?

    The petition’s conclusion reads:

    The petition for writ of certiorari should be granted and the decision of the Colorado Supreme Court summarily reversed.

    So the sought-after SC ruling would be “The Colorado Supreme Court in Anderson et al. v. Griswold (23SA300) erred and is thus reversed.”

    Or do I err in this conclusion?

    • timbozone says:

      There are several errors alleged in the petition, correct? The court is therefore being asked to make a judgement into >how< the Colorado Supreme Court erred…if at all. Failing to explain how a State Supreme Court has erred when it is up to the states to determine eligibility to appear on the ballots of state conducted elections would just add to the lawlessness that Trump and his ilk seek.

  12. Konny_2022 says:

    One more comment, after reading some replies to the Roger Parloff thread (provided by harpie above, 1/5/2024 at 6:11 pm). There John Gay is asking: Why does everyone overlook “or given aid or comfort to the enemies thereof”

    Asking the same question I went back to the District Court of Colorado Final Order of Nov. 17, 2023, and found this paragraph:

    262. Because the Petitioners do not argue that Trump gave aid or comfort to an enemy of the United States, the Court holds that Trump’s inaction as it relates to his failure to send in law enforcement reinforcements it is not an independent basis for finding he engaged in insurrection.

    Is there any chance to consider this variant in the current proceedings, or would that require a new court filing? Does anyone know if this variant is included in any of the pending 14A cases?

    • Ewan Woodsend says:

      The United States have no enemies as far as I know at the moment, but perhaps for the Houthi government (and even that is debatable). Rivals, Competitors, opponents yes, but not enemies, since no war was declared.

      • Konny_2022 says:

        Thank you for your explanation. So “enemies” in sec. 3 means (only) foreign enemies. I had thought, since many forms of oath include the phrase “all enemies, foreign and domestic,” it might be the same here. But obviously I was mistaken.

        • timbozone says:

          Under an ‘originalist’ interpretation, your interpretation would likely be better. The issue here is not the legal definition of treason but who is an enemy to the Enterprise itself.

    • earlofhuntingdon says:

      Neither insurrection nor rebellion is conduct that only foreigners can commit. It can also be a crime to “assist” such crimes. But only a foreign person or entity can be an “enemy” of the United States, for purposes of being found to have given them “aid or comfort”. And to be an enemy under that definition requires that the US be at war with them. There are other definitions.

      • SteveBev says:

        In general terms enemies refer to hostile belligerent nation states and their citizens within the laws of armed conflict. However,
        Rebels can be enemies under certain conditions and circumstances as recognised in the laws of armed conflict.
        Which includes how the belligerents chose to conduct warfare, and whether and to what extent they chose to obey the laws of armed conflict. There is also a component of how third parties to the conflict treat the belligerents.

        There was much about the American Civil War which was conducted according to the laws of armed conflict, including eg exchange of prisoners of war and paroling POWs.

        Confederates, for the most part were thus enemies notwithstanding they were also rebels. However, certain groups of irregular Confederate combatants were regarded as beyond the pale and treated as unlawful combatants.

      • timbozone says:

        A “domestic enemy” certainly could be someone who is actively trying to overthrow the Constitutional order by force. One must remember that at the time the Constitution was ratified that there were many people, domestically, who were not “United States nationals” within the geographic area of the new United States territories.

        One might also look to the legal precedents set during the US Civil War in its entirety. For instance, under Union law, what legally made someone a rebel in the 1861-65 time period?

    • Konny_2022 says:

      I just discovered via the Lawfare tracker (https://www.lawfaremedia.org/current-projects/the-trump-trials/section-3-litigation-tracker) the Illinois petition, filed by objectors on 1/4/2023 (https://www.documentcloud.org/documents/24258817-illinois-objectors-petition_-anderson-et-al-v-trump?responsive=1&title=1).

      This petition includes a section TRUMP GAVE “AID OR COMFORT TO THE ENEMIES OF” THE U.S. CONSTITUTION (pp. 77-8, pdf pp. 80-1).

      The petition was obviously filed before it became public that Trump skipped the “Illinois pledge” not to overthrow the government this time, although that doesn’t make a difference because the pledge was struck down on the federal level as opposing the first amendment.

  13. rattlemullet says:

    I think the cake is baked, SC will rule in favor of trump removing any doubt that state courts and state attorney generals cannot use the Section 3 of the 14 amendment to remove trump from state ballots. I believe I have heard that same argument voiced here and seemingly correctly so.

    EW and friends are the best journalism going. That you all for all your incredible work and professionalism.

      • rattlemullet says:

        No I do not think that. I think that they will come up with some “originalist” interpretation that will preclude any state from removing any leading candidate from being on a ballot. The last thing court will do is declare trump an insurrectionist, if only we could be so lucky. That would be checkmate for trump. They would not be so bold. If they allow trump to be removed from the Colorado ballot then all states in the litigation pipe line could effectively determine the outcome of who the leading eligible candidates are by court rulings. As well as Red states would start removing Biden from the ballot. I think bottom line is they will have to go all in one way or the other. I think ultimately they will be letting the voters decide not the state courts. As stated above they will do this through some “originalist” word salad with a ruling in excess of several hundred pages.

        • Rayne says:

          Good luck with that since the original originalists said states run elections. How many times does this have to be said?

          What they could do is wash their hands of it by punting it to the states since they’re going to insist states have rights to dictate half the population are second class citizens — you know, people like me born with a uterus.

          Then Trump would actually have to get off his lardy ass and campaign in each state to win and retain his place on the ballot.

          • rattlemullet says:

            Good morning, thank you for your response. Just as the SC did in 2000 they found a way not to let the state of Florida run their election. I fully believe they will do the same for the TFG. This SC will always find away to keep women as second class citizens when it comes to reproductive freedom. Originalism as interpreted today only applies to guns, women, and corporations.

    • OnKilter says:

      The speed with which the SCOTUS accepted Trump’s plea indeed indicates the the “cake is baked”.

      As to the recipe for that cake?

      Well, the 2000 Bush v Gore decision was pretty innovative. I expect that this court will also find an extraordinary way to nullify Colorado decision while maintaining their veneer of Constitutional “originalism” and “states rights”.

      Those six justices are very clever!

  14. Myra_Bo_Byra says:

    As commented earlier, I can only hope that Trump’s brazen attempts to intimidate Kavanaugh will backfire. I have such a low opinion of this Court now I wouldn’t rule out a 6:3 ruling that a President is immune from criminal prosecution if they take that case.

    • earlofhuntingdon says:

      Notgonnahappen. The Court may rule in his favor, but it won’t rule so obviously or broadly as to give the rights it wants to give to a Republican also to a Democrat.

      • Myra-Bo-Byra says:

        You are right, of course, Earl of H! The willingness of the conservatives on this court to destroy the institution’s credibility in service of nakedly political ends is what shocks me the most.

      • timbozone says:

        Very likely they will add a clause similar to Bush vs Gore, making their ruling now not applicable to any further case law…yet deflating the attempt to keep Trump off individual state ballots.

    • John B.*^ says:

      It does not say Confederate anywhere in the section or the Amendment.

      [Moderator’s note: This comment was caught in moderation because of a typo in the email address. It has been fixed. In the future if a comment doesn’t clear immediately you may wish to check for typos. /~Rayne]

    • Benji-am-Groot says:

      Odd, the 14th Sec 3 not not contain the word ‘confederate’.

      It does however mention ‘insurrection’ – so hopefully the Supremes will go with originalism in this case, consistent with their overturning Roe based on original intent.

    • SteveBev says:

      If the Original Intent was to apply the clause only to Confederates then ‘insurrection’ is otiose, as Confederates were entirely covered by ‘rebellion’.
      Thus the section was intended to cover not only the recently crushed Rebellion but also any future insurrection and or rebellion, whether by lost causers, neo-confederates or otherwise.

      • Benji-am-Groot says:

        Yes. And since we are on the subject of ‘future insurrection and or rebellion’ the latest stochastic threat in Iowa brings into clear focus why this idiot cannot be allowed to even be considered for the office:

        https://thehill.com/homenews/campaign/4392902-trump-warns-big-trouble-as-scotus-agrees-hear-colorado-case/

        While I am not a big fan of that site the innuendo in the message seems clear:

        “I just hope we get fair treatment,” Trump said at an Iowa rally Friday. “Because if we don’t, our country’s in big, big trouble. Does everybody understand what I’m saying?”

        • earlofhuntingdon says:

          Trump is channeling Roy Cohn there. Cohn claimed to have little regard for the law and facts – in reality, he would have mastered them – and only wanted to know who the judge was. It was theater for his clients and a threat to opposing counsel, but it demonstrated that he could and did play hardball on and off the field to win for his clients.

          Even assuming it’s possible today to do what Cohn did in the 1950 – 1980s, no one Trump hires has Cohn’s network and pull. But Trump does have an extensive network and will pull every string he has. But he’s a street musician, trying to play first violin.

      • SteveBev says:

        However the intent to bring Confederates to heel illuminates several aspects of the Original Intent

        1 The removal of the disability by 2/3 vote of Congress was intended to stymie the handing out of pardons by Andrew Johnson to Confederates convicted of sedition. It confirms that it is a civil penalty not a criminal penalty thus not subject to the pardon power, and moreover applied to those who had been pardoned. Given that, it is therefore doubtful that criminal conviction was intended to be a necessary condition precedent for its application.

        2 s5 granting Congress powers to further enforce the provisions of 14A does not mean that 14As3 cannot be self executing: s1 is plainly self executing as it is declaratory of rights and freedoms.

        3 Moreover, 14A s3 was brought into effect prior to the ratification of 14A by inclusion in the Reconstruction Acts which enjoins the States to have regard to the language of the draft provision before Congress in election or appointment of officials. Thus it was intended to be self executing even before it was ratified.

        • timbozone says:

          Section 3 of the 14th Amendment has no time limit associated with it. It was meant to stop government officers who break their oath to the Constitution from holding office in future. Forever. Congress can forgive such oath-breakers individually of this >civil< prohibition by act of super-majorities concurrently in both houses of Congres. That's the only way to not have it apply to anyone who previously held office but foments insurrection against the Constitutional order. Being a civil prohibition, it is not subject to the more stringent level of a criminal conviction to apply.

          That's my take. Obviously some disagree.

    • earlofhuntingdon says:

      If Congress intended only to cover former Confederates, it could have simply used a statute. The use of an amendment indicates it was concerned with future rebellions and/or insurrections, not just the one it had just crushed.

      • Shadowalker says:

        They also had a problem of officeholders resuming their former position in government thus the language, “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”, targeting any officeholders specifically.

        • earlofhuntingdon says:

          Yes, important to emphasize that the prohibition on holding office applies to the entire federal government and all state governments, including the military.

          • timbozone says:

            Also important to realize that it does not apply to someone who has not broken their oath of office to support the Constitutional order. In the case of Trump, he swore an oath, as an officer of the United States, to uphold the Constitutional order, something he seems to have patently cared not much about.

    • Operandi says:

      Even if that were the standard, I’m not sure it’s immediately cut and dry, given some of the flags flown by the mob on January 6th.

      Biden actually made a point of highlighting the presence of Confederate flags in his speech last night, which I took as subtle commentary on the 14AS3 proceedings:

      But instead, the mob that attacked the Capitol, waving Trump flags and Confederate flags, stormed right past that portrait.

      In that same vein: He also repeatedly called J6 an “insurrection” 10 different times.

      https://apnews.com/article/biden-speech-valley-forge-trump-campaign-bda2293cac2b30e49157c2e6fb256d64

      • timbozone says:

        Yes. Has Trump said one thing about being opposed to Confederate flags inside the US Capitol? Basically, this is about the Union, Constitutional conduct, regularity.

        • Ginevra diBenci says:

          Thanks to all on this comment thread, which has taught me much I didn’t learn elsewhere. Stevebev and timbozone, the ways you explained 14A, s3 made perfect sense to me. When SCOTUS eventually rules on this, having made their opening salvo that broad question as to whether Colorado’s SC “erred,” I am guessing your erudition will be a big part of why I’m even more frustrated and pissed off.

  15. Epicurus says:

    I am currently reading a biography of James Longstreet by Elizabeth Varon, a professor at UVA. Longstreet was next to God in Lee’s eyes and was his right hand general at Gettysburg. He was a slave holder. He had a conversion after the Civil War and moved to the other side of the ledger as a Reconstructionist. He wound up holding a series of postings/offices. It would be valuable for everyone’s education to read Ms. Varon’s take on Longstreet, Trump, and the 14th amendment. It clarifies a lot of what was going on, in her eyes the intent of section three, at the time of the amendment’s passage.

    https://time.com/6333998/insurrection-clause-trump-longstreet/

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