Mark Esper, who served as the United States secretary of defense under Donald Trump, warned the former president “is a threat to democracy” — telling CNN Trump is “not right” and can’t beat President Joe Biden in the general election.
Esper on Tuesday was asked about a Washington Post article that revealed many of Trump’s former Cabinet members — including former chief of staff John Kelly — believe he’s unfit to hold office.
“You have previously said that Trump ‘unprincipled’ and should not be in the position of public service,” CNN’s Poppy Harlow began. “Will you work to publicly fight the lead that he has now or are you going to stay on the sidelines?”
“I have been very clear about this matter for three years since my book came out,” Esper said. “I have been on the record multiple times and I don’t think he should be president. I don’t think he is qualified. I think he is a threat to democracy. I will do whatever i can to try to make sure that doesn’t happen.”
Esper argued there are “good Republicans in the Republican primary that could deliver on conservative principles and goals and objectives, but also unify the party, and when put [them] in the White House … I think can unify the country.”
Asked to “elaborate” on what he’ll personally do to keep Trump out of office, Esper noted, “Here I am talking to you this morning trying to convince my fellow Republicans that Donald Trump is not right. I don’t think Donald Trump can beat Joe Biden either. Other Republicans have said that. I want to do whatever I can to make sure that Donald Trump is not the nominee and we get a Republican in the Oval Office in 2025. “
Let’s hope he means it and he has many others on his side. There is a chance that swing voters who voted Republican in the past and may have voted Biden but are souring on politics today can be reminded that people they used to respect are sounding a shrill alarm. It’s probably going to be necessary because we have craven gadflies all over the place trying to convince young voters who don’t know any better that it’s very important that they protest vote to “send a message.” (That’s a message that Trump will never hear.) The Dems have to get every swing voter they can and those are people who may listen to guys like Esper and John Kelly and others like them. It must be a sustained campaign.
Very recent comments by now-Speaker Mike Johnson brought to mind Rev. Jeremiah Wright’s “God damn America” sermon for the Bulwark’s Tim Miller. Asked if America faces a time of judgment, Johnson replied:
You all know the terrible state that we’re in. . . . The faith in our institutions is the lowest it’s ever been in the history of our nation. The culture is so dark and depraved that it almost seems irredeemable at this point. The church attendance in America dropped below 50 percent for the first time in our history since they began to measure the data sixty years ago. And the number of people who do not believe in absolute truth is now above the majority for the first time. One in three teen girls contemplated suicide last year. One in four high school students identify as something other than straight. We’re losing the country.
The divergent right-wing outrage over Wright’s sermon and non-response to Johnson’s criticism of America reflects more than a double standard for black preachers and white politicians, Miller finds. Even though in a sense their critiques of America’s failings contain similarities. The differences are more significant.
Johnson is saying that the American people are sick, present tense. That our culture is dark and irredeemable. That non-binary youth and people not attending church are causing us to fall from grace.
Wright argued that our government is sick. That those in power have marginalized certain groups and failed them.
Johnson is damning the American people, while Wright is damning the American government. So if you were inclined to be offended by one of these statements on behalf of our nation’s honor and dignity, on its face it seems Johnson’s critique was more sweeping and censorious.
Johnson wouldn’t be a white Christian nationalist if his comments weren’t steeped in othering, Miller notes:
In the dominant American culture, black men aren’t given the same leeway to criticize America that whites are. A white Christian patriot can talk about how things in America have gone to shit because of our sinfulness and his fellow white Christian patriots understand that they are not the ones being criticized. The connotation in his remarks does not point the finger at themselves or at the foundational core of the nation. Johnson is saying that Those People Over There Are Taking America Away From God. “We” are losing the country to “them.”
The “them” might be gays or critical race theorists or people with nose rings or liberals or Jews or Bud Light PR reps or woke teachers or atheists or someone else entirely depending on the day. But the not-quite-explicitly-spoken-but-completely-understood argument is: They are bad. We have done nothing. We are being punished for their sins.
So for Johnson’s allies there is nothing to be upset about in this condemnation of America, obviously. And Johnson’s foes don’t really care much about the moral judgment of someone they find morally repulsive.
But when a black pastor damns America that’s a different ball of wax.
The difference is over whose ox is being gored. (Does anyone use that anymore?) Miller observes, “For Wright to say that these actions of the American government are fundamentally sinful hits at the heart of the national story, ego, and identity.” Guess whose?
“Wright was not merely saying that America did bad things via its government but that we ourselves in some sense are bad.”
THAT, suh, is an insult to mah honor.
Ask a white person to feel shame over America’s past? Why … why … that’s almost worse than a Black man looking sideways at the flower of Southern womanhood. Which is why over a decade later Republicans assuage their hurt egos by dragging out the Wright sermon to drag black politicians. Johnson’s remarks barely raised a ripple.
Thomas F. Eagleton United States Courthouse in St. Louis, home to the United States District Court for the Eastern District of Missouri and the United States Court of Appeals for the Eighth Circuit. Photo by Johnhochi via Wikipedia (CC BY-SA 4.0).
How will the U.S. Supreme Court take to having a lower court essentially invalidate its recent Voting Rights Act decision in Allen v. Milligan?
A federal appeals court moved on Monday to drastically weaken the Voting Rights Act, issuing a ruling that would effectively bar private citizens and civil rights groups from filing lawsuits under a central provision of the landmark civil rights law.
The ruling, made by the U.S. Court of Appeals for the Eighth Circuit, found that only the federal government could bring a legal challenge under Section 2 of the Voting Rights Act, a crucial part of the law that prohibits election or voting practices that discriminate against Americans based on race.
The opinion is almost certain to be appealed to the Supreme Court. The court’s current conservative majority has issued several key decisions in recent years that have weakened the Voting Rights Act. But the justices have upheld the law in other instances, including in a June ruling that found Alabama had drawn a racially discriminatory congressional map.
Yeah, that’s bullshit. For background on the Private Right of Action, see here. Democracy Docket weighs in on the Eight Circuit’s attempted erasure of the PROA under the VRA:
Now, under today’s ruling only the U.S. attorney general, who brings relatively few election-related cases each year, would be able to bring Section 2 claims in the seven states in the 8th Circuit: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.
This decision hurts voters and organizations who seek to ensure voters are fairly represented across the 8th Circuit and who will no longer be able to file Section 2 cases if and when Republicans abuse the redistricting process to draw racially discriminatory districts. As the dissent cites from experts,
Over the past forty years, there have been at least 182 successful Section 2 cases; of those 182 cases, only 15 were brought solely by the Attorney General.
It is clear that the ability of private parties to bring these lawsuits has made an insurmountable impact on the fight for fair maps.
They’re really reaching now. Or should we say yanking the Overton Window? Who are they? Charlie Pierce checked:
It probably goes without saying but the Eighth Circuit is loaded with Republican appointees, including four lovely parting gifts from the previous administration*. Here is the roster of amici who weighed in on the side of Governor Sarah Huckabee Sanders and the state of Arkansas.
Honest Elections Project; Senator Tom Cotton; State of Texas; State of Alabama; State of Florida; State of Georgia; State of Indiana; State of Kentucky; State of Louisiana; State of Mississippi; State of Missouri; State of Montana; State of Nebraska; State of Oklahoma; State of South Carolina; State of Utah.
Let’s see — Conservative dark money group, bobble-throated slapdick, Confederate state, Confederate state, Confederate state, Red state, Red state, Confederate State, Uber-Confederate state, Red state, Red state, Red state. Home office of American sedition, Mormonland. The opinion was written by Judge David Stras, one of the lovely parting gifts from Camp Runamuck. His confirmation was, as they say, rocky. In the first place, then-Judiciary chairman Senator Chuck Grassley ignored a blue slip on the nomination from then-Senator Al Franken of Minnesota and brought Stras forward anyway. This was a cynical maneuver by Grassley, who had treated the blue slip like Holy Writ during the Obama administration. Grassley’s gross hypocrisy was part of the reason why the Leadership Conference of Civil and Human Rights sent a letter to all the senators opposing Stras’ elevation to the bench. You will note from the letter that, during his time on the Minnesota Supreme Court, Stras was very fond of measures that would restrict the franchise. He was not a big fan of historic civil rights legislation in any context. From the Minneapolis Star-Tribune:
Stras, in his words and writings, has suggested he’d prefer that judges worry less about their “moral and ethical obligations” to the country. Stras once lamented that the Supreme Court’s “ventures into the contentious areas of social policy — such as school integration, abortion and homosexual rights” have politicized judicial nominations.
Voting and election rights attorney Marc Elias responds, “I expect virtually every other Circuit would say there is a PROA. And, I expect the Supreme Court will too.”
Doesn’t mean the fringiest of the Federalist Society won’t stop trying.
There was a piece in the Washington Post this weekend about a group of swing voters in Wisconsin who are sick of our politics and are tuning out because they just can’t stand it. Ok, I can understand that. They are horrible and it’s because the right has turned our politics into a disgusting blood sport and it’s very hard to stay engaged without getting cynical and depressed,
But that’s not how these swing voters interpret their ennui. In fact, they don’t seem to see the effect that Trump and his cult are having at all and blame it all on “politics.”
David Roberts had a short tweet thread on this that I thought hit the nail on the head:
This article is worth examining closely. It’s a classic “visit a swing county to hear about politics” piece, so it forces itself to be even-handed & “pox on both houses,” but if you read closely you can glimpse something else.
Why are they upset? “the broader political backdrop— the impeachments, Trump’s torrent of falsehoods about the 2020 election, the Capitol insurrection, the band of hard-right Republicans ousting their speaker —has blocked out notice of what both sides cast as accomplishments…”
Hm… what do all those things have in common? Oh, they’re all about Republican extremism! It’s relentless GOP agitprop & anger & corruption & hysteria that is making politics so draining. Because making people sick of politics *serves the right’s interests*.
Here you see what might have been an alternate framing of the article: “the right’s quest to make politics toxic & to destroy citizens’ trust in basic political & media institutions is working.” The lead anecdote is about a woman seeing a *psychic* for answers.
Then there’s this: “They long for compromise. They want to feel heard and understood. Most Americans, for instance, desire access to abortion, tighter restrictions on guns and affordable health care. Many wonder why our laws don’t reflect that.”
There’s a party that talks constantly about compromise & making sure everyone’s heard. It supports access to abortion, tighter restrictions on guns, & more affordable health care. It’s the Democratic Party. It borders on performance art to refrain from saying so in that graf!
An then this, from a swing voter:
“I can’t really speak to anything [Biden] has done,” he said, “because I’ve tuned it out, like a lot of people have. We’re so tired of the us-against-them politics.”
[sound of Dave becoming the Joker]
So what we really have here is an article about swing voters pining for calmer, more sensible politics & a range of moderate policies–EXACTLY THE SHIT THE DEMOCRATIC PARTY STANDS FOR. But when they tune in, all they see is madness & ugliness & fighting & claim & counter-claim so they “tune out” & thus do not hear about Biden saying/doing exactly the f’ing things they want someone to say/do. That is the right’s mission, accomplished. That is the core US political dynamic. That’s what these articles should be about.
Everywhere, reactionaries in politics are the same: they try to blur truth, increase bile & anger, exhaust everyone, and convince the public that no one can be trusted (ie, only a Strong Man can fix it). Those are the circumstances in which reactionaries flourish.
That’s what the right is doing in the US & the media is helping them by rewarding them with endless attention when they act out. The public is telling the WaPo here, as clearly as it can: we care about calm, deliberation, substance, policy, but all we get is spectacle.
This is been a head-f’ing aspect of US politics as long as I’ve paid attention: centrists & swing voters pining for someone to do/say exactly what Democrats are doing/saying. They just don’t know Democrats are doing/saying it, because they don’t hear about it.
Democrats and other Trump critics need to be relentless in sending the message that the chaos we are all experiencing is the direct result of right wing anarchy. Sure, it should be obvious but to many people it isn’t. There is no choice but to turn into robots and say it over and over and over again.
I’m hearing a LOT of talk on social media saying that people cannot possibly ever vote for Biden because of his position on Gaza and his alleged failure to erase all the student loans. When questioned they say it won’t be their fault if Trump is elected because Biden refused to do what they want him to do.
Yes, we’ve been here before. I’ve had these arguments before, particularly in 2000 and 2016 when we all saw what was coming, But the consequences were never as clear or as horrifying as they are now. He’s a fascist and he’s learned that he can get other fascists to help him.
Here’s just one example that should make everyone’s hair stand on end:
Nothing to see here, just the former Gorsuch law clerk touted as Trump’s next attorney-general, threatening to indict, detain, & deport me (for what?) & put Tim Miller, who is gay, in a women’s prison.
Nothing at all unconstitutional, fascistic, or bigoted about any of this. 🤷🏽♂️ https://t.co/yNuLo2ZMgD
Amazing what happens when you help turn a monster into a star
The Washington Post reports on the befuddlement of the former Trump administration figures who have revealed his ignorance and corruption who can’t figure out why he’s still so popular with the base:
John F. Kelly, the longest-serving chief of staff in President Donald Trump’s White House, watches Trump dominate the GOP primary with increasing despair.
“What’s going on in the country that a single person thinks this guy would still be a good president when he’s said the things he’s said and done the things he’s done?” Kelly said in a recent interview. “It’s beyond my comprehension he has the support he has.”
Kelly, a retired four-star general, said he didn’t know what to do — or what he could do — to help people see it his way.
“I came out and told people the awful things he said about wounded soldiers, and it didn’t have half a day’s bounce. You had his attorney general Bill Barr come out, and not a half a day’s bounce. If anything, his numbers go up. It might even move the needle in the wrong direction. I think we’re in a dangerous zone in our country,” he said.
No president has ever attracted more public detractors who were formerly in his inner circle. They are closely watching his rise — cruising in the GOP nomination contest and, in most polls, tying or even leading President Biden in a general election matchup — with alarm. Among them are his former vice president, top military advisers, lawyers, some members of his Cabinet, economic advisers, press officials and campaign aides, some of whom are working for other candidates.
Among their reasons for opposing a second Trump term, they cite the 91 criminal charges against him, his attempts to overturn the 2020 election, his false claims of election fraud, his incendiary rhetoric in office, his desire to weaponize the Justice Department, hischaotic management style, his likely personnel choices in a second term, and his affinity for dictators.
Interviews with 16 former Trump advisers —some of whom spoke on the condition of anonymity to discuss their former boss —show they are grappling with how they can puncture Trump’s candidacy in 2024, whether they can or should coordinate with one another and whether their voices will even matter.
Additionally, more than a dozen people once in his employ could end up taking the stand and providing testimony as part of multiple criminal trials, according to people with knowledge of the cases and court documents.
Inexplicable isn’t it? Imagine what some of us felt when we realized he’d actually won the election in 2016. Why didn’t these people feel that way then?
This is even more inexplicable to me:
At the same time, even some who have publicly declared Trump unfit for office have said they would still support him over Biden in 2024.
Sure, Trump is a criminal but they just can’t make themselves vote for the other guy — who isn’t a criminal.
Here’s the classy Trump campaign response:
“These media whores are always looking for their next grift — whether its book deals or cable news contracts — because they know their entire worth as human beings revolve around talking about President Trump,” said Steven Cheung, a Trump spokesman. “They clearly don’t own any mirrors because if they did, they would not be able to look at themselves every day knowing what they’re doing is hurting the country. These charlatans are disgusting and should be wholly ignored.”
It’s only a time before they just start saying, “they can go fuck themselves!”
Some of the donors are sort of, kind of worried just a teensy bit:
In recent fundraisers, Trump has been questioned by donors on multiple occasions about his personnel choices and has attacked former officials who have spoken out against him, according to people familiar with the questioning. Trump has argued that while in the White House, he listened to people he should not have — and made bad hires, particularly at the Pentagon and Justice. Donors have expressed concern that Trump hired so many people who have attacked him, people familiar with the conversations said.
This time, Trump said, he would look out for people who are loyal and “smart.” A second term in office, people close to him say, would have people who “actually support President Trump,” in the words of one adviser.
“I learned how deep the deep state is,” he recently told donors at an event.
He ran saying that he knew more than anyone on government or anywhere else about how to get things done. Nobody ever holds him to anything he says.
Ahead of the 2020 election, Democrats learned through focus groups that attacks on Trump’s character did not work as well with independent voters as attacks on his record, according to a prominent Democrat briefed on the work conducted by the Democratic National Committee. Repeatedly, voters said they knew who Trump was and his personal shortcomings did not dissuade them.
Still, what also makes Trump different is the way in which some former advisers speak about him — not griping over a policy disagreement or a personnel choice — but over his fitness to be president and what he might do in a second term.
Former White House counsel Ty Cobb, who defended Trump during the probe into Russian interference in the 2016 election and once was seen as a loyal soldier, said it was imperative for people to vote against Trump.
“He has never cared about America, its citizens, its future or anything but himself. In fact, as history well shows from his divisive lies, as well as from his unrestrained contempt for the rule of law and his related crimes, his conduct and mere existence have hastened the demise of democracy and of the nation,” Cobb wrote in an email. “Our adversaries and our allies both recognize that even his potential reelection diminishes America on the world stage and ensures continued acceleration of the domestic decline we are currently enduring. If that reelection actually happens, the consequences will extinguish what, if anything, remains of the American Dream.”
The article goes on to note that no revelation ever seems to move his voters and so many people feel it’s not worth it. And then there are the cravenly self-interested:
Another prominent former official said he was debating whether speaking out would lead to clients dropping him. “If I thought it would make a difference, I’d be more willing to do it. But you’re taking a lot of financial risks, and I haven’t seen any evidence it really matters,”this person said.
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And there are those who think, for some inexplicable reason, that it would be best to wait until it’s too late:
A third former official said that many were considering speaking out if Trump became the nominee and was in a position to win. “You want to remind people at the last minute what kind of crazy they might be getting again. I don’t think it works until it’s September or October.”
Finally there are the team players who may know exactly what Trump is but they just can’t lower themselves to do anything that will help the other side:
Some aides say they don’t want Trump to be president again but are loath to be viewed as helping a Democrat. Members of that group, including Barr, have argued Trump is both unfit to serve and has probably committed crimes — but that they still may vote for him over a Democrat.
Marc Short, Pence’s longtime chief of staff and a former Trump adviser, has been sharply critical of the former president.
“If it’s Biden versus Trump, the implicit assumption is, efforts to hurt Trump are going to benefit Biden,” Short said. “If you’re putting yourself against the Constitution, I think it’s disqualifying, but I wouldn’t want to be helping Biden.”
So he’d rather put in an unqualified monster who incited rioters to call for Mike Pence to be hanged than “help” Joe Biden. He’s a real patriot.
I do not agree that Trump’s unfitness is baked in. People just put it out of their minds because he seems so inevitable. They need to be reminded over and over and over again. If Trump can convince virtually all GOP voters that the election was stolen despite zero evidence through repetition then surely Democrats can remind swing voters who voted against him last time that he’s only gotten worse. They have to.
And they have plenty of other friends in high places too
The Iowa caucuses are right around the corner and even Donald Trump has deigned to appear in the state recently despite his obvious belief that it’s beneath him to have to compete for the nomination he, and everyone else, knows is already his. But he does enjoy his rallies and he’s clearly decided that it’s time to gather the flock just to make sure they all know what’s expected of them.
Here’s a sample of what he’s talking about on the campaign trail these days:
Children wandered around in shirts and hats with the letters “FJB,” an abbreviation for an obscene jab at President Biden that other merchandise spelled out: “F— Biden.” During his speech inside a high school gym in Fort Dodge, former president Trump called one GOP rival a “son of a b—-,” referred to another as “birdbrain” and had the crowd shrieking with laughter at his comments on Rep. Adam B. Schiff (D-Calif.), who he called “pencil neck” before asking, “How does he hold up that fat, ugly face?”
He brought the house down while mocking Biden, at one point baselessly suggesting Biden is using drugs and can’t get offstage “by the time whatever it is he’s taken wears off.” … And outside the packed venue, vulgar slogans about Biden and Vice President Harris were splashed across T-shirts: “Biden Loves Minors.” “Joe and the Ho Gotta Go!” One referred to Biden and Harris performing sexual acts.
Yes, they’re all just letting their freak flags fly, no holds barred. Not that this is entirely new. Republican gatherings like CPAC going back decades used to feature racist and misogynist merchandise and there were many speakers who made crude comments about their Democratic rivals. But it is unprecedented for the candidate himself to wallow around in the gutter with them.
He’s also been posting more Nazi-esque statements on his social media platform. This weekend he seemed to be proposing a “final solution” for his enemies:
Meanwhile in another town in Iowa they held what would have been required attendance in Iowa GOP presidential primaries in the past, a meeting with Christians to talk about the issues that are important to them. This one was called the Family Leader’s Thanksgiving Family Forum. Florida Gov. Ron Desantis, former S. Carolina Gov. Nikki Haley and businessman Vivek Ramaswamy were there to go through the motions and pretend that they might have a chance to win. (A recent Des Moines Register/NBC News/Mediacom Iowa poll found 43% of likely Republican voters choose Trump compared with 16% each for Haley and DeSantis.)
The convener of the forum, Bob Vander Plaats, was once considered an Iowa kingmaker but he’s broken with Trump and it doesn’t appear that he has the juice to bring anyone else over the line.He opened the forum by beseeching the candidates to “raise the bar” and by comparison to Trump they managed to do that. Mostly, they talked about their faith and abortion with both Ramaswamy and DeSantis discussing their wives’ miscarriages and Nikki Haley making news by saying that she would happily sign a 6 week abortion ban. (She issued her standard disclaimer that she doesn’t think that’s possible on a federal basis right now — as if that somehow qualifies as a moderate position.) It was pretty standard Republican evangelical pandering.
But it’s quite clear from the polling that most conservative evangelical Christians like the libertine, gutter snipe Donald Trump even more than the rest of the Republican Party. They are the strongest pillar of his following. So attempting to pry them loose with appeals to decency is a waste of breath.
There have been billions of pixels spent trying to figure out why they like him so much and I suppose there are many reasons. But recent polling by the Public Religion Research Institute found that one third of white evangelicals favor political violence so Trump’s insurrection obviously holds major appeal to a lot of them. And no doubt they love his commentary about barring people who “don’t like our religion” from entering the country:
“I will implement strong ideological screening of all immigrants. If you hate America, if you want to abolish Israel, if you don’t like our religion (which a lot of them don’t), if you sympathize with jihadists, then we don’t want you in our country and you are not getting in.”
And, as we know, he’s lately taken to vowing to demolish, expel, drive out, cast out, and evict all the people they don’t like from America as well. Apparently, it’s all music to their ears.
Trump’s recently been getting some big endorsements from important office holders and there’s one in particular who represents conservative evangelicals in an extremely powerful position. That would be the new Speaker of the House Mike Johnson whose affiliation with the most extreme forms of Christian Nationalism is only now coming into focus. According to NPR, Johnson is also a leading member of the far right New Apostolic Reformation (NAR) movement which seeks to dissolve the US’s separation between church and state by “any means necessary.” Johnson has spent his entire career as a lawyer and an elected official in service of that goal.
Kimberly Wehle, a professor at the University of Baltimore School of Law, took a look at his litigation history to see what it says about how he applies these beliefs to the constitution and you won’t be surprised to learn that his legal principles are entirely inconsistent. In fact, the only thing consistent about his positions is the idea that America is meant to be a Christian theocracy.
For Christians like Johnson, Trump is just a blunt instrument to be used to advance his cause which he believes must be attained by any means necessary. Whatever else he represents is of no consequence.
It’s actually little different for the MAGA rank and file. The Post’s Knowles spoke with some of them at Trump’s Iowa rally:
“Joe’s gotta go,” said Lori Carpenter, 59, as she left the Fort Dodge event.“And the ho shouldn’t have been there in the first place.” The “ho” was Harris, she clarified, before offering another nickname for Harris that was even more vulgar. “It doesn’t bother me,” she said of Trump’s insults and crudeness.
Her relative, 71-year-old Marsha Crouthamel, agreed. “It doesn’t bother me either because his policies are strong,” she echoed, adding that Trump got a lot of laughs and added, “Sometimes you just gotta excite people a little bit.”
“We’re Christians, and we can look past that,” Carpenter said. “We see the good that he did our country when he was in.”
To these Trump loving evangelicals, being a Christian means never having to say you’re sorry. And that’s one thing they definitely have in common with their Dear Leader Donald Trump.
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.
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 “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.
