Open Thread: Trump v. Anderson before SCOTUS
[NB: check the byline, thanks. /~Rayne]
Because everyone will likely be restless and itchy about today’s hearing, I’m putting up an open thread.
Feel free to discuss Trump v. Anderson here but bring all your off-topic discussion to this thread, stay on topic in other threads.
Wikipedia page for Trump v. Anderson here, in case you need a primer:
Trump v. Anderson (No. 23-719, filed January 3, 2024)
In a nutshell, Colorado’s state supreme court found Donald J. Trump disqualified from the state’s primary ballot under Section 3 of the 14th Amendment which bars candidates who have participated in insurrection or rebellion against the Constitution in spite of swearing an oath to uphold and defend the Constitution.
Trump appealed the ruling; the U.S. Supreme Court will hear oral arguments today.
The hearing is scheduled to begin at 10:00 a.m. ET.
You can listen to the arguments at https://www.supremecourt.gov/oral_arguments/live.aspx – they are expected to run over the scheduled 80 minutes.
Long-time community member harpie has shared quite a few more resources pertinent to today’s arguments below in comments (thanks, harpie!).
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Thank you.
Good morning.
Are we going back to the end of the brief era of Reconstruction when the Court eviscerated the 14th and 15th Amendments and the era of Jim Crow began? I would not put it past other lawyers to rule that inserectionists are not disqualified, and deny that they are ruling that way simultaneously,
OTOH, ignoring Sp Ct rulings seems to be fashionable.
(Ms. Swift rocked Tokyo. Cool.)
CNN has a post linking to Republican Congressional and Republican SoS amicus briefs:
https://www.cnn.com/2024/01/18/politics/14th-amendment-supreme-court-trump-colorado/index.html
As to J6 being an “insurrection,” they never fielded a uniformed military, nor did they coin their own money.
I don’t believe that point is made in any of the briefing.
That would be a rebellion, which the 14th also cites.
The Capitol Police Board and the Architect of the Capitol Office of the Inspector General have both called 06/01/2021 an “insurrection” in official reports.
There have already been numerous rulings declaring that trump did indeed engage in insurrection.
If they want to try the whole “Let the voters decide” BS they can look at the House vote and the Senate vote which both declared the same. House 232 of 435 and Senate 57 of 100. The people’s representatives have already determined that trump is an insurrectionist.
Right. No uniforms. These guys couldn’t even agree to follow Trump campaign’s request not to wear their colors — in essence, their uniform.
Why mint money when they could use cryptocurrency? Insurrection and rebellion isn’t going to look *exactly* like the Confederacy. It just rhymes.
They did not wear uniforms and they have so far denied that they were under the discipline of officers. That doesn’t mean it wasn’t an inserection. It only means they don’t get the benefit of the law of war. Instead they are being tried as criminals.
I missed the beginning of oral arguments, and then I was interrupted several times. Too bad I don’t have a road trip of a few hours scheduled when I could just drive and listen (my attention tends to wander otherwise). But I have been reading briefs via lawfare’s website (and from time to time reading 18th century decisions cited in them).
I agree Rayne, thier uniforms were a combination of the proudboy colours, red Maga hats, and black & green camo tactical gear.
Plus they had Trump flags, America First flags and Confederate flags, among others, all flying side-by-side!
Plus they DID infact mint coins, those pro-Trump Jan 6 commemorative coins, that Marcy often uses as the cover picture on her blog posts about Jan 6 cases… they sold them to many pro-MAGA suckers with promises they would be “worth a lot someday”, when Trump was back in power!
And there is faily convincing evidence that the proudboys were all in contact and coordinating with each other, plus there was the whole Williard Hotel HQ as well. This was a very organized event behind the scenes.
One could argue those red hats are “uniforms”
You can see all of the briefs here:
https://www.supremecourt.gov/docket/docketfiles/html/public/23-719.html
If you prefer to see them color-coded:
https://www.scotusblog.com/case-files/cases/trump-v-anderson/
And a useful Lawfare article breaking down which of the various amicus briefs addresss 8 key questions (e.g., “Is Section 3 self-executing?” “Was Jan. 6 an insurrection?”) and, if a given brief does address the question, where it stands (yes or no):
https://www.lawfaremedia.org/article/breaking-down-the-amicus-briefs-in-trump-v.-anderson
I’m curious if there are any briefs addressing the question agreed to by the cert…Did Colorado err in its decision? The dissenting opinion in Colorado was that their election law doesn’t adequately cover insurrection. I’m going to go look, actually.
You chose a good moniker. According to your standards, neither the Declaration of Independence nor the Revolutionary War constituted an insurrection of any sort, since the first coinage (the Fugio penny) was not produced until 1787, well after hostilities ceased. (Yes, most of the soldiers wore uniforms of a sort after 1776, but of course that was after several battles.including Bunker Hill.)
Sorry, where is there something requiring coins or uniforms?
Honestly, reading about the Whiskey Rebellion trials, I’m not clear why treason charges weren’t levied against anyone. (In which case Biden could have scored some major points by commuting sentences.)
Trump’s “let’s march to the Capitol” along with his ACTUAL attempts to get there (and there were at least 2 witnesses in the vehicle).
Because absolutely nothing in legal history would require that.
Here’s a photo of people waiting in line for a seat at 8 PM yesterday:
https://twitter.com/stevenmazie/status/1755396505832210473
8:01 PM · Feb 7, 2024
Here’s something from Teri Kanefield:
Section 3 of the Fourteenth Amendment and the Spirit of Liberty
https://terikanefield.com/section-3-and-the-spirit-of-liberty/
And Josh Gerstein:
6 key questions in Supreme Court fight over Trump’s ballot eligibility The justices will confront a hornet’s nest of legal issues as they hear arguments in the historic case. https://www.politico.com/news/2024/02/07/trump-supreme-court-case-questions-00140255 02/07/2024 09:24 PM EST
Anna Bower will be following proceedings for LawFare:
https://twitter.com/AnnaBower/status/1755405487305101372
8:37 PM · Feb 7, 2024
https://nitter.cz/AnnaBower/status/1755408708148822216
Thank you!
And here’s Democracy Docket:
U.S. Supreme Court to Hear Oral Argument to Determine If Trump Should Be on the Ballot https://www.democracydocket.com/news-alerts/u-s-supreme-court-to-hear-oral-argument-to-determine-if-trump-should-be-on-the-ballot/ 2/8/24
And here is Elie Mystal being interviewed by Aby Phillip:
https://twitter.com/abbydphillip/status/1755445130545262914
11:15 PM · Feb 7, 2024
Here’s Politico’s Live-Blog:
TRUMP CASE AT SCOTUS; Feb 8, 2024
https://www.politico.com/live-updates/2024/02/08/trump-supreme-court/trump-not-at-scotus-00140341
Thank you for all the hustle, harpie, appreciate all the resources you’ve shared here. :-)
You’re Welcome! :-)
Yes, thank you, harpie, for these and all of the other links you post here.
Rayne, I am using a new name (previous was too revealing) but the same email address. Hopefully you saw the email I sent to you yesterday explaining the change.
Back to reading. Extremely grateful for the informative commentary by Marcy and the regular, long-time posters here. Thank you all!
I received your message and I’ve tweaked the system accordingly, changing all past comments to reflect your new name for security + privacy reasons. — that’s why your comment cleared for publication immediately, having recognized you as an established community member.
Good to see you in comments again.
Oh wow, Rayne! Above and beyond to change my name on my past comments. That is a kindness I did not expect and truly appreciate.
Absolutely love this blog. You all stretch my brain with legal facts and interpretation, your humor, and talk of music.
Not knowing about your situation (no further details required), I assume you don’t want people to find your former username by using search tools. It would have been too easy if I didn’t change them.
Yes, exactly! You can’t imagine how I was kicking myself. I knew better.
We are in excellent hands with Rayne as our moderator, Bird, aren’t we? I love this blog and the job EVERYONE associated with it does. So much gratitude.
Great piece. Thanks for posting this.
Despite all the briefing, appellate courts, including SCOTUS, often enough come up with unexpected rulings and unexpected reasoning. I agree with most who feel the right leaning majority will try to keep Trump on the ballot. It seems clear that he should be considered an “officer” and therefore covered by the 14th Amendment. Theoretically on appeal the Court should defer to the fact finding of the trial court. Their best way out is to find, as a matter of law, that the lower court used the wrong definition of “insurrection”. They can simply compare Trump’s antics with the Civil War and say the two are different, and that the writers of the 14th Amendment had the Civil War in mind, not a several-hours scuffle. Incidentally, while it seems the Amendment is self-executing, it is not automatic. Note that a number of senators were actually seated before they were old enough according to the Constitution, one was delayed in being seated until he got old enough, and Biden was elected to the Senate before he was old enough to serve, although he qualified by the time he was seated. So there is a little wiggle room there, although it seems doubtful the Court will go that way.
I can’t imagine the Court wanting to get involved in a determination of whether or not Trump is an insurrectionist. Finding that section 3 is not self-executing seems like the most palatable way out for them, IMO.
That is a way out for them. Yet, if they go there, what is to prevent a future, “I won. Election fraud is afoot. I have alternate electors.” repeat, this time by Trump again, or some time in the future. If they say what Trump did is short of “insurrection,” they give him a free pass to do it again. It is a thicket.
If they don’t have to get the hems of their robes dirty while it happens, do you think they (as in, at least 5 conservatives) would care?
Somewhere, higher than Heaven, Sam Cooke is singing, “(Lord, Please) Clean the Hems of Their Garments.”
Oh my goodness! An all-time favorite from an all-time favorite! Thank you!
https://www.youtube.com/watch?v=wMI6iIboHtU
Spreading the gospel of Sam Cooke is always a pleasure.
It just seems that there is too strong an analogy with other constitutional qualifications that are self-executing, such as age, citizenship, and the like. In those cases, people generally follow the law, but if there is a question you go to court to get a decision. The same thing happened in Colorado. SCOTUS would not necessarily make a decision, but issue its own definition of “insurrection” and remand for the lower courts to decide. As chaotic as the Trump administration was, it would be easy to argue that Jan 6 was not sufficiently “organized” to meet the typical dictionary definition of insurrection!
How many organizers can fit on the head of a pin?
The narrative that reflects the prior organization of the J6 mob is not only (mostly) well-known but is part of the basis for hundreds of successful J6 prosecutions. These results are superior to the ‘dictionary.’
“As chaotic as the Trump administration was, it would be easy to argue that Jan 6 was not sufficiently “organized” to meet the typical dictionary definition of insurrection!”
That is not easy to argue. I don’t think it could work as propaganda or misinformation, except for somebody like Chait in the media, but not in court, because strong evidence on the record in the fact-set in Colorado of a multi-pronged conspiracy to commit insurrection that played out over months, and adjudication of insurrection as a factual matter is settled in this case. They looked pretty well organized here in Georgia in their effort to steal my vote to be honest. For my part, I think the only reason Trump’s autogolpe failed in throwing the election to the House was that Trump chose Pence because of his golf game instead of kompromat. Somebody probably told Trump the Vice President was a nobody.
Pence, as awful as he is ideologically is a boy scout. Probably not blackmailable.
Trump won’t make that mistake again.
But remember that the insurrection played out over months, not one day. Per Wetzel.
It is hard for me to envision any outcome other than that Colorado (and other states) may declare Trump ineligible to be on the ballot. I have deluded myself in the past, and this self-knowledge leaves me with a very difficult-to-describe state of simultaneous anticipatory excitement and dread.
Go watch Tracy Chapman and Luke Combs.
I mean that is what I am doing when I feel existential dread for the past couple of days, listening to those two play that song. The only kind of creative writing I have left is country music songwriting, so for me there was so much meaning in the sweetness of Luke Combs veneration of Tracy Chapman, because Luke Combs is a really fine songwriter. There is nothing like fast car for its prosody, the lift in the chorus, the melody and progression, the emotional expression. It makes me cry to think about the song.
I’ve been on Twitter too much. It’s making me think it’s the end of the world. Elon is building it into a Skinner Box engagement gives you is a reinforcer and bot swarms are like punishers to shift attitudes through behavioral conditioning as well as cognitive modes, such as driving attitude shifts through cognitive dissonance.
Anyway, the mood seems very grim. Dread seems to be the prevailing feeling over hope. That song is about hope, and their performance had the love of difference that’s stronger in America than these fascist ideas. Somebody called me out for existential dread here the other day in another thread. I realized I have been making myself miserable about political outcomes my whole life but I can still have existential joy. That song makes me cry now even more than it did when it came out. It’s not supposed to go that way, but I learned yesterday on Twitter that a person’s tears carry out cortisol. When you feel angst, it is not caused by anything but high cortisol. That your tears can carry it away is further evidence that God wants us to be happy. Thank you Twitter!
Cortisol is a bit reductionist for me … but I take your point.
A practical remedy: set a time limit for social media and then go outside for a while and enjoy nature and other good folks out in the neighborhood. That, or clean the house. Or read a book.
Thanks for reading the book I wrote. The determinism was kind of a in joke for the people who don’t miss Ed’s posts. The last one was about free will and biological determinism. Sorry. It’s an open thread, and nobody should take advice from me on how to maintain their emotional balance.
I mean look at me.
Got it!
I mean, I started taking Ashwaganda specifically because a new job required I deal with a much more intense daily commute than I was used to. I started to become hair-trigger angry whenever I was driving.
I’m sure there were multiple routes to addressing the negative impacts the stress was having on me, but that certainly did the trick.
Two things:
Yes, that was a fantastic performance. I teared up at it, at Annie Lennox singing Nothing Compares 2 U, and at Joni Mitchell. The Grammys really had it going on this year. The soundtrack to my just-post-college first-time-in-love years ’88-’91 was Tracy Chapman, Christine Lavin, Suzanne Vega, Sinead O’Connor, kd lang, and Sting. So powerful sense memories. Made me go back and listen to Chapman’s other albums — let me heartily recommend “Where You Live”. Fantastically powerful.
Second, the best way to survive these fractured times is to make sure that we all have *something* that regularly gets us out and in contact with people we disagree with politically, so that we all see each other as human beings. I’m a transwoman in a solid red part of a swing state — my choices are to forge connections, or never leave my house. Personally I play (and help run) public game days of TTRPGs (Like Dungeons & Dragons, but not D&D) about 1/wk. I have friends who I know I disagree with politically, but who have my back (and I have theirs).
If you can find your way to make connections you will feel better and you will improve the social fabric of your community. It’s how we get through this.
Good advice.
Yesterday, I ran down the video of the (Tracy Chapman & Luke Combs) “Fast Car” duet at the Grammys. Each listen brought me chills. Such lovely reverence from Luke to Tracy.
Spouse and I lived near Harvard Square back when Tracy was busking there. Alas, we never saw her play.
I have not read the briefs in this case but wonder if they mention the Guarantee Clause – Art. IV, section IV – which would seem to limit or prevent some of the Court’s potential outcomes.
[link is broken]
https://constitutioncenter .org/ the-constitution/articles/article-iv/clauses/42
One question that I have not seen addressed much at all is wouldn’t whether or not Trump is on the Colorado ballot be a states rights issue?
Each state has its own election procedures (caucus vs primary) and registration procedures (pay this fee and get this many signatures). Those procedures in a lot of cases restrict the ability of third party candidates from logistically getting on the ballot (even if they meet the constitutional requirements), but they are state specific. If Colorado does not allow Trump on its ballot, then how does that impact the ability of Maryland to hold its election and whether Trump is on the ballot there? I’m fairly sure that there were elections prior to the civil war where not every candidate was on every state’s ballot. That didn’t make those elections unconstitutional.
I do understand that there are political implications because realistically a candidate missing out on a single state’s electoral votes would be catastrophic for their chances, but I’m wondering about the legal implications of each state having its own potential list of candidates on their ballots, even if these days with the DNC and RNC making sure the major candidates get listed in all 50 states its not really a problem for them.
Elections clause in Article 1 delegates to the states: “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof”
Each state has different procedures for ballot access:
For example, Georgia requires 7500 signatures to obtain ballot access for the position of President of the United States – Green Party of Ga. v. Kemp, 171 F. Supp. 3d 1340 (N.D. Ga. 2016).
Louisiana requires $500 fee or 5000 signatures.
Ballot access is not gauranteed in all states for a candidate, and it is entirely possible for a candidate to only be on some state’s ballots.
That gives rise to one of my concerns about this: that the Supremes accidentally on purpose give oxygen to the Independent State Legislature movement. We’ve had good cause to worry about popular vote nullification before.
They mentioned a candidate who was barred from the Colorado ballot because he is a naturalized citizen but is actually on the ballot in some states. I grew up in the same neighborhood as Gus Hall (Minnesota’s Iron Range was a long-standing hotbed of socialism and communism; a rural township near where I lived had a heavily Finnish population, and in the 70s FBI monitored the goings-on at the Finnish Festival, and in the early 80s one of the larger towns in the area had a Lenin Bookstore). I tried to find which ballots he was on when he ran for pres for the Communist Party (4x from 1972 to 1984) but no source found.
Catastrophic for the overall process, potentially. It doesn’t take all that much to wind up with a result that kicks the election to the House. I can’t imagine that going well. In fact, I can’t imagine a Presidential election going to the House without a genuine fist fight breaking out.
What you are getting at, maybe, is why the original autogolpe plan had installed that weirdo, Kash Patel, in there as Chief of Staff at the Dept. of Defense. I think the other butterfly’s wing, aside from Dan Quayle, was that Antifa, whoever the hell they are (if they even exist) did not show up on Jan 6 to counter-demonstrate and brawl with the Proud Boys.
I’m referring to the possibility that one or more states doesn’t send electors at all as a result of legal issues around disqualification. That circumstance then leading to no candidate reaching 270. Maybe that’s more farfetched than is worth thinking about.
I see. Would State Legislatures have to carve out a way in state law for them to refuse to send electors? IANAL but it seems unconstitutional on its face for the power to vest in a single state to throw the election to the House. Watch state legislatures and we will know if there is a plan at the Heritage Foundation.
For a single state to throw the election to the House, that state’s electors have to be necessary to reach 270 for either candidate – meaning the election must be close to a degree that most elections just aren’t.
A state that is controlled by one party and elects a candidate from that party can never benefit from refusing to send electors – either that party’s candidate loses overall and refusing to send electors does nothing as the other candidate reaches 270 without them, or that party’s candidate wins overall and they could potentially make their elected candidate lose, which they won’t do. The only scenario where this sort of chicanery benefits a party is one where a gerrymandered legislature presides over an electorate of the other party (which, admittedly, are the states most likely to be able to swing an election), but even in this case refusing to send electors seems pretty spicy for the gerrymandered legislature’s ability to retain control in the future.
That’s actually an outcome I worry about–throwing the election to Congress.
The primacy of states in determining election eligibility is being weaponized (unconvincing, of course) by Trump against Haley in Indiana:
https://www.politico.com/news/2024/02/06/trump-indiana-conspiracy-00139973
“Minnesota DFL presidential primary ballot will include Turkish-born political commentator Cenk Uygur”
https://www.minnpost.com/elections/2024/02/minnesota-dfl-presidential-primary-ballot-will-include-turkish-born-political-commentator-cenk-uygur/
Born in Trukey to Turkish parents, but on the ballot. It is an interesting story. Also interesting, the lead person on the Congressional Republicans’ amicus brief is friend Ted Cruz, who might in 2028 have his ballot status litigated on the natural born citizen question:
amicus brief: https://www.documentcloud.org/documents/24366955-gop-amicus-brief
Canada born Cruz: https://www.theguardian.com/us-news/2016/jan/11/laurence-tribe-ted-cruz-donald-trump-citizen-president
Is Vagas giving odds on the Trump – Colorado outcome? Does anyone care to suggest the outcome will be Trump kept off the ballot? This Court, that issue; is it all a tempest in a teapot? A diversion from who the two are, Trump and Biden?
(Cruz is a belligerent, but not an insurrectionist. At least not yet.)
To be disqualified from holding office under federal law is not the same thing as being disqualified from appearing on the ballot under state law. I wonder how much of the SCOTUS opinion will focus on this distinction. We shall see.
Two points I wanted to make calling CSpan this AM. Could not get through.
1. I hope the Court affirms the sanctity of an oath. Jacob Chansley, the QAnon Shaman behaved atrociously and went to jail. Upon his release he chose to pursue Federal office in Arizona. No problem–he never swore an oath. Conversely, Trump took a sacred oath before most of our nation and blatantly failed to fulfil that oath. In their decision I would ask Roberts and others to at least address the question of whether oaths–the complete basis for our legal system–remain sacred!
2. I hope the court acknowledges that the 14th Amendment includes its own remedy. Like impeachment, the remedy specified in 14:3 lies with our elected representatives in Congress–and intentionally sets a very high bar. We do not impeach based upon a simple majority decision in the Senate. Gaetz and MT Green introduced resolutions in the House (with 63 co-sponsors) affirming that Trump did not engage in insurrection. A similar resolution in the Senate was introduced by JD Vance. If Gaetz can get to just over 290 Congress members and Vance can get 67 Senators to support that resolution so be it! That solution will have much more credibility than a 5-4 vote by which Scalia pronounced Bush leader of the country! Back out Roberts–the solution lies with Congress and the bar is intentionally set very high–it requires more than a 5-4, or 6-3 ruling!
Those are really good points.
Try the thought experiment of what the current Supreme Court would do if the GOP had those majorities. Most of us probably feel we could predict the result with near 100% certainty, which is a pretty goddamn sorry state of affairs. For my part, I wish they only accepted liberal humanist free-thinking types, but the law has sacred aspects, like you see in the sacred oath Trump took, a belief in the truth, so what do I know? What is sacred to them?
This scenario keeps replaying in my mind: DJT squeaks by in the swing states, wins the electoral college. It’s inauguration time and he’s taking the oath which (1) he’s already publicly stated he’ll ignore parts of (2) which many (most?) Americans think he’s already violated.
I keep reading about off-ramps for SCotUS in the ruling on Trump v. Anderson. Does our representative democracy/constitutional republic have an off-ramp so we don’t administer an oath of office to a once-and-future violator of that oath? And given the way our government and legal system are currently constituted (and populated) is that the off-ramp currently accessible?
The best concise and insightful commentary on this issue that I have seen came from Hillary Clinton in her interview with Alex Wagner. I’m sure you can find the clip somewhere. It’s worth a listen. As is the rest of the interview.
This is only part of the entire interview but I believe it’s what you’re referring to.
Thanks, Rayne!
Thanks for that, WO and Rayne. Much appreciated.
She sounds so sane compared to almost all TV personalities–certainly any of the right-wing ones.
Of course RWNM has been demonizing Hillary Clinton for decades. But just imagine the world we might be living in today if she had won in 2016 instead of Trump.
I suspect she would have made a pretty good president, though most right-wingers would never admit it. She would have stood up to bad actors like Putin and Kim Jong Un (unlike Trump who tried to bromance them both).
A Clinton administration from 2016 to 2020 wouldn’t have been as scandal-packed as Trump’s. It wouldn’t have offended all of America’s allies as voiciferously as Trump did. (but maybe NATO would have stayed a little more comatose than it did in the current timeline, so in some ways the “Trump wake-up call” may have helped a little, prior to Ukraine etc.)
If Clinton had won in 2016, the Supreme Court probably wouldn’t now be packed with right-wing nutters, and Roe v. Wade would still be settled law. OTOH perhaps a Republican–maybe even Trump–might have won in 2020.
The rot in the Republican Party might not have metastasized as obviously as it has in this timeline. MAGA probably wouldn’t have become such a widespread cancer on U.S. politics, though something analogous to it might have started spreading anyway.
There wouldn’t be such appetite to appease Russia, and abandon Ukraine to Russia’s tender mercies. Republicans used to be tough on Russia, prior to Trump.
The stance towards China might be different (not necessarily better, who knows…)
The world might be making more progress tackling global warming, perhaps. (but the last few decades of kicking the can down the road, do not make it seem that likely.)
The U.S. conservative backlash against “liberal” or “woke” stuff, and all the related culture-war crap, probably still would have happened, but perhaps with different timing etc.
Hillary Clinton did win the popular vote. She lost the electoral college. The e.c. has been the only way Rs have won in the last 24 years – except for 2004.
10:09 AM It’s begun
https://www.supremecourt.gov/oral_arguments/live.aspx
Wilson is speaking
[INSURRECTIONIST SPOUSE] THOMAS is the first to ask a question.
sksksksks insurrectionist spouse
Counsel is MITCHELL, not Wilson.
Kagan is questioning now.
https://nitter.cz/DemocracyDocket/status/1755612901438791843
Feb 8, 2024 · 3:21 PM UTC
https://nitter.cz/DemocracyDocket/status/1755618232487035132
Feb 8, 2024 · 3:42 PM UTC
Now, Sotomayor
10:47 Kagan
10:49 Gorsuch
https://nitter.cz/DemocracyDocket/status/1755621206470938877#m
Feb 8, 2024 · 3:54 PM UTC
10:56 AM Coney-Barret
And yet the president is the highest ranking officer of the U.S. military as Commander-in-Chief, one appointed by the people.
The 14th Amendment prohibits, inter alia, a person from holding “any office, civil or military, under the United States, or under any state.” It is manifestly not limited to appointed officers.
It would gut Section 3 entirely if “officer of the United States” excludes the top offices of state, the president and vice president.
Uniformity seems to be a non-issue. Each state determines its own election laws, which guarantees a lack of uniformity. Change that fundamental arrangement first, or follow it.
Making the Presidential election subject to federal control opens the door to harmful and also beneficial reforms. I think of Congress requiring a vote by mail option in every state and requiring a minimum ratio of polling places to eligible voters in every precinct and county.
I never understood how this argument ever held sway with any judge.
In Article 2 Section 2 Clause 1 of the Constitution, it plainly says, “Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone . . .”
What does “Officers of the United States, whose Appointments are not herein otherwise provided for . . .” mean?
Some Officers of the United States the President does not appoint. Their appointment is “herein otherwise provided for”. The only “officers” this could mean here are those whose manner of appointment is provided for elsewhere in the Constitution. These are the President, Vice President, Speaker of the House, and President of the Senate.
Well, only if you can make a case for them being “inferior” officers. I think the intent here was to include lower-ranking types.
No, I the “inferior” officers are the ones “not otherwise herein provided for”, the ones whose offices are created in the Constitution. The inferior offices are the offices created through legislation where the President appoints.
https://nitter.cz/DemocracyDocket/status/1755623797703520740
Feb 8, 2024 · 4:05 PM UTC
wrt: [INSURRECTIONIST SPOUSE] THOMAS, Kaitlan Collins reminds us:
https://nitter.cz/kaitlancollins/status/1755611848689463719
Feb 8, 2024 · 3:17 PM UTC
Josh Kovensky at TPM wonders whether the SC will find that the Colorado litigants lacked standing to bring the lawsuit:
“Under Colorado state law, only “qualified” candidates can appear on the primary ballot.
That’s how CREW got into the picture. They used a separate provision in state law saying that voters can sue if an elected official “is about to commit a breach or neglect of duty or other wrongful act” to argue that it would be a “wrongful act” for the Secretary of State to place the disqualified Trump on the ballot.
Both CREW and the Secretary of State support this line of argument.
But Trump targets it as a potential violation of the Electors Clause, the constitutional provision which holds that states appoint presidential electors “in such Manner as the Legislature thereof may direct.” State courts have interpretive power here, but, the thinking goes, state court decisions cannot diverge too much from the meaning of state election laws in presidential elections.”
*****
As I’ve understood this would be quite a stretch as it would have the federal SC interpreting state law?
SCOTUS regularly interprets state law. See Brown v Board of Education, for a rather famous example.
All the time.
Asking what might be a dumb question, but it seems like nobody brought it up with either SC or article…
Who decides with the other “qualifications” for President? If a candidate who is either too young, or a foreign citizen applies to be on the ballot for President, which entities are responsible for confirming / dis-confirming eligibility?
Seems to me that the natural “controlling body” would be there. Who is responsible for those determinations now?
I wonder if anything will be made of the fact that, within the corners of the Constitution, neither Trump nor Biden will be on the November ballot in the first place (skipping lightly over the question of primaries). So long as the Electors themselves aren’t defined as DQed “office” holders, then especially if there are state laws requiring honoring the pledge, we could end up on Dec 14 with Electors pledged to a candidate who is categorically DQed from office. Fun!
And, given Roberts’ hint that the implementation lies in the federal sphere not the state one, that’s where we may be heading. Wheeee!
If implementation is federalized, the Court is federalizing state election law. That might be a good thing. But it’s not necessary, possible, or required here.
But if you don’t do that, you must recognize the legitimacy of the inherent variability in election laws, when 50 states determine what they are.
Right. A Democratic Congress could require procedures meeting the Oregon/Colorado/Alaska lever in every state. And for now, Biden could easily federalize protection of polling places.
Congress could attempt to federalize more voting issues, such as legislating a Voting Process Act, to require common practices and protections for all voters, regardless of what state they live in.
With a huge caveat about the competence of this Congress adequately to draft such legislation, that would be a good thing. But in practice, this Court seems likely to view it as favorably as it does the VRA.
Third party access to the presidential ballot has long been the province of the states, and the states have a variety of procedures for deciding who appears on the ballot. In state A, you need X signatures gathered throughout the whole state, while in state B, you need Y signatures across the state, but a minimum of Z signatures in each congressional district.
I am certainly not an expert on federal election law, but I don’t think there is any federal law about ballot access for third party or independent presidential candidates. As a practical matter, candidates and/or parties have to follow the dictates of each state to get on their ballot.
If this is the case (that there is no specifc federal law giving states the authority to set local procedures however they wish), then this is an example of states exercising their authority to manage — and make judgments about — the eligibility for candidates for federal offices.
The backdoor pathway to the U.S. Presidency (lose the election but be named Speaker of the House and then have Congress impeach the current (Democratic) President and Vice President) is far-fetched, but Trump did make a public show of volunteering for the job a few months back, suggesting to me that someone has his ear and dangled this very idea to him.
While the SC holds oral arguments about how the insurrection clause can be invoked and by whom, I don’t know whether it addresses this back door scenario.
No that was not briefed nor argued.
Funny way to attack states’ rights.
I found an argument that I wonder if you might provide feedback on.
Trump was an Officer of the United States as President. He swore an oath to uphold the Constitution.
Trump has already been found to have committed insurrection by the House and Senate. That was done with his impeachment and trial in the Senate. The majority of the House voted to impeach him for insurrection. The majority of the Senate voted that he committed insurrection (57-43). It just didn’t meet the required vote to remove from office so therefore went no further.
We need to remember that holding public office is NOT a Right; it is a privilege and therefore we do not have to have as much of a burden of proof as we would for a criminal conviction. The majority of both houses of Congress have said he committed it and therefore Trump can and should be ineligible for office based upon this idea.
So what do you think of this argument? It isn’t mine but I found it to be interesting.
A criminally accused person gets to walk free even if a majority of jurors think he is guilty. A conviction (unanimous) has preclusive force in follow-up civil cases; a mere majority has no legal effect. Why should impeachment work any differently?
Wasn’t he already deemed an Insurrectionist by the House and Senate when the majority of both Houses voted to Impeach and Convict him of Insurrection? What about the FACT that holding public office is NOT a Right but is a privilege? There is a lower bar of proof when it isn’t a criminal proceeding. For civil trials, almost one-third of states only require a majority for a verdict.
Trump was twice impeached by the House but never convicted by the US Senate. Sustaining on an article of impeachment charge would require a 2/3rds majority in the Senate for a US President.
You are correct that, generally, there is a lower bar of proof required to sustain a civil lawsuit than a criminal conviction.
Unsuccessful impeachment isn’t relevant. It’s not Congress making a determination here of whether Trump committed an act of insurrection. The standard is a constitutional one. States control voting. A state supreme court determined that Donald Trump did, and, therefore, prohibited him from holding office. That’s a civil consequence. Criminal evidentiary rules and due process are irrelevant.
One could argue that the state supreme court determined that Donald Trump had committed an act of insurrection and therefore _is already disqualified_ from holding any Office civil or military in the United States, until such time as both parts of congress decide by two-thirds vote to remove this disability.
It doesn’t look like the Supreme Court is leaning that way, which is too bad because that would have be an emminently sensible outcome.
Its not like just anyone is automatically eligible to hold public office in the U.S. There are constitutionally-mandated eligibility requirements, and its fairly clear that Donald Trump doesn’t currently satisfy them.
Impeachment happens in the House; removal in the Senate. A POTUS can be impeached, but not removed.
Both Clinton and Trump were impeached.
11:02 AM Murray [Counsel for the group of Colorado voters]
[INSURRECTIONIST SPOUSE] THOMAS is again first to ask a question.
Feb 8, 2024 · 4:07 PM UTC DD:
Virtually everyone knows that Thomas is not going to recuse himself despite needing to do so due to his wife’s actions. They also know that he is going to vote for the Republican side of everything. The question should be if Trump was an insurrectionist and that can be argued was proven when the majority of both the House and Senate voted to impeach and convict him. If he was an Insurrectionist, that means he should be disqualified from holding office ever again.
11:22AM ET Kyle Cheney
11:26 AM Marcy:
11:32 AM Marcy:
11:36 AM DD:
11:41 AM DD:
Alito surely knows that, in his hypothetical, it would not just be “okay” for someone in the military to disobey an illegal order. It would be mandatory.
Additionally, a person either holds the office of President or he doesn’t. “Interim” doesn’t enter into it.
I was just pondering this space of time after the election. Who but the “former president” will fill ~3 month gap until inauguration?
I like the idea that the Section 3 stuff is self-executing, but Alito’s hypothetical does hilight some difficult consequences that would bring.
Suppose a lawfully-elected President engaged in insurrection while holding the office. According to Section 3 he is no longer qualified to hold any office including the office of President, so if it were self-executing, then presumably he should be immediately removed from power and the current Vice President should immediately become President.
But by what process or mechanism would this occur, and how could or should that transfer of power be enforced? Would the Vice President go on TV and claim he was now in power? If there were some kind of power struggle between the two, it could be calamitous. Who would the military ultimately take their orders from, if some global crisis occurred during this dispute?
Would deposing the now-ineligible President require some kind of legal challenge, and a ruling by the courts (which could take years)? Would Congress weigh in?
Would the military seize power and kick the former President out of office and install the Vice President in his place?
One could imagine all kinds of scenarios, pretty much all of them bad.
11:47 AM DD:
11:48 Politico
Thank you.
His insistence upon this hypothetical was telling, imho.
I find the argument that the 14th doesn’t come into play until he actually wins reelection to be a terrifying, yet likely winning argument. I can imagine the chaos come November should Trump win and be deemed ineligible as he is an insurrectionist. It is far far better for the SC to decide that issue now.
See my above comment. Could it be argued that the House and Senate already marked him as an Insurrectionist by the majority voting to impeach and convict him for Insurrection?
He was not convicted of insurrection, he was impeached but not convicted.
Correct, since conviction and removal takes a 2/3 majority in the Senate. My problem with this is a lack of any judicial-standard proceeding (to coin a phrase) where an objective court makes a determination. I know the CO Supreme Court weighed in, but the finding of fact is at the trial level, not the appellate level.
Here again the “convicted” fallacy. The language of the 14th Amendment doesn’t make any such stipulation. If it’s raining outside, it doesn’t require a formal determination to make “true” a simple observation of the fact.
As for requiring an impeachment verdict from a Senate half-full of weak-minded toadies desperate for excuses to dodge the truth, that’s a sour joke.
True. But the lower standard of a majority returning a guilty vote for impeachment would possibly meet a civil suit standard required to deny further office attainment under the 14th Section 3 clause is what is maybe being argued here?
It’s an absurd position. It would waste vast amounts of scarce public resources – and potentially millions of votes – to allow a candidate incapable of holding office to run for office. That applies to any requirement, such as the minimum age qualifications for sitting in the House or Senate.
Normally, efficiency in the use of public resources is an important judicial consideration. They certainly consider it when dealing with capital punishment, when they value certainty more highly than guilt or innocence when rejecting post-conviction appeals and new evidence.
Especially, as I argued above, that some states’ laws forbid Electors (specifically in this case those pledged to Trump) from voting for anyone else.
I found this argument silly. Mitchell claimed keeping a candidate from the ballot would disenfranchise voters as if allowing voters to vote for a candidate and then disqualifying him/her didn’t. That latter choice, his preference, would be a lot worse.
Zirc
Repeating question from above…
Which entity would be responsible for confirming / dis-confirming eligibility with the other qualifications?
Seems like the same entity responsible for checking that a candidate meets age and citizenship qualifications is the controlling body.
I had to turn off the live feed once I started hearing the cabal of Trump judges arguing that states don’t have authority to restrict federal candidates from the ballot. They’re all in the bag. So frustrating. That they even entertained the “office” vs. “officer” argument for as long as they did was ridiculous. My blood boils.
Just curious, they never had Thomas anyway so as it seems the fully enriched 6 are in the bag why not take a shot at him and bluntly ask why he and his wife did not recuse themselves?
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Thank you, wasn’t sure how to do it.
Why? It is a complete fair point.
State rights except for numerous things, this court has solidly been bought and paid for.
Only hope left is at the “restricted” ballot box. That’s the truth of it.
[Moderator’s note: SEE MY COMMENT AT 12:51 P.M. — I had to change this username. /~Rayne]
State rights except for numerous queer rulings, this court has solidly been bought and paid for.
Only hope left is at the “restricted” ballot box. That’s the truth of it.
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So the fact that states regularly decided eligibility to appear on ballots for Federal office and have been doing this for two plus centuries is no longer good enough at this point?
Really irritated by the argument that a state or small number of states could affect the outcome of a national election by executing the !4th Amendment’s Section 3…
Meanwhile a small number of states BY WAY OF ELECTORS CHOSEN BY STATE LAW affect the outcome of every presidential election.
Yes. Everybody seems to forget that states can choose electors pretty damn much any way they want, as long as their process doesn’t preclude voting based on race, age, or sex. (It could preclude popular voting.)
OTOH, this argument does not apply to primaries, which do not choose electors.
Actually, the elector process does include eligibility on the basis of age, of the Presidential candidate, and the voter, both.
Is it valid for States to forbid from the November election any Electors who are pledged to a categorically DQed candidate? Previously this could have been under-aged, or not native-born, but if the state legislation is sufficiently broadly written, we’ll be back here again when November ballots are printed.
Pretty sure states shouldn’t select electors in violation of their own laws.
YES! Arrrggg!
Yes, the concern for uniformity seems utterly misplaced, given that each state controls their own election laws and, largely, how to apply them. Alito, in particular, is focusing on this non-issue.
Moreover, the standard is not a criminal one, notwithstanding the reference to the crimes of insurrection or rebellion. The standard, and consequence of finding that it’s been met, is a civil standard: prohibition from holding office.
It would be a massive waste of resources, and a violation of voting rights, to allow a candidate unable to hold office to run for office.
I would agree, but let’s understand that a finding of fact has to be part of it. No handwaving, because that’s what the MAGA side does. Even judicial-grade review doesn’t guarantee truth, observe how the mifepristone study retractions will be ignored in the 5CA zone of operation.
Agreed, it’s kinda like saying that Kanye could’ve won in 2020, if only those pesky states loosened their eligibility rules. It’s bonkers and totally at odds with how things work in the real world, which is unsurprisingly why this Court (including Kagan, apparently!) is entertaining it.
Absolutely the most bizarre part of the discussion. The design of the presidential election system is undeniably a piece of crap, but the idea that having different candidates on the ballot in different states is somehow novel is nuts. Who was on the ballot for president for the Democratic party in 1964? If you said Lyndon Johnson, you get only partial credit. Because he wasn’t on the ballot in Alabama. The party ran a slate of electors who were unpledged.
Green Party candidates, for another example, haven’t been on the ballot in every state because they haven’t been able to qualify in all 50 states. Jill Stein in 2016 wasn’t on every state’s ballot and in several states could only be written in.
None of the majority justices seem willing to let the Voters’ Attorney answer a question. They prefer their own answers. The social nicety patina they cover them in is very Southern. In my view, an elegant expression of passive-aggressive violence.
Yes, my longtime feelings also.
Bless their little hearts.
Of course the Republican appointees on the Supreme Court had devised ways to argue that the Colorado decision could not stand ahead of time. And they were ready to fill in gaps in Trump arguments. This was a foregone conclusion for them.
What was surprising was the Democratic appointees’ skepticism of the Colorado case.
That is absurd. There was no need for such. The case was a dead loser from the start. The justices did not need subterfuge to get there.
How was it dead? Because Trump hadn’t been duly convicted of criminal insurrection? Or would a lost civil suit of having engaged in insurrection be sufficient to disqualify Trump? Or are you saying that no state had has the right to deny anyone eligibility on their ballots for any reason?
The14th amendment, section 3 does not require a conviction – only the behavior is required
AAAAGGHGGHHH!!!!! The arguments about self-execution are soooo fucking stupid!!!!
The founders didn’t imagine both a candidate so fucking corrupt and narcissistic that they would ignore the Constitution, or that states would become so wholly occupied by the same corruption they would not ensure the execution of the Constitution as they regulate elections.
Self-execution requires a candidate to be moral, ethical, and fucking self-aware.
Barrett is arguing as if a candidate has a property interest in running for office. They don’t. Every candidate has to meet a state-determined list of eligibility requirements. Upholding them does not require that states meet a criminal law standard of process and proof.
Most of the questions here seem manifestly obtuse and obscurantist.
The founders didn’t imagine a lot of things, including that a large enough number of voters would mindlessly support (including through violent, anti-democratic means) a candidate so fucking corrupt and narcissistic that they would ignore the Constitution.
We’re hurtling towards a Constitutional crisis and anyone trying to predict how the next 9 months is going to shake out is just guessing.
I believe the founders DID imagine such a candidate, but didn’t imagine such a huge percentage of elected and appointed officials with the power to stop him would fold so completely to his every whim.
Zirc
Ben Franklin famously hinted that he did imagine it.
The mechanisms for the vertical transmission of authority within the modern GOP would not have been imaginable to the Founders, I think. How can a political party form and operate as a tyranny within a democracy? I think this has become possible through the Gingrich model of candidate development, which attracts hollow grifters, and the de-massification of kompromat.
A republic, if you can keep it.
Listening to the Justices pile on Murray, I feel that the reluctance of DOJ to charge Trump with insurrection directly is going to give him a free pass to do it again. They are going to find that it is up to Congress to remove an elected President who has participated in an insurrection by 2/3 vote.
I have grave doubts that this is going to end well.
I am listening to the hearing. I have no experience and am not trained in the law. But I feel it is going badly for those arguing for Colorado. But listening also makes me feel the 14th Amendment Section 3 is essentially useless. By the time the debate over what the precise definition of insurrection is, it will be too late.
Seems like since it was a “putsch”, a planned conspiracy to interrupt a required constitutional act, the fact that 45 personally said “follow me” and “were going to walk down there”, shows specifically that it was an insurrection.
(also not a lawyer – and the law frequently mystifies me, but) I take solace it two small things (fantasies? Perhaps someone will pop by and disabuse me of these notions)
I don’t think this is a ruling on XIV section 3, or even on whether Trump is eligible under XIV section 3 – it’s a ruling on whether the Colorado Supreme Court acted properly in ruling that Trump should be excluded from the ballot. The justices’ individual opinions may cite different rationales, but I expect that the common ground of those rationales (if there is any) will be fairly narrow and well-defined.
I keep reading that SCotUS usually lets the lower court’s finding of facts stand as is – to the point that it’s pretty rare for the court to re-examine findings. Googling around a bit, I see that the test for re-examining lower court findings is whether they are “clearly erroneous.” It’s easy for me to imagine that the justices might have different opinions of whether Colorado’s finding on insurrection is “clearly erroneous” – but, in my mind, if the justices differ on this, then “clearly erroneous” logically loses.
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Regarding the Congressional 2/3s removal of disability: if the States decide that PO1135809 is ineligible, and remove him from the ballot, wouldn’t it be up to Congress, not SCOTUS, to vote on it? If 2/3s of Congress decides that the disability should be removed, then he goes back on the ballots…?
Regarding the argument that the President is not an officer/office: does the President, as Commander in Chief, satisfy the “civil or military” office requirement?
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I found the “officer” question less a slam dunk than I’d thought. The Speaker of the House is not a separate officer of the U.S., but one appointed within the House among its members to have extra duties and powers; and while in the order of presidential succession, not an elected nor executive appointed “officer” for that role.
In Minnesota the election statutes have each “major party” specify to the Secretary of State its candidates for its primary ballot. Being a major party appears to be an issue: https://www.msn.com/en-us/news/politics/minnesota-dfl-seeks-to-end-legal-marijuana-nows-major-party-status/ar-BB1hVB36
For the primary ballot a party may offer a primary ballot candidate who is not qualified. It is a deal with it later thing. https://www.cnn.com/2023/11/08/politics/minnesota-14th-amendment-trump/index.html
The lack of questioning about what is “insurrection” during broadcast oral argument suggests the Court will dodge that question. The Justices seemed less than thrilled with argument that Colorado had presented a record, so look at that record and say whether they called things right or wrong. It will be an interesting decision. Some states require a petition to be on a ballot, with a number of registered voters signing. Some do not. For those which do, failure to submit such a petition with sufficient signatures by a deadline will disqualify that person from being on a ballot.
But get to a determination of disqualification for being an insurrectionist, we have to wait and see. From the questioning a divided court can be expected, concurrences in part with a majority decision, dissent(s) and such.
Oh the irony, NYT is reporting that Bolsonaro is being charged with attempting a coup to overturn the results of the 2022 election..
https://www.nytimes.com/2024/02/08/world/americas/brazil-police-raid-bolsonaro-attempted-coup-investigation.html
Access to this story via other means
https://www.reuters.com/world/americas/brazil-police-target-bolsonaro-allies-probe-into-coup-attempt-2024-02-08/
https://www.washingtonpost.com/world/2024/02/08/bolsonaro-named-target-brazil-coup-probe-ordered-surrender-passport/
https://www.bbc.com/news/world-latin-america-68239341
It’s over already. 3A is no more and evidently, was never there to begin with.
Section 3 of the 14th Amendment.
Eh, the Third Amendment ain’t doing so well these days, either.
AAAHGGHHGHHH!!!
People under the age of 35 are disenfranchised by the Constitution which says the president must be 35 years old or older to be eligible (which, by the way, is self-executing if the candidate is moral, ethical, and not a fucking narcissist) — not.
People who are naturalized citizens are disenfranchised by the Constitution which says only U.S.-born persons are eligible for the presidency (which, by the way, is self-executing if the candidate isn’t an asshat like a certain foreign-born candidate in MN) — not.
The disenfranchisement of Trump voters is a crock of shit argument because there are limits placed on eligibility of candidates.
12:02 PM Stevenson
[INSURRECTIONIST SPOUSE] THOMAS is AGAIN first to ask a question…is it that he’s senior?
12:10 AM DD:
12:16 PM Mitchell rebuttal
12:18 PM Court is adjourned
12:18 PM DD:
They do ask in order of seniority, but Thomas famously remained quiet for 10 years. I see this as the Justice’s way of giving the finger to those who told him “Clarence, you may want to sit this one out given that your wife supported the insurrection.”
Yes, he goes first because he’s the senior associate justice.
Clarence Thomas must be very concerned about how this case turns out. He’s speaking in public.
It’ll be entertaining to see the statistics on Thomas’ question numbers in this argument vs. the last several years.
When Thomas name checked Shelby Foote in the same sentence as Eric Foner I almost gagged. His insistence about Reconstruction lawmakers’ intent and the need for a historical example was so rich with irony. (Psst: Clarence, the boys you support now would not have thought you to be a PERSON back then!)
But I loved Murray’s comeback about Foner and other respected historians writing amicus briefs in favor of his case. Not that it will matter, apparently. Why is Thomas the worst?!?!
Anita tried her best to warn us.
I remember all too well.
Thank you, Justice Sotomayor for being the only justice to have the correct interpretation of my favorite Amendment, which has been under fierce attack for decades now. Listening at home, my scoresheet shows an 8-1 victory for the applicant.
But there’s good news. This Court will not, repeat, will not issue a stay on the DC trial, which resumes on Monday, no matter how much Thomas and Alito yell. Onward.
My divining rod tells me the Supremes rule in Trump’s favor on this one and refuse to hear the immunity case just brilliantly decided by the DC Circuit, US Court of Appeals.
To repeat what several people have observed, the Supremes are going to overrule the Colorado supreme court. All that’s missing is the specific argument.
It ought be an unanimous decision. Colorado’s case did not go well at all.
Seems to be a dead cert. Interesting to see how this decision fits with the several other Trump cases the Court will have over the next few months.
I’m thinking it will be 9-0 with a lead opinion and a couple of concurrences in the result. Murray played well but has a losing hand.
The result may be unanimous, but I have a hard time seeing all nine agreeing on the underlying logic of the result.
I agree. Probably 9-0 in the result, with concurring opinions about why.
John Roberts writing the opinion with eight separate concurrences would be the second best possible outcome.
It’s definitely a pickle.
The 14th Amendment, Section 3, was drafted during a specific political time in the US where it was deemed necessary to ratify such Constitutional change to prevent elected office eligibility for Civil War anti-Unionist insurrectionists who had, prior to their insurrection, taken oath to support the US Constitution. Section 3 has to be in there for any law preventing former Civil War rebels from regaining political power under the reconstructed Union, otherwise there was likely deemed no way for Congress to pass laws that would be deemed Constitutional under the Reconstruction era Amendments to the Constitution ratified at that time. Without Section 3, substantively, the Federal government would have no good post-conflict legal way of intervening in state office eligibility when it comes to rebel oath breakers.
In thinking on this further, the meer existence of Section 3 in the 14th Amendment raises all sorts of potential abuses, the main question being “Who decides who is an insurrectionist” for purpose of applying the Section? For instance, is it only the Congress who gets to decide who should be deemed a rebel oath breaker? Is it any reasonable person? Can the Federal government summarily declare who is and who is not an insurrectionist oath breaker? Can a court make a finding of fact? If a court can do this, does it need to be a state court or can it only be a Federal court? Is the burden a civil or criminal court burden of proof required before someone is deemed ineligible under Section 3?
Hopefully they’ll come up with enough agreement so there will be a good legal framework, after this case, that balances both the privilege to hold office and the right of the Federal system to protect the Constitution from conspiratorial dissolution.
I almost feel like I’ve asked this question once before, but a quick search suggested not. It feels like a foundational question and yet I don’t recall seeing it addressed. And I am not vesting a given answer with any sparkle-pony omnipotence, I assure y’all, but I am still curious:
What is the standing of write-in votes for Trump in Colorado if he is in fact “banned” from the ballot? And is that answer reasonably constant across other states where ballot bans may yet be in play?
It varies by state.
From the Colorado Secretary of State Jena Griswold’s site:
Write-In Vote Information
In Colorado, a person who wishes to be a write-in candidate for an office in an election must file an affidavit of intent stating that he or she desires the office and is qualified to assume its duties if elected (1-4-1101(1), C.R.S.). The deadline to file the write-in affidavit of intent for the 2022 General Election was July 21, 2022 (1-4-1102(1), C.R.S.). In order for a write-in vote to be counted, the candidate must have filed the write-in affidavit of intent by the July 21 deadline (1-4-1101(2), C.R.S.). Any write-in votes for an individual who did not file the write-in affidavit will not be counted.
If a candidate files the required write-in affidavit by the deadline, then their name will not be printed on the ballot, but a write-in line will be printed under the office they are seeking election where voters can write the candidate’s name
https://www.sos.state.co.us/pubs/elections/vote/writeInVoteInfo.html
I can’t help but notice the phrase “. . . and is qualified to assume its duties if elected . . .” in the opening sentence. The CO Supremes have ruled Trump is not qualified.
That said, I also agree with bmaz: SCOTUS will overrule the CO Supremes and *not* take Trump off the Colorado ballot.
Doesn’t matter, Trump is going to be on the ballot.
Electors pledged to Trump are going to be on the ballot. Does that make a difference to the arguments in this sub-thread?
My understanding is that write-in candidates for president in Colorado still have to register, collect signatures, and pay a filing fee in order for votes to be counted.
Trump’s lawyer, Jonathan Mitchell. Wheaton – Hillsdale College South, Chicago Law, Hoover Institution. Clerked for Luttig and Scalia. Principal author behind the novel, private enforcement mechanism of Texas’s fetal heartbeat bill. Only the best.
He no doubt has a list of payback items for trump should he win office again. Number one being a federal ban on abortion.
I live in Texas and that shit enrages me. Per the marchofdimes website: “In Texas in 2021, the population of women ages 15-44 was 6,156,590”. So six million of our citizens, plus the people (partners, family members and others who love them, are being terrorized by these fucking evil clowns. Three of my six grandkids are Texas girls. They are young now, (12 yrs and younger), but this may end up affecting their lives directly in just a few years.
The “novel, private enforcement mechanism” (love the sarcasm), says people without standing can file lawsuits. The pro-life people here are fine with that since it gets them what they want. The rule of law means less than nothing to these fuckwads.
Concurring opinion from another Texan.
For a Court that generally bends over backward for States arguments about Federalism, the willingness to 86 that principle just because it was inconvenient is shocking. I look forward to 13 year-old animated Pop Idols from foreign countries appearing on the ballot.
[Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters **AS INSTRUCTED IN THE BODY OF THE POST ABOVE.** We are moving to a new minimum standard to support community security. /~Rayne]
I, for one, welcome Hatsune Miku and our future vocaloid overlords.
I had to Google “vocaloid” because I don’t know anything about this phenomenon except that it exists. Now I’m sure I’m on some FBI watchlist.
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Didn’t mean to cause trouble with the naming convention thing. It was my first time posting and I confess I didn’t read far enough down your original post before scrolling down to make my comment. Apologies.
My girls are going to cackle with glee when they find out that I read a Hatsune Miku reference here today.
I have an 11 year daughter. The idea of some reality where Manga goes head to head with Maga brings a smile. Maga wouldn’t know what hit it.
MSNBC seems rabid about broadcasting Trump’s face and words live, notwithstanding his long history of lies, especially when he’s attempting to monopolize the news cycle. Horse manure.
Anybody that can sell me a widget/gadget that silences his voice and replaces his face (with an appropriate excretion) I’ll be happy to pay a few bucks.
They did cut him off after it was clear he wasn’t going to discuss the hearing. but it took way too long. They should’ve just replayed any relevant comments he might have made.
OTOH, MSNBC viewers aren’t going to be swayed by his drivel and it might have some benefit in further motivating voters.
Motivational fearmongering?
Please, Joyce Vance. Colorado was not making “this decision” for the rest of the country. It is making it for Colorado. FFS.
State rights except for numerous queer rulings, this court has solidly been bought and paid for.
Only hope left is at the “restricted” ballot box. That’s the truth of it.
[Moderator’s note: Please use the SAME USERNAME and email address each time you comment so that community members get to know you. You published this as “Michael7748” though you have most often posted as “Michael8748” — I am bow blacklisting “Michael7748” and have changed the username below yet again. FOURTH AND FINAL WARNING: Do not add a URL if you did not enter one with your first comment. This: http: //pleaseletmepost .com entered in the URL field is a red flag to me that you are asking NOT to be published because you’re ignoring moderator requests AND the instructions in the post above. /~Rayne]
Since I have to draw picture for you:
Your comments as Michael8748 will go to auto-moderation until you get this right; comments as Michael7748 are now blacklisted.
Apologies, used auto fill.
[Clean your autofill and browser’s cache. You’re going to remain on probation. /~Rayne]
It’s been a long time since I had to say “Do I have to draw you a picture?” to anyone, and I never had to draw an actual picture…
Thanks for putting up with all the shit that you put up with.
Yep. It’s weird how suddenly there’s folks jumping out of the woodwork exclaiming about how all candidates for Federal office should only be determined to be eligible by the Federal government and not the states themselves. It sort of like these people are opposed to states having state Constitutions and elected assemblies to manage things locally.
Well at a minimum it looks like the conservative justices have bought into the patently absurd notion that the 3rd doesn’t apply to the presidency.
I haven’t been paying enough attention to know the answer to the “did they bring up the Jefferson Davis hypothetical?”
You mean the hypothetical that somehow ignores that Davis was the President of the Confederate States of America, not the United States of America? That hypothetical, the one recently published in the New Yorker, which doesn’t really apply to Trump at all? This one:
https://www.newyorker.com/magazine/2023/12/11/what-happened-when-the-us-failed-to-prosecute-an-ex-president
I generally enjoy Jill Lepore’s writing and find it insightful, but this piece was asinine both in conception and execution. And I say that as someone who thinks that no CSA officials, either political or military, should have been pardoned or otherwise received amnesty!
No, I meant the hypothetical that Davis runs for the Presidency of the post-civil war union. The SC would argue that the authors of A14 did not intend to bar him.
Well frankly both that hypothetical and the idea that Davis shouldn’t be barred sound even goofier than Lepore’s article.
The Supremes seem determined to avoid applying Section 3 of the 14th Amendment, and wanted to avoid sorting out how it would work, almost as much as they wanted to avoid addressing the factual underpinnings of the Colorado decision.
That speaks more to their internal disagreements, rather than the difficulty of applying the Amendment. They had agreed to ignore Section 3; what they needed was a rationale for it.
Section 3’s consequences are civil: prohibition from holding office. It’s enforcement does not require a prior criminal prosecution or conviction. Arguments over whether Colorado’s process was sufficient to meet that civil standard don’t change that calculus.
These are great comments. We are headed back to Reconstruction. What a little Civil War between friends?
If this one causes the deaths of 2.5% of the population that amounts to about 8.4M people.
Dred Scott, anybody?
Apparently for the entitled class which I’m sure includes the SCOTUS, Congress, filthy rich people, and even trump, losing 2.5% of the “loser” population would not be bad.
Not sure how those entitled ones would do the cleanup if the loss became too large that even the peons weren’t around to dig the graves.
This was the dream of the unitary executive proponents. This, along with the MAGA packed state electors/secretaries of state, is going to put Trump back in office and send it to Congress to remove him as unqualified. The likelihood of Congress doing the right thing is zero.
Merrick Garland’s lack of courage, his inability to charge Trump directly, is going to bring democracy to it’s knees.
It doesn’t matter that this is just one state, the MAGA idiots will spin this as vindication for all of his behavior. The majority of the electorate has only a cursory understanding of government and rely on being spoon-fed information by propagandists like Fox.
Just think about what will happen when the Trump gerrymandered states give him the Presidency via the Electoral College and someone, what petitions Congress to remove him as president because he fomented an insurrection, along with a host of the GOP in Congress? The SC just sort of glossed over that part of denying a candidate the ability to run for office. How does that happen?
And if somehow he is denied the ability to take office because of his insurrection participation, how do you think that is going to go over? You think Jan 6 was bad, that will be magnified across the country at state capitols all over the place. But this time with guns.
We are in the midst of a continuing coup.
Along those lines, here is an article highly recommended today by Anne Nelson, author of “The Shadow Network, Media, Money and the Secret Hub of the Radical Right”:
Warn Voters About the Radicalism Beyond Trump The Republicans are plotting to literally rewrite the Constitution to eliminate core rights and protections. https://newrepublic.com/article/178442/republicans-rewrite-constitution-radicalism-beyond-trump Nancy MacLean February 8, 2024
Also related:
https://nitter.cz/Davidlaz/status/1755058031241650279
Feb 7, 2024 · 2:36 AM UTC
Links to Sahil Kapur who writes:
Consistent with my prior observation, I think this oral argument strongly suggests that there is not a single Justice that wants to affirm the Colorado Supreme Court.
There may be a plurality of opinions, but I think one of the central themes is that many Justices across the usual spectrum of divide fear having states being able to exclude federal candidates – and particularly Presidential candidates – under Section 3.
Interestingly, Trump’s lawyer conceded that a conviction for insurrection under 18 U.S.C. § 2383 would be disqualifying. I suspect one of the reasons that Smith did not bring an insurrection charge was to avoid further accusations of a politically motivated prosecution. Trump’s lawyer brought up the issue of Trump’s alleged Presidential immunity but this did not seem to lead to any further discussion or questioning.
Sometimes the outcome of a decision cannot be discerned from an oral argument. This is not one of those instances. I suspect the Justices wanted to get the message out to other states that any similar state efforts will be unavailing.
Then the justices should encourage Congress and the states to repeal or modify section three. If it’s on the books, enforce it.
They won’t do that, they will avoid it like the plague. The only interesting thing will be their stated rationale for ignoring it.
There was general recognition that Congress could pass enabling legislation; so no need for a Constitutional fix. But yes, the likelihood of Congress doing that is remote.
Enabling and unifying legislation, at least on a narrow set of issues. But not having done that allows fifty states to come up with fifty different solutions. It’s the therapist’s monster in the living room that no dysfunctional family will acknowledge.
As goes 14.3, so goes the Emoluments Clause…
Plop.
Listening to the arguments as a layperson leaves me very discouraged. The 14th Amendment was meant to prevent bad actors from attaining office and damaging our Democracy. Yet, that is exactly what is being allowed because nobody has decided if the President is an officer. Or you can’t be President but you can be on the ballot and run for President. That’s how it sounds. A toothless amendment to the Constitution and a corrupt court (Thomas should have recused). If your goal is to erode confident in our democracy, mission accomplished!
I’m reminded of the Monty Python bit where the insurance policy includes a clause indicating that no claim shall ever be paid.
As Skylab was falling out of orbit, Johnny Carson asked his insurance agent whether he was covered if it hit him. His agent told him that was the only thing he was covered for.
Today, the absence of BMAZ and before that, Quinn Norton is conspicuous to me. All Commentaries’ here aggregate into a very useful scaffold that better enables me to grasp with depth. A commenter recently suggested a conversation about “common” agreements regarding content and form. Whereas, trolling is best filtered by “experienced” moderators, I do not believe there can be a singular epistemological taxonomy “curating” what none of us completely understands yet. Marcy’s ball of yarn unfurling benefits from many-eyes- on the puzzle if we are to avoid training our binoculars on all forces shaping this historic moments as witnesses of a horse race. Commenting agreements draft 1.0? How about it, respectfully?
https://www.emptywheel.net/2020/11/03/were-so-not-through-here/
We’re not going to discuss the site’s operations here.
ADDER: For the benefit of the community reading this exchange, I’m going to note you have published (33) comments under three usernames since 2016.
Epistemological word salad.
Were it not for the Big Hard Words, it could serve as an alternative item on the neuropsychological Silly Sentences test.
In contrast, Trump’s word salad is epistemology-free.
While I have not read the briefs, it is clear from oral argument that Colorado is going to lose. HOW they lose will be important, and it is possible that there will be only plurality opinions concluding (for different reasons) that the CO Supreme Court opinion should be reversed.
Frankly, nothing I heard during oral argument surprised me, even what was said by Kagan and Sotomayor. Thomas. Alito, and co. are in favor of states rights until they are not, i.e., as long as their pet agendas are not disrupted. So of course they don’t want states to have the right to bar Trump from the ballot.
Kagan and co. are often what could be called “federal institutionalists” who are inclined to rule in ways that avoid what they perceive to be states “mucking up” federal rules. So it is no surprise what they said.
Jackson was focused on the absence of the office of the President from the relevant provision in the Constitution. She may have tactical reasons for this focus. Would a ruling in favor of Trump based on the absence of the office of “President” from relevant Constitutional language permit the Court to avoid ruling on whether states can regulate elections of federal officials? Consider that there are a number of Senators and Representatives who, IMO, might be considered “insurrectionists.” A ruling for Trump on the grounds that states can’t regulate elections for federal officials would prevent states from keeping insurrectionist candidates for the Senate and the House off of ballots.
What really frosts me is the “concern” of Thomas, Alito and co. about the potential “chaotic effects” of upholding the CO Supreme Court when those same Justices ignore the far vaster “chaotic effect” of overruling Chevron deference and ignore the “chaotic effects” of letting states have their own “border patrol” while excluding federal border-related LEO’s from doing their job.
With the very important caveat that I haven’t read the briefs, I’m not convinced that the CO Supreme Court acted correctly in removing Trump from the ballot, even though there very clearly was an insurrection that was led by Trump. Beating Trump politically and convicting him criminally is the better way to go than trying to keep him off of the ballot.
Your thoughts on the possible reason for Jackson’s focus “on the absence of the office of the President from the relevant provision in the Constitution” make a lot of sense.
Also, totally agree with [and with emphasis] the section that begins with:
What really frosts me is.
No, it would not necessarily, as those are candidates for national office, but only state specific elected. That’s not the issue.
It is false and distracting to argue that affirming the Colorado supreme court decision would force all states to adopt Colorado’s decision. That ignores the fundamental structural issue that each state is currently empowered to decide and administer its own election laws – for state and federal elections. None of them would be bound to follow Colorado.
I think the argument for non-uniformity in outcomes among the states (wrt disqualifying a person to hold office) is made more difficult if the states apply the U.S. Constitution in their determinations and reach different results on the same person from state to state.
The current SCOTUS needed to cut Roe v. Wade loose before it let the states have at it, producing the variety of crazy anti-abortion laws now legally on the books.
Yes, that observation is interesting in that it shows the this Supreme Court is not afraid to just let the individual states “have at it, chaos be damned!”
I wonder if CO is somewhat uniquely situated, compared to other states in the union, as CO’s election law explicitly references the U.S. Constitution as part of its ballot making process? It allowed citizens to have standing and for a fact pattern to coalesce in a court of law, a gauntlet perhaps not available in the other states?
SCOTUS, as interpreter of federal law and how it is applied equally across the US, seemed loathe to deal with CO’s finding of Trump as insurrectionist. If CO properly invoked the U.S. Constitution’s 14th amendment, then I assume SCOTUS would have to apply CO’s finding equally across the country– in the absence of competing fact patterns by other states to choose among.
Seemed like SCOTUS was looking for offramps to avoid that outcome.
Is it possible that SCOTUS has already agreed among themselves to issue a unanimous vote against Colorado in exchange for a unanimous vote against immunity? Does that type of deal making happen at the SCOTUS level?
Yes, it’s possible, and usually depends on the topic and the make-up of the members. The Court needs to poll its members all the time for various things, for accepting cert., for example, or for granting a stay, as in the Trump immunity case.
With the current majority, the networking might generally be limited to votes within the majority, although I would expect Roberts to pay lip service to the interests of the minority. Regarding this case, though, there seems to be unanimity as to the result, but possibly not the reasons for it.
There’s always politicking behind the scenes, but one of the big upshots from the recent reporting on the Dobbs decision leak is that Alito’s fine with backstabbing. He’ll bargain, but he’s not interested in doing it in good faith.
https://newrepublic.com/post/177620/supreme-court-leak-helped-conservative-justices-unite-overturn-roe-report
Justice Alito seems to regard Lewis Powell’s priorities and conduct as a ceiling, not the floor, of good behavior.
That’s what the guys at lawfarelive guessed a couple days ago as they were discussing the immunity smack down by the DC panel, toward the end of the discussion:
https://www.lawfaremedia.org/article/lawfare-live-discussing-the-d.c.-circuit's-immunity-decision
I actually think there’s going to be a 9-0 ruling, with several concurrences no doubt, because of the ‘can of worms’ aspect of an affirmation of the CO ruling. Murray dismissed the notion that a bunch of red states would take Biden off the ballot in that case, but that was a disingenuous take, imo. That would certainly happen if SCOTUS gives a thumbs-up to CO; the several red states’ promise to do that is a kissin’ cousin to the execrable Independent Legislature anti-democratic vengance-porn that the fake elector shit was built on, and I think Totenberg was right when she opined in the npr broadcast that such a prospect would be a bridge too far for the Court as a whole to give a pass on.
I think there will be more than three opinions in the ruling though, only maybe one of them for the idiotic “POTUS isn’t an officer” contortionism.
Otoh, I’m still pretty confident the immunity appeal will crash and burn. I hope that is a more clearly defined (even if only by a cert denial) outcome than this clusterfuck is headed towards.
Well, you do describe a good scenario to avoid. The law is supposed to protect us from Trump, but it also has to protect the election, so if the Supreme Court follows the Constitution, the Republicans will engineer a crisis and destroy the Constitution anyway. What is the court to do? If that is the rationale for the decision, it’s just another phase of a
continuing insurrection.
As has been suggested elsewhere here, this will probably be a blatant political punt on their part, and the success of Trump’s agitprop is probably the largest part of that being the case.
Yesterday, my next door neighbor who is an 80-something ex-country lawyer who has roots in Galicia and who is a staunch Dem, out of the blue he called across our side-yards: “Do you know which country you’re gonna move to if Trump wins?” And this guy is a die-hard centrist, all the way. Major Biden supporter.
How we got here is convoluted to say the least, but the structural impediments to an actual functioning democracy have been planted and growing for years (citizens united, etc) and this case may be just one late-stage symptom of how successful those impediments have become.
I’m gonna work my ass off (and have already sent a scarily large chunk of my retirement in donations to Dems this cycle), but this election might be our last chance to turn the tables. I hope I’m wrong but my neighbor’s instincts are not unreasonable.
Hope you’re wrong too, and I’ve asked myself where we’re going if things don’t go our way in November. I’ve decided to stay here (Oregon) and fight. At age 70-something, what do I have to lose, goddamit.
New Zeland.
My wife and I are lucky in what we do. We could just take our laptops and slow travel until sanity returns. but the thing is we might just do that anyway, and sanity is gone anyway. If you go looking for sanity in the world, you might find yourself running away from crazy people over and over again. You can’t let your happiness depend the “American people” for fuck’s sake. You are setting yourself up for a perennial state of disappointment.
My neighbor mentioned above, who btw is a USAF Korean war vet, visited his relatives in Poland at the UKN border right near Lviv at the beginning of the *current* war there. The similarity between the Russian culture, cheerled by RU Orthodox theocratic warmongering, and the fundie-fueled MAGA movement (an ardent adherent of which lives next door to him on the other side from me) has a lot to do with his POV. His people left that part of Europe for Erie Co, NY just before WWII, and he’s fluent in Polish. He volunteered with Chef Andre’s food-relief campaign while he was there: the Polish side was overrun with UKN refugees.
All that informs his perspective. He made mention of Nazi Germany when he asked me that question. Just yesterday fundie Speaker Mike Johnson suggested requiring a profession of fealty to Trump for GOP congresspeople. Hard to argue with the multitude of similarities.
Myself, I haven’t given up and probably won’t move because of family, but I may not be living in a democratic republic before too long, and if Trump loses, it might become an actual hot war zone in some parts of the country.
Very close to zero.
OT: In the documents case, on PACER, one can find “02/07/2024 MOTION for Leave to File Exhibit Ex Parte and Under Seal” filed by SC Smith’s team yesterday, as “[t]omorrow (February 8, 2024), the Government intends to file a Motion for
Reconsideration of the Orders at ECF Nos. 283 and 286. The Government hereby respectfully
requests permission to file an exhibit to the Motion for Reconsideration ex parte and under seal.”
Here is a link to the docket (PACER account required iirc). https://ecf.flsd.uscourts.gov/cgi-bin/mobile_query.pl?search=dktEntry&caseid=648653&caseNum=9:23-cr-80101-AMC-1
The filing quoted above is item 289.
The set-up for the appeal after the Judge once again (likely) rules against the prosecution. I can’t think of ANY federal judge that I have experience with that would play with fire in this way.
The filing 292 also seems interesting:
RESPONSE in Opposition by USA .. re 285 MOTION for Adjournment of Certain Pretrial Motion Deadlines
Seems like the Special Counsel is tired of defendants’ delay tactics. The first paragraph sets the tone:
Here’s the courthousenews freebee version:
https://www.courthousenews.com/wp-content/uploads/2024/02/trump-motion-witness-threats.pdf
References to an “ongoing criminal investigation” sparks a thought of the recent news item about the FBI’s fuckup in not looking into the “secret door that had its lock changed” during the MAL search, at least in my somewhat addled mind.
Whatever the case, this could be big, I think. They’re asking for an ex parte review prior to complying with her order for un-redaction, and this could be the basis for an appeal to the Circuit for Cannon’s recusal, if she de facto obstructs an ongoing USAO investigation by allowing her ECF 236 order to be consummated despite this motion. I’m guessing that might follow immediately if she denies this motion.
In that 289 filing:
Then in docket entry 293:
Does it mean anything that she didn’t order that the exhibit remain sealed until the investigation it relates to had been closed/resolved?
IANAL, but very curious what the lawyers in the crowd think. Am I reading too much into it by imagining that this is Cannon’s way of telling the SC “file it under seal if you dare, but if I’m not happy with what I see I might unseal it” ?
Judge Cannon has now looked at the prosecution’s filing and decided there is no reason not to share it with the defendants.
Docket entry 299:
I wondered if the “ongoing criminal investiation” might implicate Trump or someone in his orbit.
I wonder what happens if the target of that investigation gets tipped off by someone who sees this sealed filing? (I suppose it would depend whether the Special Counsel was able to show proof of that happening)
It’s no longer accurate for commentators to describe the Supreme Court as averse to deciding political questions. That was true for a long time. But this majority tackles them all time, when it comes to taking away or refusing to enforce long-standing civil rights (abortion, the VRA) of average citizens. Its avoidance currently seems limited to doing that only when it comes to corporations and conservative politicians.
Kinda gives one the blues…
“So many roads, yeah
So many trains to ride
So many roads, yeah
So many, so many trains to ride”
https://youtu.be/dwc7ZEYfWYc
Deciding religious questions as well now, really.
That, of course, is the core of the anti-abortion movement. It galls me no end that that aspect of it isn’t trumpeted everywhere all the time by pro choice apologists.
“Pro lifers” are forcing “unbelievers” to conform to their religious belief regarding when a person becomes a person.
Also OT, Political Wire is up with a link to Amit Mehta denying Peter Navarro release pending appeal:
https://www.scribd.com/document/704493156/gov-uscourts-dcd-244001-169-0-1#
The questions – even from the “good justices” – were sophistry.
The key issue, should an insurrectionist be allowed to hold power in the US, was sidestepped as time wasted away in the hearing. Ignored was the important issue – and surely the reason 14.3 was written – can a country survive if insurrection is rewarded with political power?
This was already the key constitutional issue that Lincoln faced from his first days in office. I discovered this 20-year old fascinating discussion of the constitutional underpinnings of Lincoln’s actions to save the Union through war. It is by Michael Stokes Paulsen, conservative professor, one of the authors of The Sweep and Force of Section Three. A snippet:
Compare the USSC questions today to what the DCCA just wrote:
The constitutional order would collapse, the Union would collapse. Courage and clarity of the DCCA judges. Pusillanimity and obfuscation of the USSC.
*Michael Stokes Paulsen,The Civil War as Constitutional Interpretation, The University of Chicago Law Review, Vol. 71, Issue 2 (2004)
You should consider reading the book “Shape” by Jordan Eilenberg. It’s a book about hidden geometry applications. It opens with Abraham Lincoln’s love of geometry and figuring out what it means to “demonstrate” something. “At last I said, “Lincoln, you can never make a lawyer if you do not understand what demonstrate means,” and I left my situation in Springfield, went home to my father’s house, and staid there till I could give any propositions in the six books of Euclid at sight. I then found out what “demonstrate” means, and went back to my law studies.” And so we are a kind of geometric/Euclidian country “…dedicated to the proposition that all men are created equal” (well, except if you are a former President running again and therefore the Constitution or Declaration of Independence doesn’t apply because you have friends in high places).
Sorry. Jordan Eilenberg is the author.
Ellenberg. Spell check is inserting a different name.
Shorter SCOTUS: “The framers of the 14th didn’t really mean it.”
DFW-based Chris Bellomy of RSG?
There is no legal defense against fascism.
Alito is a bully.
I’m going with 7-2.
SCOTUS appears not to be looking for the proper interpretation and application of the 14th so much as they are desperately looking for a way “let this chalice pass from (us)”. If they deny Colorado, then there is just dust to settle. If they allow Colorado, chaos would ensue — including perhaps states denying Biden the right to be on the ballot (seem impossible? Think Texas.) But it’s certainly not an attractive look for the Court.
Chaos may ensue either way. The best way forward is for the Supreme Court to hand down a good framework to follow when it rules on this, a framework that reduces the number of suits by office seekers who are denied eligibility at the state level. Denials of eligibility happen frequently enough that civil suits fighting ineligibility for some new ill-defined Federal right to appear on state (and local ballots?) (as a candidate for Federal office all the way down to dog-catcher?) might lead to tons civil court cases and appeals, creating an increased burden on state and local jurisdictions, the Federal court system, etc. It really is important that they get this as right as they can the first time, not end up getting it a quarter right the tenth time.
Excellent points, timbo. The question becomes, if the 14th doesn’t say what Colorado says it’s saying, then what does it say? Wonder if the Court will take that task on?
Given that none of the none justices ask to define or clarify the term, insurrection, the justices are not interested in interpreting 14.3 or stating its meaning.
Cathy McMorris Rodgers of WA is hanging them up. OTOH, Tulsi Gabbard makes yet another bid for relevance by floating the idea that she’d be open to being Defendant-1’s VP pick. Yet another failure to ‘read the room’ by Tulsi.
McMorris Rogers, believe it or not, occupies the seat that Tom Foley sat in when he was Majority Leader just prior to Gingrich’s rise. Glad to see her shuffling off.
Spokane is more liberal than it has been since Foley left, and I think there might be some hope of a flip there with her incumbency no longer a factor. It would have to be someone very charismatic, though.
On the right, I can see John Stockton putting himself forward. That would be a tough challenge for the Dems.
Lol, it just occurred to me that I lived in both WA-05 and HI-02, and moved from both of those districts just before those two Reps got elected. Glad I didn’t have to consider myself a constituent of either of them.
I would be very surprised to see WA-05 flip, but then we were all on pins and needles about WA-08 when it was an open seat and Dr. Schrier has not only won it but held it. WA-03 was surprisingly competitive in ’22.
So I think you’re basically correct about needing an unusually charismatic D candidate. OTOH, I could also see an absolutely unhinged R candidate make it through the primaries. Someone like Matt Shea, which would give any D candidate the “not a nutjob” bump.
I believe our odds are better with Donald on the ballot than Nikki.
We know the Supremes are corrupt.
Better to have better odds for a Biden second term, where then maybe the court composition sees a change for the better.
Republicans themselves have said they have nothing to run on. So maybe just maybe Congress and Senate both go Dem, too. (OK, Senate a stretch, endangering Supremes hope, but one never knows.)
Today I watched a CSPAN rerun from October of a discussion with Romney. Someone asked him what his proudest achievement in the Senate was. Romney singularly named the infrastructure bill.
He wasn’t as pessimistic (re: keeping our democracy) as his book apparently is.
I mailed money today to Dem congressional candidate in my state who has a legitimately strong shot at beating the Republican incumbent.
I rarely do that, figuring it’s a mug’s game.
Despair not.
Believe.
Hur released his report and it was as bad as we expected. 354 pages of scathing commentary but no recommendation of charges. No mention of Defendant-1 either for context. In other words, a hit piece.
https://www.cnn.com/2024/02/08/politics/white-house-special-counsels-report-response/index.html
Corrupt Supremes? The (s)election of GWBush in 2000 says: Say it’s no so!
There sure are a lot of judicial conspiracy theorists in this thread. SCOTUS sounds headed to the right decision, and that is one in favor of Trump. This case was a dead dog from the jump. Just because everybody loathes Trump, perverting the law to get him is a seriously bad idea. It was always absurd for a local county court to be the basis for taking this on.
Agreed. I would also add that 12 years ago that there was a movement in several states to remove a presidential candidate’s name from the state ballots. That candidate was a sitting President seeking reelection, all attempts ultimately failed and in several cases took the SoS of Hawaii to officially confirm that the President was indeed born in Hawaii, regardless of the claims of self appointed experts.
Well it’s one thing to produce a birth certificate that everyone in the nation can inspect and thus simply and easily dispense of with a bogus claim of disqualification, and quite another to prove a charge of insurrection without a thoroughgoing judicial review that 5 days of testimony barely scratches the surface of — even if much of the evidence is already in the public domain as the J6 evidence is.
Putting such a cursory lower limit on due process is only one aspect of why this case was DOA. I’m guessing even Jackson is going to go thumbs down, and not for pedantic shit like the meaning of “officer.”
A few months ago I said that “enablement” was necessary, and then I convinced myself that the language of section 5 should have stared with “*Only* the Congress shall have the power to enforce…” for that to be the case (as Murray argued today). But the free-for-all that would ensue from SCOTUS affirming CO’s ruling is a non-starter, and that has this aspect of the 14th back in Congress’ lap.
Sure, there were piles of bullshit and posturing on parade from the 6 R-wingers today, but bmaz is right, this needs a federal fix. And Marcy’s right, sparkle ponies aren’t going to come to the rescue; that’s all on us.
The Immunity appeal is a completely other story, though.
argh…delete the “with” in the second line of my first paragraph.
There are +16,000 different official birth certificates, issued under state, local and federal authority. Vanity birth certificates issued by a hospital don’t count. Even then, you have to look at the records, if they exist. Which is why Hawaii had to use its own records to confirm Obama was indeed born there at that time beyond all doubt.
That whole section is very poorly written, and was only used to solve the problems they were dealing with at the time. One of the justices asked if there was any record of any state using section 3 as a basis for disqualifying on the federal level. The answer was no, but there were state offices.
“ And Marcy’s right, sparkle ponies aren’t going to come to the rescue; that’s all on us.”
Indeed. The voters are the only ones who can put an end to this madness, hopefully we can do it with such vigor that leaves no room for debate.
Amen.
And as to who asked about states having used section 3, that was, iirc, the husband and harborer of an insurrectionist.
This is a completely different situation than simply removing a candidate from the ballot. We ALL saw and heard what took place on J6.
We ALL heard Trump tell his ilk from the Eclipse: “We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.”
We ALL saw Trump’s Tweet: “Mike Pence didn’t have the courage to do what should have been done.”
We ALL are aware that for 187 minutes, Trump did NOTHING to call off the rabid mob looking to “hang Mike Pence.”
Discounting what that one man wrought by his lies and fomenting the thwarting of the peaceful transfer of power on J6, is, in my opinion, unconscionable.
This is a completely different situation from simply trying to remove a candidate from the ballot – just because.
We ALL saw and heard what took place on J6.
We ALL heard Trump tell his ilk from the Eclipse: “We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.”
We ALL saw Trump’s Tweet: “Mike Pence didn’t have the courage to do what should have been done.”
We ALL are aware that for 187 minutes, Trump did NOTHING to call off the rabid mob looking to “hang Mike Pence.”
Discounting what that one man wrought by his lies and by fomenting the attempt to thwart the peaceful transfer of power on J6, is, in my opinion, unconscionable.
In my opinion, Trump meets the criteria of the 14th Amendment, section 3 and should never hold office in the United States ever again.
Not one SCOTUS judge attempted to have defined or clarified, the term, insurrection. This decision will be a preverbal judicial punt in Trump’s favor.
Trump agrees.
Trump is already asking Jack Smith via Trump’s Truth Social account, to forgive all of Trump’s crimes and let bygones be bygones, based upon the direction that the SCOTUS sounds like it’s going in.
Which law/laws has been “perverted” by the Colorado case so far? What would happen to the law/laws that you consider “perverted” if the Supreme Court ruled in favor of Colorado’s determination of ineligibility? Try to be specific, rather than shouting “I don’t like it!”; bored people on the Internet are often prone to hyperbole; it is hoped that the use of hot terms like “perverted” are not just thrown here just because one is bored.
I have done that relentlessly since I first learned of the cockamamie Colorado case. Lack of appropriate jurisdiction for one state level local county court to affect and determine a national presidential election, lack of proper due process and evidentiary standards, lack of competent evidentiary record, and others. Quit asking the same question over and over and over.
To me who finds the objects of mass manipulation interesting, my wonderment when I viewed the actual day of Jan. 6th was when I saw, someone had brought a gallows? A gallows? I thought. In now times, INAL but if Pence had been murdered, I imagine who ordered the gallows would be relevant. What’s interesting to me is I haven’t heard anything about who ordered or approved the gallows and who brought the gallows. Where would the trail lead? Why isn’t the gallows relevant?
It wasn’t a functional gallows—it was a flimsily built, non-functional piece of performance art.
That said, its presence certainly made a point.
…especially as it was photographed with the noose circling the statue of Freedom on top of the Capitol dome.
ExRacerX says:
February 8, 2024 at 10:37 pm
“[…] a flimsily built, non-functional piece of performance art.
“That said, its presence certainly made a point.”
You could say that about Trump’s J6 speech.
No doubt.
It’s also an apt description of the Trumpublican Party.
To me, the Constitutional clause in question is unusual in its language, and has been rarely construed, and thus almost any reading of it will be outcome driven. So, I can’t see how anything like “just follow the law as it is written” is possible. There is not a well developed jurisprudence. You have a Congress balanced on a knife edge and that may well be willing to go to extremes unheard of in the country’s history. Ergo, the need for Roberts expressing concern about Democratic candidates being de-listed – would that, and some of the other hypotheticals, have been necessary 75 or 100 years ago? Scotus decisions shouldn’t have to go that far afield to find basis. I have read sound legal argument on both sides here — how can anyone say, “this must of necessity happen,” other than as a fulfillment of that person’s personal wishes? How can one say that a decision against Trum is perverting the law, when no one really knows what the law is.
Apologies if this is a duplicate or a no-go, I thought I posted and it didn’t show up.
[Moderator’s note: this and the attempt before it were flagged by auto-moderation. I can’t determine what it was that tripped the algorithm so I’m releasing the second and slightly longer version. Sorry for the inconvenience. /~Rayne]
OK thanks. I have wondered how you can get any rest/sleep at all, having to moderate every comment on every thread. Now I know — it’s on cruise control !
I’m not the only one looking in on comments, but I’m the one who’s using auto-moderation settings the most. 3-4 nights a week I do take a peek at the site in the wee hours. I didn’t last night; it took me a while this morning to examine your comments to figure out what the trigger might have been. I still don’t know, may have been a WordPress trigger. ¯\_(ツ)_/¯ But that’s about all I can say, thanks for your patience.
Let’s conduct a thought experiment: What will happen in 2028 when Trump wants to serve a third term as president? What can this possibility tell us about our current dilemma. (Many autocrats refuse to leave office because otherwise they are likely to go jail if they give up power.) A few Red States will likely put Trump’s name on the ballot if he demands it, perhaps agreeing with the argument that the Russia hoax negated his first term as president. It is certainly un-democratic for the constitution to prevent the voters from electing whomever they want, something they could do before experience with FDR took that “right” away! I think this proves the “undemocratic” argument is bogus. A Constitution approved with super-majorities takes precedent over the outcome of a single election likely to be decided by a narrow majority. This scenario strongly suggests that the SC is required to determine whether Trump is qualified to serve the 22nd Amendment and under Section 3 of the 14th Amendment (despite the fact the language of the latter is more ambiguous).
However, under the Constitution, the states decide how elections are run and whose names are allowed to appear on the ballot. As far as I can see, the SC can declared Trump is unfit to serve, but only the states have the power to decide what to do about such a SC declaration. Congress hasn’t passed any enabling legislation for either scenario (Section 3 disqualification or a third term). We could have a scenario where Trump has won at least 270 Electoral Votes without being qualified to be president. What does the SC do then? Could the SC order states not to submit Electoral Votes for an unqualified candidate? What if the states choose to do so anyway and Congress ratifies them? The Chief Justice could refuse to administer the oath of office, but his presence isn’t essential.
President Jackson once said about the rights of Native Americans, Chief Justice Marshall has decided what the law is, now let him enforce it. Today’s Supreme Court, like Marshall’s, will probably do anything to avoid another such clash that challenges the Court’s role in our government. I’ll forgive them for abandoning textualism to avoid this crisis.
The House and Senate have to power to refuse to seat members who aren’t qualified in their eyes. This is how some insurrections removed from Congress after the Civil War. Only Congress can remove a President from office and they could have Article of Impeachment waiting on January 20, 2028 if they saw fit. Trying to serve as President not meeting the Constitutional requirements certainly could be interpreted as a high crime.
BTW, if forced to decide, the Supreme Court should find Trump unqualified. Section 3 bans those who have “engaged in insurrection or rebellion against the same, OR given aid or comfort to the enemies thereof. The leaders of the Proud Boys and Oath Keepers have been convicted of seditious conspiracy, which is functionally equivalent to insurrection and Trump (and other Republicans) have certainly given them aid and comfort calling them political prisoners and hostages. These actions make it unambiguous that Trump is unqualified under Section 3 AND is participating in an insurrection.
Ian Bassin at Lawfare talks about the parallels with the 22nd: https://www.lawfaremedia.org/article/if-scotus-won-t-enforce-the-14th-amendment-we-should-worry-how-they-ll-handle-the-22nd Elsewhere, commenting on Bassin, JV Last snarks:
I just imagined a future media hellscape where Obama and Trump run against each other for a third presidency in 2028.
Third term in 2028? What’s he doing now? If he truly believes he is president now then he is already running for a third term. And the Maga states that believe this too are violating the Constitution ( not that they care).
My. Brain won’t stop with this and I have been laughing at myself a lot lately.
They always want it both ways. And you can’t confront them about this because those parts of their brain don’t talk to each other (or at least they won’t admit that in public).
When people note that DJT didn’t win the popular (etc.) it’s “We’re a Republic! Not a Democracy!!!”; when it’s section 3 time it’s “Excluding Trump would be wildly undemocratic!!!” (Certainly this happens on the left at times, but, in the current era, not so often or in such a dizzying way)
You could say the same about Trump’s J6 speech.
Apology. Intent was to put this earlier, as a reply, which was done. Ignore it, here, please.
In the Venn diagram where the circles are Dante’s 9 circles of Hell, it seems Trump would be in the intersection of those. Treachery, Greed, Anger etc. Only the circle Limbo he could never be admitted to, as it requires acting virtuously.
Although the majority of comments here regard the “President is not an officer” argument ridiculous, how likely is it that the majority opinion will state plainly that he is, in fact, not? That would settle the argument for the foreseeable future.
It sounds as if the authors of A14S3 followed the Founders in seeing the Electoral College as the backstop: men (then) of probity and solemn good sense who would never elect a rascal. The authors tried to buttress that by specifically disqualifying insurrectionists from the College, but in that very phrase they seemed to understand that there may be less sober people elected to the College in the first place.
We’ve come a long way from Federalist No. 68. I think some of the intended mechanisms in 68 broke down as soon as party politics became entrenched, which is fairly early in the country’s history. Someone labeled a “faithless elector” may be exercising exactly the kind of judgment Hamilton was talking about.
(I’ve been put in the sin bin; did I screw up the name/email or put a trigger in the text? If so, apologies).
OT: From today’s SDFL docket in Trump et al.’s criminal case:
So can/will Smith file an emergency injunction? Sounds like Cannon thinks she is calling his bluff. I guess we’ll know tomorrow.
Cannon must want to start the new year as a dragon lady.
By now everyone has seen the news about Florida documents case from Thursday:
USA’s 294 MOTION for Reconsideration re 286 Order on Sealed Motion, 283 Order on Motion for Miscellaneous Relief.. which contains some pretty sharp language. Such as this sentence from page 2:
The TV-lawyers seem to think Smith could appeal immediately to the 11th Circuit and they might even remove Cannon from the case (a sort of “three strikes” situation, since they’ve already reversed her twice, forcefully, in this very matter). But I’m curious what actual practicing lawyers think.
If Cannon hadn’t stayed her order for two weeks to let defendants respond (295), do you think Smith would have appealed it immediately? Has Cannon crossed into bmaz-disapproval territory yet?
(and 302, the recently-filed Government’s Conditional Motion For Leave To File a Surreply To Defendants’ Reply In Support Of Their Motion To Compel Discovery is also full of sharp language. It feels like the Special Counsel has had it with defendants’ delay antics and Cannon’s reluctance to call them to heel.)
It’s also pretty pointed that the SC is calling Cannon’s attention to one of the few cases she prosecuted where the CoA upheld her own ask for withholding certain documents revealing witness names from discovery. Maybe that will jog her memory.
I’m thinking the main problem here is that Cannon just doesn’t have a lot of prosecutorial experience and it’s really hurting her in this particular case.
(Delusional) Texas woman gets 3 years plus 3 years probation for threatening to assassinate Judge Cannon: https ://ww w.nbcnews.com/news/rcna138207
On some side research unrelated today I came across the wiki page “Proclamation to the People of South Carolina (1832)” (a response to the Ordinance Nullification which whatever – but) – presented by Andrew Jackson, words written by Edward Livingston (who seemed to have a grasp on what was the greater good at the time), in the moment: (re 2nd paragraph of the wiki page) –
(disclaimer: I have no formal history education whatsoever and probably failed what little was attempted and I know citing wiki pages isn’t great but…)
https://en.wikipedia.org/wiki/Proclamation_to_the_People_of_South_Carolina
I hope, like Edward Livingston long ago suggested in that unrelated matter, that (and I’m paraphrasing here) what is recognized as most as important here is the preservation of our Union. I also believe that actions or even intentions can “be incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which It was founded, and destructive of the great object for which it was formed.”
(These things that we all know and feel) which may not be written exactly into “Law” but will always be considered first in our hearts. Especially for those of us who insist to keep God, and faith, in the mix. It’s kind of how we got here. There were a lot of good thinkers with a lot of heart probably staying up late forever, driving everyone a little bit crazy, arguing their butts off and writing, pleading, writing, and arguing even more and finally signing off on it to get it all just a little bit straight for us, for today i.e. right now. (I did read the Federalist Papers). Some sections read like a proper philosophical melee. How weird and exciting that time must have been.
So maybe one thing here might be a question of what would be nice for one guy but how it affects the the rest of “us” is not a simple ripples in the pond analogy. There’s another 200 years ahead. To me, that phrasing Livingston wrote- if I read it right- says so much. We have a much greater good here and it is wise to remember that sometimes. I think our Justices are often enough good at that.