Here's what you need to know about this week's big arguments over the Colorado Supreme Court ruling that Trump "engaged in insurrection" and can't be on the ballot there.
Thank you for explaining the process so clearly for non lawyers. So, if the SC rules Trump is disqualified from being on the ballot, there will be chaos and bedlam, but hope lives. If SC rules Trump is qualified to be on the ballot and he loses the election, his sycophants in Congress will have fake electors ready to insure his win; chaos and bedlam prevail. There will be a constitutional crisis, but hope lives, if the courts hold as they did in 2020. If he remains on the ballot and he wins the election, the Constitution will be no more; hope dies. Is this non lawyerly assessment too draconian? I can use some hope, please.
I think that's correct. I would choose to phrase it as: If Trump gets thrown off the ballot, there's violence. If Trump loses the election in November, there's violence. If Trump wins, the Republicans plan to install a fascist state, and in order to support and preserve that - you guessed it - there's violence.
We know this for a fact, and we know it because of January 6th. If we want to find the hope in all of this, it's that violence can change hearts and minds to peace when everything else fails. There was a (very short) time after January 6th when there seemed to be clarity. The next time it's going to be worse than January 6th, and the darkness will show us where the light is. I do believe the American people will find the light in the end.
Ever since this guy arrived on the political scene eight years ago, everyone has been passing the buck, kicking the can down the road. I don't know why this instance would be any different. We're all going to pay for this, surely. Maybe that's why no one can bear to do anything but delay the day of reckoning? It's probably been unavoidable; the Republican party has been on this path for over 50 years, ever since the civil rights era.
I am glad to hear that you will be sitting there in person so you can give us a true report regarding the hearing. You will be able to observe the demeanor of the participants, which an audio recording misses. I look forward to your analysis.
I keep wanting the answer to the question of whether, if Trump did not himself act as an insurrectionist, he may be disqualified for giving aid and comfort to those who did, per Section 3's express language.
He certainly can be, under the plain meaning of Section 3. But the evidence is so strong that he engaged in insurrection himself (by making false claims about election fraud both in and out of court; bullying state officials in an attempt to make them commit election fraud; conspiring in a scheme to send fraudulent electors to Congress from multiple states; threatening the Vice President; summoning a mob to D.C. and then unleashing them on the Capitol to stop the certification; etc.) that the "aid and comfort" prong is redundant.
BTW, I think I went to school with you. I was at UT-Austin in the late 1980s when Mike Godwin was editor of the Daily Texan. One of my best friends was on staff there.
Yeah, I'm the same guy who was editor of the Texan in 1988-89. Delayed my graduation from law school, but it was worth it. The reason I keep bringing up "aid and comfort" is that lots of discussion of the applicability of Section 3 don't address it--they think you have to reach the issue of whether Trump was actively an insurrectionist in order to resolve whether he's disqualified. My view is that you only have to reach the issue of "aid and comfort" to get to disqualification. Who was your friend?
Excellent read. Thanks for sharing. "even the best-designed governmental system is subject to being gamed and subverted by actors who exploit its incompleteness or inconsistency." That right there is the heart of the matter.
You'll laugh, but I had totally forgotten having written that piece until late last year--then got back to it as public interest in Section 3 began to rise up again.
Exactly. Any reasonable President would have intervened as soon as the first window was broken. Even as his aides begged him to make a statement, Trump *chose* to do nothing, passively but deliberately giving aid and comfort. But legal opinion and logic don’t always align, so I worry that this is the sticking point.
Trump started sowing seeds of doubt in the 2020 election long before the first vote was cast. He started talking about how the vote would be “rigged” (predictive text filled that word in) back in the spring of 2020.
Precisely...his insurrection attempt in 2020 came perilously close to succeeding, and that nobody can reasonably refute. And contemporaneously tRump is not only evoking "bedlam" should the Supremes uphold CO and boot him off the ballot, but gearing up for "Insurrection II" should he lose this November. Sweet Jaysus, what more evidence does the Court require that this grotesque hominoid is an oath-breaking insurrectionist at heart, and incorrigibly so.
It's also worth remembering that Trump tried to cast doubt on the outcome of the 2016 election, both before he won it and after. (He claimed back then to have won far more votes than he was given credit for.)
Excellent report, Chris. Did you notice? BRIEF ON THE MERITS FOR ANDERSON RESPONDENTS has an 'easter egg' on Page 46, stating "(Thomas, J., concurring)", Chiafalo v. Washington, 140 S. Ct. (2020).
Your point about "timeliness" in reference to the pending court decision regarding "absolute immunity" - and the apparent (unconscionable) foot-dragging by the three-judge DCC panel - goes double for the §3 DQ appeal. The former involves the criminal prosecution of tRump as a FORMER president, while the latter speaks to tRump's eligibility as a candidate for a
FUTURE presidency, and on the face of it would *a fortiori* argue for a prompt ruling. We shall see, but regardless how either acrimonious or collegial the Court's ruling may be, it better be pronto, as way too much is at stake for a leisurely take on an ultimate finding for or against Colorado.
At this day and age I have one question: why can we watch almost all judicial proceedings and congressional acts, but not SCOTUS? We need to know more about the justices especially since we don’t have a say in who they are.
The immunity (colloquial; more to it than that) opinion was dropped today. Some will drop a "I told you so" about not being impatient. I dissent from that. It's too late for that especially for the b.s. argument here. I will give them a semi-pass but we have a right to be impatient.
To be fair, the three-judge panel not only ruled on tRump's "immunity/double jeopardy/official acts" claims, but devoted a lengthly section to the "jurisdiction" question, as a response to the American Oversight *amicus* brief, which the panel recognized as critical to further adjudication of the appeal. Read the entire opinion, and one will see the considerable body of work encompassed by the unanimous ruling.
Chris Geidner has been strongly critical of the delay. I grade it given the stakes. It was a per curiam and could have been a joint effort. They didn't start from scratch either. Judges often have some rough draft the day of the argument. I don't belittle the effort.
My view, in reading the DC Circuit's unanimous opinion, is you can tell from the careful work that is apparent on every page that they labored to make their decision bulletproof. It is exceptional work, and although I am no less impatient than Chris, I'm glad the judges and their clerks put in the hours. Which they self-evidently did.
I think we can be critical of the time it took and complimentary of the result. (Obviously, since that's what I wrote above — but I didn't want y'all to think I didn't see this interesting discussion.)
I hear you. But what I also heard while reading the opinion is the sound of door after door slamming on different paths not merely to survive Supreme Court scrutiny but maybe even to foreclose granting of cert. Frankly, I was thrilled.
I see I'm not the only person who read the DC Circuit panel's decision and reacted with the thought that it seems to designed to be "bulletproof." George Conway had the same reaction. https://youtu.be/IkAJBNb68Ug?si=hPs9rWQjr-TMJn5n
I mean, that’s what good appellate opinions do. They’re not always modern Fifth Circuit opinions. It’s literally a a lower court judge’s job to craft an opinion that won’t be reversed. Judges regularly rule with alternative reasonings explained to prevent reversal on appeal.
Specifically, when I try when I read the opinion (and Conway tries when he reads it) to imagine how the justices most inclined to find a way to limit or reverse it, we can't come up with much, if anything, that seems credible. Even the justices we don't approve of are heroes of their own stories--they don't think they're the bad guys. So when I read the DC Circuit opinion, I was trying to figure out how any of them could find a theory to hang a reversal on. And it's really, really hard for me to come up with anything. (I will note that Thomas has increasingly become an outlier in his willingness to embrace theories that run counter to the plain reading of existing jurisprudence in other cases, so maybe he'll find something he feels he can say--maybe a "statement" or dissent from denial of cert, if it's denied. But he has seemed untethered to ordinary jurisprudence in the Trump era, now that Scalia is gone.)
Yes, my point is that is not news. We rarely see an opinion from the DC Circuit that would not fit that standard. It’s almost deceptive to act like that aspect makes this opinion extraordinary.
As a comment notes, Trump "started sowing seeds of doubt in the 2020 election long before the first vote was cast." I will just add that I think the first impeachment trial made a good effort (especially with so little time to prepare) to underline how extended the insurrection conspiracy truly was.
Most people's assumption is that they will overturn the lower court. There is no really good way to do that. Also, if they do overturn it, I think we should not hold them to much legitimacy, especially with Thomas being involved.
If the majority cannot come up with a textualist basis to rule in Trump’s favor, could they come up with an excuse to punt, such as coming up with a formal standard for what constitutes “insurrection” and sending it back for further consideration?
Thank you for explaining the process so clearly for non lawyers. So, if the SC rules Trump is disqualified from being on the ballot, there will be chaos and bedlam, but hope lives. If SC rules Trump is qualified to be on the ballot and he loses the election, his sycophants in Congress will have fake electors ready to insure his win; chaos and bedlam prevail. There will be a constitutional crisis, but hope lives, if the courts hold as they did in 2020. If he remains on the ballot and he wins the election, the Constitution will be no more; hope dies. Is this non lawyerly assessment too draconian? I can use some hope, please.
I think that's correct. I would choose to phrase it as: If Trump gets thrown off the ballot, there's violence. If Trump loses the election in November, there's violence. If Trump wins, the Republicans plan to install a fascist state, and in order to support and preserve that - you guessed it - there's violence.
We know this for a fact, and we know it because of January 6th. If we want to find the hope in all of this, it's that violence can change hearts and minds to peace when everything else fails. There was a (very short) time after January 6th when there seemed to be clarity. The next time it's going to be worse than January 6th, and the darkness will show us where the light is. I do believe the American people will find the light in the end.
I agree with Barbara. Thank you for the plain speak explanation
Ever since this guy arrived on the political scene eight years ago, everyone has been passing the buck, kicking the can down the road. I don't know why this instance would be any different. We're all going to pay for this, surely. Maybe that's why no one can bear to do anything but delay the day of reckoning? It's probably been unavoidable; the Republican party has been on this path for over 50 years, ever since the civil rights era.
I am glad to hear that you will be sitting there in person so you can give us a true report regarding the hearing. You will be able to observe the demeanor of the participants, which an audio recording misses. I look forward to your analysis.
I keep wanting the answer to the question of whether, if Trump did not himself act as an insurrectionist, he may be disqualified for giving aid and comfort to those who did, per Section 3's express language.
He certainly can be, under the plain meaning of Section 3. But the evidence is so strong that he engaged in insurrection himself (by making false claims about election fraud both in and out of court; bullying state officials in an attempt to make them commit election fraud; conspiring in a scheme to send fraudulent electors to Congress from multiple states; threatening the Vice President; summoning a mob to D.C. and then unleashing them on the Capitol to stop the certification; etc.) that the "aid and comfort" prong is redundant.
BTW, I think I went to school with you. I was at UT-Austin in the late 1980s when Mike Godwin was editor of the Daily Texan. One of my best friends was on staff there.
Yeah, I'm the same guy who was editor of the Texan in 1988-89. Delayed my graduation from law school, but it was worth it. The reason I keep bringing up "aid and comfort" is that lots of discussion of the applicability of Section 3 don't address it--they think you have to reach the issue of whether Trump was actively an insurrectionist in order to resolve whether he's disqualified. My view is that you only have to reach the issue of "aid and comfort" to get to disqualification. Who was your friend?
You are correct that aid and comfort would be an independent ground for applying Section 3.
My friend was Karen Adams. Haven't talked to her in 35 years, but she was cool af.
Karen's on Facebook, and no doubt would love hearing from you. If you need another way to contact her, let me know.
BTW, you may be interested in the article I wrote about Section 3 less than a week after January 6. It's at this link, and was part of a larger colloquy there. https://www.cato-unbound.org/2021/01/12/mike-godwin/fourteenth-amendments-section-3-defense-american-democracy/
Excellent read. Thanks for sharing. "even the best-designed governmental system is subject to being gamed and subverted by actors who exploit its incompleteness or inconsistency." That right there is the heart of the matter.
You'll laugh, but I had totally forgotten having written that piece until late last year--then got back to it as public interest in Section 3 began to rise up again.
Exactly. Any reasonable President would have intervened as soon as the first window was broken. Even as his aides begged him to make a statement, Trump *chose* to do nothing, passively but deliberately giving aid and comfort. But legal opinion and logic don’t always align, so I worry that this is the sticking point.
Then there was that "We love you" comment he made.
Trump started sowing seeds of doubt in the 2020 election long before the first vote was cast. He started talking about how the vote would be “rigged” (predictive text filled that word in) back in the spring of 2020.
Yes, indeed. I kept rewriting that section, and it could probably still use a little improvement.
Update: I think that clarifies it.
Precisely...his insurrection attempt in 2020 came perilously close to succeeding, and that nobody can reasonably refute. And contemporaneously tRump is not only evoking "bedlam" should the Supremes uphold CO and boot him off the ballot, but gearing up for "Insurrection II" should he lose this November. Sweet Jaysus, what more evidence does the Court require that this grotesque hominoid is an oath-breaking insurrectionist at heart, and incorrigibly so.
It's also worth remembering that Trump tried to cast doubt on the outcome of the 2016 election, both before he won it and after. (He claimed back then to have won far more votes than he was given credit for.)
Excellent report, Chris. Did you notice? BRIEF ON THE MERITS FOR ANDERSON RESPONDENTS has an 'easter egg' on Page 46, stating "(Thomas, J., concurring)", Chiafalo v. Washington, 140 S. Ct. (2020).
Your point about "timeliness" in reference to the pending court decision regarding "absolute immunity" - and the apparent (unconscionable) foot-dragging by the three-judge DCC panel - goes double for the §3 DQ appeal. The former involves the criminal prosecution of tRump as a FORMER president, while the latter speaks to tRump's eligibility as a candidate for a
FUTURE presidency, and on the face of it would *a fortiori* argue for a prompt ruling. We shall see, but regardless how either acrimonious or collegial the Court's ruling may be, it better be pronto, as way too much is at stake for a leisurely take on an ultimate finding for or against Colorado.
At this day and age I have one question: why can we watch almost all judicial proceedings and congressional acts, but not SCOTUS? We need to know more about the justices especially since we don’t have a say in who they are.
The immunity (colloquial; more to it than that) opinion was dropped today. Some will drop a "I told you so" about not being impatient. I dissent from that. It's too late for that especially for the b.s. argument here. I will give them a semi-pass but we have a right to be impatient.
To be fair, the three-judge panel not only ruled on tRump's "immunity/double jeopardy/official acts" claims, but devoted a lengthly section to the "jurisdiction" question, as a response to the American Oversight *amicus* brief, which the panel recognized as critical to further adjudication of the appeal. Read the entire opinion, and one will see the considerable body of work encompassed by the unanimous ruling.
Chris Geidner has been strongly critical of the delay. I grade it given the stakes. It was a per curiam and could have been a joint effort. They didn't start from scratch either. Judges often have some rough draft the day of the argument. I don't belittle the effort.
My view, in reading the DC Circuit's unanimous opinion, is you can tell from the careful work that is apparent on every page that they labored to make their decision bulletproof. It is exceptional work, and although I am no less impatient than Chris, I'm glad the judges and their clerks put in the hours. Which they self-evidently did.
I think we can be critical of the time it took and complimentary of the result. (Obviously, since that's what I wrote above — but I didn't want y'all to think I didn't see this interesting discussion.)
I hear you. But what I also heard while reading the opinion is the sound of door after door slamming on different paths not merely to survive Supreme Court scrutiny but maybe even to foreclose granting of cert. Frankly, I was thrilled.
I see I'm not the only person who read the DC Circuit panel's decision and reacted with the thought that it seems to designed to be "bulletproof." George Conway had the same reaction. https://youtu.be/IkAJBNb68Ug?si=hPs9rWQjr-TMJn5n
I mean, that’s what good appellate opinions do. They’re not always modern Fifth Circuit opinions. It’s literally a a lower court judge’s job to craft an opinion that won’t be reversed. Judges regularly rule with alternative reasonings explained to prevent reversal on appeal.
The bottom line is that I think this ruling could have come out two weeks ago. It didn’t. I’m moving on.
Specifically, when I try when I read the opinion (and Conway tries when he reads it) to imagine how the justices most inclined to find a way to limit or reverse it, we can't come up with much, if anything, that seems credible. Even the justices we don't approve of are heroes of their own stories--they don't think they're the bad guys. So when I read the DC Circuit opinion, I was trying to figure out how any of them could find a theory to hang a reversal on. And it's really, really hard for me to come up with anything. (I will note that Thomas has increasingly become an outlier in his willingness to embrace theories that run counter to the plain reading of existing jurisprudence in other cases, so maybe he'll find something he feels he can say--maybe a "statement" or dissent from denial of cert, if it's denied. But he has seemed untethered to ordinary jurisprudence in the Trump era, now that Scalia is gone.)
Yes, my point is that is not news. We rarely see an opinion from the DC Circuit that would not fit that standard. It’s almost deceptive to act like that aspect makes this opinion extraordinary.
Thanks for going tomorrow. I’ll be listening! Looking forward to your analysis. 🤩
As a comment notes, Trump "started sowing seeds of doubt in the 2020 election long before the first vote was cast." I will just add that I think the first impeachment trial made a good effort (especially with so little time to prepare) to underline how extended the insurrection conspiracy truly was.
Most people's assumption is that they will overturn the lower court. There is no really good way to do that. Also, if they do overturn it, I think we should not hold them to much legitimacy, especially with Thomas being involved.
If the majority cannot come up with a textualist basis to rule in Trump’s favor, could they come up with an excuse to punt, such as coming up with a formal standard for what constitutes “insurrection” and sending it back for further consideration?
Great news. What else can we do to remove Donald Trump from the planet and curtail his supporters!
Thanks Chris. Will wait for your breakdown and keep fingers crossed.
Excellent summary and preview.
I’ve done a four-part series taking a deeper dive into the issues at my blog, Outliving, for anyone who wants to get into it in a little more detail.
https://open.substack.com/pub/shazbotvexed/p/republican-party-seeks-judicial-nullification?r=682vh&utm_medium=ios&utm_campaign=post