Regular readers know that the Colorado Supreme Court recently decided that Trump was disqualified from becoming President again. We suspect you know the legal theory, but we will take a moment to explain it, in case you don’t. It starts with Section 3 of the Fourteenth Amendment, which says:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
So, the argument goes like this: Trump took an oath, as an officer of the United States, to support the Constitution of the United States. He engaged in insurrection by inciting the riot on January 6, 2021. Therefore, he is pretty much disqualified to hold any office in the United States (including in state government) unless two thirds of Congress votes to remove the disqualification.
And fat chance of that two thirds vote happening, right?
So that, very briefly, is the decision of the Colorado Supreme Court, which can be read at the link provided in this Tweet:
I kept reading yesterday that there was a 25-page opinion from the Colorado Supreme Court on Trump's eligibility for the ballot. The final page of this PDF is indeed numbered 25. But that's a dissent, not the 133-page majority opinion. https://t.co/BFEvYFKQvx
— Kip Hill (@kiphillreporter) December 20, 2023
On TSMSFKA Twitter (The Social Media Site Formerly Known As Twitter), we have expressed the opinion that 1) the (United States) Supreme Court should intervene in this case, 2) it should reverse on First Amendment grounds and 3) the Court should do all of this quickly. We’ll expand more on those points in a moment, but it seems like the Supreme Court is almost certainly going to intervene and do so quickly.
(We say ‘almost certainly’ because the Supreme Court could always drop the case later.)
NEW: US Supreme Court agrees to hear former President Trump's appeal of removal from Colorado primary ballot. Justices set argument for Feb. 8. pic.twitter.com/TstE2kzWnz
— Kimberly Robinson (@KimberlyRobinsn) January 5, 2024
Folks, that is extremely fast for any court as Jonathan Turley noted:
The granting of cert in the Colorado case places the matter on a short calendar for argument on Feb. 8. For the Supreme Court, that is a Nascar pace. Notably, the Maine Superior Court only has until Jan. 17th to rule on that disqualification. It can then go to the Maine Supreme…
— Jonathan Turley (@JonathanTurley) January 6, 2024
We have not been following all the ins and outs of the Maine case, but we would guess that if the Maine Supreme Court can stay proceedings until the United States Supreme Court gets done with it, they will do that, if only to save themselves the work.
And while that is relatively quick, it’s not quite as fast as we would wish. The decision of the Colorado Supreme Court and others has added an inappropriate dimension to the primary debate. The primary debate should be about which candidate is the best one for the Republicans to put forward, based on things like the candidate’s prior resume, their positions on issues, and so on. You know what shouldn’t be a consideration? ‘What if we nominate Trump and, suddenly, we find out we can’t even put him on the ballot in many states, making it impossible for him to win?’ Nor should it be ‘we have to support Trump because we have to show people that this kind of lawfare doesn’t work.’ The Colorado Supreme Court is interfering in the Republican primaries as we speak, and that is wrong.
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After all, this isn’t just about Donald Trump. Trump can rightfully say he is aggrieved by this decision, but so is literally every American voter. Democrats are saying that we’re not allowed to have Trump for a second term, even Trump wins with a 99.99% majority in the popular vote and unanimity in the electoral college—not unless Congress votes to remove that disability.
And so ideally, this should have been settled before the primary/caucus season starts. But since the first caucus on January 15, there won’t be any resolution before it interferes with that choice. Still, we would hope that the Supreme Court clears this up very quickly. Even if they were going to rule he was disqualified (though they shouldn’t), it would be better to know now than later.
But, bluntly, we don’t think they will rule that way, because in order to rule that Trump is disqualified, so-called Democrats (who are against actual, you know, democracy) have to basically run the tables in front of the Supreme Court. They have to win on issue after issue and if they lose on any of them the Colorado Supreme Court decision is overturned.
Let’s review some of the issues they will have to decide:
First, who gets to determine who is disqualified? Can a state court say that a person is disqualified to hold federal office? That is a debated question and one can already start to see the problems that arise. What if Colorado says he is not qualified but New Jersey says he is?
Second, does this even apply to the Presidency at all? Byron York passes on this very credible argument on this point:
From the Trump SCOTUS brief on the Colorado 14th Amendment disqualification decision: 'Section 3 begins “[n]o person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or…
— Byron York (@ByronYork) January 4, 2024
The full text says:
From the Trump SCOTUS brief on the Colorado 14th Amendment disqualification decision: 'Section 3 begins ‘[n]o person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State . . .’ It does not list the presidency. Moreover, it lists offices in descending order, beginning with the highest federal officers and progressing to the catch-all term ‘any office, civil or military, under the United States.’ Thus, to find that section 3 includes the presidency, one must conclude that the drafters decided to bury the most visible and prominent national office in a catch-all term that includes low ranking military officers, while choosing to explicitly reference presidential electors. This reading defies common sense and is not correct.'
Indeed, the fact that it says you cannot be an elector for President (meaning one of the people who actually votes for president in the electoral college), but doesn’t mention the presidency itself is weird at best.
But to play devil’s advocate, the opposite argument might be ‘so the founders of the Fourteenth Amendment wanted to prohibit Jefferson Davis from being a senator again, or an elector, or even dog catcher on the state level, but they wouldn’t stop him from being President of the United States?’
However, there is kind of a logic to that. The founders might have thought, ‘if any alleged insurrectionist can convince a majority of electors—who can’t themselves have been insurrectionists—to make him or her president, then either that person is not likely to be uniquely dangerous to the United States, or America is too far gone, anyway, and a constitutional provision isn’t likely to save us.’
In any case, there also is a strong question of whether a riot could count as insurrection.
If a riot could count, could incitement of that riot count, too?
Certainly, if Trump was there at the Capital leading the rioters like a general in the field you could make the argument, but we are talking about incitement, here. Therefore, we think they would have to show not only did Trump incite a riot, but that Trump planned to incite a riot that would in some way overthrow the government or force the Congress to make Trump president again, or something along those lines—not just unbridled violence.
And even if the Democrats win on all of those issues, they also have to win on the issue of what level of due process is needed including what the burden of proof is.
Still, we hope they focus like a laser on a very narrow issue: Did Trump commit incitement of violence in a way it wouldn't offend the First Amendment to remove him from the ballot. As we have told you before, the Supreme Court has laid out the following test for incitement:
the constitutional guarantees of free speech and free press do not permit [the government] to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
So, you need three elements:
1) advocacy of the use of force or lawlessness,
2) directed at producing imminent lawless action, and
3) under circumstances likely to incite or produce such action.
Under ordinary circumstances, this is used as a limitation on freedom of expression, as in you can go to prison for what you said, or otherwise be punished for what you said. In this case, this is also being used to suppress democratic principles.
The problem is that the Colorado Supreme Court didn’t find any real advocacy of violence or lawlessness, stumbling over the most basic requirement. The best it could do is rely on this passage from Trump’s January 6, 2021 speech:
And we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore.
And they further claimed (through a sociology professor, no less) that
violent far-right extremists understood that [President] Trump’s calls to ‘fight,’ which most politicians would mean only symbolically, were, when spoken by [President] Trump, literal calls to violence by these groups.
Sorry, folks, my eyes just rolled out of my head at the ridiculousness of that claim. So, they are claiming that when Trump talks about fighting he always means physical violence? Well, let’s look at the other times on Trump January 6, 2021 speech used the word ‘fight’ or variations of them and see how he was using that term, shall we?
First, we have him talking about Rudy Giuliani (we will highlight every instance of the word fight in boldface):
And Rudy, you did a great job. He's got guts. You know what? He's got guts, unlike a lot of people in the Republican Party. He's got guts. He fights, he fights.
Does anyone think Trump meant that Giuliani, who was serving as Trump’s lawyer at the time, meant that Giuliani was literally fighting people?
And you have to get your people to fight. And if they don't fight, we have to primary the hell out of the ones that don't fight. You primary them.
Again, does that sound like literal, physical fighting to you? Or does that sound like some of that ‘metaphorical’ fighting the court said other politicians did, but Trump supposedly didn’t do?
Republicans are, Republicans are constantly fighting like a boxer with his hands tied behind his back. It's like a boxer. And we want to be so nice. We want to be so respectful of everybody, including bad people. And we're going to have to fight much harder.
Even here, he is obviously not talking about literal fighting.
Next, he claims that they were fighting right at that moment as he was speaking:
But we've done it quickly and we were going to sit home and watch a big victory and everybody had us down for a victory. It was going to be great and now we're out here fighting. I said to somebody, I was going to take a few days and relax after our big electoral victory. 10 o'clock it was over. But I was going to take a few days.
We will note, no one was fighting at that moment in that crowd. So, when he said they were out there fighting, he could only have been speaking of something other than physical violence.
Next, do you think he actually got into physical fights with the press?
The American people do not believe the corrupt, fake news anymore. They have ruined their reputation. But you know, it used to be that they'd argue with me. I'd fight. So I'd fight, they'd fight, I'd fight, they'd fight. Pop pop. You'd believe me, you'd believe them. Somebody comes out. You know, they had their point of view, I had my point of view, but you'd have an argument.
Now what they do is they go silent. It's called suppression and that's what happens in a communist country. That's what they do, they suppress. You don't fight with them anymore. Unless it's a bad story. They have a little bad story about me, they make it 10 times worse and it's a major headline.
That second paragraph also included him saying ‘we’ don’t fight with ‘them’ (the press?) anymore. Again, that is plainly not referring to physical violence.
But our fight against the big donors, big media, big tech, and others is just getting started.
Did Trump physically attack big donors, big media, big tech and unspecified ‘others.’ Did the Air Force bomb them when we weren’t looking? The Navy?
And that’s every other mention of the word ‘fight’ in the transcript of that speech that we have. So, every other time Trump used the word ‘fight’ in his speech he wasn’t referring to physical violence, but that one passage they cited as incitement was?
In fact, you can see that the Colorado Supreme Court is actually being dishonest in its analysis, when it says this:
He used the word ‘fight’ or variations of it [twenty] times during his Ellipse speech.
(citations and quotation marks omitted.) We have shown you those variations. So the Colorado Supreme Court was counting all those references that were definitely not about physical violence when claiming that his speech was encouraging actual violence, when a fair-minded person would have noticed how often Trump uses the term to refer to something other than physical violence. They also blew off Trump explicitly advocating a peaceful protest.
But there is a more basic deception here. We previously shared video of the January 6, 2021 video and we wrote the following about it:
if you haven’t listened to it, I really think you should. I never listened to it until a few months ago and I was shocked at the difference between the speech and what I heard about it. I kept hearing people claim that Trump riled up the audience with his words and that’s not true. This is not a classic barn burner of a speech. It is honestly boring. It is hard to imagine anyone listening to it and getting so angry that they are ready to start rioting.
So, the other big deception here is pretending that Trump gave a speech that was designed to rile people up. It wasn’t. And there is no rational way to believe Trump thought that this would be a rabble-rousing speech that would inspire a riot. It is complete unreality to listen to that speech and think it caused any violence. That’s the big lie that rots at the center of this entire ‘Trump is an insurrectionist’ myth.
So, they are trying to violate Trump’s First Amendment rights, in order to abuse the language of the Fourteenth Amendment to violate every American’s right to be able to vote for the candidate of their choice. Democrats will claim they are doing this to save democracy, but its hard to imagine a greater afront to it.
And not for nothing, but the Colorado Supreme Court has been getting the First Amendment wrong a lot lately. We don’t think the (U.S.) Supreme Court will have much respect for their analysis on this issue, and we hope they see a need to rebuke them on it, as well. Furthermore, if the Supreme Court not only ruled for Trump but said that he did not commit incitement as a matter of First Amendment law, that would not only end these challenges, but it would take a lot of litigation off many dockets and reaffirm that you are allowed to be harshly critical of the government without being charged with incitement. That is another reason why we hope the Supreme Court focuses on this issue.
The natural question is ‘what will the Supreme Court do?’ Well, first, the schedule for arguments is a clue. They seem to understand that this needs to be resolved quickly. That is a tea leaf suggesting that the Court might understand that this is an afront to the rights of voters, and not just Trump, and to see the value in eliminating the chaos quickly.
We feel moderately confident that there are five conservative votes to keep Trump on the ballot, with Roberts being the iffy ‘conservative’ on the Court.
We long believed that Roberts is obsessed with protecting the court as an institution. We believe he saved Obamacare, for instance, because he was concerned about the threats Democrats were making against the court. We have no doubt that this case is a headache he didn’t want, but we also suspect that the concern for the institution of the Court will cut against the Democrats in this case. Democrats complain that in Bush v. Gore, 531 U.S. 98 (2000) that the Supreme Court basically called the election for Bush, ignoring that effectively Gore had forced the courts to decide the issue. Here, if the Democrats win, the Supreme Court will effectively call the Republican primary against Trump—if they rule in Colorado’s favor, that’s almost certainly going to prevent him from being president again as a legal bar. But if they rule against this anti-democratic impulse, anyone could still win the Republican primary or the general election. So, Roberts might recognize that the simplest way to stay out of the politics is to rule in Trump’s favor and then let the election play out.
As for the three liberals on the Supreme Court, we’ll confess to not being sure how they will rule. They are more wobbly on the First Amendment than the majority, voting as a bloc just last term that you could be forced to create content for a website that you disagreed with. (Seriously, imagine if the government could tell us what we had to write on Twitchy.) But all but one of the liberals voted that there was no hate speech exception to the First Amendment—and the remaining liberal, the new Justice Jackson, wasn’t on the court at the time to vote up or down. The decision with Trump should be 9-0, but we only feel pretty confident that it will be 6-3, with three liberal justices dissenting and claiming that letting people vote freely is a danger to democracy. We hope for a pleasant surprise, but we aren't counting on it.
And, most importantly, the Court needs to settle the entire issue all at once. They should say, like prior courts, simply that Trump can be on the ballot during the primary but he might be removed from the general. Even if they don't rule on the First Amendment, they need to rule so the issue is put to bed. The American people need to know as soon as possible whether they will be allowed to vote for Trump. We hope the Supreme Court will rise to this moment, do the right thing and do it quickly.
🚨 TRUMP: “The Supreme Court is taking the case from Colorado... All I want is fair.”
— Benny Johnson (@bennyjohnson) January 6, 2024
pic.twitter.com/y1vmVDlkNk
Our @dhillonlaw cert. petition was granted in the Colorado case! Let’s go!
— Harmeet K. Dhillon (@pnjaban) January 5, 2024
The court has allowed plenty of time for amicus briefing, but from where we sit, the historical and factual record is very clear, and it’s time to put a stop to Dems’ election interference shenanigans! pic.twitter.com/cDN9xzgLje
Mrs. Dhillon runs the Dhillon law group, which filed the petition before the Supreme Court:
ICYMI: Dhillon Law Group filed a cert. petition before the U.S. Supreme Court seeking reversal of Colorado’s decision to keep former President Donald Trump off the ballot as a presidential candidate. pic.twitter.com/Lw0g6U1n7d
— Dhillon Law Group (@dhillonlaw) January 4, 2024
SCOTUS just granted our firm’s Petition for Certiorari. By the end, I am confident the Justices will uphold the Constitution and mandate that @realDonaldTrump be left on the 2024 Colorado ballot. https://t.co/7VAohfy9r3
— Zachary Kramer (@remark86) January 5, 2024
Proud to work for a firm that takes on these important constitutional issues. It’s just a bonus that @realDonaldTrump is the client 😉 https://t.co/LEcVHXr7wa
— Zachary Kramer (@remark86) January 3, 2024
Law professor Ilya Somin shares his thoughts:
My brief initial thoughts on Supreme Court's decision to review the Colorado Trump Section 3 disqualification case. https://t.co/Np0zveG6lR
— Ilya Somin (@IlyaSomin) January 5, 2024
He agrees that the scheduling is designed to clear things up quickly. He also adds this thought:
Significantly, the Court has not limited the questions presented. That means the justices could potentially consider the full range of issues raised by the case, including whether the January 6 attack on the Capitol qualifies as an ‘insurrection,’ whether Trump's actions amount to ‘engaging’ in insurrection, whether the president is an ‘officer of the United States’ covered by Section 3, whether Section 3 is ‘self-executing,’ whether it is a ‘political question,’ and whether Trump got adequate due process in the state court. There may be some additional procedural questions, as well. But perhaps the Court will issue narrowing questions presented before briefs are due.
To translate some of that from legalese, when he talks about whether Section 3 is self-executing, he is referring to the question of whether courts can enforce this disqualification on their own, or can it only be enforced by methods set up by Congress under Section 5. Frankly, the Supreme Court has never said any part of the Fourteenth Amendment isn’t self-executing before, so we don’t see the argument why this one wouldn’t be.
To translate further, when he talks about whether it is a political question, that is referring to a doctrine that certain questions are handed over to specific political branches that the courts cannot question. An example of this is determining when a war ends. The courts are not going to go into an inquiry about whether a true state of war existed on a certain date when it is relevant. Instead, they are going to defer to the other two branches on that kind of question.
He is also more supportive of the idea of disqualification:
Most observers expect the Court to overturn the Colorado decision. That might well happen; it may even be the most likely outcome. But I think many are underrating the likelihood that the justices will affirm the Colorado ruling. The latter is based on strong reasoning, including from an originalist point of view. And to the extent the justices may be motivated by reputational considerations, disqualifying Trump is the perfect opportunity for them to show once and for all that they are not adjuncts of the GOP and especially not the ‘MAGA Court.’
We couldn’t disagree more with that analysis, but we thought we would share it with you for what it is worth. Moving on:
Note: No justices — including Justice Thomas — recused themselves from Trump’s case, per Friday’s order. https://t.co/sfZ0e8MP4O
— Chris Geidner (@chrisgeidner) January 5, 2024
But bluntly, we see no valid reason for any of them to recuse themselves. Ginni Thomas, for instance, was not required to stay in the kitchen because her husband was on the Supreme Court. She was allowed to have her own opinions and even advocate for them. And we can rightfully assume that her opinions on the election are not necessarily her husband’s.
Mr. Geidner reports that the petition to have the case heard by the Supreme Court was filed on January 3, so again, the movement here is really fast compared to other court cases.
Silencing opposition is the foundation of democracy
— Phillip McGuire (@PhillipCMcGuire) January 5, 2024
We're 99% sure he’s making fun, but Democrats try to tell you this with a straight face.
And, finally, we get this tidbit from Mrs. Dhillon:
We have an associate in our @dhillonlaw VA office who started this week, when we also filed a cert. petition on the hottest legal issue in election law, and got it granted. Now he's gonna think it's like this every week around here! Sigh.... #lawfirmmanagement
— Harmeet K. Dhillon (@pnjaban) January 6, 2024
Wait, it isn’t?
***
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