Timidity and irresolution and menace
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After a Colorado court ruled against barring Donald Trump from the ballot there, I commented on the atmosphere of menace Trump has created around any attempts to hold him accountable before the law for any of his actions. This includes attempts to disqualify him from holding elected office via the 14th Amendment. I focused on the fact that three different judges had cited three different reasons for not giving Trump the boot. That’s not so say (and I did not mean to suggest) the rulings were in error. But I did not address what the ruling did or did not do for Trump cases on appeal. Kim Wehle does so this morning at The Bulwark.
The 102-page ruling contains findings of fact that Colorado District Judge Sarah B. Wallace clearly wrote “with an expectation that judges at higher state courts and likely even the U.S. Supreme Court would wind up studying her analysis on an appeal petition,” Wehle writes.
Wallace ruled, as a matter of proven fact, that:
- Donald Trump “put forth no evidence at the Hearing that he believed his claims of voter fraud despite the overwhelming evidence there was none.”
- “Trump knew his claims of voter fraud were false.”
- Trump “sought to corruptly overturn the election results through direct pressure on Republican officeholders in various states both before and after the Electoral College met and voted in their respective state.”
- “Trump knew that his supporters were angry and prepared to use violence to ‘stop the steal’ including physically preventing Vice President Pence from certifying the election.”
- “Despite knowing of the risk of violence and knowing that crowd members were angry and armed, Trump still attended the rally and directed the crowd to march to the Capitol.”
- “Trump’s Ellipse speech incited imminent lawless violence.”
- Trump’s “call to ‘fight’ and ‘fight like hell’ was intended as, and was understood by a portion of the crowd as, a call to arms.”
- “Trump’s conduct and words were the factual cause of, and a substantial contributing factor to, the January 6, 2021 attack on the United States Capitol.”
- Trump’s 2:24 p.m. tweet on January 6th that “‘Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!’ . . . caused further violence at the Capitol.”
- “Trump had the authority to call in reinforcements on January 6, 2021, and chose not to exercise it thereby recklessly endangering the lives of law enforcement, Congress, and the attackers on January 6, 2021.”
- And “the Court heard no evidence that Trump did not support the mob’s common purpose of disrupting the constitutional transfer of power.”
We’ve addressed the 14th Amendment’s Section 3 multiple times and Wehle does so again, in light of the Colorado ruling, but also summarizes where the other cases stand:
Here’s what other courts have ruled thus far about Trump and Section 3:
- Earlier this month, the Minnesota Supreme Court rejected a bid to keep Trump off the state’s primary ballot, but for a different reason than Wallace’s: that “there is no state statute that prohibits a major political party from placing on the presidential nomination primary ballot . . . a candidate who is ineligible to hold office.” Translated, the Republican party is fully in charge of who gets on the primary ballot. Yet Minnesota Chief Justice Natalie Hudson noted that the plaintiffs could file another suit later to keep Trump off the general election ballot should he win the Republican primary in Minnesota.
- In Michigan, Court of Claims Judge James Redford took a different route altogether, ruling that courts have no business deciding what Section 3 means because it’s a “political question” that exclusively belongs to Congress. (The political question doctrine is a made-up rule the Supreme Court uses if it just doesn’t want to wade into sticky political issues like crafting the technical rules governing an impeachment trial, for example.) However, if Trump wins the general election, Redford added, his eligibility under Section 3 could be revisited, and if he’s then determined ineligible, the Twentieth Amendment—which provides for the vice president-elect to become president if a president-elect dies before taking the oath of office—could somehow kick in.
- In New Hampshire, a federal judge ruled in October that John Anthony Castro, an unknown presidential candidate from Texas who has initiated over two dozen Section 3 lawsuits across the country, did not have standing to sue under Article III of the U.S. Constitution—meaning he lacked a sufficient injury to bring the matter within Article III’s “case” or “controversy” requirement that gives federal courts jurisdiction in the first place. The judge wrote: “Castro has not established that he has or will suffer a political competitive injury arising from Trump’s participation in the New Hampshire Republican presidential primary.” In addition, he agreed with the Michigan state court judge that the matter is probably a “political question” that’s for elected politicians—not judges—to decide.
- Finally, in Florida, another federal judge dismissed a case for lack of standing in September. The plaintiff in that case was an individual citizen who, the judge ruled, had no legal basis to complain about another person’s running for office. A “generalized interest” in the election outcome is not enough of an injury to invoke the power of the courts.
There is a pattern in the reluctance of lower courts (or anyone in Congress or the elections machinery) to take a stand on Section 3. Brian Beutler chalks it up to (as I suggested) the “timidity and irresolution of the judiciary.” Wallace found “a (tortured) way to construe the 14th amendment that exempted Trump,” and thus “felt compelled to adopt it,” Beutler writes (subscription req’d for full access):
The judiciary is essentially split between judges, like Aileen Cannon, who are thrilled to protect Trump from the rule of law, and more impartial jurists who are scared to apply it to him. The latter behave as though holding Trump to a more lenient set of rules is worth it to avoid some civil strife they’ve conjured in their minds, or the death threats they know will follow any significant adverse rulings. I suspect these kinds of considerations influenced Judge Wallace. They also seem to influence Arthur Engoron, the New York judge in Trump’s civil-fraud case who barks loudly about Trump’s flagrant contempt of court, but can never bring himself to bite.
Same with Chutkan, who early on signaled she’d be reluctant to jail Trump for violating the terms of his bond, and would only deter him with the threat of a speedier trial. “The more a party makes inflammatory statements about this case which could taint the jury pool,” she stated, “the greater the urgency will be that we proceed to trial quickly.”
Um, yeah, well.
If Trump stands federally convicted early-mid 2024 of conspiring to overturn the 2020 election, Beutler asks, then what? Would he remain free on (endless) appeal? Would the Roberts Supreme Court quickly overturn his conviction (something Trump would obviously bet on)?
All Americans—and that sincerely includes Trump and all of his supporters—deserve for him to be tried for his crimes before the GOP selects his nominee; if convicted, for him to be jailed immediately; if jailed, for his party to have time to make a considered decision about whether to nominate him; and for the election to proceed from there.
That seems unlikely to happen. Trump is making a mockery of the very law judges swore to uphold. Delays by the Justice Department and Fulton County District Attorney Fani Willis in bringing cases may be justified (“You come at the king, you best not miss”), yet the timing plays right into Trump’s tiny hands. It all makes the possibility of Trump winning a second term “as an unimprisoned convict” that much more real, Beutler believes.
But that’s not merely because our justice system moves slowly and methodically — timidly, irresolutely in Beutler’s telling — but also because of the atmosphere of menace Trump and his supporters have created in the country through violence, threats, and intimidation reinforced with tactical gear and AR-15s. We’ve moved on from heads, we win, tails, you lose to heads, we win, tails, you die.
Either way, the country could die.