54 search results for "Luttig"

Trying to telegraph a conservative argument against rigging the 2024 election

Luttig tweeted out a conservative argument against the plaintiffs in Moore v Harper. From what I can tell, it doesn’t reject the Independent State Legislature nonsense but rather argues that it’s irrelevant because the state legislature has already incorporated judicial review into it’s “prescription” for how elections are to be held. He says it would be a violation of the 10th Amendment, which is something of a sacred cow for “states’ rights” wingnuts.

This is unsatisfying to those of us who aren’t so enamored of this conservative view of the 10th Amendment. And we’d like to see this Independent State Legislature BS blown out of the water. But it appears that Luttig is looking at 2024 and has come up with an argument that might sway one or two not to use this case to rig the election for Donald Trump in 2024. It’s a stop-gap:

The argument from the constitutional text of the Elections Clause (Article I, Section 4, Clause 1) that the North Carolina Supreme Court properly interpreted the United States Constitution in its decision in Moore v. Harper rejecting the state General Assembly’s congressional map is as follows whether or not the Supreme Court of the United States ultimately embraces the “independent state legislature” theory of constitutional interpretation. [my emphasis]

The Elections Clause of the Constitution provides that, “[t]he Times, Places and Manner of holding Elections . . . shall be prescribed in each State . . . by the Legislature thereof.”

Where, as in North Carolina, the legislature has “prescribed” the “Manner” in which the federal congressional “Elections” shall be “held” to include judicial review of the legislature’s own elections and congressional districting decisions, “the Legislature [has] prescribed the Manner of holding Elections” to incorporate judicial review of the legislature’s elections and congressional districting decisions — within both the letter and intendment of the Constitution.

Any eventual conclusion by the Supreme Court of the United States otherwise would entail an unconstitutional commandeering of the powers “reserved to the States respectively, or to the people” by the Tenth Amendment to the Constitution. Interpreting either the Elections Clause of Article I or the Electors Clause of Article 2 to authorize such commandeering would offend not only the fundamental structural command of the Tenth Amendment, but also the essential design of the Constitution of the United States.

Originally tweeted by @judgeluttig (@judgeluttig) on July 2, 2022.

I’m no constitutional scholar so maybe I’m totally wrong about this.

I imagine Luttig has a better insight into the worldview of the Supreme extremists than most, so maybe he’s got a good idea of what might persuade them. In any case, he’s making the attempt. Good for him.

There was a meandering discussion in today’s hearing of a tweet Luttig posted describing his analytical framework. Here is that thread:

I was honored to advise Vice President Pence that he had no choice on January 6, 2021, but to accept and count the Electoral College votes as they had been cast and properly certified by the states.

I believe(d) that Professor Eastman was incorrect at every turn of the analysis in his January 2 memorandum, beginning with his claim that there were legitimate, competing slates of electors presented from seven states;

continuing to his conclusion that the VP could unilaterally decide not to count the votes from the seven states from which competing slates were allegedly presented;

to his determination that the VP himself could decide that the Electoral Count Act of 1887 is unconstitutional and accordingly submit the 2020 Presidential Election for decision only to the House of Representatives, instead of to both Houses of Congress, as provided in the Electoral Count Act;

to his recommendation that the VP not consult with the Joint Session of Congress as to whether the election should be submitted to both Houses or only to one;

to his urging that the VP not seek decision from the federal courts, including from the Supreme Court;

and finally, to his belief that the federal courts and the Supreme Court would decline to decide every one of these fundamental constitutional questions on the grounds that they were non-justiciable political questions;

I believe(d) the Supreme Court would have decided each of these issues had they been presented to the Court, which they undoubtedly would have been had the VP proceeded as outlined in the January 2 memorandum.

Originally tweeted by @judgeluttig (@judgeluttig) on September 22, 2021.

This is a very interesting in light of the fact that Eastman apparently had reason to believe that the court would not take up the case. Maybe from his friend Ginni?

I’ve been writing about J. Michael Luttig’s position on the Big Lie and the attempted coup for a while. Today’s he’s testifying. For those of you at work or otherwise engaged, here are excerpts of Judge Luttig’s statement today. It’s amazing. I don’t know if it will make a difference to anyone but you cannot find conservative jurist in America more revered on the legal right than Luttig.

A stake was driven through the heart of American democracy on January 6, 2021, and our democracy today is on a knife’s edge.

America was at war on that fateful day, but not against a foreign power. She was at war against herself. We Americans were at war with each other — over our democracy.

January 6 was but the next, foreseeable battle in a war that had been raging in America for years, though that day was the most consequential battle of that war even to date.

These senseless wars are of our own making, and they are now being waged throughout the land, in our city centers and town squares, in our streets and in our schools, where we work and where we play, in our houses of worship — even within our own families. These wars were conceived and instigated from our Nation’s Capital by our own political leaders collectively and they have been cynically prosecuted by them to fever pitch, now to the point that they have recklessly put America herself at stake.

The war on democracy instigated by the former president and his political party allies on January 6 was the natural and foreseeable culmination of the war for America. It was the final fateful day for the execution of a well-developed plan by the former president to overturn the 2020 presidential election at any cost, so that he could cling to power that the American People had decided to confer upon his successor, the next president of the United States instead. Knowing full well that he had lost the 2020 presidential election, the former president and his allies and supporters falsely claimed and proclaimed to the nation that he had won the election, and then he and they set about to overturn the election that he and they knew the former president had lost.

Over a year and a half later, in continued defiance of our democracy, both the former president and his political party allies still maintain that the 2020 presidential election was “stolen” from him, despite all evidence — all evidence now –that that is simply false. All the while, this false and reckless insistence that the former president won the 2020 presidential election has laid waste to Americans’ confidence in their national elections. More alarming still is that the former president pledges that his reelection will not be “stolen” from him next time around, and his Republican Party allies and supporters obeisantly pledge the same.

The former president’s accountability under the law for the riot on the United States Capitol on January 6 is incidental to his responsibility and accountability for his attempt to steal the 2020 presidential election from the American People and thereby steal America’s democracy from America herself.

This said, willful ignorance of law and fact is neither excuse nor defense in law. Willful ignorance, thus, is neither political nor legal excuse or defense available to the former President of the United States, his allies, and his supporters.

On January 6, 2021, revolutionaries, not patriots, assaulted America and American democracy. The walls of all three of our institutions of democracy were scaled and breached on that appalling day. And almost two years thence, one of America’s two political parties cannot even agree whether that day was good or bad, right or wrong. Worse, it cannot agree over whether January 6 was needed, or not. Needed or not.

Pause for a moment and reflect on that. The former president and his party cannot decide whether the revolt at the United States Capitol to disrupt and prevent the constitutional counting of the votes for the presidency was needed, and therefore whether another revolt might be needed at a future date to accomplish that which the previous revolt failed to accomplish.

The former president’s party cynically and embarrassingly rationalizes January 6 as having been something between hallowed, legitimate public discourse and a visitors tour of the Capitol that got out of hand. January 6, of course, was neither, and the former president and his party know that. It was not legitimate public discourse by any definition. Nor was it a civics tour of the Capitol Building — though that day proved to be an eye-opening civics lesson for all Americans.

Thus, for the rest of us Americans, the time has come for us to decide whether we allow this war over our democracy to be prosecuted to its catastrophic end or whether we ourselves demand the immediate suspension of this war and insist on peace instead.

We must make this decision because our political leaders are unwilling and unable, even as they recklessly prosecute this war in our name. We Americans begin to make this consequential decision this week, when Congress, rightly if painfully, takes us back to that day in January we want so much to forget but mustn’t, and reminds us of what was at stake that day and still, in what is this most unholy of wars.

America’s democracy was almost stolen from us on January 6.

Our democracy has never been tested like it was on that day and it will never be tested again as it was then if we learn the lessons of that fateful day. On the other hand, if we fail to learn the lessons that are there to be learned, or worse, deny even that there are lessons there to be learned, we will consign ourselves to another January 6 in the not-too-distant future, and another after that, and another after that. While for some, that is their wish, that cannot be our wish for America.

We cannot hobble along much longer, politically paralyzed and hopelessly divided, directionless and undecided as to which revival it will be — if any at all.

Where do we begin? This is the easier question. Who has the patriotic and political courage to go first? This is the harder question.

In order to end these wars that are draining the lifeblood from our country, a critical mass of our two parties’ political leaders is needed, to whom the remainder would be willing to listen, at least without immediate partisan recrimination. The logic for reconciliation of these wars being waged in America today dictates that this number needs to include a critical mass of leaders from the former president’s political party and that those leaders need to go first. All of these leaders then need to summon first the moral courage and then the political courage, the strength, and the patriotic will to extend their hands, and ask of the others — and of all Americans — “Can we talk? America needs us.”

Then we need to get back to work, and quickly. We need to get back to the solemn business of preserving, protecting, and defending the Constitution of the United States and the United States of America.

The hour is late. God is watching us.

Full statement here: https://s3.documentcloud.org/documents/22061497/jml-final.pdf

The election is only about principals, values and morals. You either have them or you don’t.

The press keeps yammering about Trump policies and Harris policies and “the economy” and “immigration: as if that’s what it’s about.

This guy knows what it’s about:

Retired federal appeals court Judge J. Michael Luttig, a prominent conservative legal scholar put on the bench by President George H.W. Bush, is endorsing Vice President Kamala Harris over former President Donald Trump, whose candidacy he describes as an existential threat to American democracy

It will be the first time Luttig, a veteran of two Republican administrations, has voted for a Democrat.

“In the presidential election of 2024 there is only one political party and one candidate for the presidency that can claim the mantle of defender and protector of America’s Democracy, the Constitution, and the Rule of Law,” Luttig wrote in a statement obtained exclusively by CNN. “As a result, I will unhesitatingly vote for the Democratic Party’s candidate for the Presidency of the United States, Vice President of the United States, Kamala Harris.”

“In voting for Vice President Harris, I assume that her public policy views are vastly different from my own,” Luttig writes, “but I am indifferent in this election as to her policy views on any issues other than America’s Democracy, the Constitution, and the Rule of Law, as I believe all Americans should be.”

I probably disagree with this man on virtually everything when it comes to “policies” too. But he is a level headed person of integrity who believes in democracy and the rule of law. There used to be a lot more conservatives like him but I guess they all died.

You can read his entire statement here.

What are you prepared to do to stop it?

The U.S. Supreme Court on Monday all but guaranteed this country has dictatorship in its future. If not under “your favorite president,” as Trump the imperial might say, then under another, smarter, more skilled autocrat. “[T]his ruling is a brazen and dangerous expansion of presidential power in ways that entrench a deep climate of impunity,” constitutional scholar Aziz Rana tells The Ink. But you knew that.

Jim VandeHei and Mike Allen report at Axios that if elected Trump will “immediately test the boundaries of presidential and governing power.” (What boundaries?)

Axios:

The big picture: Trump promises an unabashedly imperial presidency — one that would turn the Justice Department against critics, deport millions of people in the U.S. illegally, slap 10% tariffs on thousands of products, and fire perhaps tens of thousands of government staff deemed insufficiently loyal.

• He’d stretch the powers of the presidency in ways not seen in our lifetime. He says this consistently and clearly — so it’s not conjecture.

You might like this or loathe this. But it’s coming, fast and furious, if he’s elected.

• Thanks to Monday’s Supreme Court ruling, Trump could pursue his plans without fear of punishment or restraint.

What to watch: To hear Trump and his allies tell it, this is how early 2025 would unfold if he wins:

1. A re-elected Trump would quickly set up vast camps and deport millions of people in the U.S. illegally. He could invoke the Insurrection Act and use troops to lock down the southern border.

2. In Washington, Trump would move to fire potentially tens of thousands of civil servants using a controversial interpretation of law and procedure. He’d replace many of them with pre-vetted loyalists.

3. He’d centralize power over the Justice Department, historically an independent check on presidential power. He plans to nominate a trusted loyalist for attorney general, and has threatened to target and even imprison critics. He could demand the federal cases against him cease immediately.

4. Many of the Jan. 6 convicts could be pardoned — a promise Trump has made at campaign rallies, where he hails them as patriots, not criminals. Investigations of the Bidens would begin.

5. Trump says he’d slap 10% tariffs on most imported goods, igniting a possible trade war and risking short-term inflation. He argues this would give him leverage to create better trade terms to benefit consumers.

6. Conversation would intensify about when Justices Clarence Thomas, 76, and Sam Alito, 74, would retire.

• Lists of potential successors are already drawn up.
• President Biden said last month that “the next president is likely to have two new Supreme Court nominees.”
• If Trump were to win and the two oldest justices retired, five of the nine justices would have been handpicked by Trump.

There’s more if you have the stomach for it.

This toxic, authoritarian movement, for all it’s flag-waving and pretensions to patriotism, is anything but American. And never was. It is a knife to the throat of this republic. There are people in this country who want a dictator and a one-party state. Some of them wear black robes and accept bribes. But the bribes are just a perk. They are true believers in something other than the Constitution they are tasked for life with interpreting.

"Somewhere along the way there are a majority of justices on this court who decided that they needed to be the last word on everything. That they could no longer trust the apparatus of democracy." Sherrilyn Ifill emphasizes the severity of the Supreme Court's immunity ruling pic.twitter.com/UpgnIvYmSk

— Maddow Blog (@MaddowBlog) July 2, 2024

Monday made it all that much more chilling.

How bad was today's Supreme Court decision?

If reelected Trump could assassinate his political opponents as long as he cited a statute or constitutional provision for doing so.

We are in real danger.

— Marc E. Elias (@marceelias) July 1, 2024

“When the president does it, that means that it is not illegal."

Richard Nixon, 1974

Affirmed, US Supreme Court, 2024

— John W. Dean (@JohnWDean) July 1, 2024

It can never again be said that in America “no man is above the law.”  The Supreme Court held today that the President of the United States — and the former president in particular — is above the law, and the only person in America who is above the law.

— @judgeluttig (@judgeluttig) July 1, 2024

Guess who had televised "trials" and "confessions" for dissidents/businessmen accused of corruption/non-loyalists? Gaddafi. I analyze them in #Strongmen, propaganda chapter. https://t.co/p7zVBT6fYy

— Ruth Ben-Ghiat (@ruthbenghiat) July 2, 2024

Donald – This is the type of thing that demonstrates yet again that you are not a stable adult—and are not fit for office. https://t.co/AXES2YkD95

— Liz Cheney (@Liz_Cheney) July 1, 2024

But at the end of election night we still count votes, not age or ideology. Best you round up as many as you can before Trump 2.0 starts rounding you up.

Oh, and MAGA? Turn in your flags.

● ● ● ● ● ● ● ●

For The Win, 5th Edition is ready for download. Request a copy of my free countywide GOTV planning guide at ForTheWin.us.

“There is no failsafe system of government, meaning, we have a judicial system that has layers and layers of protection for the accused in the hopes that the innocent will go free. We fail. Routinely. But we succeed more often than not. In the vast majority of cases, the innocent do go free. But we still fail. We’ve executed innocent people. Having said that, Alito went through a step by step of all the mechanisms that could potentially fail. In the end, if it fails completely, it’s because we’ve destroyed our democracy on our own.

The argument today was depressing. It seems clear that the cult of Unitary Executive is very intrigued by the idea of granting full immunity to a president. That cult is a majority of the court.

He seriously said that.

This was a terrifying Supreme Court argument. It’s clear that the majority actually favors Trump’s argument that a president must have immunity. Whether they are willing to go that far remains to be seen but it’s almost certain now that the J6 trial will likely not likely see the light of day before the election.

We are in big trouble, people. Big. Trouble.

Update:

Judge Michael Luttig wrote:

As with the three-hour argument in Trump v. Anderson, a disconcertingly precious little of the two-hour argument today was even devoted to the specific and only question presented for decision. 

The Court and the parties discussed everything but the specific question presented. 

That question is simply whether a former President of the United States may be prosecuted for attempting to remain in power notwithstanding the election of his successor by the American People. 

thereby also depriving his lawfully elected successor of the powers of the presidency to which that successor became entitled upon his rightful election by the American People — and preventing the peaceful transfer of power for the first time in American history. 

It is not even arguably a core power or function of the President of the United States to ensure the fairness, accuracy, and integrity of a presidential election. 

Let alone is it a core power or function of the President of the United States to ensure the proper certification of the next president by the Congress of the United States. Neither of these is a power or function of the president at all. 

In fact, the Framers of the Constitution well understood the enormous potential for self-interested conflict were the President to have a role in these fundamental constitutional functions. 

Consequently, they purposely and pointedly withheld from the President any role in these fundamental constitutional functions. 

To whatever extent the Framers implicitly provided in the Executive any role whatsoever in these fundamental constitutional functions, it was a limited role for the Executive Branch, 

through the Department of Justice, to inquire into allegations of fraud in presidential elections and ensure that the election was free, fair, and accurate. 

The former president’s Department of Justice did just that and found that there was no fraud sufficient to draw into question the results of the 2020 presidential election. 

The former president of course has refused to this day to accept that finding by not only his own Department of Justice, but also countless others of his closest advisors. 

Whether undertaken in his or her “official,” “candidate,” or “personal” capacity, a President of the United States has never been and can never be immune from prosecution (after leaving office), 

for having attempted to remain in power notwithstanding the election of that President’s successor by the American People. 

Consequently, there is no reason whatsoever for the Supreme Court to remand to the lower courts for a determination of which of the alleged criminal acts might have been personal and which might have been official. 

Neither is a clear statement from Congress that a president is subject to prosecution under the statutes with which the former president has been charged necessary in this particular case. 

As applied to the former president for the criminal conduct with which he has been charged, there can be no question but that Congress intended a President of the United States to come within the ambit of the statutory offenses with which he has been charged. 

For the same reason, it would be ludicrous to contend that the former president was not on sufficient notice that if he committed the criminal acts charged, he would be subject to criminal prosecution by the United States of America. 

To hold otherwise would make a mockery out of the “plain statement” rule. 

I wouldn’t hold my breath.

Dan Pfeiffer on the Supremes’ decision to help Trump’s delaying tactics:

Thanks to the shenanigans of Mitch McConnell, Donald Trump appointed three justices to the Supreme Court. Yesterday, the MAGA justices thanked Trump by giving him a massive, possibly campaign-altering gift. On Wednesday afternoon, the Supreme Court agreed to take on Trump’s claim that former presidents are immune from criminal prosecution for acts that occurred while they were in office. The icing on the cake is that the Supreme Court scheduled the hearing on an “expedited basis” for April 22nd, further delaying Trump’s trial. Thanks to a corrupt Supreme Court, the most important of Trump’s four (yes, four!) criminal trials may not be finished before Americans cast their ballots in November.

There is no reason for the court to wait six weeks before holding the hearings. On a matter this urgent, they could have moved much faster. Every day of delay helps Trump avoid accountability. If Trump wins in November, he could preemptively pardon himself or have his Department of Justice drop the charges. In addition to being a travesty for the rule of law, there are also significant political implications.

This may be the most blatant Supreme Court intervention in a campaign since Bush v. Gore — with the same result. Disregarding that three of the nine justices were appointed by Trump; Clarence Thomas also has a massive conflict of interest because his wife was involved in the insurrection for which Trump seeks immunity.

Polls have shown that a conviction could cost Trump the election. In the February NBC News poll, Trump led Biden 47-42, but when voters were asked how they would vote if Trump were found guilty and convicted of a felony, Biden led 45-43. Exit polls in the GOP primaries indicate that 30 to 40% of Republican primary voters wouldn’t view Trump as fit for the presidency.

Democrats in my text chains and on social media are equal parts enraged and despondent over the news. I share the rage but not the despondency (yet). Here are some quick thoughts on what it means.

Pfeiffer says that the trial still might happen before the election but I think we all know that’s probably a long shot. Had they had any desire for that to happen they could have taken the case back in December when both Trump and Smith asked them to. Instead they waited for the appeals court, which also took its time, and then sat on that for a couple of weeks before agreeing to take it, scheduling arguments sex weeks later. As Luttig said yesterday, it’s clear there are dissents from the appeals court decision and that means they will almost certainly drag it out to the end of the term at the end of June.

Pfeiffer mentions the New York case which is looking more and more like the only one that’s going to have Trump facing a jury before the election.

Trump is still on the hook for his crimes and election interference. The Supreme Court stay means that the trial in Manhattan over Trump’s use of campaign funds to pay hush money to cover up an affair will begin before too long. That case will almost certainly finish well before the election. Voters might actually determine whether they are willing to send a convicted felon to the White House. Because it is not a federal case, newly elected Trump cannot pardon himself or commute his own sentence.

There are two downsides to the Manhattan case. One, polls show that of all of Trump’s crimes, violating campaign finance laws to cover up an affair is not as concerning to voters as illegally hoarding classified documents or fomenting an insurrection. Two, these sorts of crimes rarely end in jail time for first-time offenders. So, our dreams of watching Trump frogmarched into prison may have to wait for another day.

Not only that, there’s actually a good chance that Trump will be found not guilty in that case in which case he will emerge once more as Teflon Don, spurring some of the bandwagon types to rally around him because he’s so untouchable. That was always the risk of any trials before the election but in the other cases the issues are so important, it might have been offset by the outrage that he got away with it. If gets off on this case it won’t have that effect.

The polls say that a good number of people wouldn’t vote for a convicted felon so people have been counting on that to turn the tide. I never thought that was anything we should count on. people have a way of rationalizing anything to support their decisions.

Pfeiffer writes:

Some worried Democrats comforted themselves by believing that Trump’s chances to return to the White House would end with a conviction. No trial before the election means no conviction.

Trump may avoid facing a jury before he faces the voters because of blatantly partisan shenanigans. This will further besmirch Chief Justice John Roberts’ already abysmal legacy. It’s an attempt at election inference from the highest court in the land.

Would it be easier to beat Trump if he were convicted of a crime before the election? Absolutely!

Does Joe Biden need Donald Trump to be convicted to win? Absolutely not!

This is a close race. Biden has a very good argument for reelection. He — and every Democrat — should make some chicken salad out of this chicken shit. Let’s fire up our base by calling out the Supreme Court, which has its lowest approval rating in history, for trying to rig the election. And then let’s make an argument against Trump that will ring true to the voters we need:

Donald Trump is running for President for one reason and one reason only — to avoid accountability for crimes he committed. He’s not thinking about you or your family. He only cares about himself. If elected, his first act will be to pardon himself because he believes that rich and powerful people don’t have to play by the same rules as the rest of us.

Sounds good to me. I would add that he’s also running for president to exact revenge because he’s the greatest sore loser in world history but that’s just me…

They decided to take the immunity case so they’ll hear oral arguments two months from now despite what everyone believes is a bulletproof appellate decision. They didn’t need to hear it and if they did, they sure as hell could have made that decision weeks ago. It’s pretty clear they’re going to slow walk this thing so there’s little chance of a trial before the election.

Former Judge Michael Luttig happened to be on MSNBC when this came down and he said that the fact that they’ve decided to hear this case indicates that there are dissents from the appellate decision. (Gee, I wonder who that could be?) As a result, there is every likelihood that if their ultimate decision is that a president can’t be a blatant criminal with total immunity, there will be dissents and they will take their sweet time.

Recall, it didn’t used to be that way:

It was on [July 24] in 1974 that the U.S. Supreme Court dealt a fatal blow to President Richard Nixon’s presidency, in a decision that led to the release of the Watergate tapes.

The case of United States v. Nixon reached the Court on July 8, 1974, after it had concluded its prior term. The Justices found themselves in new territory as the Court had to deal with an executive privilege claim filed by President Nixon’s attorneys.

A grand jury had returned indictments against seven Nixon aides, including former Attorney General John Mitchell, as part of the Watergate investigation. Leon Jaworski, a special prosecutor appointed by President Nixon, and the seven defendants wanted access to audio tapes of conversations recorded by President Nixon in the White House.

Nixon argued that  the concept of executive privilege gave him the power to withhold sensitive information, such as the tapes, from other government branches in order to maintain confidential communications within the executive branch and to secure the national interest.

On July 24, 1974, a unanimous Court (with Justice Rehnquist not taking part due to a prior role in the Nixon administration) ruled against the President. Chief Justice Warren Burger said that the President didn’t have an absolute, unqualified privilege to withhold information.

“We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial,” Burger said.

I lost all respect for the Court when they took Bush v Gore and then decided it on the most fatuous logic ever with a 5-4 partisan decision. I have had little faith in the institution ever since then. By the way, the Bush campaign filed for a stay of the recount on December 8, 2000, the court granted it immediately and agreed to take up the case and then released their decision on December 12. As you can see with US v. Nixon and Bush v. Gore, it doesn’t have to take this long.

I suppose there might be a silver lining in this, but only if the court ultimately decides that a president isn’t immune from the rule of law. If that happens then the election campaign becomes electrified, probably on both sides. We know that if he’s re-elected, on January 20th he will immediately order the DOJ to drop the case or give himself a pardon. If that doesn’t sober up anyone who cares about our country, nothing will.

If the court decides that a president has immunity from prosecution we are not longer a democracy. Even if Trump subsequently loses the election, this will almost certainly end up with a Republican president in the not so distant future who will test this in ways even Trump hasn’t thought of.

Judge Luttig on #DeadlineWH says there is no reason for #SCOTUS to take the Trump immunity claim, " Look, this is a momentous decision, just to hear this case. There was no reason in this world for the Supreme Court to take this case." pic.twitter.com/daOG14pxxG

— Sarah Reese Jones (@PoliticusSarah) February 28, 2024

No, not a Tom Hanks sequel

The Colorado Supreme Court on Tuesday ruled 4-3 that Section 3 of the Fourteenth Amendment is not a dead letter. The court found Donald J. Trump ineligible to appear on the 2024 Colorado primary ballot. The Jan. 6 violence was consciously encouraged by Trump, that the violence constituted an insurrection, that his actions are disqualifying, and that no legislative action is required to make it so. The provision is self-executing.

The case brought by several Republicans and one independent voter charged that it would violate state election law if Secretary of State Jena Griswold placed an ineligible candidate on the Colorado primary ballot. Specifically, that Trump is ineligible (Washington Post):

“A majority of the court holds that President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to the United States Constitution,” the decision reads. “Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot.”

[…]

“We do not reach these conclusions lightly,” the majority wrote. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”

Don’t be absurd

The Colorado court’s decision (between the lines) includes numerous FUs to the former president and his hapless attorneys.

The amendment’s other sections require no enabling legislation, the court found. Section 3 adds a disqualification to the constitution’s existing qualification for the presidency, no different from the age and citizenship requirements. The court cites multiple cases where states held those provisions to be self-executing (pg. 31). California refused to place a twenty-seven-year-old on the presidential ballot; Colorado (in the Hassan case involving then-Judge Neil Gorsuch) excluded a naturalized citizen from the presidential ballot; Illinois found a thirty-one-year-old candidate disqualified from its presidential ballot.

Now-Justice Gorsuch wrote in the Hassan decision he surely must remember:

… it is “a state’s legitimate interest in protecting the integrity and practical functioning of the political process” that “permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”

The court brushed aside Trump’s arguments that in exercising its right to free association a political party has the right to nominate whomever it chooses. Could it then nominate that twenty-seven-year-old or someone not a natural-born citizen? No. Don’t be absurd, the court did not add.

The argument that Section 3 does not apply to the presidency the court also found absurd (CNN):

Section 3 of the 14th Amendment says oath-breaking insurrectionists can’t serve as senators, representatives, presidential electors, “or hold any office, civil or military, under the United States, or under any State.” But it doesn’t mention the presidency.

This textual vagueness is why the trial judge kept Trump on the 2024 ballot. But the high court disagreed. And this was the linchpin of their decision to disqualify Trump.

Trump argued that as mentioned in Section 3 the presidency is not an “office” under the Constitution. But the court finds 25 times elsewhere in the Constitution where the presidency is referred to as an “Office” (i.e., you’re wasting our time).

The court concludes (pg. 127):

Our independent review of the record in this case brings us to the same conclusion: President Trump incited and encouraged the use of violence and lawless action to disrupt the peaceful transfer of power. The tenor of President Trump’s messages to his supporters in exhorting them to travel to Washington, D.C. on January 6 was obvious and unmistakable: the allegedly rigged election was an act of war and those victimized by it had an obligation to fight back and to fight aggressively. And President Trump’s supporters did not miss or misunderstand the message: the cavalry was coming to fight.

The decision itself is “unassailable” in the opinion of retired conservative appellate judge J. Michael Luttig (CNN):

“The individual justices of the Colorado Supreme Court brought honor to their court as well to the state and federal judiciaries with their opinion tonight in this historic case,” Luttig told CNN’s Pamela Brown on “AC360” Tuesday, describing their “meticulous” efforts to address all the issues involved in the case.

“Their opinion is unassailable under the objective law of the federal constitution and section 3 of the 14th Amendment. The Supreme Court of the United States ought to affirm this decision today,” he added.

The unprecedented decision opens a can of worms and raises too many questions to answer this morning.

What will SCOTUS decide? Will John Roberts find a way to “not mix in” and/or let the Colorado decision stand? Will other states follow if that happens or if the Supremes uphold Colorado? Will Republicans nominate someone else if they do? (Can RNC members afford the private security?) Will Justice Clarence Thomas, wife of Ginny of Insurrection, recuse? Will the outcome help Joe Biden or hurt him?

Amanda Marcotte worries what happens if Trump gets stripped off several state ballots (Salon):

All of those never-Trumpers we thought were our buddies will abandon the #Resistance so fast it will make Democratic heads spin. And the MAGA types could be so angry about losing Dear Leader they will rush the polls to vote as hard against Biden as possible. 

David Frum admits his predictions about the case were wrong and believes it more likely Trump will not be the GOP nominee. SCOTUS now has an opportunity to save itself and the republic on which Clarence Thomas‘ paycheck stands (The Atlantic):

The U.S. Supreme Court now has the opportunity to offer Republicans an exit from their Trump predicament, in time to let some non-insurrectionist candidate win the Republican nomination and contest the presidency.

The Colorado court has invited the U.S. political system away from authoritarian disaster back to normal politics—back to a race where the Biden-Harris ticket faces more or less normal opponents, rather than an ex-president who openly yearns to be a dictator.

Naturally, MAGA Republicans are not amused (CNN):

Republican National Committee Chairwoman Ronna McDaniel attacked the Colorado Supreme Court’s decision to remove former President Donald Trump from the state’s 2024 ballot

She called it “election interference” in a post to X, and said the RNC’s legal team “looks forward to helping fight for a victory.”

House Speaker Mike Johnson said the ruling was “nothing but a thinly veiled partisan attack.” He said voters should be able to decide the nominee.

“Regardless of political affiliation, every citizen registered to vote should not be denied the right to support our former president and the individual who is the leader in every poll of the Republican primary,” Johnson said.

The decision is on hold until January 4, one day before Griswold is required to set the March 5 primary ballot candidate list in stone. This will allow the U.S. Supreme Court time to decide whether it will review the case. Which it almost certainly will. Trump will insist.

Happy Hollandaise to all y’all!

Tread carefully or go for it?

Pick your metaphor. Whistling past a graveyard. Tiptoeing through a minefield. Every day feels like the country is doing a tightrope walk between the Twin Towers. And we know what happened to them.

The question of Donald Trump’s qualification for any elected office is a hot potato neither the courts nor election officials nor Congress want to touch.

Hayes Brown writes:

Efforts to block former President Donald Trump from being on the ballot next year have yet to score a major win in court. Nobody in power seems willing to decide whether the 14th Amendment’s insurrection clause disqualifies him from returning to the White House. Instead, judges and state officials have either pawned off that decision to someone else or determined that there will be some other, better time to make a judgment.

The result is a rapidly shrinking window for that decision to be made. And, based on the standard in a ruling issued in Michigan on Tuesday, we might not know the answer until after all the votes have been cast on Election Day next year. It might be after the presidential electors have met and submitted their ballots. It might come down to Congress on Jan. 6, 2025, to decide whether Trump is even eligible to become president.

Earlier this year, legal scholars, including prominent conservatives, came out in support of the idea that Trump is constitutionally ineligible for office and that it fell to election officials to enforce Section 3 of the 14th Amendment. (That section bars from federal and state office anyone who previously swore to support the Constitution but then had “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”) Since then, much of the energy from democracy activists and lawyers has focused on convincing secretaries of state of the argument, but they’ve met with either hesitancy or outright rejection from officials. At best, as in the case of Michigan’s Jocelyn Benson, there has been an openness to acting — provided, that is, that a court rules whether Trump’s role in the Jan. 6, 2021, attack on the Capitol triggered the insurrection clause.

But one of the cases seeking such a ruling fell short on Tuesday. Judge James Robert Redford rightfully noted in his decision that Michigan state law doesn’t provide for the secretary of state to block a party from naming a primary candidate. The Minnesota Supreme Court reached a similar conclusion last week, finding that the question of whether Trump could appear on the general election ballot wasn’t “ripe” or “about to occur.”

Because there has been no primary in Minnesota and Trump is not the official candidate for the Republican Party. Yet. The court brought in a basin and washed its hands.

The Minnesota court didn’t close the door on another challenge later. But as my colleague Jordan Rubin noted, Redford suggested that even the general election might not be enough to warrant the courts’ intervening. Instead, Redford said, the whole thing might be a “political question” best left to the people or their elected representatives. The judge further noted that the Constitution’s 12th and 20th Amendments directly deal with the election of the president and the vice president and that both of them give that role to Congress.

It’s worth pausing here to take a step back and note that technically it’s the Electoral College that votes for president. And though the drafters of the Constitution foresaw electors as independent, well-respected members of the community who would adjudicate the candidates’ qualifications, that’s not how it has played out. Each state generally assigns its electoral votes based on who won the popular vote, which is reflected in partisan slates of Electoral College members. Those slates then vote for their parties’ chosen candidates, and those votes are then transmitted to Congress to be counted.

Congress amended the Electoral Count Reform Act  to prevent the kinds of electoral vote scheming for which Trump and his alleged accomplices face criminal charges.

Even Trump appealing any 14th Amendment ruling against him to the U.S. Supreme Court might not result in a final decision. The court could dismiss it as a nonjusticiable political question “beyond the reach of the federal courts,” as it did in Rucho v. Common Cause. They washed their hands too. That’s not so say the conservative majority would, but it could, as Brown notes.

WWCD: What would Congress do on January 6, 2025 if Trump won?

Bear in mind that this would be taking place in a world where Trump has won not only the GOP nomination but also the general election. While many of the pending cases may hope to reach the Supreme Court for a ruling ahead of the election, it’s possible that the conservative justices would also punt while citing the “political question” doctrine. If that’s the case, it’s difficult to see this as not being one of the biggest questions for members of Congress on the campaign trail leading up to 2024: “Will you vote to disqualify Donald Trump on Jan. 6?”

That’s exactly the kind of chaos that organizers hoped to prevent in trying to prevent Trump from being a candidate at all. Because, unlike his coup attempt, Congress in this case would be fulfilling its constitutional duty if it were to disqualify Trump when it counts electoral votes. It would be an act of delayed justice after the Senate acquitted him in his second impeachment trial and lost the accompanying chance to bar him from holding future office. At the time, the argument from Republicans like Sen. Mitch McConnell was that the courts would be the one to hold him accountable, a deeply ironic sentiment given the courts’ insistence that it’s a matter for Congress.

And yet, in a very real sense, it can’t be ignored that disqualifying Trump this way would be Congress’ doing exactly what Trump has, in his projection, accused Democrats of doing: trying to reverse the results of an election. The fact that Trump was most likely never eligible wouldn’t matter. The Republican Party, in allowing him to run and making him its nominee, will have known this was a possibility but will still support his cries that the whole system is rigged. And if we are forced to spend the next 14 months in suspense, it will only increase the chances that, when faced with this monumental decision, Congress will falter.

There’s not enough antacid in all the drugstores for this.