And the one where the coach was coercing players to pray in the field after the game. They invented the fiction that it was private prayer. What a joke
Jonathan Mitchell is absolutely vile, and is also exactly the kind of person who has risen to the top in this era. Every possible warning light for this country is flashing desperately.
Yes! I keep trying to explain it to myself. So, here's my latest theory.
The median of the electorate has a bias towards presidential responsibility that goes beyond what the facts justify. It's been discussed here that the executive branch keeps getting more powerful as the legislative branch gets more dysfunctional, but even if the president has more power and influence than any one person, it's still not really all that much. But the myth is compelling. When voters think of a problem, they think of the president.
And Biden is president now. When Trump was president the country was focused on what it didn't like about him, and people would link the threads between that and systemic problems. We had MeToo and BLM and Democrats did pretty well in elections. If we hadn't been so lucky with the economy in his term it could have been a lot worse for Republicans. But that 'advantage' of Trump being president - and I put it in scare quotes because it's so perverse - is gone now. Even on abortion, voters know it's Republicans' doing but I bet it's contributing to the malaise as, 'Biden is weak and ineffective and can't protect us.'
If that's true, then if Republicans win the election they will quickly become extremely unpopular, and everyone will start paying attention again to all the dirtbags on their side and all their misdeeds, and the public will demand change. That's the good news, that the American people will redeem themselves. The bad news is it will be too late, and that's the conundrum. How to get the public to act like they did when Trump was president, without Trump being president. It seems like we've made some headway in the midterms and other elections, but that's not really being reflected in polls of the larger presidential electorate. Unless it is and we would be doing even much worse were it not for Trump and Dobbs.
So either that or the whole country really is just getting more depraved, idk.
DJT’s entire candidacy depends on denying reality. The Colorado court’s finding of fact that DJT engaged in insurrection comports with what the nation’s eyes, ears and rational reflection cannot but conclude with absolute certainty. All that remains for SCOTUS is to uphold or overturn the rule of law.
What’s your take on the argument in the republican amicus brief (at 9-11) that if a state could remove a candidate from the ballot, it would be inconsistent with the provision allowing Congress to remove the disability? That is, why allow for Congress to intervene if a state could obviate that ability by not allowing the candidate to remain on the ballot and win the vote in the first place.
Well, first, just so you know, that argument has been made many places, not just a particular amicus. And, as I said above, I’ll have a more thorough review of the arguments in the case once we get the responses in, but my top-level take is that we don’t normally in the law say that a rule shouldn’t be applied in a particular case because the rule allows, but does not require, exceptions.
I would say that unless and until that disability is removed, a state has a strong interest in preventing the candidate's name from appearing on its ballot in order to reduce the likelihood its electoral votes are not counted. Note that the analysis in the case of a candidate for President is complicated by the electoral college system, wherein voters are actually voting for electors, and the electors are free to cast their votes for any person. Therefore, the only thing Colorado has done at this point is to exclude Trump's name from appearing on the primary ballot, it has not and cannot prevent any of its electors from ultimately voting for Trump.
PS, to raise a hypothetical, let's say Trump had been convicted and barred from office by the Senate. It would be asinine to then say that a state couldn't exclude him from the ballot because Congress could at any point remove the disability. If he has a disability, then unless and until the disability is removed, it's clearly entirely proper to exclude him from the ballot.
And that’s part of the problem that I see with this whole affair. Appellate courts are not trial courts, (does anyone remember when this country actually had juries in the majority of cases?) and if Trump was never convicted of insurrection, then how can any appellate court decide that he was guilty of insurrection?
Appellate courts are courts of error, but if nothing was decided below, how can the appellate court make a statement on or ruling about a judgment that was never entered?
It’s all too convenient because “WE” know what happened, but without a sitting jury, we don’t know nuthin.
Section 3 of the 14th Amendment was used to disqualify from office several individuals who were veterans or officers of the Confederacy who were never convicted of any crime. (Kenneth Worthy, William Tate, JD Watkins, Zebulon Vance.)
Yes the question is what is due process in this situation. If the political parties were reversed I'm sure we'd be seeing opposite arguments from both sides.
The problem I see, and this is in any situation involving public affairs, is that there's always a tension between the ideals and what happens in practice. Ideally there would be a fair process which we all would respect and it would work. In reality it takes years for justice to be done in many cases, and in the meantime life goes on. Trump is trying to run out the clock, win the election, and escape all consequences for his behavior (that last part is the story of his life). And then god only knows what he'll do next. This country desperately needs these trials and verdicts before November, and I'm thinking we might not get there. And so for a lot of people this is essentially an emergency. But what do we do? Ultimately it would be best if we could trust the voters to get this right, but when it seems like the system always lets someone like Trump off the hook, it just corrodes trust in everything, and that usually benefits those with ill intent.
Little surprised you didn't mention the whole contradiction of "well the district court didn't have a hearing within 5 days which is against CO law... but also I needed more than 18 days to gather witnesses"
The provision also gives Congress the authority to enforce the whole amendment.
Did the rights in Section One only take effect when Congress enforced them? What about the bar of STATE officials in Section Three? If state bars someone from being a state judge because they took part in the invasion of the Capitol, without being convicted of sedition, should that be "slapped down" too? The provision doesn't just apply to federal officials.
That argument is not easy at all. An "only in this specific case" opt-out needs to be carefully provided or it proves way too much.
Despite my strong dislike of Trump, I'm somewhat inclined to agree with the argument that a candidate can only be excluded under Section 3 prior to an election if the candidate was impeached and removed from office by Congress, or convicted of insurrection under 18 U.S.C. § 2383. This argument was raised in the amici brief of Former Attorneys General Edwin Meese et al, and the amici brief of the Kansas Republican Party et al.
It's odd to say all other qualifications can be applied by a state without federal legislation except this one. Also, to require federal legislation means a majority can make this provision useless rather than the super majority required in section 3 to remove the disability.
I'm not agreeing with the argument that federal legislation is required. But I am inclined to agree with the argument that since we have federal legislation, in the form of 18 U.S.C. § 2383, that's the standard that must be used.
To the extent that federal law raises the bar for disqualification, it shouldn't be required bc that means Congress can leave qualified those that section 3 disqualified without the super majority required in section 3 to lift the disability. That's my take at least.
Define "raising the bar"? Can Congress pass legislation by a majority that sets venue, standards of proof, who decides facts, where appeal can be taken and on what issues, deadlines, procedures, etc? Or would that be impermissible "raising the bar"? Does the Constitution prevent Congress from passing any legislation on this subject beyond what is contained in the Constitution itself?
Why the "prior to an election" proviso here? Why would that legislation only apply then? Once the person is elected, the situation is different? The law applies in all cases, including to federal officials not subject to election.
The Baude/Paulsen article referenced this argument. The provision is based on an older law. It's a criminal statute that without more does not supersede any other enforcement of the disqualification in a non-criminal capacity.
It provides a criminal penalty, thus requiring the higher standard of proof required in that context. 14A, sec. 3 does not require beyond a reasonable doubt per a unanimous jury (or judge), not being a criminal provision.
I think a clear statement by Congress should be required to deem this reading, which significantly limits the reach of the provision, is deemed sound.
I used the words "prior to an election" because there are mechanisms Congress can use post election to exclude a candidate for President, VP, or Congress by not counting their votes or not seating them.
The logic would mean that if they did so they were expanding the grounds for disqualification after the election, which would seem somewhat problematic.
I appreciate the clarification, but it underlines the law is not the only factor, including the states' power over assigning presidential electors.
FYI, the Respondents' merits brief has been filed, and it's pretty good. It addresses 18 U.S.C. § 2383 in footnote 19:
"19 The criminal insurrection statute, 18 U.S.C. § 2383, does not implement Section 3, much less preempt state implementation. It was originally passed as the Second Confiscation Act six years before the Fourteenth Amendment, and it covers all insurrectionists rather than only oath-breakers. 12 Stat. 589, 590 (1862). Section 3 also deliberately did not depend on a criminal conviction; Andrew Johnson had already pardoned most ex-confederates by the time Section 3 was enacted. See Cong. Globe, 39th Cong., 1st Sess. 2463, 2900 (1866)."
The indicted former 45th President’s engagement in rebellion by inciting his supporters to:
1. rise-up,
2. march to US Capitol,
3. assault and cause bodily harm to National Park and Capitol police,
4. destroy $5 million-dollars-plus of federal government property and
5. commit treason on January 6, 2021..
...in an attempt to prevent the execution of Constitutional law: the peaceful transfer of power--
...is the proverbial ‘kiss of death’ for the 45th’s struggle to stay on the ballot. That’s why the 45th and his minions are continuing to push Jan 6 down “the Memory Hole”.
Along with the Chevron oral argument, I notice a bit of spleen from Chris Geidner here. A "what are they trying to pull" sentiment. I think it's appropriate.
I have strong feelings on the question, but I think a basic point here is that there is a narrow set of reasonable grounds [not correct, mind you, at least somewhat reasonable] here to keep Trump on the ballot. We need to not let a bunch of b.s. arguments (such as the president not an officer bit) Gish Gallop things.
Indeed. I think I am reasonable. I describe good arguments as such and, when writing about them, try to wrestle with them. The two highlighted here are not that, and I don’t think it would be fair to you all, myself, or the country to treat them like they are.
Thanks. As an aside, I found the scheduling of the oral argument somewhat curious.
It's the next oral argument they will hear. It's on a Thursday. They don't usually hear arguments on a Thursday. It's almost like they left open a slot earlier in the week.
I'd offer an Occam's razor counter-possibility: They decided to add a day for the arguments because they didn't want to wait until the 20th — which are the next regularly scheduled arguments — and then it just became a matter of scheduling (working forward from the briefing schedule they were setting and availability of the justices for argument). That's total speculation, but it's just meant to explain why I don't read anything into it.
“Or does he just think that a majority of the court will go along with this game of make-believe?”
I mean, the Kennedy v Bremerton decision showed (again) that the majority doesn’t give a crap about facts.
And the one where the coach was coercing players to pray in the field after the game. They invented the fiction that it was private prayer. What a joke
Jonathan Mitchell is absolutely vile, and is also exactly the kind of person who has risen to the top in this era. Every possible warning light for this country is flashing desperately.
For the record, I like Jonathan Mitchell, but I disagree with the arguments he is using to prevent Trump's disqualification.
Yes! I keep trying to explain it to myself. So, here's my latest theory.
The median of the electorate has a bias towards presidential responsibility that goes beyond what the facts justify. It's been discussed here that the executive branch keeps getting more powerful as the legislative branch gets more dysfunctional, but even if the president has more power and influence than any one person, it's still not really all that much. But the myth is compelling. When voters think of a problem, they think of the president.
And Biden is president now. When Trump was president the country was focused on what it didn't like about him, and people would link the threads between that and systemic problems. We had MeToo and BLM and Democrats did pretty well in elections. If we hadn't been so lucky with the economy in his term it could have been a lot worse for Republicans. But that 'advantage' of Trump being president - and I put it in scare quotes because it's so perverse - is gone now. Even on abortion, voters know it's Republicans' doing but I bet it's contributing to the malaise as, 'Biden is weak and ineffective and can't protect us.'
If that's true, then if Republicans win the election they will quickly become extremely unpopular, and everyone will start paying attention again to all the dirtbags on their side and all their misdeeds, and the public will demand change. That's the good news, that the American people will redeem themselves. The bad news is it will be too late, and that's the conundrum. How to get the public to act like they did when Trump was president, without Trump being president. It seems like we've made some headway in the midterms and other elections, but that's not really being reflected in polls of the larger presidential electorate. Unless it is and we would be doing even much worse were it not for Trump and Dobbs.
So either that or the whole country really is just getting more depraved, idk.
Maybe I missed it, but I didn't see Mitchell argue J6 wasn't an insurrection. Interesting.
DJT’s entire candidacy depends on denying reality. The Colorado court’s finding of fact that DJT engaged in insurrection comports with what the nation’s eyes, ears and rational reflection cannot but conclude with absolute certainty. All that remains for SCOTUS is to uphold or overturn the rule of law.
Yep. Democracy hanging by a thread and SCOTUS is holding the scissors
What’s your take on the argument in the republican amicus brief (at 9-11) that if a state could remove a candidate from the ballot, it would be inconsistent with the provision allowing Congress to remove the disability? That is, why allow for Congress to intervene if a state could obviate that ability by not allowing the candidate to remain on the ballot and win the vote in the first place.
Well, first, just so you know, that argument has been made many places, not just a particular amicus. And, as I said above, I’ll have a more thorough review of the arguments in the case once we get the responses in, but my top-level take is that we don’t normally in the law say that a rule shouldn’t be applied in a particular case because the rule allows, but does not require, exceptions.
I would say that unless and until that disability is removed, a state has a strong interest in preventing the candidate's name from appearing on its ballot in order to reduce the likelihood its electoral votes are not counted. Note that the analysis in the case of a candidate for President is complicated by the electoral college system, wherein voters are actually voting for electors, and the electors are free to cast their votes for any person. Therefore, the only thing Colorado has done at this point is to exclude Trump's name from appearing on the primary ballot, it has not and cannot prevent any of its electors from ultimately voting for Trump.
PS, to raise a hypothetical, let's say Trump had been convicted and barred from office by the Senate. It would be asinine to then say that a state couldn't exclude him from the ballot because Congress could at any point remove the disability. If he has a disability, then unless and until the disability is removed, it's clearly entirely proper to exclude him from the ballot.
And that’s part of the problem that I see with this whole affair. Appellate courts are not trial courts, (does anyone remember when this country actually had juries in the majority of cases?) and if Trump was never convicted of insurrection, then how can any appellate court decide that he was guilty of insurrection?
Appellate courts are courts of error, but if nothing was decided below, how can the appellate court make a statement on or ruling about a judgment that was never entered?
It’s all too convenient because “WE” know what happened, but without a sitting jury, we don’t know nuthin.
Section 3 of the 14th Amendment was used to disqualify from office several individuals who were veterans or officers of the Confederacy who were never convicted of any crime. (Kenneth Worthy, William Tate, JD Watkins, Zebulon Vance.)
That happened before the Amnesty Acts and the 1940 law that became 18 U.S.C. § 2383.
So? Congress can remove the disability, but until it does the disability exists without any need for a criminal conviction.
Which begs the question, who gets to decide if a disability exists? Using what procedures and standards?
Yes the question is what is due process in this situation. If the political parties were reversed I'm sure we'd be seeing opposite arguments from both sides.
The problem I see, and this is in any situation involving public affairs, is that there's always a tension between the ideals and what happens in practice. Ideally there would be a fair process which we all would respect and it would work. In reality it takes years for justice to be done in many cases, and in the meantime life goes on. Trump is trying to run out the clock, win the election, and escape all consequences for his behavior (that last part is the story of his life). And then god only knows what he'll do next. This country desperately needs these trials and verdicts before November, and I'm thinking we might not get there. And so for a lot of people this is essentially an emergency. But what do we do? Ultimately it would be best if we could trust the voters to get this right, but when it seems like the system always lets someone like Trump off the hook, it just corrodes trust in everything, and that usually benefits those with ill intent.
Little surprised you didn't mention the whole contradiction of "well the district court didn't have a hearing within 5 days which is against CO law... but also I needed more than 18 days to gather witnesses"
Section 5 is the easiest way for SCOTUS to slap this down
History doesn't back that up.
The provision also gives Congress the authority to enforce the whole amendment.
Did the rights in Section One only take effect when Congress enforced them? What about the bar of STATE officials in Section Three? If state bars someone from being a state judge because they took part in the invasion of the Capitol, without being convicted of sedition, should that be "slapped down" too? The provision doesn't just apply to federal officials.
That argument is not easy at all. An "only in this specific case" opt-out needs to be carefully provided or it proves way too much.
Despite my strong dislike of Trump, I'm somewhat inclined to agree with the argument that a candidate can only be excluded under Section 3 prior to an election if the candidate was impeached and removed from office by Congress, or convicted of insurrection under 18 U.S.C. § 2383. This argument was raised in the amici brief of Former Attorneys General Edwin Meese et al, and the amici brief of the Kansas Republican Party et al.
It's odd to say all other qualifications can be applied by a state without federal legislation except this one. Also, to require federal legislation means a majority can make this provision useless rather than the super majority required in section 3 to remove the disability.
I'm not agreeing with the argument that federal legislation is required. But I am inclined to agree with the argument that since we have federal legislation, in the form of 18 U.S.C. § 2383, that's the standard that must be used.
To the extent that federal law raises the bar for disqualification, it shouldn't be required bc that means Congress can leave qualified those that section 3 disqualified without the super majority required in section 3 to lift the disability. That's my take at least.
Define "raising the bar"? Can Congress pass legislation by a majority that sets venue, standards of proof, who decides facts, where appeal can be taken and on what issues, deadlines, procedures, etc? Or would that be impermissible "raising the bar"? Does the Constitution prevent Congress from passing any legislation on this subject beyond what is contained in the Constitution itself?
Certainly raising the standard of proof raises the bar. Section 3 doesn't require a conviction. They could have required that.
Why the "prior to an election" proviso here? Why would that legislation only apply then? Once the person is elected, the situation is different? The law applies in all cases, including to federal officials not subject to election.
The Baude/Paulsen article referenced this argument. The provision is based on an older law. It's a criminal statute that without more does not supersede any other enforcement of the disqualification in a non-criminal capacity.
It provides a criminal penalty, thus requiring the higher standard of proof required in that context. 14A, sec. 3 does not require beyond a reasonable doubt per a unanimous jury (or judge), not being a criminal provision.
I think a clear statement by Congress should be required to deem this reading, which significantly limits the reach of the provision, is deemed sound.
I used the words "prior to an election" because there are mechanisms Congress can use post election to exclude a candidate for President, VP, or Congress by not counting their votes or not seating them.
The logic would mean that if they did so they were expanding the grounds for disqualification after the election, which would seem somewhat problematic.
I appreciate the clarification, but it underlines the law is not the only factor, including the states' power over assigning presidential electors.
FYI, the Respondents' merits brief has been filed, and it's pretty good. It addresses 18 U.S.C. § 2383 in footnote 19:
"19 The criminal insurrection statute, 18 U.S.C. § 2383, does not implement Section 3, much less preempt state implementation. It was originally passed as the Second Confiscation Act six years before the Fourteenth Amendment, and it covers all insurrectionists rather than only oath-breakers. 12 Stat. 589, 590 (1862). Section 3 also deliberately did not depend on a criminal conviction; Andrew Johnson had already pardoned most ex-confederates by the time Section 3 was enacted. See Cong. Globe, 39th Cong., 1st Sess. 2463, 2900 (1866)."
https://www.supremecourt.gov/search.aspx?filename=/docket/DocketFiles/html/Public/23-719.html
The indicted former 45th President’s engagement in rebellion by inciting his supporters to:
1. rise-up,
2. march to US Capitol,
3. assault and cause bodily harm to National Park and Capitol police,
4. destroy $5 million-dollars-plus of federal government property and
5. commit treason on January 6, 2021..
...in an attempt to prevent the execution of Constitutional law: the peaceful transfer of power--
...is the proverbial ‘kiss of death’ for the 45th’s struggle to stay on the ballot. That’s why the 45th and his minions are continuing to push Jan 6 down “the Memory Hole”.
Another bottom of barrel lawyer (Texas ?) hired by indicted former 45th President...weak.
Along with the Chevron oral argument, I notice a bit of spleen from Chris Geidner here. A "what are they trying to pull" sentiment. I think it's appropriate.
I have strong feelings on the question, but I think a basic point here is that there is a narrow set of reasonable grounds [not correct, mind you, at least somewhat reasonable] here to keep Trump on the ballot. We need to not let a bunch of b.s. arguments (such as the president not an officer bit) Gish Gallop things.
Indeed. I think I am reasonable. I describe good arguments as such and, when writing about them, try to wrestle with them. The two highlighted here are not that, and I don’t think it would be fair to you all, myself, or the country to treat them like they are.
Thanks. As an aside, I found the scheduling of the oral argument somewhat curious.
It's the next oral argument they will hear. It's on a Thursday. They don't usually hear arguments on a Thursday. It's almost like they left open a slot earlier in the week.
I'd offer an Occam's razor counter-possibility: They decided to add a day for the arguments because they didn't want to wait until the 20th — which are the next regularly scheduled arguments — and then it just became a matter of scheduling (working forward from the briefing schedule they were setting and availability of the justices for argument). That's total speculation, but it's just meant to explain why I don't read anything into it.