Thank you, Timothy Snyder. I have been pushing “Ill Fares the Land,” connecting you with Tony Judt (I know the story from the NYRB). My daughter connected me to you with a Christmas present of “Blood Lands,” so I have followed you since. Sadly I cannot send money to your Ukraine fund having at 89, fallen from the middle class. My contribution to the current disaster is writing GOTV postcards, spending my second childhood reliving being the best printer in my first grade class! Wishing you, and all of US, a return to sanity.
“That Trump will be tried for his coup attempt is not a violation of his rights. It is a fulfillment of his rights. It is the grace of the American republic. In other systems, when your coup attempt fails, what follows is not a trial.” - Timothy Snyder
Justice Elena Kagan brought up the question of why Colorado should decide for the rest of the country whether Trump should be on the ballot. I'll suggest that this question contained an embedded error.
My opinion, at this point: The third section of the 14th Amendment is self-executing, which means it doesn't require a conviction of insurrection before the relevant official decides whether Trump is eligible to hold federal office.
In my mind, the critical question is, Who is that relevant official? Is it the Secretary of State in each of the 50 States? If so, then Colorado would not "decide for the whole country," but each state would decide for itself.
What is astonishing is that after everything that has come to pass, republicans have refused an off-ramp from Trump’s highway to hell but only doubled down every time. What’s more shocking is that there’s still a chance, as outside as it may be that SCOTUS takes the immunity case on appeal and punts it to after the election.
Once they have given their money to the Orange lost cause, they won’t stop, that would mean their tribe turning their backs from them forever. “social identity” is a powerful framework to understand the group behavior dynamic. Social death is stronger than physical death. The pain of being ostracized from conservatives is too powerful, too painful to even consider. Judge Luttig, George Conway both trained in how to think independently are the exception. What could we learn from them in order to persuade others? What about them insulated them from becoming radicalized Maga sycophants?
Intelligence and patriotism insulated both legals and members of the Lincoln Project from the MAGAs. Luttig is a retired conservative judge, so knows the law, as does Conway, a conservative lawyer. These are the Republicans who recognize the danger Trump represents.
I am waiting to see which 18th century slave owner Thomas cites to justify a decision in Trump's favor along with which 16th century witch burner Alito uses as his authoritative precedent. I have no doubt that the Leo/McConnell Cabal will rule that Trump, obvious insurrectionist if not abject traitor, is eligible to stay on the ballot. I am also not 100% convinced that they will find some way to give Trump at least some level of immunity.
The good Doctor presents overwhelming points which should convince any rational being that trump is disqualified from running for President in this election.
However, as noted, Thomas, Alito and Gorsuch have revised the Constitution of the US to support their distorted political views Robert’s is a eunuch as a court leader and as for the other two court jesters, only the ‘holy spirit’ knows how they will decide!
Roberts will be remembered in history as the worst CJ in the Court's history and the man who presided over the final demise of its role as an objective arbiter of Constitutional Law. Sad. But then again, he got his start working for Ronald Regan looking for ways to either dismantle or disregard the VRA.
The people who are most afraid of Trump and his MAGA minions at this point in our history are Republican elected officials and party members who have not supported him. Many have had to hire at great expense private security details. The other group that fear Trump are the cowardly elected officials who will swallow every lie and debase themselves to publicly support him in those lies. The rest of us do not fear him or his supporters now. If he is elected, I, for one, will truly fear him. I am accustomed to our democracy and its guarantee of freedom of speech. Trump has said that he will go after anyone who speaks out against him and has promised to weaponize the justice department to do so. The Supreme Court could relieve us of that fear by obeying the Constitution.
Republican Party members...hmmm...that is looking more and more like "party members" of the communist party - like Putin's or Kim Jong -un 's or Xi JinPing's, or DTJ's ..or...or...or
Great piece. By the way, Akhil Reed Amar has an oped in the NYT saying that each state should be able to decide whether to place an insurrectionist on their ballot, because federalism. Somehow I don't think the framers of the 14th amendment would have been ok with some states keeping Jeff Davis on the ballot.
And wouldn't that allow the states whose House and Senate members refused to uphold and support the electoral count were also insurrectionists and should not be allowed on the ballot if any of them are seeking re-election? I sure think they should not be allowed on voter ballots.
When was that NYT OpEd? I remember Amar writing that, but he’s also filed an amicus brief in Trump v Anderson that seems to say the opposite, ie, once the USSC deems Trump inelegible, he’s off the ballot, and he’s off the ballot everywhere. At least that’s how I read Amar’s amicus brief.
Yikes. That is one bad opinion piece. I’ll have to read his amicus brief again. The whole point of this going to the USSC is to get a ruling that applies to all the states. What he suggests is just more chaos.
We are mostly familiar with the iconic image of “Justice” depicted as a blindfolded goddess. Fewer of us, however, are aware that most judicial oaths include a promise to render justice “without fear or favor.”
What appears to be a “boilerplate” phrase within a judicial swearing-in administered thousands of times a year across countless jurisdictions may become an individual’s defining moment of personal bravery.
When we think of bravery, we are unlikely to image someone sitting in flowing black robes, presiding with apparent authority within a staid courtroom. Yet, bravery may take place there, hundreds of times a day.
Federal Judge James H. Wilkerson is hardly a household name today, but Al Capone is. In 1931 Judge Wilkerson found himself in a courthouse in Chicago, a city that many considered “owned” by Capone through actual or perceived violence and corruption. Wilkerson was about to hear a somewhat novel tax case against Capone, who was the ultimate progenitor of an estimated five-hundred homicides in that immediate past decade without an indictment against him. Some of the victims were Capone’s criminal rivals, while others were informants, witnesses and even law enforcement personnel.
In June of that year, the U.S. Attorney, who was preparing a strong tax-evasion case against Capone, came to fear for the lives of potential witnesses. He decided to offer Capone a plea deal of two and one-half years for Capone’s tax transgressions, which the wily Capone accepted. However, when Capone appeared in court to make his plea official, Wilkerson rejected the deal, saying, “It is time for somebody to impress upon the defendant that it is utterly impossible to bargain with a Federal Court.” Capone with plenty of resources for legal representation (and extralegal exploits) pleaded not guilty, and a trial was scheduled for October.
About two weeks before the trial, a Federal undercover investigator was told through an informant (who was later murdered) that Capone’s organization had received a complete list of the names and addresses of the jurors assigned to the tax case and that Capone’s organization was already “passing out $1,000 bills,” and “using muscle too.” When the undercover agent secured the list containing the names of the scheduled jurors, he brought it immediately to Judge Wilkerson, who had yet to receive the jury list himself but, when he did, he found every name on the informant’s list was on the list of jurors the Judge was handed by the court.
Judge Wilkerson then played his hand with skill and courage to defeat a system designed to wreck injustice upon this case, which by then had a nation transfixed. He told only the prosecution to “Bring your case into court as planned, gentlemen.” They did so on October 5, 1931.
As a confident Capone, his lawyers and cronies entered the courtroom with its selected jurors already seated, Judge Wilkerson called the bailiff to the bench and directed him as follows, “Judge Edwards has another trial commencing today. Go to his courtroom and bring me his entire panel of jurors, take my entire panel to Judge Edwards.” Consequently, Capone was convicted and sentenced to over eleven years in prison by the impartial jury.
Judge Wilkerson had administered justice as only we could have hoped and as we can appreciate all the more greatly now: “Without Fear or Favor,” a judicial doctrine for the ages, a doctrine of a democratic republic.
Peter Mancuso, BA-MA - Criminal Justice, formerly Asst. Dir. of Training NYPD. New Hope, PA. Thanking Professor Douglas H. Linder; UMKC; “Famous Trials;” 1995, for his account of this case from contemporary sources.
I think it is more likely that the Supreme Court will say the January 6 affair was not an insurrection or they will say that Trump was not involved in the planning of it I do not think they will buy the idea that a President is not an officer of the United States
“Fear is an instructor of great sagacity and the herald of revolutions. One thing he teaches, that there is rottenness where he appears.” - Ralph Waldo Emerson
Colorado has disqualified citizen Trump under this provision. What about Rep Boebert? Are insurrectionist representatives of either House also disqualified? I most interested in the Rep who cannot spell ‘Martial’ in his texts to the White House.
Thanks Dr. Snyder, your explanation of “anticipatory obedience” encapsulates not only describes the reasoning behind the many lawyers who posit that keeping DJT on the ballot is necessary, it also is the key to why so many elected officials, at both the federal and local levels, are allowing DJT to influence their voting on bills before their legislatures. I’m tired of media platforms trying to psychoanalize MAGA followers. Instead both Biden and all media platforms should and could be covering the magnitude of the thuggish threats of violence DJT uses to reinforce the “anticipatory obedience” that is so key to his control of the MAGA sycophants in office.
Rose, thank you for providing the link to the various ways we can listen to the arguments tomorrow. I haven’t been this nervous about something related to government in years. Considering the Gaetz crowd just tried yesterday to pass a House resolution declaring that Trump did not engage in an insurrection (it failed by a hair), and also considering the Chris Sevier revenge lawsuits, not to mention Stefanik saying she won’t accept election results she doesn’t like, I fear we’re at a dangerous inflection point in this country. Trump may not turn into Hitler, but he could definitely turn into our own Viktor Orban. We need the USSC to stop him. Those who say the best thing is to defeat him at the polls, well, if he has enough members of Congress saying they won’t accept the vote, that strategy either isn’t going to work, or will work only after an untold amount of violence is lived through.
Yes, we are living in dangerous times, not just domestically, but internationally. This is not the first time the Rs have very nearly pushed the country off a cliff. They rather have a habit of doing that sort of thing, going back at least to New Gingrich, and continuing through the Obama administration (the debt ceiling crisis of 2011, in which we came dangerously close to the edge), not even to speak of the Trump administration and the current crises.
So what they're doing isn't new, it's just more extreme. 21 hours and counting until the big moment!
I believe the article by Baude/Paulsen, two highly respected members of the Federalist Society, was an signal to those justices who owe their presence on the Supreme Court to the Federalist Society that they may nix Trump's candidacy; it will only take one of the three justices to do so.
I read Trump's response to the the Respondents' superb filing and boil down his response as follows: I just won by a landslide the Iowa caucus and so you can not remove the leading candidate from the ballot.
Finally, I do hope Trump appeals the ruling against him in the immunity case. The timing could not be more perfect. As the Appeals Court affirmed, "Former President Trump's alleged efforts to remain in power despite losing the 2020 election were, if proven*, an unprecedented assault on the structure of our government. He allegedly injected himself into a process in which the President no role - the counting and certifying of the Electoral College votes thereby undermining constitutionally established procedures and the will of the Congress."
*The Appeals Court failed to recognize that the Colorado District and Supreme Court both ruled that Trump engaged in insurrection.
1.) Re: Baude/Paulsen, I knew that they are conservative, but didn't know that they're also Federalist Society. It seems I'm one of the very few people who thinks that SCOTUS will rule against Trump in Trump v. Anderson. I was afraid to say it out loud to anyone but my sister, but now that I know about Baude and Paulsen, I'm even more convinced. I told my sister that Trump is way too much trouble for most of our billionaires, who just want quietly to go about the business of continuing to rake in billions more without the trouble of having to deal with a loud-mouthed narcissist. Now that they've gotten what they wanted from him--3 more SCOTUS appointments--they can toss him, much in the same way that Trump uses other people, then throws them away. It's not a legal argument, I know, but considering the fact that the legal arguments against Trump in this case are so convincing AND knowing that there are plenty of other presidents and politicians who will happily do their bidding, why not, as you say, just nix Trump and be done with it? So thanks for that puzzle piece. It confirms what I've been thinking all along.
2.) I, too find it interesting that Trump might appeal the immunity case just at the moment SCOTUS is hearing the 14/3 case. But what if SCOTUS decides not to grand cert? That would be such a blow to Trump. Because I'm not a lawyer, I don't know what the difference would be between not granting cert and granting cert, then ruling against Trump, other than the fact that it would delay his cases even more.
Rose, not only are Baude and Paulsen both Federalist Society conservatives and originalists, Baude clerked for Roberts, so he will have a not insignificant influence on Roberts as well as the Trump justices. That entire Anderson v Griswold opinion was aimed directly at Gorsuch, Kavanaugh and Barrett. They even relied on the Hasan decision written by Gorsuch when he was on the 10th Circuit Court of Appeals.
Several of the amicus briefs filed in support of the respondents are also aimed right at these justices. Imho, the Trump justices and Roberts are totally boxed in with no wiggle room. George Conway has an opinion piece in The Atlantic yesterday that basically says the same thing, and that the DC “no immunity” ruling makes the noose even tighter.
If the USSC denies cert in the immunity claim, then Trump is sunk. His appeal to them is due Monday, and they could deny cert the next day if they wanted to, which means it was dumb of the trial judge to cancel the March 4th trial date. That trial could have easily gone as scheduled. I wonder if that counts as “anticipatory obedience” (or however Snyder phrases it).
Ann, all of this is so interesting! That Baude clerked for Roberts sounds familiar, but if I read it somewhere, I'd forgotten about it. That's good to know. I knew that the Anderson v Griswold opinion cites the Hasan decision written by Gorsuch, but didn't know it was also aimed at Kavanaugh and Barrett.
Thanks for the reminder about George Conway. I still need to read his Atlantic article that appeared a few weeks ago. I didn't know about the most recent, though. So thanks for that.
According to this Politico article from yesterday, "Chutkan *contemplates* Trump trial extending deep into 2024, as case remains in limbo" (my emphasis). https://www.politico.com/news/2024/02/05/chutkan-trump-trial-date-2024-00139665 I haven't checked on the status today. The reason she was considering a change in date is because the appellate court was taking so long and no one knew when it would make its decision. Also she has a planned vacation for August.
Ha! Well, she could have started the trial on March 4 and been done with it in plenty of time for August. And if the USSC denies cert next week, or the following week, she’s going to look pretty stupid for having indefinitely postponed the trial date. The whole thing is weird. Read Conway’s most recent Atlantic essay on this. It’s great.
Ann! I'm finally getting around to reading George Conway in The Atlantic, but read this one from yesterday first. Conway says the unanimous per curiam ruling that Trump is not immune is so masterfully written and airtight that he believes it to be unreviewable by SCOTUS. You've probably already seen it. I read excerpts from it yesterday and was quite impressed--well as impressed as a non-lawyer can be.
I’ve been giving Art Eckstein the business tonight. It’s amazing how much someone will cling to their ideas in the face of mountains of evidence to the contrary. I’ve done some interesting reading of my own debating the Marjorie Taylor Greene decision with him. I’ll send you a link to the pdf of that decision.
Last month I became a subscriber to Joyce Vance's Substack, and so far have found it interesting and helpful. Here is what she posted late last night on Trump's failed immunity case. We all know how frivolous Trump's lawyers' arguments are, but the ones in this case are simply ridiculous, especially #3, in which his lawyers argue that to prosecute Trump is double jeopardy. I'm assuming you've already read it, but it's so outrageous that I have to talk to *someone* about it.
"Moving to still more frivolous arguments by the former president, the court rejects his claim that the doctrine of double jeopardy bars his prosecution because he was previously impeached by the House of Representatives for what he characterizes as 'the same or closely related conduct.'"
Oh for crying out loud. Doesn't everyone know that impeachment is political, not criminal??? Not only that, but as she points out, "the charges are different."
"Double jeopardy prohibits multiple criminal prosecutions of a person for the same conduct. The court points out impeachment isn’t a criminal prosecution—no one goes to jail at the end of it; it’s about whether you keep your job. So, impeachment doesn’t prevent a subsequent prosecution. And, even if it did, Trump was charged with incitement to insurrection in the impeachment, which is different from the claims of conspiracy to defraud the government, interfere with official proceedings, and deprive individuals of their right to vote that he is charged with in the criminal case. Since the charges are different, even if double jeopardy theoretically applied here, it wouldn’t in this specific case."
Regarding Iowa... and Jefferson Davis was very popular after surrender. Many states would have made him the presidential candidate just the same. The arguments about there still being controversy about January 6th and therefore it's not an insurrection is intellectually corrupt. There was a lot of controversy then, as there is now. Besides, where does it say that there may not be any controversy for Section 3 to apply?
There were no questions of fact about Jefferson Davis or any of the original targets of 14.3. There’s been an insurrectionary civil war with 600,000 and they proudly proclaimed their involvement against the United States! But there ARE questions of fact Re Trump. To begin with, neither Trump nor ANYONE ELSE has been charged with insurrection Re Jan. 6. No ONE. Do you understand the legal situation? Nor has Trump even been charged with incitement to insurrection. And of course he denies wrongdoing. This is in ALL ASPECTS fundamentally DIFFERENT from the legal situation of the ex-Confederates!
Art, there is no language in Sec 3 that requires an oath-breaking insurrectionist be tried and convicted - the argument is implying a negative from a positive. Few if any of the Civil war era government officials who committed insurrection after taking an oath to support the Constitution were convicted of insurrection or treason. Not even Jefferson Davis was convicted. Yet he and others, included William Floyd, a slaveholder who was William Buchanan's Secretary of War and who "used the great powers of his office, through a devious combination of affirmative acts and strategic failures to act, to try to thwart" then President-elect Lincoln's inauguration. (Sound familiar???). Sec 3 was self-executing and simply prevented these insurrectionists from ever holding office again. The quote above is from the Amicus Brief of Akhil Reed Omar and Vikram David Amar, well-respected two historians. It's a great read!
William Floyd was indicted by a DC grand jury for his actions! Where's the indictment of Trump for insurrection or incitement to insurrection?
As I've endlessly said, the chief targets of 14.3 were ex-Confederate military men and officials who did not deny their involvement in the insurrectionary Civil War. There was no question of fact in their case.
There ARE questions of fact in Trump's case. So it's not the same. That's the problem. Exacerbated by the fact that in almost a thousand cases regarding Jan. 6, NO ONE in the entire country has been charged with insurrection under the Federal Statute--including Trump.
Further, thanks to Ann P, we now have the judges ruling in a failed attempt to remove Margorie Greene from the ballot in 2022 on grounds of "insurrection" . This is what the judge in Georgia ruled: “Heated political rhetoric? Yes. Encouragement to supporters of efforts to prevent certification of the election of President Biden? Yes. Encouragement to attend the Save America Rally or other rallies and to demonstrate against the certification of the election results? Yes. A call to arms for consummation of a pre-planned violent revolution? No.”
CASE DISMISSED. I think you can see how this ruling impacts the attempts to remove trump on grounds of "insurrection", because the plaintiffs defined "insurrection" as much the same behavior as Trump. NO. ISN'T Think about it.
That’s: an insurrectionary civil war with 600,000 dead that no ex-Confederate officer or official—the targets of 14.3— denied participation in. They remained proud of it. So there was no question of fact needing to be resolved.
Thank you, Timothy Snyder. I have been pushing “Ill Fares the Land,” connecting you with Tony Judt (I know the story from the NYRB). My daughter connected me to you with a Christmas present of “Blood Lands,” so I have followed you since. Sadly I cannot send money to your Ukraine fund having at 89, fallen from the middle class. My contribution to the current disaster is writing GOTV postcards, spending my second childhood reliving being the best printer in my first grade class! Wishing you, and all of US, a return to sanity.
“That Trump will be tried for his coup attempt is not a violation of his rights. It is a fulfillment of his rights. It is the grace of the American republic. In other systems, when your coup attempt fails, what follows is not a trial.” - Timothy Snyder
Justice Elena Kagan brought up the question of why Colorado should decide for the rest of the country whether Trump should be on the ballot. I'll suggest that this question contained an embedded error.
My opinion, at this point: The third section of the 14th Amendment is self-executing, which means it doesn't require a conviction of insurrection before the relevant official decides whether Trump is eligible to hold federal office.
In my mind, the critical question is, Who is that relevant official? Is it the Secretary of State in each of the 50 States? If so, then Colorado would not "decide for the whole country," but each state would decide for itself.
"If we give in to fear again and again, law will eventually yield." If that doesn't create fear in all Americans, then nothing will.
What is astonishing is that after everything that has come to pass, republicans have refused an off-ramp from Trump’s highway to hell but only doubled down every time. What’s more shocking is that there’s still a chance, as outside as it may be that SCOTUS takes the immunity case on appeal and punts it to after the election.
Once they have given their money to the Orange lost cause, they won’t stop, that would mean their tribe turning their backs from them forever. “social identity” is a powerful framework to understand the group behavior dynamic. Social death is stronger than physical death. The pain of being ostracized from conservatives is too powerful, too painful to even consider. Judge Luttig, George Conway both trained in how to think independently are the exception. What could we learn from them in order to persuade others? What about them insulated them from becoming radicalized Maga sycophants?
Intelligence and patriotism insulated both legals and members of the Lincoln Project from the MAGAs. Luttig is a retired conservative judge, so knows the law, as does Conway, a conservative lawyer. These are the Republicans who recognize the danger Trump represents.
The few remaining republicans are fighting the good fight. They understand their existence is fleeting.
"For here we are not afraid to follow truth wherever it may lead, nor (afraid) to tolerate any error so long as reason is left free to combat it."
Thomas Jefferson, on UVA which he founded, it "... will be based on the illimitable freedom of the human mind."
Intelligence and patriotism which covers the Lincoln project as well. They recognize the peril of Trump (and the psychosis.)
A good education 😊
Thank you Dr. Snyder. On point as always.
I am waiting to see which 18th century slave owner Thomas cites to justify a decision in Trump's favor along with which 16th century witch burner Alito uses as his authoritative precedent. I have no doubt that the Leo/McConnell Cabal will rule that Trump, obvious insurrectionist if not abject traitor, is eligible to stay on the ballot. I am also not 100% convinced that they will find some way to give Trump at least some level of immunity.
The good Doctor presents overwhelming points which should convince any rational being that trump is disqualified from running for President in this election.
However, as noted, Thomas, Alito and Gorsuch have revised the Constitution of the US to support their distorted political views Robert’s is a eunuch as a court leader and as for the other two court jesters, only the ‘holy spirit’ knows how they will decide!
Roberts will be remembered in history as the worst CJ in the Court's history and the man who presided over the final demise of its role as an objective arbiter of Constitutional Law. Sad. But then again, he got his start working for Ronald Regan looking for ways to either dismantle or disregard the VRA.
"16th century witch burner"?
Maybe heretics, but witches, too?
https://www.golocalprov.com/news/ri-supreme-courts-motto-taken-from-a-religious-persecutor
Alito is absolutely the reincarnation of Torquemada, the Grand Inquisitor.
Um, Alito cited Coke, not Torquemada, but now that you mention it...
The people who are most afraid of Trump and his MAGA minions at this point in our history are Republican elected officials and party members who have not supported him. Many have had to hire at great expense private security details. The other group that fear Trump are the cowardly elected officials who will swallow every lie and debase themselves to publicly support him in those lies. The rest of us do not fear him or his supporters now. If he is elected, I, for one, will truly fear him. I am accustomed to our democracy and its guarantee of freedom of speech. Trump has said that he will go after anyone who speaks out against him and has promised to weaponize the justice department to do so. The Supreme Court could relieve us of that fear by obeying the Constitution.
Republican Party members...hmmm...that is looking more and more like "party members" of the communist party - like Putin's or Kim Jong -un 's or Xi JinPing's, or DTJ's ..or...or...or
Great piece. By the way, Akhil Reed Amar has an oped in the NYT saying that each state should be able to decide whether to place an insurrectionist on their ballot, because federalism. Somehow I don't think the framers of the 14th amendment would have been ok with some states keeping Jeff Davis on the ballot.
And wouldn't that allow the states whose House and Senate members refused to uphold and support the electoral count were also insurrectionists and should not be allowed on the ballot if any of them are seeking re-election? I sure think they should not be allowed on voter ballots.
Yes! Yes!Yes!
When was that NYT OpEd? I remember Amar writing that, but he’s also filed an amicus brief in Trump v Anderson that seems to say the opposite, ie, once the USSC deems Trump inelegible, he’s off the ballot, and he’s off the ballot everywhere. At least that’s how I read Amar’s amicus brief.
https://www.nytimes.com/2024/02/07/opinion/supreme-court-trump-section-3.html
Yikes. That is one bad opinion piece. I’ll have to read his amicus brief again. The whole point of this going to the USSC is to get a ruling that applies to all the states. What he suggests is just more chaos.
I saw it today online in the NYT.
Thank you for this eloquence, TS.
A Judicial Promise
We are mostly familiar with the iconic image of “Justice” depicted as a blindfolded goddess. Fewer of us, however, are aware that most judicial oaths include a promise to render justice “without fear or favor.”
What appears to be a “boilerplate” phrase within a judicial swearing-in administered thousands of times a year across countless jurisdictions may become an individual’s defining moment of personal bravery.
When we think of bravery, we are unlikely to image someone sitting in flowing black robes, presiding with apparent authority within a staid courtroom. Yet, bravery may take place there, hundreds of times a day.
Federal Judge James H. Wilkerson is hardly a household name today, but Al Capone is. In 1931 Judge Wilkerson found himself in a courthouse in Chicago, a city that many considered “owned” by Capone through actual or perceived violence and corruption. Wilkerson was about to hear a somewhat novel tax case against Capone, who was the ultimate progenitor of an estimated five-hundred homicides in that immediate past decade without an indictment against him. Some of the victims were Capone’s criminal rivals, while others were informants, witnesses and even law enforcement personnel.
In June of that year, the U.S. Attorney, who was preparing a strong tax-evasion case against Capone, came to fear for the lives of potential witnesses. He decided to offer Capone a plea deal of two and one-half years for Capone’s tax transgressions, which the wily Capone accepted. However, when Capone appeared in court to make his plea official, Wilkerson rejected the deal, saying, “It is time for somebody to impress upon the defendant that it is utterly impossible to bargain with a Federal Court.” Capone with plenty of resources for legal representation (and extralegal exploits) pleaded not guilty, and a trial was scheduled for October.
About two weeks before the trial, a Federal undercover investigator was told through an informant (who was later murdered) that Capone’s organization had received a complete list of the names and addresses of the jurors assigned to the tax case and that Capone’s organization was already “passing out $1,000 bills,” and “using muscle too.” When the undercover agent secured the list containing the names of the scheduled jurors, he brought it immediately to Judge Wilkerson, who had yet to receive the jury list himself but, when he did, he found every name on the informant’s list was on the list of jurors the Judge was handed by the court.
Judge Wilkerson then played his hand with skill and courage to defeat a system designed to wreck injustice upon this case, which by then had a nation transfixed. He told only the prosecution to “Bring your case into court as planned, gentlemen.” They did so on October 5, 1931.
As a confident Capone, his lawyers and cronies entered the courtroom with its selected jurors already seated, Judge Wilkerson called the bailiff to the bench and directed him as follows, “Judge Edwards has another trial commencing today. Go to his courtroom and bring me his entire panel of jurors, take my entire panel to Judge Edwards.” Consequently, Capone was convicted and sentenced to over eleven years in prison by the impartial jury.
Judge Wilkerson had administered justice as only we could have hoped and as we can appreciate all the more greatly now: “Without Fear or Favor,” a judicial doctrine for the ages, a doctrine of a democratic republic.
Peter Mancuso, BA-MA - Criminal Justice, formerly Asst. Dir. of Training NYPD. New Hope, PA. Thanking Professor Douglas H. Linder; UMKC; “Famous Trials;” 1995, for his account of this case from contemporary sources.
I think it is more likely that the Supreme Court will say the January 6 affair was not an insurrection or they will say that Trump was not involved in the planning of it I do not think they will buy the idea that a President is not an officer of the United States
“Fear is an instructor of great sagacity and the herald of revolutions. One thing he teaches, that there is rottenness where he appears.” - Ralph Waldo Emerson
Colorado has disqualified citizen Trump under this provision. What about Rep Boebert? Are insurrectionist representatives of either House also disqualified? I most interested in the Rep who cannot spell ‘Martial’ in his texts to the White House.
Thanks Dr. Snyder, your explanation of “anticipatory obedience” encapsulates not only describes the reasoning behind the many lawyers who posit that keeping DJT on the ballot is necessary, it also is the key to why so many elected officials, at both the federal and local levels, are allowing DJT to influence their voting on bills before their legislatures. I’m tired of media platforms trying to psychoanalize MAGA followers. Instead both Biden and all media platforms should and could be covering the magnitude of the thuggish threats of violence DJT uses to reinforce the “anticipatory obedience” that is so key to his control of the MAGA sycophants in office.
Trump is a sick F*ck. 😎
- President Biden
Excellent thank you. Extremely clear
Once again, a very well- and clearly-written article.
Professor Snyder, you haven't told us what time live question time is tomorrow, or maybe I missed it? In your "Note to Paid Subscribers" of Jan. 14 you wrote, "As paid subscribers, you have access to the entire archive of "Thinking about..." as well as occasional live threads with me (the next one will be February 8th)," but no time was given as it was the year before. https://snyder.substack.com/p/note-to-subscribers-e4a?utm_source=post-email-title&publication_id=310897&post_id=140680386&utm_campaign=email-post-title&isFreemail=false&r=106pt&utm_medium=email
Last year the time was 11am ET, but oral args start tomorrow at 10am ET: "For Trump v. Anderson, the audio stream will start on Thursday, Feb. 8, at 10 a.m. ET. Arguments are scheduled to last at least 80 minutes." https://constitutioncenter.org/blog/how-to-listen-to-donald-trumps-14th-amendment-case-at-the-supreme-court
Rose, thank you for providing the link to the various ways we can listen to the arguments tomorrow. I haven’t been this nervous about something related to government in years. Considering the Gaetz crowd just tried yesterday to pass a House resolution declaring that Trump did not engage in an insurrection (it failed by a hair), and also considering the Chris Sevier revenge lawsuits, not to mention Stefanik saying she won’t accept election results she doesn’t like, I fear we’re at a dangerous inflection point in this country. Trump may not turn into Hitler, but he could definitely turn into our own Viktor Orban. We need the USSC to stop him. Those who say the best thing is to defeat him at the polls, well, if he has enough members of Congress saying they won’t accept the vote, that strategy either isn’t going to work, or will work only after an untold amount of violence is lived through.
Yes, we are living in dangerous times, not just domestically, but internationally. This is not the first time the Rs have very nearly pushed the country off a cliff. They rather have a habit of doing that sort of thing, going back at least to New Gingrich, and continuing through the Obama administration (the debt ceiling crisis of 2011, in which we came dangerously close to the edge), not even to speak of the Trump administration and the current crises.
So what they're doing isn't new, it's just more extreme. 21 hours and counting until the big moment!
I fear what Trump may do in the White House if he wins, not the GQP MAGA cowards. 😀 #BiggestLosers!
I believe the article by Baude/Paulsen, two highly respected members of the Federalist Society, was an signal to those justices who owe their presence on the Supreme Court to the Federalist Society that they may nix Trump's candidacy; it will only take one of the three justices to do so.
I read Trump's response to the the Respondents' superb filing and boil down his response as follows: I just won by a landslide the Iowa caucus and so you can not remove the leading candidate from the ballot.
Finally, I do hope Trump appeals the ruling against him in the immunity case. The timing could not be more perfect. As the Appeals Court affirmed, "Former President Trump's alleged efforts to remain in power despite losing the 2020 election were, if proven*, an unprecedented assault on the structure of our government. He allegedly injected himself into a process in which the President no role - the counting and certifying of the Electoral College votes thereby undermining constitutionally established procedures and the will of the Congress."
*The Appeals Court failed to recognize that the Colorado District and Supreme Court both ruled that Trump engaged in insurrection.
1.) Re: Baude/Paulsen, I knew that they are conservative, but didn't know that they're also Federalist Society. It seems I'm one of the very few people who thinks that SCOTUS will rule against Trump in Trump v. Anderson. I was afraid to say it out loud to anyone but my sister, but now that I know about Baude and Paulsen, I'm even more convinced. I told my sister that Trump is way too much trouble for most of our billionaires, who just want quietly to go about the business of continuing to rake in billions more without the trouble of having to deal with a loud-mouthed narcissist. Now that they've gotten what they wanted from him--3 more SCOTUS appointments--they can toss him, much in the same way that Trump uses other people, then throws them away. It's not a legal argument, I know, but considering the fact that the legal arguments against Trump in this case are so convincing AND knowing that there are plenty of other presidents and politicians who will happily do their bidding, why not, as you say, just nix Trump and be done with it? So thanks for that puzzle piece. It confirms what I've been thinking all along.
2.) I, too find it interesting that Trump might appeal the immunity case just at the moment SCOTUS is hearing the 14/3 case. But what if SCOTUS decides not to grand cert? That would be such a blow to Trump. Because I'm not a lawyer, I don't know what the difference would be between not granting cert and granting cert, then ruling against Trump, other than the fact that it would delay his cases even more.
Rose, not only are Baude and Paulsen both Federalist Society conservatives and originalists, Baude clerked for Roberts, so he will have a not insignificant influence on Roberts as well as the Trump justices. That entire Anderson v Griswold opinion was aimed directly at Gorsuch, Kavanaugh and Barrett. They even relied on the Hasan decision written by Gorsuch when he was on the 10th Circuit Court of Appeals.
Several of the amicus briefs filed in support of the respondents are also aimed right at these justices. Imho, the Trump justices and Roberts are totally boxed in with no wiggle room. George Conway has an opinion piece in The Atlantic yesterday that basically says the same thing, and that the DC “no immunity” ruling makes the noose even tighter.
If the USSC denies cert in the immunity claim, then Trump is sunk. His appeal to them is due Monday, and they could deny cert the next day if they wanted to, which means it was dumb of the trial judge to cancel the March 4th trial date. That trial could have easily gone as scheduled. I wonder if that counts as “anticipatory obedience” (or however Snyder phrases it).
Ann, all of this is so interesting! That Baude clerked for Roberts sounds familiar, but if I read it somewhere, I'd forgotten about it. That's good to know. I knew that the Anderson v Griswold opinion cites the Hasan decision written by Gorsuch, but didn't know it was also aimed at Kavanaugh and Barrett.
Thanks for the reminder about George Conway. I still need to read his Atlantic article that appeared a few weeks ago. I didn't know about the most recent, though. So thanks for that.
According to this Politico article from yesterday, "Chutkan *contemplates* Trump trial extending deep into 2024, as case remains in limbo" (my emphasis). https://www.politico.com/news/2024/02/05/chutkan-trump-trial-date-2024-00139665 I haven't checked on the status today. The reason she was considering a change in date is because the appellate court was taking so long and no one knew when it would make its decision. Also she has a planned vacation for August.
Ha! Well, she could have started the trial on March 4 and been done with it in plenty of time for August. And if the USSC denies cert next week, or the following week, she’s going to look pretty stupid for having indefinitely postponed the trial date. The whole thing is weird. Read Conway’s most recent Atlantic essay on this. It’s great.
Ann! I'm finally getting around to reading George Conway in The Atlantic, but read this one from yesterday first. Conway says the unanimous per curiam ruling that Trump is not immune is so masterfully written and airtight that he believes it to be unreviewable by SCOTUS. You've probably already seen it. I read excerpts from it yesterday and was quite impressed--well as impressed as a non-lawyer can be.
https://www.theatlantic.com/ideas/archive/2024/02/dc-circuit-court-ruling-on-trump-immunity/677367/?utm_campaign=atlantic-daily-newsletter&utm_source=newsletter&utm_medium=email&utm_content=20240208&utm_term=The+Atlantic+Daily
Here’s a pdf of the Greene decision:
https://www.scribd.com/document/573096054/Greene-Decision#fullscreen&from_embed
#MeToo, haha
I’ve been giving Art Eckstein the business tonight. It’s amazing how much someone will cling to their ideas in the face of mountains of evidence to the contrary. I’ve done some interesting reading of my own debating the Marjorie Taylor Greene decision with him. I’ll send you a link to the pdf of that decision.
OK, I'll read it.
Last month I became a subscriber to Joyce Vance's Substack, and so far have found it interesting and helpful. Here is what she posted late last night on Trump's failed immunity case. We all know how frivolous Trump's lawyers' arguments are, but the ones in this case are simply ridiculous, especially #3, in which his lawyers argue that to prosecute Trump is double jeopardy. I'm assuming you've already read it, but it's so outrageous that I have to talk to *someone* about it.
"Moving to still more frivolous arguments by the former president, the court rejects his claim that the doctrine of double jeopardy bars his prosecution because he was previously impeached by the House of Representatives for what he characterizes as 'the same or closely related conduct.'"
Oh for crying out loud. Doesn't everyone know that impeachment is political, not criminal??? Not only that, but as she points out, "the charges are different."
"Double jeopardy prohibits multiple criminal prosecutions of a person for the same conduct. The court points out impeachment isn’t a criminal prosecution—no one goes to jail at the end of it; it’s about whether you keep your job. So, impeachment doesn’t prevent a subsequent prosecution. And, even if it did, Trump was charged with incitement to insurrection in the impeachment, which is different from the claims of conspiracy to defraud the government, interfere with official proceedings, and deprive individuals of their right to vote that he is charged with in the criminal case. Since the charges are different, even if double jeopardy theoretically applied here, it wouldn’t in this specific case."
https://joycevance.substack.com/p/hes-not-immune?utm_campaign=email-half-post&r=106pt&utm_source=substack&utm_medium=email
Off to read Conway now. I'll be back later!
Regarding Iowa... and Jefferson Davis was very popular after surrender. Many states would have made him the presidential candidate just the same. The arguments about there still being controversy about January 6th and therefore it's not an insurrection is intellectually corrupt. There was a lot of controversy then, as there is now. Besides, where does it say that there may not be any controversy for Section 3 to apply?
There were no questions of fact about Jefferson Davis or any of the original targets of 14.3. There’s been an insurrectionary civil war with 600,000 and they proudly proclaimed their involvement against the United States! But there ARE questions of fact Re Trump. To begin with, neither Trump nor ANYONE ELSE has been charged with insurrection Re Jan. 6. No ONE. Do you understand the legal situation? Nor has Trump even been charged with incitement to insurrection. And of course he denies wrongdoing. This is in ALL ASPECTS fundamentally DIFFERENT from the legal situation of the ex-Confederates!
Art, there is no language in Sec 3 that requires an oath-breaking insurrectionist be tried and convicted - the argument is implying a negative from a positive. Few if any of the Civil war era government officials who committed insurrection after taking an oath to support the Constitution were convicted of insurrection or treason. Not even Jefferson Davis was convicted. Yet he and others, included William Floyd, a slaveholder who was William Buchanan's Secretary of War and who "used the great powers of his office, through a devious combination of affirmative acts and strategic failures to act, to try to thwart" then President-elect Lincoln's inauguration. (Sound familiar???). Sec 3 was self-executing and simply prevented these insurrectionists from ever holding office again. The quote above is from the Amicus Brief of Akhil Reed Omar and Vikram David Amar, well-respected two historians. It's a great read!
William Floyd was indicted by a DC grand jury for his actions! Where's the indictment of Trump for insurrection or incitement to insurrection?
As I've endlessly said, the chief targets of 14.3 were ex-Confederate military men and officials who did not deny their involvement in the insurrectionary Civil War. There was no question of fact in their case.
There ARE questions of fact in Trump's case. So it's not the same. That's the problem. Exacerbated by the fact that in almost a thousand cases regarding Jan. 6, NO ONE in the entire country has been charged with insurrection under the Federal Statute--including Trump.
Further, thanks to Ann P, we now have the judges ruling in a failed attempt to remove Margorie Greene from the ballot in 2022 on grounds of "insurrection" . This is what the judge in Georgia ruled: “Heated political rhetoric? Yes. Encouragement to supporters of efforts to prevent certification of the election of President Biden? Yes. Encouragement to attend the Save America Rally or other rallies and to demonstrate against the certification of the election results? Yes. A call to arms for consummation of a pre-planned violent revolution? No.”
CASE DISMISSED. I think you can see how this ruling impacts the attempts to remove trump on grounds of "insurrection", because the plaintiffs defined "insurrection" as much the same behavior as Trump. NO. ISN'T Think about it.
That’s: an insurrectionary civil war with 600,000 dead that no ex-Confederate officer or official—the targets of 14.3— denied participation in. They remained proud of it. So there was no question of fact needing to be resolved.
Godspeed, SC Jack Smith 😊
https://whyy.org/articles/colorado-judge-trump-engaged-in-insurrection-rejects-constitutional-ballot-challenge/