I say this as an attorney: the fact that supposedly serious people can read Section 3 and say with a straight face that it doesn't include the President shows why we're so hated as a profession.
Thank you! And for the rest of us non-lawyers - Shouldn't the fact that on the day the President is inaugurated, he puts a hand on the Bible & literally takes the OATH OF OFFICE mean that he is an OFFICER? And after that inauguration ceremony don't we say he (or perhaps some day "she") now holds the highest OFFICE in the land?
Another attorney here, and yes, you would think this would be a no brainer that the President is an Officer, but then the people who blindly follow Trump generally have no brains, so it’s more difficult for them to admit the truth. You would have to read the briefs in support of Trump to fully appreciate how twisted the logic and thought processes are of those who espouse the position that the President (and VP for that matter) is not an Officer of the US. To say the arguments are tortured, or just plain stupid, is an understatement. As an attorney, I’d be embarrassed to sign my name to those pleadings. But Trump pays them a lot of money (funded with campaign donations) to argue for him, so they do the best they can.
Here’s an example of the sort of stuff they come up with (not necessarily related to the officer question):
(1) Section 3 says an officer “under” the US, and the President is an officer “of” the US, so therefore Section 3 doesn’t apply to the President.
(2) Section 3 applies to officers who took an oath to “support” the Constitution, whereas the President takes an oath to “protect and defend” the Constitution, so since the President’s oath doesn’t use the word “support”, Section 3 doesn’t apply to the President.
(3) Section 3 disqualifies an oath taking insurrectionist from “holding” office, not from “running” for office, and that disqualification can be removed by a 2/3 vote of both the House and the Senate; therefore, the USSC should let Trump “run” for office and if he’s elected Congress can remove the disqualification before the Inauguration and everything will be just fine. Congress will “fix it”, so the court shouldn’t act.
This is the kind of stuff Trump’s lawyers are arguing and the MAGA masses are buying it.
It's ridiculous to think that Trump could garner a 2/3 vote in both Houses of Congress to remove the Constitutional disability. There's no way the Republicans will gain a 2/3 majority of both Houses of Congress, not in these polarized times. Congress isn't going to fix this.
Agreed. The current Congress would never even come close to giving him a 2/3 vote of both chambers. And I doubt the November election will change those numbers sufficiently, if at all, to provide a different result. But that (1) doesn’t stop him from making the argument, and (2) doesn’t stop him or his supporters from believing it could happen.
I think either Trump or one of the amici cited cases where the candidate wasn’t qualified when they ran for election but argued that they would be qualified before taking office and the court agreed with them. However, in those cases the candidate’s disqualification was stuff like age or residency where the time that would pass would cure the defect. Like the candidate was going to have a birthday in between the election and taking office and would be the correct age when sworn in. Or they only needed a few more months to have the right amount of residency. Obviously, those things are easily verified and can be counted on to happen. Getting a 2/3 vote from both chambers of Congress is not the same.
Clever argument. But as you correctly noted, easily distinguishable. As I recall from reading history, when Teddy Kennedy first ran for the Senate in 1962, he was a little shy of his 30th birthday. But he wasn't disqualified because by the time the election winner would be sworn in, he would be 30.
I hope the Supreme Court doesn't punt on reasoning that slender. They would look like the biggest cowards, hoping to be let off the hook by Trump's election loss. If they were to embrace the reasoning that a newly sworn in Congress might lift Trump's disability--as divided as this country is--they could never look the public in the eye again. And my God! Can you imagine the shenanigans that would lead to? I can see Trump and team going through all manner of maneuvering to try to first steal the election & second arm twist members of Congress to lift his disability. The Court had better think about that before it rests a decision on such a slender reed.
I would love to know how to find the listing of amicus documents. I read what I can when a substack links to them but I'd love to peruse the gamut of what is up there at one time. Any idea if there is a compilation of amici (sp?) with links?
Each document has a separate link attached to it on this page.
In the body of Snyder’s post, he has a link to something called SCOTUS BLOG that compiles the various petitions, motions and briefs.
At this point there is a ton of stuff there, so I don’t think the word “peruse” adequately describes the arduousness of the task before you. Trump’s response to the Respondents and their supporters is due tomorrow, Feb 5, and remember that oral arguments are this Thursday, Feb 8th. Happy reading!
The Presidential Oath of Office is spelled out in Article II, Section 1, Clause 8 of the Constitution, which describes it as the Office of President both before the oath and in the text of the Oath itself.
Article II, Section 1 repeatedly refers to the Presidency as an Office. This is not an accident.
Recovering lawyer here. I'm all in favor of "creative lawyering", but the arguments of appellant trampler here are a stretch too far. They don't pass the red face test, never mind the straight face test, in my opinion. With luck they will snap back in his and his attorneys' faces, seriously reddening them. (And seriously, trampler lawyers - CONTROL YOUR CLIENT!)
Nick, normal people hate that they can’t interpret the triplespeak used in courts that take simple words and contort them into double negative upside down readings that delve into 500 word sentences
The desperation of those lobbying against barring Trump from elected office is increasingly clear. While the legal aspects of the issue can be argued until the cows come home (or the Supreme Court weighs in, which will not, in any case, resolve the issue in the minds of the 'losing' side), to me most of their objections have nothing to do with the law. They are instead the despairing gasps of those whose whole political being has become bound up in Trumpism. They simply cannot admit that they were wrong in thinking him fit for the Presidency, and they will go to the wall (or, as some of them have already done) through it as they did on January 6th to prove themselves justified in so thinking. They remind me in some ways of the slaveholders of the south in 1861 who preferred to fight to the destruction of their way of life rather than admit that perhaps slavery was an affront to humanity; that slaves were in fact as human as those who claimed to own them, and entitled to be treated as such. The irony of Trumpers' support is that Trump himself doesn't care a whit for any of them except as hands to pull voting levers, mindless adorers at his rallies, and a bottomless well of cash donations to put him back in office, or at least keep him out of jail. But only when they come to understand that, if they ever do, will they begin to detach themselves from his toxic cause.
A devil’s advocate in my household wants to know how to prove Trump can be declared to have participated in insurrection, rebellion, or giving comfort to enemies. . . There is what we all saw and learned from the J6 committee. Is there a question of defining insurrection and rebellion, or aid and comfort of enemies? Can common sense be the standard here?
The district court in Colorado held an evidentiary trial and found that trump had engaged in insurrection within the meaning of Amendment 14, Section 3. The Colorado Supreme Court upheld the lower court's finding of fact.
Prof. Snyder notes the exact question before the SCOTUS: "Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?"
The US Supreme Court is not a finder of fact in any case it hears. I'm not a lawyer, but it seems to me that the baseline presumption has to be that trump did participate in insurrection. SCOTUS would have to find some procedural flaw in the lower courts' determination that trump's actions meet the definition of insurrection.
Of course, we know the Roberts Six will do whatever they want just because they want it.
Thanks, Nancy. The US Supreme Court would normally accept the lower court’s interpretation of the facts and the conclusion that Trump engaged in insurrection as the Colorado Supreme Court defined it.
Is there in law any other definition of insurrection that the US Supreme Court justices could use? Would they need to make up their own definition in order to rule against Colorado. Lawyers, your opinion on this? Is it something like trying to define pornography, you’ll know it when you see it?
The Secretary of State of the State of Maine held an evidentiary hearing as well, and came to the same conclusion. If you're interested, you can watch the hearing here: https://www.youtube.com/watch?v=JvBkgW893g8&t=139s.
Regarding one part of your question. On January 6th while the insurrectionists attacked our Capitol. the former president watched on tv. We NEVER hear that HE required or had provided increased Security during that time. Second part offering pardons to everyone involved who have been convicted or not In my perception is Aid and Comfort to an Enemy, the Insurrectionists. My Thinking......
The respondents brief before the USSC is very 21st century (to this very old retired lawyer) in that it has embedded photos from the attack on the Capitol as well as embedded screen shots (time and date stamped) of various Trump tweets, leading up to and including the day of Jan 6th. They are interspersed with quotes of testimony from the J6 committee that show what WH personnel and members of Congress were telling him, and when, then showing his twitter reactions. It paints a pretty graphic picture of how strongly Trump encouraged and egged on the J6 attackers and how he did absolutely NOTHING to stop them even when people in the WH and Congress were begging him to. Pretty strong stuff.
Agreed. That Jack Smith indicted on more easily provable charges makes me wonder why the existing evidence isn’t enough to charge insurrection. I have no doubt there is or will be more evidence than is now public knowledge.
Agree. I was curious if there is some definition of insurrection as specific as is the definition of rape. (Which varies somewhat in different states.)
" Finally, the Court addressed whether Trump had engaged in insurrection, making him ineligible for office. Using contemporaneous dictionary definitions, the district court had concluded that “an insurrection as used in Section Three is (1) a public use of force or threat of force (2) by a group of people (3) to hinder or prevent execution of the Constitution of the United States.”
The Colorado Supreme Court acknowledged that there is no precise definition; an insurrection is something more than disturbing the peace, but less than an all‐out rebellion. Nevertheless, “any definition of ‘insurrection’ for purposes of Section Three” would at least include “a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.” Based on the district court’s extensive factual findings (which can only be overturned based on clear error), that standard was met.
For my money (which I hope without any other justification than ego) constitutes common sense), the events of January 6th and the contjnual efforts by Trump to convince people that the election was fixed between early November and the 6th are quite sufficient. I don't see any issue with the relevance of the 14th Amendment, but of course our legal system is as ponderous and Byzantine as any which tries to serve all masters, and American lawyers have therefore proven especially adept at using that to the ends of their clients if not they themselves. I don't hold out much hope that SCOTUS will back Colorado, if only because they know that if they do, there will likely be a cascade of similar barrings in other states in addition to all the other issues they already face concerning Trump. In my fantasy world, I contemplate just how many Trump supporters in Congress now regret not having impeached him when they had the chance. And all of his SCOTUS appointments must be asking themselves why they ever agreed to join the court during his lifetime. I'm reminded of that old Chinese proverb "Be careful what you ask for; you may get it."
James, I agree with your opinion, but would also include all the statements and actions of trampler AFTER Jan 6 2021, continually and continuously trying to justify the rebellion against the Constitution, promising pardons to the Jan 6 rioters and the revolting insurrectionists to whom trampler granted pardons before he was finally evicted from the White House. Roger Stone, anyone?
Yes. Stuff like this is being highlighted in the amicus briefs in support of the respondents in the USSC appeal. The Trump justices have a reputation as members of the Federalist Society for being originalists and textualists, which means they interpret the Constitution according to the plain meaning of the text as it was understood by those who wrote it, and by those who were alive when it was written. Both dictionaries from the 1800’s (including law dictionaries) and newspaper articles from when the 14th amendment was being drafted and implemented are being given a good airing out in those briefs. The Trump justices are being targeted big time. For that matter, the Baude/Paulsen law review article (on which the Colorado Supreme Court decision was based) is aimed straight at them , boxing them in. Baude clerked for Roberts, so he’s being targeted as well. They have no wiggle room. They’re supposed to rule “without fear or favor” and I’m praying for that. They didn’t seem to mind making half the country angry with Dobbs (which I agree with), so I’m counting on them not being afraid to make the other half angry with Anderson v Griswold. 🙏
Exactly. Which brings to mind the question; Why have we never heard arguments AGAINST extending "Freedom of the Press" to radio, television and now the internet?
Excellent point referencing Webster’s 1828 Am. Dictionary as the definitive source for semantic usage at that time, doesn’t leave much room for hermeneutical ambiguities.
We will learn whether the court majority (and maybe Leonard Leo and the Federalist society) actually believe the "originalist" approach they have been pushing for years but were in fact using to bamboozle Americans, lawyers, law students, themselves, never believung there would be such a clear cut case and situation in which the history does indeed matter. I feel grateful to all the historians who have reminded SCOTUS of the history actually spoken by those most directly affected after the rebellion and civil war.
Don’t expect logical consistency when ideological economic outcomes are the goal; Originalism is merely a threadbare fig leaf to mask naked political control, an enfeebled attempt to rationalize the irrational, an attempt
to hide the blatant political motivations of the Federalist Society’s appointees.
Exactly. Which brings to mind the question; Why have we never heard arguments against extending "Freedom of the Press" to radio, television and now the internet?
It's amazing how some folks tie themselves in knots arguing that one person, that being the President, is above the law. Make that outside the law. And while I'm at it.. how about a constitutional amendment that would abolish the President's power to pardon.? What's with this divine right of kings nonsense?
I’ll tell you how. They’re afraid of his voters. Trump is backed still by people like Steve Bannon, who has a philosophy that the US government must be burned down so it can be rebuilt in a pure form because we have “lost our way”. Bannon is still lurking in the background, as are people like Stephen Miller, who never met an immigrant he didn’t want to kill. People are AFRAID that Trump will make J6-pt.2 happen if he isn’t obeyed. His voters are brainwashed cult members who’d probably drink poison if he told them to.
I live in a ruby red town in a ruby red state. I support Nikki Haley. I donated money last week and then received an offer to send another $5 to receive a “Barred Permanently” t-shirt. My H said I should do it. My reply was, “Where would I wear it? If I walked out the house in a Nikki Haley t-shirt, someone might hurt me.” This is how bad it’s gotten.
Because I hate CRT and DEI, especially in the schools and universities. Also, I support Ukraine vs Russia, and Nikki Haley will go after Russia more than Biden will. She wants to crush Russia and stop all this drips and drabs of sending weapons to Ukraine that Biden has done. Biden’s slow walking of the weapons since March 2022 has gotten us the stalemate we’re currently in and hurt Ukraine tremendously. Biden should have given them everything they asked for at the beginning. Ukraine would have been flying F-16s all this past summer, giving air cover to the tanks and ground forces, and the counteroffensive would have been successful instead of a failure. The US imposed a “plan” on Ukraine that we ourselves would have never engaged in without a sufficient amount of air power. The fear of escalation and the fear of nuclear weapons being deployed by Russia has resulted in a situation where Ukraine may soon have no choice but to cede 20% of its territory to Russia, enter into a Korea-like detente, and wait for Russia to rearm and attack again 5-10 years from now.
The Institute for the Study of War (ISW), run primarily by non-MAGA Republicans, has gone into great detail on the various mistakes by the Biden administration in strategizing the Ukraine war. It makes me angry. This war is a far greater threat to democracy and world peace than feeling like we need recognizing people’s pronouns and dividing kindergartners up into identity groups. I became a Democrat on Jan 7th, 2021 and I will not go back to the GOP because they don’t exist anymore. But I will vote for Nikki Haley. She’s conservative where I am conservative, and she supports Ukraine where the MAGA Movement supports Russia.
That said, if Trump is the nominee then I will vote for Biden, just as I voted for Biden to defeat Trump in 2020, and I voted for Hillary to defeat Trump in 2016 (which failed to happen). If more Democrats had voted for Hillary in 2016, we wouldn’t be having these Trump problems today. You can thank all the Hillary-haters in the Democratic Party for giving us Trump. Are you one of them?
I have to agree with you vis a vis Ukraine. But I think it goes beyond Biden; the DOD "experts" espousing US-style operations when the fundamental premise of air superiority does not apply.
And it goes even beyond that. We are engaged in an $2Trillion modernization of our nuclear war fighting capability, at the expense of - among other things - our conventional warfare capabilities. Part of the reason why we (and our NATO allies) can't provide more 155 mm artillery rounds to Ukraine is that we lack the production capability. If we (and specifically the Obama administration with his secretary of state Clinton) had not been asleep at the wheel when Putin invaded the Crimea, things might be different. But no, we had, and continue, to spend the money on weapons which if used in anywhere the numbers existing will result in the annihilation of life on this planet. Instead of thinking about the possibility of further Russian aggression. /rant
And yes, BTW, I voted for Jill Stein. (I cannot help but wonder if those who blame her for Hillary Clinton's defeat aren't channeling some antisemitism.)
Well, it look like you know a lot more than I do about whatever it is we’re doing or not doing with nuclear weapons, etc, and I agree with you about it being almost criminal that Obama did nothing when Russia invaded Crimea in 2014, but the best way to avoid nuclear war is to be armed to the teeth yourself and make sure your enemies know that. Having said that, however, you can’t be so afraid of someone like Putin threatening nukes that you let him just go in and take another country. You have to fully arm that country, Ukraine in this instance, as much as is humanly possible and call Putin’s bluff. It’s obvious by now that Putin was never going to nuke anyone, he just wanted the cowardly West to get out of his way. I’d need more space to fully flesh out my thoughts here, but they generally follow what I read in the ISW reports, and what I’ve read in Snyder’s books and those of Serhii Plokhy (plus Anne Applebaum, Fiona Hill, Michael McFaul, etc).
As for Jill Stein, I really don’t know who she is, except that she was third party candidate in 2016. So if she’s Jewish, that’s news to me. I don’t have any friends that voted on the left side of the aisle, but my daughter is a left-wing Democrat and her friends who voted for Jill Stein all did it because they hated Hillary Clinton, called her a DINO, said the Clintons were too moderate, etc, etc. My daughter would just get so mad at these people, and she really got mad when Trump won and she felt it was her Hillary-hating friends who were at fault. I don’t remember Jewishness being in any of those conversations, or even on the radar. I would see the Hillary-hate in the NYT comments. It was everywhere, and I found it really shocking. My SIL from upper NY state said, “Hillary must be the most hated woman in the country”, meaning I guess that both sides hated her.
So I think seeing antisemitism in that opinion may just be being overly sensitive to the issue.
Thank you for your thoughtful response. I did not reject HC because of hate but rather due to disrespect over her poor job performance and awful campaign. I especially disliked her failure to recognize the existential nature of the climate crisis as evidenced by the torpedoing of the Copenhagen conference. I could go on. One shouldn't be motivated by hatred.
Re nukes, something on the order of 200 warheads would be sufficient to kill hundreds of millions of people and return both Russia and China to the stone age. But we have over 2000 of them. Is that rational? I think not.
BTW the antisemitism remark was made tongue in cheek.
The history speaks truth to power! Our future and our country rest on understanding the past and the context in which such laws and decisions are made! We are at an inflection point...we will have revealed one way or another whether we will survive as a democracy or we will fall into authoritarianism and oligarchy like that of Putin’s Russia.
And there's this from the late Justice Antonin Scalia in 2014:
"Perhaps the most noteworthy among them was Justice Antonin Scalia in 2014. That year, the Supreme Court decided the case of National Labor Relations Board v. Noel Canning. There, the Court unanimously affirmed a challenge to the recess appointments of three NLRB commissioners. Scalia wrote a concurrence, in which Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito joined. In it, Scalia wrote: 'Except where the Constitution or a valid federal law provides otherwise, all ‘Officers of the United States’ must be appointed by the President ‘by and with the Advice and Consent of the Senate.’
"Soon after Canning was decided, Tillman and Blackman noticed that Scalia’s sentence appeared to conflict with their own reading of the Appointments Clause. Tillman then actually wrote to Scalia to ask him to explain what he meant by that particular sentence. To both his and Blackman’s amazement, they acknowledge in their article, Scalia wrote back."
"Dear Mr. Tillman:
I meant exactly what I wrote. The manner by which the President and Vice President hold their offices is “provide[d] otherwise” by the Constitution. As is the manner by which the Speaker of the House and the President Pro Tempore of the Senate hold theirs.
Happy to help, Daniel. It's interesting that some of the most important discoveries I've made are by chance, and this is no different. Most often what happens is that I'm looking for something else, and the search terms pull up sources about unexpected subjects. Then I get sidetracked before finally pulling myself back to the original search.
Rose, stupid Seth Tillman filed an amicus brief in support of petitioner (Trump) that basically repeats a bunch of nonsense from one of his law review articles. A truly unfortunate piece of legal writing that I’ve seen many MAGAs quote (they love Tillman). Tillman then filed a motion asking the USSC to give him his own oral argument time in addition to that of the petitioner and the respondents. Fortunately, I saw yesterday on the docket that Tillman’s oral argument time was denied. He’s nothing if not egotistical (plus in his faculty photo he looks like he’s on drugs, which is mean but true).
I just rolled out out of bed and looked at that photo. Looks like it's from the 1960s. I haven't read his brief and am not sure I have the psychological strength to do so. I'm not surprised he was denied his own oral arg. There are so many academics who fall into that category. There are quite a few like Samuel Charap and Thomas Graham, who openly support Russia, for example. Their arguments are bad and they refuse to answer questions about what they've written. Which of course means they're acting in bad faith.
If this were not visible to public eyes, I would tell you what I'm predicting for Trump v. Anderson. I'm afraid I'd get emoji tomatoes🍅thrown at me if I said it. I've told my sister via text, so after it's over I'll tell you. There are other things besides legal arguments to consider.
Well, Rose, I don’t know what your prediction is, but I wonder if it includes this giant monkey wrench that a guy named Chris Sevier has thrown into the works. Sevier is some sort of self-styled “de facto attorney general” with a crazy outfit called “Sons of Liberty”, or whatever, and on January 9, 2024 he filed a lawsuit in Tennessee to have Biden/Harris removed from the ballot under Section 3. In Trump v Anderson, on January 11 (two days later), Sevier filed a Motion to Intervene, asking for the USSC to basically halt the proceedings and join the two lawsuits so that one single decision can determine if Trump, Biden and Harris are ALL oath breaking insurrectionists. Sevier says his group has lawyers positioned in multiple states ready to file Section 3 removal lawsuits against Biden/Harris and clog up the entire legal system and the 2024 Presidential Election if the USSC affirms Anderson v Griswold (the competing revenge lawsuits will be filed the day after the USSC decision is rendered). JUDICIAL BLACKMAIL, in other words “Rule the wrong way and we will make your life hell”.
And the scariest part is that the USSC has now scheduled the Sevier motion for “discussion” at their weekly meeting on February 16, instead of denying it like they did for Tillman. I hate to think what would happen to the main Section 3 lawsuit if the USSC decides to succumb to the blackmail and join the two cases. It could delay any kind of answer for months.
Ha! Marry his laptop. What an A$$. Well, that actually makes me feel better because it means the USSC has experience with this guy and isn’t going to just make some knee jerk decision on the current request. Hopefully, his motion gets denied, but I guess they need to do a lot of mental maneuvering to avoid the worst consequences of the threatened revenge lawsuits.
I used to work for a judge, and sometimes when they are predisposed to ruling in your favor, if you proceed to badger them and implicitly threaten them if they don’t rule in your favor, it backfires and they rule against you for being an A$$. This type of stuff could push the Trump justices over the edge in a direction that MAGA won’t like. It’s dangerous territory imho.
I remember that gay marriage stuff, in which RWNJs were saying that if you can marry someone of your own sex, that could lead to people marrying animals, or in this case, inanimate objects. But of course what they were missing is that marriage is a legal contract between two and only two *people*. Animals and inanimate objects cannot enter into legal contracts.
I guess they all have to vote on whether or not to bring a petition into discussion, and that is what worries me. I'm familiar with the argument he uses in that petition; I've been seeing it all over twitter. But it's just nonsense to suggest that Biden and Harris have engaged in insurrection. After all this time, I'm embarrassed it didn't occur to me that someone would try to plug up the works. After all, Trump has a long history of doing that with the court system. It is true that much of what happens in our government--at all levels--really does work on agreed-upon norms and good faith that everyone will at least try to abide by those norms. In honestly, I never gave it much thought before Trump, in spite of the fact that Rs have been behaving abominably since Newt Gingrich.
Oh, dear. That's the way Rs work. Of course there is no basis for such a lawsuit against Biden/Harris because they didn't foment a rebellion. This is truly disturbing. I need some time to absorb this. Thanks for letting me know, Ann.
His title is Commander-in-Chief of the armed forces. In fact, during the Bush administration the title Commander-in-Chief was restricted to be used only by the President. Subordinate military officers, who were previously titled as a Commander-in-Chief of a large military command, were newly titled as Combatant Commanders. This is not so different from the President being both the Head of Government as well as being the Head of State. I stand by my opinion that Commander-in-Chief is a military title for a person who also has the title President of the United States. It is the "President" civilian title that places a civilian over the military.
The court arguments are saying this makes the President also a military officer as Commander in Chief of the Armed Forces. The Secretary of Defense oversees the Pentagon and the military, and the Secretary of Defense is always a civilian for the reason you state.
There is good reason to assume that many on the Court will behave like politicians, as the history of Alito's and Thomas' judgments so clearly demonstrate. Will the majority of the Court risk the physical danger of going against the MAGA crowd? I have my doubts. And their conclusions would be laughable if they weren't so dangerous.
It is very disappointing to see how our rule of law is challenged by nonsense such as whether the presidency is an office. We have always referred to it as the “highest office in the land.” The fact that this whole trial could be jeopardized by this argument alone is extremely discouraging. What a farce!
If the SC rules for TFG, then they are in fact granting him unlimited power, unlimited over theirs, and that precedent means one man will be granted power over all of the rule of law. A Trump 2nd term means presidential supremacy without equal checks and balances of the other branches. Once they rule in opposition to the clearest language and meaning of the Constitution, we cease to be a Constitutional Republic. But they will be “loved” (accepted) by the radicalized 37% of Americans. Did Madison explain this danger specific to the Supreme Court somewhere in the Federalist Papers? Party affiliation/Aligence to the party before the Constitution/ party before the rule of law?
Part of me is racing ahead to November election. We know TFG will lose the popular vote. He will contest the validity of the ballot. He will, with the help of some cheap lawyers, find and pull a legal lever and with the help of the court, ( with rhetoric for violence and actual violence) bully his way to claim the presidency through the “legal” approach. The truth will be diluted and twisted by Fox and echoed by the radical channels once again. This is how most coups succeed. How could we better convince the justices to see this? Maybe they will never understand the psychology of group affiliation. Are they true believers to a conservative ideology or are they scholars of the law and the Constitution? History will be their judge.
In the issue of group affiliation I though of this by Bukowski…
‘Should the Court yield in advance to the threat of violence, it is no longer a court and this is no longer a rule-of-law state. The whole point of Section 3 is to allow the Constitution to defend itself against those who would use violence to overturn our constitutional order.’
America is still a country of law and order where traitors and criminals should be banned from holding government office. 🦅
I expect we’ll see violence and threats however the court proceeds. If the court upholds the clear reading of the 14th amendment, section 3, the MAGAts will riot. If they weasel out of upholding it and TFG is allowed to run, he will lose the popular vote and likely all lose the Electoral College vote, which sets us up for a repeat of January 6. If gerrymandering pays off well enough that he wins The Electoral College vote, we have lost our democracy. None of these outcomes is good, but I believe that upholding the 14th amendment would be the least dangerous. In an ideal world, I’d then use it to disqualify the members of Congress who also supported the insurrection.
Yes -- we all have to do the work, now and every day until November = GET OUT THE VOTE! And get across the good news: Biden is a good president, the Democrats are strong and winning, the economy is doing amazingly well, etc etc. We need to be proud of our country and our President and not fall for the doom-loop Republican trap. There are way more of us than them but we all need to be doing our part to ensure victory is big enough to survive whatever the extremists will attempt to do to negate it.
Thank you, Prof Snyder, for this clear thinking and comprehensive referencing. Your observations and legal along with historical documentation of your conclusions seems to me precisely what Americans as members of civil society, with our responsibilities and rule of law protections in carrying out our democratic political choice-making and decision-making, need to have as reasoned appraisal at this time, for this set of circumstances.
One of the accomplishments of these observations and the others previously offered is to be as explicit and apolitical as one can be in forming one's own understanding of the Fourteenth Amendment as a socially vital amendment to the US Constitution and its governance system. That the Constitution abide as time goes on, it requires the sustained participation and support of the people of the US. The almost fatal challenge experienced from the totality of cultural, political and violent events of the Civil War meant that very novel political approaches were needed for a post Civil War reconstruction that would endure and that would be publicly grounded. Voluntary participation and voluntary political affirmations were recognized as essential. As Prof Snyder points out herein,
" To be sure, the historical context was that of a recent rebellion which shook the republic to its foundations and led to the bloodiest war the United States has ever fought. Thus the particular concern with leading insurrectionists such as Davis. But it was precisely because legislators had experienced the consequence of one insurrection that they were concerned to prevent others from succeeding.
Legislators could have framed Section 3 to apply only to the 1860s, but they did not. Indeed, they discussed including language specific to "the late insurrection" and rejected such a framing as too limiting (25:18, 5:3). They had in mind preventing civil war from becoming a recurring "curse" or a "pastime" (5:3,14). ..."
Again from Prof Snyder, "The purpose of constitutional order, of course, is to provide a framework above politics, one which allows a decent sort of politics to prevail. If no one takes the meaning of the Constitution seriously, then such an order cannot long be sustained." This is a message that the Justices of the Supreme Court must clearly hear and take to heart. They need also understand and affirm the importance of the integrity of the Constitution and the governance system it supports, and they must in this context affirm the responsibilities of each Justice and the Court to explicitly and with clear reasoning and factual supports affirm the role of the Court in sustaining that integrity.
As a question aimed at MY own support of the 'bad arguement..." essay's appraisals and conclusion, not at all aimed at the appraisals or conclusions, I ask myself, as others among the commenters herein ask, does Sec 3 satisfy the prudent and essential responsibilities for and protections afforded by due process in establishing accountability?
I forward this question for myself in order to support due process in this effort to see and construct a determination as a full and factual determination in the whole context of governance under the Constitution and its protections afforded to every citizen. This is a Constitution of choice, action and responsibility, mutually and inclusively.
My layperson's gut and reasoned sense, at this moment, is that the disqualification process is proceeding as spelled and for the sort of choices, actions and events made explicit by Sec 3 AND the due process is underway, is being supported, but may yet be represented more fully. The latter fullness is not clear to me yet, although in conversation with other commenters the potential use of grand jury process is under discussion.
In the moment, it clearly is our responsibility, some of us as citizens, some of us as citizens who also hold public office, to choose and act to protect the Constitution and our governance system against attempt to use violence to obtain a political outcome. This situation and these responsibilities do have, in relation to due process, a novel relationship.
Perhaps oddly, to me, questions about accountability of choosing and doing what constitutes willful support of insurrection stand shoulder to shoulder with questions as to why even one among the chosen actions was not chosen to explicitly remind others of the necessity to respect the Constitution -- in fact to demand respect for the Constitution and governance provided by it -- by respecting the process on-going in Congress on Jan 06 2021. Others holding office and with responsibilities for the congressional process on-going did, in fact, demonstrate conscious responsibility to respect the Constitution and so on.... These examples of who didn't and who did are part of the public record, and they clearly provide a record of willful choice.
There was a due process "finding of fact" that Trump "engaged" in an insurrection. In addition, the 14th Am, due process clause refers to deprivation of "life, liberty or property." Running for office is neither of these things, but is a privilege, not a right. Just as a State Clerk has power to exclude Obama & George W. Bush from the ballot based on the 22nd Am, she has the power to exclude someone from the ballot who is disqualified under the 14th Am, Sec 3, after a finding of fact.
Findings of fact, after due process hearing. Judge Wallace describes Trump's role
• pp 26-56, and at
• pp 66-79 rules Trump engaged in the Insurrection.
Well, the Chief Justice of the Colorado Supreme Coort disagrees with you that due process has been satisfied in this case! Puesto, this should show you how difficult these issues are.
The finding of the majority of the Colorado Supreme Court on the process questions is basically final, as they were arguing about the process under Colorado election law and whether or not that had been properly followed. The USSC always defers to the state supreme court’s interpretation of state law. Besides which, 14th Amendment due process can be had with as little as a one hour administrative hearing, depending on the issue and the circumstances, and there’s a mountain of USSC cases to that effect. So the dissenting opinion you refer to doesn’t mean squat at this point. The USSC isn’t going to review that, and frankly, I’m not sure Trump’s lawyers even raised it in their petition.
I think there's a 4th reason why people would argue that Trump is eligible to run: They'd argue that January 6th was not an insurrection but merely a political rally where he was exercising his right to free speech.... Unfortunately, I think this is what the Roberts Court will decide.
Why aren’t we planning our own peaceful protest outside the court Wednesday/Thursday? Part of me thinks the court needs to see real support of the rule of law and for democracy. But normal people have jobs and families, and most still have a belief that the Justices can be impartial I suppose. There is nothing radical about idea that J6 was clearly a coup attempt/violent insurrection. To believe J6 was regular political discourse is a fantasy, a fallacy of excess comfort, something the Greeks warned about. And once again, we receive notice like red flags, “ that social identity and group affiliation” is more important than the facts of reality. It’s no surprise to me how timid some become to challenges to their group identity. It must cost them something deep inside their souls to loose that grip of reality. To know that if the SC rules in favor of TFG appeal, we are no longer a rule of law state, the Constitution is rendered meaningless. The floodgates of lawlessness will be breached by the powerful. Faulty reasoning becomes the new normal. How do we then protest those downstream decisions? What possible future lies ahead? The 1930’s and 40’s come easily to mind.
I'm with you! I don't see enough discussion about planned protest. When McConnell was held Obama's supreme Court appointment and then when Coney Barrett was appointed. Finally when roe v Wade fell there should have been massive million person protests in Washington. We have become dull and apathetic. We all have jobs and everything but the stakes are absolutely outrageous! We have no charismatic leader to lead the charge. We need an MLK
Arguing "before" SCOTUS decides is called debate. Arguing after they decide is called whining.
The reason the Trump Brief asked such an unusual, extremely rare, simple but broad question: "Did the Colorado Spreme Court err?" is to set up a full palet, blank slate for the Right Wing hacks to create any excuse they want to eviscerate the 14th Am, Sec 3. The easiest way to shoot down a complex argument is to start from the beginning and shoot down at least one of its premises.
At least 4 justices are required to accept Cert, which they have already done in Fischer v US.― Link➔https://www.scotusblog.com/2023/12/court-to-weigh-in-on-scope-of-law-used-in-jan-6-prosecutions/ ― This case will throw out hundreds of Jan. 6 convictions if the four who reached out unnecessarily to grant it Cetiorari can get a 5th vote (Court of Appeals left the convictions in tact). Ergo, a Fischer decision will likely be used to craft creative wording which says "there was no insurrection." (As an asside, this wording will also negate two of Jack Smit's charges against Trump).
I've read several of the briefs in the instant matter, and don't recall anyone arguing what Webster's 1828 Am. Dictionary, defined insurrection as: "A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law..."
Without arguing this ahead of time, the door is left wide open for creative writing by the nefarious four― Thomas, Alito, Gorsuch & Kavanaugh― to continue their judicial tyranny. Judicial tyranny “occurs when the Supreme Court substitutes its will for what the law should be instead of using its judgment to determine what the law is."- C.D. Kilgore
As I’ve said repeatedly, the prominent DC lawyer David Boies who led the post-election charge for Al Gore in 2000, says it was only a riot. You may not agree, but it shows there is serious debate.
If the "incident" or "riot" was simply out of control citizens - well perhaps that's a defense. But coupled with the clearly stated false (and proven to be false and proven that Trump and his crew knew it to be false) claim or "conviction" that the election was stolen and the intent to block the confirmation of the vote and the collusion by members of Congress and the ongoing lie that the election was stolen, and lots of violence, that gets a lot closer to insurrection (in my opinion.) It certainly wasn't well thought out or likely to succeed But I do understand your position and I believe that SCOTUS will rule this way. But I disagree, in this, in the Zelinsky/Biden
first impeachment and on numerous other occasions, Donald Trump betrayed his oath of office and our country.
“Used at the time” doesn’t mean that the writers of 14 were using it when they were writing to ban from office ex-Confederates who had led armed troops against the U.S. Army. Those were the targets. Do you deny it? That was clearly what they meant by “insurrection”, too. Nor was there a question of fact that the ex-Confederates had engaged in insurrection.
And, having read 6 or 7 of the briefs since the Colorado Supreme decision, I can assure you that a great deal of the "at the time" discussions quoted were from the ratification process. There were many examples of local periodicals discussing terms and their ramifications at the time - 1868 - as to what it all meant. Ratification is more important than debates in Congress when writing it.
The 14th Am says "against the Constitution." And, "insurrection" implies a use of force. Certification of the electoral college vote counts, having been certified by the states is a specific, constitutional process required every 4 years on, or about a certain date. Using force to negate that process is an insurrection against the constitution.
In 1868, why did Republicans pass 14th Am, §3 then require CSA states to ratify it BEFORE BEING ALLOWED BACK IN THE UNION?
Answer: To keep insurrections from happening again.
A Constitutional Republic can’t void Sec 3 by popular vote.
That’s definitely being argued in the briefs and pleadings, and some of the historians are writing extensively on it, submitting all kinds of proof that it was in fact “an insurrection or rebellion against the Constitution”. Section 3 uses the words “against the Constitution”, which changes the overall meaning of the terms for the purposes of the Section 3 disqualification from elected office. They make an airtight case as far as I can tell. Amicus briefs by legal historians and constitutional law scholars are also making this argument, ie, J6 was “an insurrection/rebellion against the Constitution”.
Thank you, Prof. Snyder, for linking to the amicus brief you and your colleagues submitted. If the Roberts Six ignore such a learned, powerful, elegantly written brief, they forfeit whatever claim on the people's respect they still retain. I have also read the brief of the 25 Civil War and Reconstruction historians, which appears ironclad for disqualification on textualist and originalist grounds. Again, a ruling for trump would strip the Six of any defense of their purported judicial "philosophy." In the disqualification case, the Constitution is putting the Court itself on trial.
And it won't take too many more shenanigans from this Supreme Court for the people to demand changes to the Institution. Bush v. Gore was awful. (I favor Souter's argument. Remand the case to Florida with orders to set standards for assessing the various types of ballots, and if the outcome remains so uncertain that the State cannot certify the results, send the matter to the House of Representatives, as the Constitution requires.) The Supreme Court should have taken no role in deciding the election. Shame on them.
There've been a lot of Supreme Court decisions since then that have stood my hair on end. The Dobbs v Jackson decision is just one example, but it is one that sticks in the public's mind pretty clearly. One does not vitiate a fundamental right that existed for 49 years, particularly one having such overwhelming health considerations, without setting off a lasting firestorm.
If the Court continues on this runaway streak and dodges a responsible decision in the Colorado case, I think the public reaction will be condemning.
I say this as an attorney: the fact that supposedly serious people can read Section 3 and say with a straight face that it doesn't include the President shows why we're so hated as a profession.
Thank you! And for the rest of us non-lawyers - Shouldn't the fact that on the day the President is inaugurated, he puts a hand on the Bible & literally takes the OATH OF OFFICE mean that he is an OFFICER? And after that inauguration ceremony don't we say he (or perhaps some day "she") now holds the highest OFFICE in the land?
Another attorney here, and yes, you would think this would be a no brainer that the President is an Officer, but then the people who blindly follow Trump generally have no brains, so it’s more difficult for them to admit the truth. You would have to read the briefs in support of Trump to fully appreciate how twisted the logic and thought processes are of those who espouse the position that the President (and VP for that matter) is not an Officer of the US. To say the arguments are tortured, or just plain stupid, is an understatement. As an attorney, I’d be embarrassed to sign my name to those pleadings. But Trump pays them a lot of money (funded with campaign donations) to argue for him, so they do the best they can.
Here’s an example of the sort of stuff they come up with (not necessarily related to the officer question):
(1) Section 3 says an officer “under” the US, and the President is an officer “of” the US, so therefore Section 3 doesn’t apply to the President.
(2) Section 3 applies to officers who took an oath to “support” the Constitution, whereas the President takes an oath to “protect and defend” the Constitution, so since the President’s oath doesn’t use the word “support”, Section 3 doesn’t apply to the President.
(3) Section 3 disqualifies an oath taking insurrectionist from “holding” office, not from “running” for office, and that disqualification can be removed by a 2/3 vote of both the House and the Senate; therefore, the USSC should let Trump “run” for office and if he’s elected Congress can remove the disqualification before the Inauguration and everything will be just fine. Congress will “fix it”, so the court shouldn’t act.
This is the kind of stuff Trump’s lawyers are arguing and the MAGA masses are buying it.
It's ridiculous to think that Trump could garner a 2/3 vote in both Houses of Congress to remove the Constitutional disability. There's no way the Republicans will gain a 2/3 majority of both Houses of Congress, not in these polarized times. Congress isn't going to fix this.
Agreed. The current Congress would never even come close to giving him a 2/3 vote of both chambers. And I doubt the November election will change those numbers sufficiently, if at all, to provide a different result. But that (1) doesn’t stop him from making the argument, and (2) doesn’t stop him or his supporters from believing it could happen.
I think either Trump or one of the amici cited cases where the candidate wasn’t qualified when they ran for election but argued that they would be qualified before taking office and the court agreed with them. However, in those cases the candidate’s disqualification was stuff like age or residency where the time that would pass would cure the defect. Like the candidate was going to have a birthday in between the election and taking office and would be the correct age when sworn in. Or they only needed a few more months to have the right amount of residency. Obviously, those things are easily verified and can be counted on to happen. Getting a 2/3 vote from both chambers of Congress is not the same.
Clever argument. But as you correctly noted, easily distinguishable. As I recall from reading history, when Teddy Kennedy first ran for the Senate in 1962, he was a little shy of his 30th birthday. But he wasn't disqualified because by the time the election winner would be sworn in, he would be 30.
I hope the Supreme Court doesn't punt on reasoning that slender. They would look like the biggest cowards, hoping to be let off the hook by Trump's election loss. If they were to embrace the reasoning that a newly sworn in Congress might lift Trump's disability--as divided as this country is--they could never look the public in the eye again. And my God! Can you imagine the shenanigans that would lead to? I can see Trump and team going through all manner of maneuvering to try to first steal the election & second arm twist members of Congress to lift his disability. The Court had better think about that before it rests a decision on such a slender reed.
I would love to know how to find the listing of amicus documents. I read what I can when a substack links to them but I'd love to peruse the gamut of what is up there at one time. Any idea if there is a compilation of amici (sp?) with links?
Here is the link that I use, from the USSC website: https://www.supremecourt.gov/docket/docketfiles/html/public/23-719.html
Each document has a separate link attached to it on this page.
In the body of Snyder’s post, he has a link to something called SCOTUS BLOG that compiles the various petitions, motions and briefs.
At this point there is a ton of stuff there, so I don’t think the word “peruse” adequately describes the arduousness of the task before you. Trump’s response to the Respondents and their supporters is due tomorrow, Feb 5, and remember that oral arguments are this Thursday, Feb 8th. Happy reading!
The Presidential Oath of Office is spelled out in Article II, Section 1, Clause 8 of the Constitution, which describes it as the Office of President both before the oath and in the text of the Oath itself.
Article II, Section 1 repeatedly refers to the Presidency as an Office. This is not an accident.
I don’t hate courageous, honest lawyers. Godspeed, SC Jack Smith! 🦅
The MAGA masses think Jack Smith is a slimy, dishonest lawyer, so I guess it’s all in the eye of the beholder.
Fascists don’t deal in honesty and truth 😀 #BiggestLiars
No, Ann P, the maga masses don't think. At all. They surrendered their critical faculties when they joined the cult of Trump.
Recovering lawyer here. I'm all in favor of "creative lawyering", but the arguments of appellant trampler here are a stretch too far. They don't pass the red face test, never mind the straight face test, in my opinion. With luck they will snap back in his and his attorneys' faces, seriously reddening them. (And seriously, trampler lawyers - CONTROL YOUR CLIENT!)
Nick, normal people hate that they can’t interpret the triplespeak used in courts that take simple words and contort them into double negative upside down readings that delve into 500 word sentences
The desperation of those lobbying against barring Trump from elected office is increasingly clear. While the legal aspects of the issue can be argued until the cows come home (or the Supreme Court weighs in, which will not, in any case, resolve the issue in the minds of the 'losing' side), to me most of their objections have nothing to do with the law. They are instead the despairing gasps of those whose whole political being has become bound up in Trumpism. They simply cannot admit that they were wrong in thinking him fit for the Presidency, and they will go to the wall (or, as some of them have already done) through it as they did on January 6th to prove themselves justified in so thinking. They remind me in some ways of the slaveholders of the south in 1861 who preferred to fight to the destruction of their way of life rather than admit that perhaps slavery was an affront to humanity; that slaves were in fact as human as those who claimed to own them, and entitled to be treated as such. The irony of Trumpers' support is that Trump himself doesn't care a whit for any of them except as hands to pull voting levers, mindless adorers at his rallies, and a bottomless well of cash donations to put him back in office, or at least keep him out of jail. But only when they come to understand that, if they ever do, will they begin to detach themselves from his toxic cause.
A devil’s advocate in my household wants to know how to prove Trump can be declared to have participated in insurrection, rebellion, or giving comfort to enemies. . . There is what we all saw and learned from the J6 committee. Is there a question of defining insurrection and rebellion, or aid and comfort of enemies? Can common sense be the standard here?
The district court in Colorado held an evidentiary trial and found that trump had engaged in insurrection within the meaning of Amendment 14, Section 3. The Colorado Supreme Court upheld the lower court's finding of fact.
Prof. Snyder notes the exact question before the SCOTUS: "Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?"
The US Supreme Court is not a finder of fact in any case it hears. I'm not a lawyer, but it seems to me that the baseline presumption has to be that trump did participate in insurrection. SCOTUS would have to find some procedural flaw in the lower courts' determination that trump's actions meet the definition of insurrection.
Of course, we know the Roberts Six will do whatever they want just because they want it.
Thanks, Nancy. The US Supreme Court would normally accept the lower court’s interpretation of the facts and the conclusion that Trump engaged in insurrection as the Colorado Supreme Court defined it.
Is there in law any other definition of insurrection that the US Supreme Court justices could use? Would they need to make up their own definition in order to rule against Colorado. Lawyers, your opinion on this? Is it something like trying to define pornography, you’ll know it when you see it?
The Secretary of State of the State of Maine held an evidentiary hearing as well, and came to the same conclusion. If you're interested, you can watch the hearing here: https://www.youtube.com/watch?v=JvBkgW893g8&t=139s.
Thanks for the explanation
Regarding one part of your question. On January 6th while the insurrectionists attacked our Capitol. the former president watched on tv. We NEVER hear that HE required or had provided increased Security during that time. Second part offering pardons to everyone involved who have been convicted or not In my perception is Aid and Comfort to an Enemy, the Insurrectionists. My Thinking......
The respondents brief before the USSC is very 21st century (to this very old retired lawyer) in that it has embedded photos from the attack on the Capitol as well as embedded screen shots (time and date stamped) of various Trump tweets, leading up to and including the day of Jan 6th. They are interspersed with quotes of testimony from the J6 committee that show what WH personnel and members of Congress were telling him, and when, then showing his twitter reactions. It paints a pretty graphic picture of how strongly Trump encouraged and egged on the J6 attackers and how he did absolutely NOTHING to stop them even when people in the WH and Congress were begging him to. Pretty strong stuff.
Agreed. That Jack Smith indicted on more easily provable charges makes me wonder why the existing evidence isn’t enough to charge insurrection. I have no doubt there is or will be more evidence than is now public knowledge.
Agree. I was curious if there is some definition of insurrection as specific as is the definition of rape. (Which varies somewhat in different states.)
Carol , I am not an attorney, but I googled this (https://www.cato.org/blog/agree-it-or-not-colorado-supreme-courts-opinion-disqualifying-trump-triumph-judicial) which out of the choices read seems to answer the question. ( Cato Org. defines itself as Libertarian came up in Google )
" Finally, the Court addressed whether Trump had engaged in insurrection, making him ineligible for office. Using contemporaneous dictionary definitions, the district court had concluded that “an insurrection as used in Section Three is (1) a public use of force or threat of force (2) by a group of people (3) to hinder or prevent execution of the Constitution of the United States.”
The Colorado Supreme Court acknowledged that there is no precise definition; an insurrection is something more than disturbing the peace, but less than an all‐out rebellion. Nevertheless, “any definition of ‘insurrection’ for purposes of Section Three” would at least include “a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.” Based on the district court’s extensive factual findings (which can only be overturned based on clear error), that standard was met.
Thank you, Sara. Very helpful!
For my money (which I hope without any other justification than ego) constitutes common sense), the events of January 6th and the contjnual efforts by Trump to convince people that the election was fixed between early November and the 6th are quite sufficient. I don't see any issue with the relevance of the 14th Amendment, but of course our legal system is as ponderous and Byzantine as any which tries to serve all masters, and American lawyers have therefore proven especially adept at using that to the ends of their clients if not they themselves. I don't hold out much hope that SCOTUS will back Colorado, if only because they know that if they do, there will likely be a cascade of similar barrings in other states in addition to all the other issues they already face concerning Trump. In my fantasy world, I contemplate just how many Trump supporters in Congress now regret not having impeached him when they had the chance. And all of his SCOTUS appointments must be asking themselves why they ever agreed to join the court during his lifetime. I'm reminded of that old Chinese proverb "Be careful what you ask for; you may get it."
James, I agree with your opinion, but would also include all the statements and actions of trampler AFTER Jan 6 2021, continually and continuously trying to justify the rebellion against the Constitution, promising pardons to the Jan 6 rioters and the revolting insurrectionists to whom trampler granted pardons before he was finally evicted from the White House. Roger Stone, anyone?
Everything you said.
Webster's 1828 Am. Dictionary, used at the time of writing the 14th Am, makes it very simple:
"A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law.."
In her "Findings of fact," after due process hearing. Judge Wallace describes Trump's role"
• pp 26-56, and at
• pp 66-79 rules Trump engaged in the Insurrection.
Link➔https://www.courts.state.co.us/userfiles/file/Court_Probation/02nd_Judicial_District/Denver_District_Court/11_17_2023%20Final%20Order.pdf
Yes. Stuff like this is being highlighted in the amicus briefs in support of the respondents in the USSC appeal. The Trump justices have a reputation as members of the Federalist Society for being originalists and textualists, which means they interpret the Constitution according to the plain meaning of the text as it was understood by those who wrote it, and by those who were alive when it was written. Both dictionaries from the 1800’s (including law dictionaries) and newspaper articles from when the 14th amendment was being drafted and implemented are being given a good airing out in those briefs. The Trump justices are being targeted big time. For that matter, the Baude/Paulsen law review article (on which the Colorado Supreme Court decision was based) is aimed straight at them , boxing them in. Baude clerked for Roberts, so he’s being targeted as well. They have no wiggle room. They’re supposed to rule “without fear or favor” and I’m praying for that. They didn’t seem to mind making half the country angry with Dobbs (which I agree with), so I’m counting on them not being afraid to make the other half angry with Anderson v Griswold. 🙏
Exactly. Which brings to mind the question; Why have we never heard arguments AGAINST extending "Freedom of the Press" to radio, television and now the internet?
Thanks for the link!
Excellent point referencing Webster’s 1828 Am. Dictionary as the definitive source for semantic usage at that time, doesn’t leave much room for hermeneutical ambiguities.
Excellent point about Webster’s 1828 Am.
Dictionary as being the definitive reference for
Carol. No, no longer is common sense allowed in America
We will learn whether the court majority (and maybe Leonard Leo and the Federalist society) actually believe the "originalist" approach they have been pushing for years but were in fact using to bamboozle Americans, lawyers, law students, themselves, never believung there would be such a clear cut case and situation in which the history does indeed matter. I feel grateful to all the historians who have reminded SCOTUS of the history actually spoken by those most directly affected after the rebellion and civil war.
Originalists, as long as it serves their benefactor, The Federalist Society, our oligarchs.
Yes indeed.
Don’t expect logical consistency when ideological economic outcomes are the goal; Originalism is merely a threadbare fig leaf to mask naked political control, an enfeebled attempt to rationalize the irrational, an attempt
to hide the blatant political motivations of the Federalist Society’s appointees.
Exactly. Which brings to mind the question; Why have we never heard arguments against extending "Freedom of the Press" to radio, television and now the internet?
The Roberts Court will do what it wants and recreate the Constitution by a 6-3 vote
The Founders could not have imagined the treasonous nature of 6 judges reaching the Court
It's amazing how some folks tie themselves in knots arguing that one person, that being the President, is above the law. Make that outside the law. And while I'm at it.. how about a constitutional amendment that would abolish the President's power to pardon.? What's with this divine right of kings nonsense?
I’ll tell you how. They’re afraid of his voters. Trump is backed still by people like Steve Bannon, who has a philosophy that the US government must be burned down so it can be rebuilt in a pure form because we have “lost our way”. Bannon is still lurking in the background, as are people like Stephen Miller, who never met an immigrant he didn’t want to kill. People are AFRAID that Trump will make J6-pt.2 happen if he isn’t obeyed. His voters are brainwashed cult members who’d probably drink poison if he told them to.
I live in a ruby red town in a ruby red state. I support Nikki Haley. I donated money last week and then received an offer to send another $5 to receive a “Barred Permanently” t-shirt. My H said I should do it. My reply was, “Where would I wear it? If I walked out the house in a Nikki Haley t-shirt, someone might hurt me.” This is how bad it’s gotten.
Why you would vote for any republican is beyond me.
Because I hate CRT and DEI, especially in the schools and universities. Also, I support Ukraine vs Russia, and Nikki Haley will go after Russia more than Biden will. She wants to crush Russia and stop all this drips and drabs of sending weapons to Ukraine that Biden has done. Biden’s slow walking of the weapons since March 2022 has gotten us the stalemate we’re currently in and hurt Ukraine tremendously. Biden should have given them everything they asked for at the beginning. Ukraine would have been flying F-16s all this past summer, giving air cover to the tanks and ground forces, and the counteroffensive would have been successful instead of a failure. The US imposed a “plan” on Ukraine that we ourselves would have never engaged in without a sufficient amount of air power. The fear of escalation and the fear of nuclear weapons being deployed by Russia has resulted in a situation where Ukraine may soon have no choice but to cede 20% of its territory to Russia, enter into a Korea-like detente, and wait for Russia to rearm and attack again 5-10 years from now.
The Institute for the Study of War (ISW), run primarily by non-MAGA Republicans, has gone into great detail on the various mistakes by the Biden administration in strategizing the Ukraine war. It makes me angry. This war is a far greater threat to democracy and world peace than feeling like we need recognizing people’s pronouns and dividing kindergartners up into identity groups. I became a Democrat on Jan 7th, 2021 and I will not go back to the GOP because they don’t exist anymore. But I will vote for Nikki Haley. She’s conservative where I am conservative, and she supports Ukraine where the MAGA Movement supports Russia.
That said, if Trump is the nominee then I will vote for Biden, just as I voted for Biden to defeat Trump in 2020, and I voted for Hillary to defeat Trump in 2016 (which failed to happen). If more Democrats had voted for Hillary in 2016, we wouldn’t be having these Trump problems today. You can thank all the Hillary-haters in the Democratic Party for giving us Trump. Are you one of them?
I have to agree with you vis a vis Ukraine. But I think it goes beyond Biden; the DOD "experts" espousing US-style operations when the fundamental premise of air superiority does not apply.
And it goes even beyond that. We are engaged in an $2Trillion modernization of our nuclear war fighting capability, at the expense of - among other things - our conventional warfare capabilities. Part of the reason why we (and our NATO allies) can't provide more 155 mm artillery rounds to Ukraine is that we lack the production capability. If we (and specifically the Obama administration with his secretary of state Clinton) had not been asleep at the wheel when Putin invaded the Crimea, things might be different. But no, we had, and continue, to spend the money on weapons which if used in anywhere the numbers existing will result in the annihilation of life on this planet. Instead of thinking about the possibility of further Russian aggression. /rant
And yes, BTW, I voted for Jill Stein. (I cannot help but wonder if those who blame her for Hillary Clinton's defeat aren't channeling some antisemitism.)
Well, it look like you know a lot more than I do about whatever it is we’re doing or not doing with nuclear weapons, etc, and I agree with you about it being almost criminal that Obama did nothing when Russia invaded Crimea in 2014, but the best way to avoid nuclear war is to be armed to the teeth yourself and make sure your enemies know that. Having said that, however, you can’t be so afraid of someone like Putin threatening nukes that you let him just go in and take another country. You have to fully arm that country, Ukraine in this instance, as much as is humanly possible and call Putin’s bluff. It’s obvious by now that Putin was never going to nuke anyone, he just wanted the cowardly West to get out of his way. I’d need more space to fully flesh out my thoughts here, but they generally follow what I read in the ISW reports, and what I’ve read in Snyder’s books and those of Serhii Plokhy (plus Anne Applebaum, Fiona Hill, Michael McFaul, etc).
As for Jill Stein, I really don’t know who she is, except that she was third party candidate in 2016. So if she’s Jewish, that’s news to me. I don’t have any friends that voted on the left side of the aisle, but my daughter is a left-wing Democrat and her friends who voted for Jill Stein all did it because they hated Hillary Clinton, called her a DINO, said the Clintons were too moderate, etc, etc. My daughter would just get so mad at these people, and she really got mad when Trump won and she felt it was her Hillary-hating friends who were at fault. I don’t remember Jewishness being in any of those conversations, or even on the radar. I would see the Hillary-hate in the NYT comments. It was everywhere, and I found it really shocking. My SIL from upper NY state said, “Hillary must be the most hated woman in the country”, meaning I guess that both sides hated her.
So I think seeing antisemitism in that opinion may just be being overly sensitive to the issue.
Thank you for your thoughtful response. I did not reject HC because of hate but rather due to disrespect over her poor job performance and awful campaign. I especially disliked her failure to recognize the existential nature of the climate crisis as evidenced by the torpedoing of the Copenhagen conference. I could go on. One shouldn't be motivated by hatred.
Re nukes, something on the order of 200 warheads would be sufficient to kill hundreds of millions of people and return both Russia and China to the stone age. But we have over 2000 of them. Is that rational? I think not.
BTW the antisemitism remark was made tongue in cheek.
Mark, its only nonsense at the point in time it’s prevented
The history speaks truth to power! Our future and our country rest on understanding the past and the context in which such laws and decisions are made! We are at an inflection point...we will have revealed one way or another whether we will survive as a democracy or we will fall into authoritarianism and oligarchy like that of Putin’s Russia.
And there's this from the late Justice Antonin Scalia in 2014:
"Perhaps the most noteworthy among them was Justice Antonin Scalia in 2014. That year, the Supreme Court decided the case of National Labor Relations Board v. Noel Canning. There, the Court unanimously affirmed a challenge to the recess appointments of three NLRB commissioners. Scalia wrote a concurrence, in which Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito joined. In it, Scalia wrote: 'Except where the Constitution or a valid federal law provides otherwise, all ‘Officers of the United States’ must be appointed by the President ‘by and with the Advice and Consent of the Senate.’
"Soon after Canning was decided, Tillman and Blackman noticed that Scalia’s sentence appeared to conflict with their own reading of the Appointments Clause. Tillman then actually wrote to Scalia to ask him to explain what he meant by that particular sentence. To both his and Blackman’s amazement, they acknowledge in their article, Scalia wrote back."
"Dear Mr. Tillman:
I meant exactly what I wrote. The manner by which the President and Vice President hold their offices is “provide[d] otherwise” by the Constitution. As is the manner by which the Speaker of the House and the President Pro Tempore of the Senate hold theirs.
Sincerely,
/s/ Antonin Scalia"
https://www.lawfaremedia.org/article/what-justice-scalia-thought-about-whether-presidents-are-officers-of-the-united-states
Note that "Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito joined."
Wow! That is as fascinating as it is clarifying, Rose.
Thanks for your contribution
Happy to help, Daniel. It's interesting that some of the most important discoveries I've made are by chance, and this is no different. Most often what happens is that I'm looking for something else, and the search terms pull up sources about unexpected subjects. Then I get sidetracked before finally pulling myself back to the original search.
Ha! You sound like me, Rose. So often when I go down some rabbit hole looking for support for "Y", I find a more interesting "X" to examine.
Rose, stupid Seth Tillman filed an amicus brief in support of petitioner (Trump) that basically repeats a bunch of nonsense from one of his law review articles. A truly unfortunate piece of legal writing that I’ve seen many MAGAs quote (they love Tillman). Tillman then filed a motion asking the USSC to give him his own oral argument time in addition to that of the petitioner and the respondents. Fortunately, I saw yesterday on the docket that Tillman’s oral argument time was denied. He’s nothing if not egotistical (plus in his faculty photo he looks like he’s on drugs, which is mean but true).
I just rolled out out of bed and looked at that photo. Looks like it's from the 1960s. I haven't read his brief and am not sure I have the psychological strength to do so. I'm not surprised he was denied his own oral arg. There are so many academics who fall into that category. There are quite a few like Samuel Charap and Thomas Graham, who openly support Russia, for example. Their arguments are bad and they refuse to answer questions about what they've written. Which of course means they're acting in bad faith.
If this were not visible to public eyes, I would tell you what I'm predicting for Trump v. Anderson. I'm afraid I'd get emoji tomatoes🍅thrown at me if I said it. I've told my sister via text, so after it's over I'll tell you. There are other things besides legal arguments to consider.
Talk to you later, Ann.
Well, Rose, I don’t know what your prediction is, but I wonder if it includes this giant monkey wrench that a guy named Chris Sevier has thrown into the works. Sevier is some sort of self-styled “de facto attorney general” with a crazy outfit called “Sons of Liberty”, or whatever, and on January 9, 2024 he filed a lawsuit in Tennessee to have Biden/Harris removed from the ballot under Section 3. In Trump v Anderson, on January 11 (two days later), Sevier filed a Motion to Intervene, asking for the USSC to basically halt the proceedings and join the two lawsuits so that one single decision can determine if Trump, Biden and Harris are ALL oath breaking insurrectionists. Sevier says his group has lawyers positioned in multiple states ready to file Section 3 removal lawsuits against Biden/Harris and clog up the entire legal system and the 2024 Presidential Election if the USSC affirms Anderson v Griswold (the competing revenge lawsuits will be filed the day after the USSC decision is rendered). JUDICIAL BLACKMAIL, in other words “Rule the wrong way and we will make your life hell”.
And the scariest part is that the USSC has now scheduled the Sevier motion for “discussion” at their weekly meeting on February 16, instead of denying it like they did for Tillman. I hate to think what would happen to the main Section 3 lawsuit if the USSC decides to succumb to the blackmail and join the two cases. It could delay any kind of answer for months.
Look what I found on Chris Sevier, from 2017, when SCOTUS *did* refuse to hear his case. https://apnews.com/article/lifestyle-courts-f46133e7fb037ebc91f09eda4ea8a21c
Ha! Marry his laptop. What an A$$. Well, that actually makes me feel better because it means the USSC has experience with this guy and isn’t going to just make some knee jerk decision on the current request. Hopefully, his motion gets denied, but I guess they need to do a lot of mental maneuvering to avoid the worst consequences of the threatened revenge lawsuits.
I used to work for a judge, and sometimes when they are predisposed to ruling in your favor, if you proceed to badger them and implicitly threaten them if they don’t rule in your favor, it backfires and they rule against you for being an A$$. This type of stuff could push the Trump justices over the edge in a direction that MAGA won’t like. It’s dangerous territory imho.
I remember that gay marriage stuff, in which RWNJs were saying that if you can marry someone of your own sex, that could lead to people marrying animals, or in this case, inanimate objects. But of course what they were missing is that marriage is a legal contract between two and only two *people*. Animals and inanimate objects cannot enter into legal contracts.
I guess they all have to vote on whether or not to bring a petition into discussion, and that is what worries me. I'm familiar with the argument he uses in that petition; I've been seeing it all over twitter. But it's just nonsense to suggest that Biden and Harris have engaged in insurrection. After all this time, I'm embarrassed it didn't occur to me that someone would try to plug up the works. After all, Trump has a long history of doing that with the court system. It is true that much of what happens in our government--at all levels--really does work on agreed-upon norms and good faith that everyone will at least try to abide by those norms. In honestly, I never gave it much thought before Trump, in spite of the fact that Rs have been behaving abominably since Newt Gingrich.
Oh, dear. That's the way Rs work. Of course there is no basis for such a lawsuit against Biden/Harris because they didn't foment a rebellion. This is truly disturbing. I need some time to absorb this. Thanks for letting me know, Ann.
The President is the Commander-in-Chief of the United States armed forrces. That makes him the senior military officer.
Civilian, not military. They wanted a civilian in charge of the military. Specifically not a military person.
His title is Commander-in-Chief of the armed forces. In fact, during the Bush administration the title Commander-in-Chief was restricted to be used only by the President. Subordinate military officers, who were previously titled as a Commander-in-Chief of a large military command, were newly titled as Combatant Commanders. This is not so different from the President being both the Head of Government as well as being the Head of State. I stand by my opinion that Commander-in-Chief is a military title for a person who also has the title President of the United States. It is the "President" civilian title that places a civilian over the military.
True. The Secretary of Defense is always a civilian for the reason that Michael mentioned.
The court arguments are saying this makes the President also a military officer as Commander in Chief of the Armed Forces. The Secretary of Defense oversees the Pentagon and the military, and the Secretary of Defense is always a civilian for the reason you state.
There is good reason to assume that many on the Court will behave like politicians, as the history of Alito's and Thomas' judgments so clearly demonstrate. Will the majority of the Court risk the physical danger of going against the MAGA crowd? I have my doubts. And their conclusions would be laughable if they weren't so dangerous.
Thank you for participating in the Amicus brief and for all that you have done -- for Ukraine and for those of us here who see and listen.
Thank you Professor Snyder.
We will wait to see how this
SCOTUS rules and stands; for
the Constitution or against.
It is very disappointing to see how our rule of law is challenged by nonsense such as whether the presidency is an office. We have always referred to it as the “highest office in the land.” The fact that this whole trial could be jeopardized by this argument alone is extremely discouraging. What a farce!
If the SC rules for TFG, then they are in fact granting him unlimited power, unlimited over theirs, and that precedent means one man will be granted power over all of the rule of law. A Trump 2nd term means presidential supremacy without equal checks and balances of the other branches. Once they rule in opposition to the clearest language and meaning of the Constitution, we cease to be a Constitutional Republic. But they will be “loved” (accepted) by the radicalized 37% of Americans. Did Madison explain this danger specific to the Supreme Court somewhere in the Federalist Papers? Party affiliation/Aligence to the party before the Constitution/ party before the rule of law?
Part of me is racing ahead to November election. We know TFG will lose the popular vote. He will contest the validity of the ballot. He will, with the help of some cheap lawyers, find and pull a legal lever and with the help of the court, ( with rhetoric for violence and actual violence) bully his way to claim the presidency through the “legal” approach. The truth will be diluted and twisted by Fox and echoed by the radical channels once again. This is how most coups succeed. How could we better convince the justices to see this? Maybe they will never understand the psychology of group affiliation. Are they true believers to a conservative ideology or are they scholars of the law and the Constitution? History will be their judge.
In the issue of group affiliation I though of this by Bukowski…
“The area dividing the brain and the soul
Is affected in many ways by experience --
Some lose all mind and become soul:
insane.
Some lose all soul and become mind:
intellectual.
Some lose both and become:
accepted.
And what horrible lives they must lead.”
-Charles Bukowski
‘Should the Court yield in advance to the threat of violence, it is no longer a court and this is no longer a rule-of-law state. The whole point of Section 3 is to allow the Constitution to defend itself against those who would use violence to overturn our constitutional order.’
America is still a country of law and order where traitors and criminals should be banned from holding government office. 🦅
I expect we’ll see violence and threats however the court proceeds. If the court upholds the clear reading of the 14th amendment, section 3, the MAGAts will riot. If they weasel out of upholding it and TFG is allowed to run, he will lose the popular vote and likely all lose the Electoral College vote, which sets us up for a repeat of January 6. If gerrymandering pays off well enough that he wins The Electoral College vote, we have lost our democracy. None of these outcomes is good, but I believe that upholding the 14th amendment would be the least dangerous. In an ideal world, I’d then use it to disqualify the members of Congress who also supported the insurrection.
Make Trump lose again 😎
Yes -- we all have to do the work, now and every day until November = GET OUT THE VOTE! And get across the good news: Biden is a good president, the Democrats are strong and winning, the economy is doing amazingly well, etc etc. We need to be proud of our country and our President and not fall for the doom-loop Republican trap. There are way more of us than them but we all need to be doing our part to ensure victory is big enough to survive whatever the extremists will attempt to do to negate it.
Regardless of the SCOTUS ruling, this will turn on turnout, the “way more of us than them”, as you so nicely put it.
I should have added access to voting and accuracy of the count. Needs many boots on the ground.
Vote like it’s 1973, ladies 🌊
Thank you, Prof Snyder, for this clear thinking and comprehensive referencing. Your observations and legal along with historical documentation of your conclusions seems to me precisely what Americans as members of civil society, with our responsibilities and rule of law protections in carrying out our democratic political choice-making and decision-making, need to have as reasoned appraisal at this time, for this set of circumstances.
One of the accomplishments of these observations and the others previously offered is to be as explicit and apolitical as one can be in forming one's own understanding of the Fourteenth Amendment as a socially vital amendment to the US Constitution and its governance system. That the Constitution abide as time goes on, it requires the sustained participation and support of the people of the US. The almost fatal challenge experienced from the totality of cultural, political and violent events of the Civil War meant that very novel political approaches were needed for a post Civil War reconstruction that would endure and that would be publicly grounded. Voluntary participation and voluntary political affirmations were recognized as essential. As Prof Snyder points out herein,
" To be sure, the historical context was that of a recent rebellion which shook the republic to its foundations and led to the bloodiest war the United States has ever fought. Thus the particular concern with leading insurrectionists such as Davis. But it was precisely because legislators had experienced the consequence of one insurrection that they were concerned to prevent others from succeeding.
Legislators could have framed Section 3 to apply only to the 1860s, but they did not. Indeed, they discussed including language specific to "the late insurrection" and rejected such a framing as too limiting (25:18, 5:3). They had in mind preventing civil war from becoming a recurring "curse" or a "pastime" (5:3,14). ..."
Again from Prof Snyder, "The purpose of constitutional order, of course, is to provide a framework above politics, one which allows a decent sort of politics to prevail. If no one takes the meaning of the Constitution seriously, then such an order cannot long be sustained." This is a message that the Justices of the Supreme Court must clearly hear and take to heart. They need also understand and affirm the importance of the integrity of the Constitution and the governance system it supports, and they must in this context affirm the responsibilities of each Justice and the Court to explicitly and with clear reasoning and factual supports affirm the role of the Court in sustaining that integrity.
Again, thank you, Prof Snyder.
As a question aimed at MY own support of the 'bad arguement..." essay's appraisals and conclusion, not at all aimed at the appraisals or conclusions, I ask myself, as others among the commenters herein ask, does Sec 3 satisfy the prudent and essential responsibilities for and protections afforded by due process in establishing accountability?
I forward this question for myself in order to support due process in this effort to see and construct a determination as a full and factual determination in the whole context of governance under the Constitution and its protections afforded to every citizen. This is a Constitution of choice, action and responsibility, mutually and inclusively.
My layperson's gut and reasoned sense, at this moment, is that the disqualification process is proceeding as spelled and for the sort of choices, actions and events made explicit by Sec 3 AND the due process is underway, is being supported, but may yet be represented more fully. The latter fullness is not clear to me yet, although in conversation with other commenters the potential use of grand jury process is under discussion.
In the moment, it clearly is our responsibility, some of us as citizens, some of us as citizens who also hold public office, to choose and act to protect the Constitution and our governance system against attempt to use violence to obtain a political outcome. This situation and these responsibilities do have, in relation to due process, a novel relationship.
Perhaps oddly, to me, questions about accountability of choosing and doing what constitutes willful support of insurrection stand shoulder to shoulder with questions as to why even one among the chosen actions was not chosen to explicitly remind others of the necessity to respect the Constitution -- in fact to demand respect for the Constitution and governance provided by it -- by respecting the process on-going in Congress on Jan 06 2021. Others holding office and with responsibilities for the congressional process on-going did, in fact, demonstrate conscious responsibility to respect the Constitution and so on.... These examples of who didn't and who did are part of the public record, and they clearly provide a record of willful choice.
There was a due process "finding of fact" that Trump "engaged" in an insurrection. In addition, the 14th Am, due process clause refers to deprivation of "life, liberty or property." Running for office is neither of these things, but is a privilege, not a right. Just as a State Clerk has power to exclude Obama & George W. Bush from the ballot based on the 22nd Am, she has the power to exclude someone from the ballot who is disqualified under the 14th Am, Sec 3, after a finding of fact.
Findings of fact, after due process hearing. Judge Wallace describes Trump's role
• pp 26-56, and at
• pp 66-79 rules Trump engaged in the Insurrection.
Link➔https://www.courts.state.co.us/userfiles/file/Court_Probation/02nd_Judicial_District/Denver_District_Court/11_17_2023%20Final%20Order.pdf
Well, the Chief Justice of the Colorado Supreme Coort disagrees with you that due process has been satisfied in this case! Puesto, this should show you how difficult these issues are.
The finding of the majority of the Colorado Supreme Court on the process questions is basically final, as they were arguing about the process under Colorado election law and whether or not that had been properly followed. The USSC always defers to the state supreme court’s interpretation of state law. Besides which, 14th Amendment due process can be had with as little as a one hour administrative hearing, depending on the issue and the circumstances, and there’s a mountain of USSC cases to that effect. So the dissenting opinion you refer to doesn’t mean squat at this point. The USSC isn’t going to review that, and frankly, I’m not sure Trump’s lawyers even raised it in their petition.
I think there's a 4th reason why people would argue that Trump is eligible to run: They'd argue that January 6th was not an insurrection but merely a political rally where he was exercising his right to free speech.... Unfortunately, I think this is what the Roberts Court will decide.
Why aren’t we planning our own peaceful protest outside the court Wednesday/Thursday? Part of me thinks the court needs to see real support of the rule of law and for democracy. But normal people have jobs and families, and most still have a belief that the Justices can be impartial I suppose. There is nothing radical about idea that J6 was clearly a coup attempt/violent insurrection. To believe J6 was regular political discourse is a fantasy, a fallacy of excess comfort, something the Greeks warned about. And once again, we receive notice like red flags, “ that social identity and group affiliation” is more important than the facts of reality. It’s no surprise to me how timid some become to challenges to their group identity. It must cost them something deep inside their souls to loose that grip of reality. To know that if the SC rules in favor of TFG appeal, we are no longer a rule of law state, the Constitution is rendered meaningless. The floodgates of lawlessness will be breached by the powerful. Faulty reasoning becomes the new normal. How do we then protest those downstream decisions? What possible future lies ahead? The 1930’s and 40’s come easily to mind.
I'm with you! I don't see enough discussion about planned protest. When McConnell was held Obama's supreme Court appointment and then when Coney Barrett was appointed. Finally when roe v Wade fell there should have been massive million person protests in Washington. We have become dull and apathetic. We all have jobs and everything but the stakes are absolutely outrageous! We have no charismatic leader to lead the charge. We need an MLK
I meant to say, Withheld Obama's supreme.....
Damn you, Auto-Correct!
(That was a nice blog while it lasted.)
Incite to violence is not free speech 😉
Arguing "before" SCOTUS decides is called debate. Arguing after they decide is called whining.
The reason the Trump Brief asked such an unusual, extremely rare, simple but broad question: "Did the Colorado Spreme Court err?" is to set up a full palet, blank slate for the Right Wing hacks to create any excuse they want to eviscerate the 14th Am, Sec 3. The easiest way to shoot down a complex argument is to start from the beginning and shoot down at least one of its premises.
At least 4 justices are required to accept Cert, which they have already done in Fischer v US.― Link➔https://www.scotusblog.com/2023/12/court-to-weigh-in-on-scope-of-law-used-in-jan-6-prosecutions/ ― This case will throw out hundreds of Jan. 6 convictions if the four who reached out unnecessarily to grant it Cetiorari can get a 5th vote (Court of Appeals left the convictions in tact). Ergo, a Fischer decision will likely be used to craft creative wording which says "there was no insurrection." (As an asside, this wording will also negate two of Jack Smit's charges against Trump).
I've read several of the briefs in the instant matter, and don't recall anyone arguing what Webster's 1828 Am. Dictionary, defined insurrection as: "A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law..."
Without arguing this ahead of time, the door is left wide open for creative writing by the nefarious four― Thomas, Alito, Gorsuch & Kavanaugh― to continue their judicial tyranny. Judicial tyranny “occurs when the Supreme Court substitutes its will for what the law should be instead of using its judgment to determine what the law is."- C.D. Kilgore
― @LocoPuesto on Xitter; @PuestoLoco on Post.news
George Conway wrote a scathing piece in The Atlantic about Trump’s blunderbuss single question USSC petition. It’s worth googling.
Sadly I think you are right. I have even heard it excused as a mere "riot." Nothing mere about a riot.
I was told only today in a different comment section that Jan 6th was a “nothing burger”.
If it was a "nothing burger," it was "with everything"...fraud, sedition, assault....
As I’ve said repeatedly, the prominent DC lawyer David Boies who led the post-election charge for Al Gore in 2000, says it was only a riot. You may not agree, but it shows there is serious debate.
How is it then that participants have been found guilty of seditious conspiracy for rioting?
Similar with the Chicago 7 in Feb 1970. But no one accused them of insurrection.
Not really a parallel case. (Chicago Seven)
If the "incident" or "riot" was simply out of control citizens - well perhaps that's a defense. But coupled with the clearly stated false (and proven to be false and proven that Trump and his crew knew it to be false) claim or "conviction" that the election was stolen and the intent to block the confirmation of the vote and the collusion by members of Congress and the ongoing lie that the election was stolen, and lots of violence, that gets a lot closer to insurrection (in my opinion.) It certainly wasn't well thought out or likely to succeed But I do understand your position and I believe that SCOTUS will rule this way. But I disagree, in this, in the Zelinsky/Biden
first impeachment and on numerous other occasions, Donald Trump betrayed his oath of office and our country.
Webster's 1828 Am. Dictionary, used at the time of writing the 14th Am, makes it very simple:
"A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law.."
In her "Findings of fact," after due process hearing. Judge Wallace describes Trump's role"
• pp 26-56, and at
• pp 66-79 rules Trump engaged in the Insurrection.
Link➔https://www.courts.state.co.us/userfiles/file/Court_Probation/02nd_Judicial_District/Denver_District_Court/11_17_2023%20Final%20Order.pdf
“Used at the time” doesn’t mean that the writers of 14 were using it when they were writing to ban from office ex-Confederates who had led armed troops against the U.S. Army. Those were the targets. Do you deny it? That was clearly what they meant by “insurrection”, too. Nor was there a question of fact that the ex-Confederates had engaged in insurrection.
And, having read 6 or 7 of the briefs since the Colorado Supreme decision, I can assure you that a great deal of the "at the time" discussions quoted were from the ratification process. There were many examples of local periodicals discussing terms and their ramifications at the time - 1868 - as to what it all meant. Ratification is more important than debates in Congress when writing it.
And, read: Historians Amicus SCOTUS Colo Trump Disqual
Link➔https://www.supremecourt.gov/DocketPDF/23/23-719/298895/20240126151819211_23-719%20Brief.pdf
The 14th Am says "against the Constitution." And, "insurrection" implies a use of force. Certification of the electoral college vote counts, having been certified by the states is a specific, constitutional process required every 4 years on, or about a certain date. Using force to negate that process is an insurrection against the constitution.
In 1868, why did Republicans pass 14th Am, §3 then require CSA states to ratify it BEFORE BEING ALLOWED BACK IN THE UNION?
Answer: To keep insurrections from happening again.
A Constitutional Republic can’t void Sec 3 by popular vote.
INSURRECTION defined➔https://pintsofhistory.com/2023/12/27/lets-correct-some-errors-about-disqualification-and-trump/
That’s definitely being argued in the briefs and pleadings, and some of the historians are writing extensively on it, submitting all kinds of proof that it was in fact “an insurrection or rebellion against the Constitution”. Section 3 uses the words “against the Constitution”, which changes the overall meaning of the terms for the purposes of the Section 3 disqualification from elected office. They make an airtight case as far as I can tell. Amicus briefs by legal historians and constitutional law scholars are also making this argument, ie, J6 was “an insurrection/rebellion against the Constitution”.
You can't exercise your free speech by shouting "fire!" in a crowded theater. (Or, I think, by shouting "No fire!" in a burning theater.)
Thank you, Prof. Snyder, for linking to the amicus brief you and your colleagues submitted. If the Roberts Six ignore such a learned, powerful, elegantly written brief, they forfeit whatever claim on the people's respect they still retain. I have also read the brief of the 25 Civil War and Reconstruction historians, which appears ironclad for disqualification on textualist and originalist grounds. Again, a ruling for trump would strip the Six of any defense of their purported judicial "philosophy." In the disqualification case, the Constitution is putting the Court itself on trial.
And it won't take too many more shenanigans from this Supreme Court for the people to demand changes to the Institution. Bush v. Gore was awful. (I favor Souter's argument. Remand the case to Florida with orders to set standards for assessing the various types of ballots, and if the outcome remains so uncertain that the State cannot certify the results, send the matter to the House of Representatives, as the Constitution requires.) The Supreme Court should have taken no role in deciding the election. Shame on them.
There've been a lot of Supreme Court decisions since then that have stood my hair on end. The Dobbs v Jackson decision is just one example, but it is one that sticks in the public's mind pretty clearly. One does not vitiate a fundamental right that existed for 49 years, particularly one having such overwhelming health considerations, without setting off a lasting firestorm.
If the Court continues on this runaway streak and dodges a responsible decision in the Colorado case, I think the public reaction will be condemning.
Dobbs makes my blood boil!