One might reasonably argue that the pardon and then resurrection of Richard Nixon as an elder statesman was the beginning of the end of the GOP. And even 'the rule of law' in the USA.
With Trump, it is not simply a 'mending fences and move on' argument. It's a duck and cover exercise as Republicans go ballistic. Charlottesville grew into Jan 6. But ever since Obama was elected, Republicans have been threatening civil war - not as a metaphor or Proud Boys cosplay, but as all out armed conflict.
What is never mentioned is that Trump’s continuing and ever present claim that the 2020 Presidential election was stolen is part of an ongoing insurrection.
Yes, one could argue that on Jan 6 Republican officials were in the chambers procedurally overturning government institutions, while their co-conspirators were sacking the seat of government. And that this was heralded by Ronald Reagan selling 'government is the
problem', Newt Gingrich metaphorically 'burning down the House' and Grover Norquist* popularizing flushing government down the drain and raising statues of Reagan (like those Confederate traitors magicked into heritage heroes) in every town square.
It is complicated. And involves how the word insurrection is used in the US Constitution and the US Code. And how it is used in conjunction with the word rebellion - whether they are considered as separate or . synonymous. Which is different than common usage.
That said. I think Trump is Reagan writ large and writ vulgar. And while Republicans opposed government programs encompassed by the New Deal and Great Society, it was not until The Southern Strategy inviting in unreconstructed white supremacists (their violent animosity to civil rights legislation and federal government in general) and the wedding of Movement Conservatism and The Religious Right (with the one's animosity to taxation, government regulation, and essential government services, and the other's opposition to the separation of church and state) that the GOP transformed itself from the party of fiscal conservatism to the party of clerical fascism. (Personified by Federal Society honcho, Charles Koch bagman, architect of the racist right wing religious extremist Roberts Court majority, and piety influencer Leonard Leo** the bastard child of Ronald Reagan in bed with Ralph Reed.)
So, yeah.
Direct line from William F. Buckley through George Will to Tucker Carlson and Alex Jones
*Norquist is an interesting figure because he personifies the GOP push to merge ideological degradation, institutional destruction, and armed rebellion.
Norquist is mostly known for Charles Koch funded anti taxation initiatives but he was involved in with Oliver North in Iran-Contra and other armed rebellions.
A well written essay on the pith of the constitutional matter. My worry here is that, like the poorly written 2nd amendment in terms of legal clarity, the 14th leaves vague how the determination of participation in insurrection is concluded (the "self-executing", "you know when you see it" aspect is obvious, but legally ambiguous). I fear these will be the weasel words that we'll get from 5 or 6 of the justices - "he hasn't been convicted." This assumes running for office is some right without guardrails. Combined with a slow-walking of the federal case, the matter seems set to go "pitchfork," right around election time. To torture the metaphor, 2024 may be a barnburner of a year.
I don't think the 2nd is unclear. It's meaning is distorted by the right conveniently leaving out the first half of the sentence. Read as a whole, it's clear. I just worry that the 14th is being so picked apart that it's hard to see the original intent. Luckily, the conservative justices are originalists. HA, as if!
Correct. Both amendments are clear. It’s not hard to read nor understand. To do otherwise is the tell of a corrupt court. Another is Clarence Thomas threatening to resign, citing poor pay, an overly critical press. Enter Harlon Crow and the Federalist Society billionaires, showering the Thomas’ with gifts, flights, mortgage payoffs for his mother, etc etc. These are bribes not gifts. Why the press can’t say that tells us a lot about cowardice. We already know how Thomas and Alito will vote, with their wallets. I have little faith in the other Republican Justices. Let’s all stop calling them “conservative”. They are not conserving the Constitution, that is the heart of our Democracy.
Exactly, the weasel way is to claim Trump's behavior is not an insurrection. Total wimp out, to be sure, but seems like the path the court will take. Brace yourself!
If SCOTUS sides with trump, we are in for a nightmare, worst ever. I can't say they have the best insight into what trump and his minions are doing. The 14th Amendment and trump's insurrection should have KEPT HIM OFF the ballot in all the states.The entire world is watching.
To do that the SCOTUS will have to disallow the findings of the Colorado courts, after a several day trial with both sides fully represented. Generally a trial courts findings of fact, from live testimony, is not rejected by appeals courts unless so obviously wrong since they weren’t there to judge the credibility of the witnesses.
They will hold that Colorado applied too lenient a standard of proof, and remand. And hope he’s convicted of some crime. I.e., they will preserve the trappings of the Constitution while utterly subverting it.
IOW they will do what’s best for themselves institutionally. Silver lining: unless they utterly reject the proposition that Trump engaged in an insurrection, the “penumbral emanations” of even a remand will not be to his advantage.
Oddly enough, when Hillary Clinton was campaigning for NY State senator, she conducted a “listening campaign”. What she discovered was that a key issue in upstate NY was that fact that barns were in disrepair, and so after she was elected, she actually made barn restoration a priority.
As far as torching our country, there seems to be a frightening large number of US citizens who are gearing up for such a prospect. And don’t think it can’t happen here! All it takes is a spark!
What is at stake for America and democracy . . . the Supreme Court’s make or break decision: The rule of law vs. the rule of fear and intimidation. The authority of the Constitution vs. authoritarianism.
Excellent writing, Prof. Snyder, with clear reasoning. To me, checks and balances and following the rule of law of the Constitution without fear or intimidation is the only path to continued democracy. Standing firm, together ...
I think because his involvement would have to be prosecuted as part of a racketeering/organized crime case and the FBI hasn't brought one yet. Andrew Weissman has said that he believes Stone will be indicted eventually.
Good point. The war room for the coup was at the Willard Hotel, but none of the plotters residing there have been held accountable either. Attendees included Bannon, Giuliani, Eastman and Kerik. (Flynn and Stone were at least near by.) In addition, Peter Navarro indicated that approximately 100 members of Congress were involved in plotting/participating in the coup, and no accountability for them. In fact, many of these insurrectionists have been assigned major leadership positions in Congress. In addition, a significant number of these people were given Presidential pardons so that would be free to be more effective members of the coup.
One thought. Didn't Mark Meadows make his cooperation deal just this last October? I bet he's got a lot to tell. I'm hoping there will be charges for the gang you mentioned, and for an amended charge for Trump himself. (the current language about "exploiting the chaos at the Capitol" is pretty weak tea.)
Twentieth-century fascism showed that when democratic institutions capitulate to the pitchforks, the violence only gets worse--and itself becomes institutionalized. One thing we know for sure about the maga movement is that its hatreds and grievances are unappeasable. A Supreme Court ruling for trump in Anderson v. Griswold would not stop the maga violence, verbal or physical. It would teach the maga terrorists what they can do, giving the cowards much more to fear.
One additional thought: If the Court rules in favor of trump, do the justices voting with the majority themselves become subject to disqualification from their office under the Fourteenth Amendment, section 3, for aiding and abetting? Especially if trump is later convicted in Jack Smith's J6 case?
Despite Prof. Snyder's unfailing clarity and cogency, there is one question he doesn't quite raise in so many words. Your comment comes a little closer, but it is still not all the way there. If SCOTUS strikes down the ruling of the Colorado Supreme Court, can we be confident SCOTUS will reject Trump's claims of blanket presidential immunity? If not, so much for a trial, much less a conviction, to say nothing of any accountability for the Justices themselves. If the pitchforks can lead SCOTUS to forbid the state courts from engaging in a fact finding, to which no criminal or civil penalties apply, will it countenance a criminal proceeding?
Great question, Dan. In either case (and especially in the immunity case) a decision in favor of trump effectively disposes of the Constitution and the rule of law.
Thank you for laying this all out so clearly and forcefully, Prof. Snyder. Might I suggest that you offer it to the NYT or Wapo, or another more or less widely read outlet. It needs as wide an audience as possible. Those taking the tack you argue against include some very thoughtful and articulate --and persuasive-- thinkers, and there needs to be push-back of equivalent force.
Professor Snyder is on the board of Protect Democracy and is an advisor for them. They need to get Ian’s essay widely distributed ASAP and start working on an amicus curiae brief now, so it can be filed as soon as that venue is open. But the argument for the USSC ruling “without fear or favor” must be made publicly NOW. The general public has already been subjected to too much media wishy-washy opining. If it’s allowed to continue unabated, the ability of the electorate to accept the USSC affirming Anderson v Griswold may be irreparably damaged. When even the NYT is saying the court should “just let Trump be on the ballot” and “it’s better to defeat Trump at the ballot box than in court”, you know you’re in trouble.
thank you for this, Prof. Snyder, in its admirable clarity.
I find it so unnerving to hear people—some of them lawyers—discuss the matter as if it is optional to uphold the Constitution and paramount to appease the threateners (which is batting 1000 historically, having never worked). here is the legal foundation of America, weighed by people who have studied it and supposedly revere it, being hefted against the threat of violence from people who want the Constitution burned, as if the options can only be analyzed by their short-term impacts.
have any of them considered that recommending the SC find the 14th doesn't matter or Trump squeaks through somehow is as you say the end of the Constitution itself, and thus the court's own authority—any and all courts' authority?
their threats re secession and civil war will continue as long as they're allowed to fester in their fetid online lairs, roiling each other's fear and rage, as long as the threats work and go unchallenged.
they have conflicting interests though, since the rw patrons who installed them on the court and lavish gifts upon them are decidedly pro-Trump. I hope you're right but am steeling for the worst, which only seems prudent after these past eight years.
Excellent laying out and clarification of the Supreme Court’s responsibility for upholding the rule of law in the face of our American democracy’s existential crisis.
Unfortunately, several of the Justices have been appointed not because they will be expected to uphold the rule of law, but because the will be expected to facilitate a political outcome. Now, the decision comes down to this...will they betray the powers that elevated them to the bench or will they betray the American people and the US Constitution. With respect to upholding esctablished precedence or even ruling by a consistent contitutional interpretation, it would appear that some of the Justices have already demonstrated their willingness to do the latter.
"The counsel of cowardice -- to fear Americans, and to issue judgements on the basis of fear -- is bad not just for the idea of constitutional order, but for the institutions that make it possible, and for the Supreme Court in particular." Truth at any time. The counsel of cowardice brought about by the promotion of fear is surrendering to hell.
Every newspaper in America should print this plainly written,easy to understand article. Not enough people consume their news from NYT and WashPost. Every small town paper needs to run Dr Snyder’s writings.
Some of the conservative USSC justices claim to be “originalists”, so we shall see if this holds. We have to hope, too, that the majority will uphold the rule of law and will not decide rulings on fear or for political reasons.
Yes, the law cannot hold if those in office are cowards. Sadly, the people who have come up through bureaucracy or large traditional organizations (the law and the Army, for example) have been allowed to rise because they don't rock the boat, so they are mostly personally deeply cowardly. Mueller was an absolute coward. Of course he was in the hottest seat but that's when an individual needs to realize they must be personally courageous in the face of threats. Alex Vindman was such a person and he forfeited his job as a result. but he did the right thing, saw the moral imperative and stood up to do what was right for the USA and its citizens.
One might reasonably argue that the pardon and then resurrection of Richard Nixon as an elder statesman was the beginning of the end of the GOP. And even 'the rule of law' in the USA.
With Trump, it is not simply a 'mending fences and move on' argument. It's a duck and cover exercise as Republicans go ballistic. Charlottesville grew into Jan 6. But ever since Obama was elected, Republicans have been threatening civil war - not as a metaphor or Proud Boys cosplay, but as all out armed conflict.
What is never mentioned is that Trump’s continuing and ever present claim that the 2020 Presidential election was stolen is part of an ongoing insurrection.
Yes, one could argue that on Jan 6 Republican officials were in the chambers procedurally overturning government institutions, while their co-conspirators were sacking the seat of government. And that this was heralded by Ronald Reagan selling 'government is the
problem', Newt Gingrich metaphorically 'burning down the House' and Grover Norquist* popularizing flushing government down the drain and raising statues of Reagan (like those Confederate traitors magicked into heritage heroes) in every town square.
It is complicated. And involves how the word insurrection is used in the US Constitution and the US Code. And how it is used in conjunction with the word rebellion - whether they are considered as separate or . synonymous. Which is different than common usage.
That said. I think Trump is Reagan writ large and writ vulgar. And while Republicans opposed government programs encompassed by the New Deal and Great Society, it was not until The Southern Strategy inviting in unreconstructed white supremacists (their violent animosity to civil rights legislation and federal government in general) and the wedding of Movement Conservatism and The Religious Right (with the one's animosity to taxation, government regulation, and essential government services, and the other's opposition to the separation of church and state) that the GOP transformed itself from the party of fiscal conservatism to the party of clerical fascism. (Personified by Federal Society honcho, Charles Koch bagman, architect of the racist right wing religious extremist Roberts Court majority, and piety influencer Leonard Leo** the bastard child of Ronald Reagan in bed with Ralph Reed.)
So, yeah.
Direct line from William F. Buckley through George Will to Tucker Carlson and Alex Jones
*Norquist is an interesting figure because he personifies the GOP push to merge ideological degradation, institutional destruction, and armed rebellion.
Norquist is mostly known for Charles Koch funded anti taxation initiatives but he was involved in with Oliver North in Iran-Contra and other armed rebellions.
**google Leonard Leo = Corrupt Courts
https://www.propublica.org/article/leonard-leo-teneo-videos-documents
You hit the nail on the head so many times that it’s now a washer. Thanks.
HaHa! You struck the first blow.
Great assessment. lin.
ThankYou!
A well written essay on the pith of the constitutional matter. My worry here is that, like the poorly written 2nd amendment in terms of legal clarity, the 14th leaves vague how the determination of participation in insurrection is concluded (the "self-executing", "you know when you see it" aspect is obvious, but legally ambiguous). I fear these will be the weasel words that we'll get from 5 or 6 of the justices - "he hasn't been convicted." This assumes running for office is some right without guardrails. Combined with a slow-walking of the federal case, the matter seems set to go "pitchfork," right around election time. To torture the metaphor, 2024 may be a barnburner of a year.
I don't think the 2nd is unclear. It's meaning is distorted by the right conveniently leaving out the first half of the sentence. Read as a whole, it's clear. I just worry that the 14th is being so picked apart that it's hard to see the original intent. Luckily, the conservative justices are originalists. HA, as if!
Correct. Both amendments are clear. It’s not hard to read nor understand. To do otherwise is the tell of a corrupt court. Another is Clarence Thomas threatening to resign, citing poor pay, an overly critical press. Enter Harlon Crow and the Federalist Society billionaires, showering the Thomas’ with gifts, flights, mortgage payoffs for his mother, etc etc. These are bribes not gifts. Why the press can’t say that tells us a lot about cowardice. We already know how Thomas and Alito will vote, with their wallets. I have little faith in the other Republican Justices. Let’s all stop calling them “conservative”. They are not conserving the Constitution, that is the heart of our Democracy.
I agree with you, Karen. Justice Scalia was responsible for the misinterpretation of the Second Amendment.
Exactly, the weasel way is to claim Trump's behavior is not an insurrection. Total wimp out, to be sure, but seems like the path the court will take. Brace yourself!
If SCOTUS sides with trump, we are in for a nightmare, worst ever. I can't say they have the best insight into what trump and his minions are doing. The 14th Amendment and trump's insurrection should have KEPT HIM OFF the ballot in all the states.The entire world is watching.
All states. Yes. Maybe that’s the way? More states should decide the same as Colorado and Maine.
To do that the SCOTUS will have to disallow the findings of the Colorado courts, after a several day trial with both sides fully represented. Generally a trial courts findings of fact, from live testimony, is not rejected by appeals courts unless so obviously wrong since they weren’t there to judge the credibility of the witnesses.
They will hold that Colorado applied too lenient a standard of proof, and remand. And hope he’s convicted of some crime. I.e., they will preserve the trappings of the Constitution while utterly subverting it.
IOW they will do what’s best for themselves institutionally. Silver lining: unless they utterly reject the proposition that Trump engaged in an insurrection, the “penumbral emanations” of even a remand will not be to his advantage.
harrumph, you can make legal words mean anything if you have no moral conviction. It's just not the fault of the words.
Oddly enough, when Hillary Clinton was campaigning for NY State senator, she conducted a “listening campaign”. What she discovered was that a key issue in upstate NY was that fact that barns were in disrepair, and so after she was elected, she actually made barn restoration a priority.
As far as torching our country, there seems to be a frightening large number of US citizens who are gearing up for such a prospect. And don’t think it can’t happen here! All it takes is a spark!
What is at stake for America and democracy . . . the Supreme Court’s make or break decision: The rule of law vs. the rule of fear and intimidation. The authority of the Constitution vs. authoritarianism.
Excellent writing, Prof. Snyder, with clear reasoning. To me, checks and balances and following the rule of law of the Constitution without fear or intimidation is the only path to continued democracy. Standing firm, together ...
Roger Stone, the intermediary between Trump and the now convicted 1/6 plotters, has not been indicted. Why?
I think because his involvement would have to be prosecuted as part of a racketeering/organized crime case and the FBI hasn't brought one yet. Andrew Weissman has said that he believes Stone will be indicted eventually.
Good point. The war room for the coup was at the Willard Hotel, but none of the plotters residing there have been held accountable either. Attendees included Bannon, Giuliani, Eastman and Kerik. (Flynn and Stone were at least near by.) In addition, Peter Navarro indicated that approximately 100 members of Congress were involved in plotting/participating in the coup, and no accountability for them. In fact, many of these insurrectionists have been assigned major leadership positions in Congress. In addition, a significant number of these people were given Presidential pardons so that would be free to be more effective members of the coup.
It's possible that Stone and the others are unindicted co-conspirators in the J6 case.
One thought. Didn't Mark Meadows make his cooperation deal just this last October? I bet he's got a lot to tell. I'm hoping there will be charges for the gang you mentioned, and for an amended charge for Trump himself. (the current language about "exploiting the chaos at the Capitol" is pretty weak tea.)
Come to think of it, the ones who asked for pardons are the ones who are most invested in looking "over here" at Hunter Biden.
Twentieth-century fascism showed that when democratic institutions capitulate to the pitchforks, the violence only gets worse--and itself becomes institutionalized. One thing we know for sure about the maga movement is that its hatreds and grievances are unappeasable. A Supreme Court ruling for trump in Anderson v. Griswold would not stop the maga violence, verbal or physical. It would teach the maga terrorists what they can do, giving the cowards much more to fear.
One additional thought: If the Court rules in favor of trump, do the justices voting with the majority themselves become subject to disqualification from their office under the Fourteenth Amendment, section 3, for aiding and abetting? Especially if trump is later convicted in Jack Smith's J6 case?
Despite Prof. Snyder's unfailing clarity and cogency, there is one question he doesn't quite raise in so many words. Your comment comes a little closer, but it is still not all the way there. If SCOTUS strikes down the ruling of the Colorado Supreme Court, can we be confident SCOTUS will reject Trump's claims of blanket presidential immunity? If not, so much for a trial, much less a conviction, to say nothing of any accountability for the Justices themselves. If the pitchforks can lead SCOTUS to forbid the state courts from engaging in a fact finding, to which no criminal or civil penalties apply, will it countenance a criminal proceeding?
Great question, Dan. In either case (and especially in the immunity case) a decision in favor of trump effectively disposes of the Constitution and the rule of law.
Great question!
Thank you for your clear writing & understandable language.
A Happy Healthy New Year to you, your family & staff. Be well. 🎉🥂🎶🇺🇲
Thank you for laying this all out so clearly and forcefully, Prof. Snyder. Might I suggest that you offer it to the NYT or Wapo, or another more or less widely read outlet. It needs as wide an audience as possible. Those taking the tack you argue against include some very thoughtful and articulate --and persuasive-- thinkers, and there needs to be push-back of equivalent force.
He makes a strong case here, but the even stronger case is made by Ian Bassin on the website of Protect Democracy, found here: https://protectdemocracy.org/work/trump-ballot-eligibility-colorado-supreme-court/
Professor Snyder is on the board of Protect Democracy and is an advisor for them. They need to get Ian’s essay widely distributed ASAP and start working on an amicus curiae brief now, so it can be filed as soon as that venue is open. But the argument for the USSC ruling “without fear or favor” must be made publicly NOW. The general public has already been subjected to too much media wishy-washy opining. If it’s allowed to continue unabated, the ability of the electorate to accept the USSC affirming Anderson v Griswold may be irreparably damaged. When even the NYT is saying the court should “just let Trump be on the ballot” and “it’s better to defeat Trump at the ballot box than in court”, you know you’re in trouble.
AGREE!
thank you for this, Prof. Snyder, in its admirable clarity.
I find it so unnerving to hear people—some of them lawyers—discuss the matter as if it is optional to uphold the Constitution and paramount to appease the threateners (which is batting 1000 historically, having never worked). here is the legal foundation of America, weighed by people who have studied it and supposedly revere it, being hefted against the threat of violence from people who want the Constitution burned, as if the options can only be analyzed by their short-term impacts.
have any of them considered that recommending the SC find the 14th doesn't matter or Trump squeaks through somehow is as you say the end of the Constitution itself, and thus the court's own authority—any and all courts' authority?
their threats re secession and civil war will continue as long as they're allowed to fester in their fetid online lairs, roiling each other's fear and rage, as long as the threats work and go unchallenged.
This court has done some stupid things, but I think they are smart enough to save their own backsides.
they have conflicting interests though, since the rw patrons who installed them on the court and lavish gifts upon them are decidedly pro-Trump. I hope you're right but am steeling for the worst, which only seems prudent after these past eight years.
I lack your confidence in SCROTUS* to do the smart thing here.
*Supreme Court (R) of the United States
Thomas and Alito might be a problem because they are both nuts, but I don't think the others will go along. SCROTUS!! LOL!!
As you might guess, it is pronounced just as it reads…
Excellent laying out and clarification of the Supreme Court’s responsibility for upholding the rule of law in the face of our American democracy’s existential crisis.
Unfortunately, several of the Justices have been appointed not because they will be expected to uphold the rule of law, but because the will be expected to facilitate a political outcome. Now, the decision comes down to this...will they betray the powers that elevated them to the bench or will they betray the American people and the US Constitution. With respect to upholding esctablished precedence or even ruling by a consistent contitutional interpretation, it would appear that some of the Justices have already demonstrated their willingness to do the latter.
Exactly, Jim. Well said.
Well said, Sir.
A more familiar phrase for this, at least in terms of the law, is the "heckler's veto."
"The counsel of cowardice -- to fear Americans, and to issue judgements on the basis of fear -- is bad not just for the idea of constitutional order, but for the institutions that make it possible, and for the Supreme Court in particular." Truth at any time. The counsel of cowardice brought about by the promotion of fear is surrendering to hell.
A wider audience than Dr. Snyder's subscribers needs to read this. New York Times? Washington Post?
Every newspaper in America should print this plainly written,easy to understand article. Not enough people consume their news from NYT and WashPost. Every small town paper needs to run Dr Snyder’s writings.
Some of the conservative USSC justices claim to be “originalists”, so we shall see if this holds. We have to hope, too, that the majority will uphold the rule of law and will not decide rulings on fear or for political reasons.
Yes, the law cannot hold if those in office are cowards. Sadly, the people who have come up through bureaucracy or large traditional organizations (the law and the Army, for example) have been allowed to rise because they don't rock the boat, so they are mostly personally deeply cowardly. Mueller was an absolute coward. Of course he was in the hottest seat but that's when an individual needs to realize they must be personally courageous in the face of threats. Alex Vindman was such a person and he forfeited his job as a result. but he did the right thing, saw the moral imperative and stood up to do what was right for the USA and its citizens.