One Weird Trick for keeping insurrectionists from running the government
February 8, 2024 5:52 AM Subscribe

SCOTUSblog: Supreme Court to decide whether insurrection provision keeps Trump off ballot

The Supreme Court will hear oral arguments on Thursday in what is shaping up to be the biggest election case since its ruling nearly 25 years ago in Bush v. Gore. At issue is whether former President Donald Trump, who is once again the front runner for the Republican nomination for president, can be excluded from the ballot because of his role in the Jan. 6, 2021, attacks on the U.S. Capitol. Although the question comes to the court in a case from Colorado, the impact of the court’s ruling could be much more far-reaching. Maine’s secretary of state ruled in December that Trump should be taken off the primary ballot there, and challenges to Trump’s eligibility are currently pending in 11 other states. Trump warns that the efforts to keep him off the ballot “threaten to disenfranchise tens of millions of Americans” and “promise to unleash chaos and bedlam if other state courts and state officials follow Colorado’s lead.” But the voters challenging Trump’s eligibility counter that “we already saw the ‘bedlam’ Trump unleashed when he was on the ballot and lost.”

Wikipedia: Trump v. Anderson and the 2024 presidential eligibility of Donald Trump - Politico: Who is Norma Anderson? The 91-year-old lawmaker who could have Trump disqualified - 6 key questions in Supreme Court fight over Trump’s ballot eligibility - ResetEra's annotated list of the many amicus briefs - Tune in to official live audio of oral arguments in about an hour (starting at 10 a.m. Eastern)

The Colorado 14th Amendment case, previously on MeFi

Key documents from the original Colorado case:
Complete case docket
Original complaint
Final opinion - Trump committed insurrection, but is technically not an "officer of the United States"

The Colorado Supreme Court appeal:
Trump's appeal
Plaintiff's appeal
Final opinion - Trump is disqualified under the 14th Amendment

The U.S. Supreme Court:
Trump's petition, and Anderson's response

Selected amicus briefs:
Donald Trump
Republican senators
Republican National Committee
27 GOP-leaning states
Republican voters

Colorado Secretary of State
Judge J. Michael Luttig
U.S. Capitol Police
The NAACP
Former Republican governors
Common Cause
American historians
First Amendment scholars
Experts on global democracy

posted by Rhaomi (235 comments total) 52 users marked this as a favorite

(First "Donald Trump" link under "Selected amicus briefs" should point here)
posted by Rhaomi at 5:54 AM on February 8

There is absolutely no possibility that this Supreme Court will say he should be kept off the ballot, no matter what the Constitution says. The Colorado court was correct, but it won't stand.
posted by kyrademon at 6:07 AM on February 8 [56 favorites]

The argument that if Trump is ruled ineligible to run it will release chaos, or cause MAGA hats to try insurrection again, is a terrible argument. It's basically saying that we're willing to submit to threats of violence from the far right which, sadly, is basically the case but let's try breaking that pattern.

I'm torn here because I can easily see this becoming a sort of tit-for-tat retaliation by Republicans who then take Democrats off the ballot in states they control as vengeance for dropping Trump. Since Trump hasn't actually been convicted of any crime that could reasonably be considered insurrection the board in Colorado is basically going on the "it looks like insurrection to me" standard and by that logic the board in Texas could say Biden is insurrecting by open borders or whatever.

If the standard was "has been convicted of a crime that could reasonably be considered to be insurrection adjacent" then we'd be on firmer ground than the standard of "he's not actually been convicted but it sure looked like insurrection to us" standard.
posted by sotonohito at 6:11 AM on February 8 [39 favorites]

Good luck, America. I sincerely doubt that SCOTUS, as compromised as it is, will return the correct verdict, but here's hoping anyway.
posted by mrjohnmuller at 6:19 AM on February 8 [13 favorites]

Since Trump hasn't actually been convicted of any crime that could reasonably be considered insurrection the board in Colorado is basically going on the "it looks like insurrection to me" standard and by that logic the board in Texas could say Biden is insurrecting by open borders or whatever.

Some doomerism is based on accepting Republican arguments as serious, and this is one a good example. Trump urged and threatened people to break U.S. law – Biden not having a way to magic up more resources to enforce the law is a very different act. Yes, I doubt SCOTUS will accept it as a general principle (I’m expecting a narrow Colorado-only acceptance) but conflating those two as remotely comparable acts is doing a service for the wrong side.
posted by adamsc at 6:24 AM on February 8 [11 favorites]

(First "Donald Trump" link under "Selected amicus briefs" should point here)

Should be fixed!
posted by Brandon Blatcher (staff) at 6:26 AM on February 8 [2 favorites]

Brandon Blatcher: "Mod note: > (First "Donald Trump" link under "Selected amicus briefs" should point here)

Should be fixed!"

Thanks -- but there's an extra "f" on the end!
posted by Rhaomi at 6:28 AM on February 8

New Yorker Political Scene podcast interview with Jill Lepore, who wrote the "American Historians" amicus brief linked above, arguing that removing Trump from the ballot is necessary. Well worth the 30 or so minutes to listen.
posted by fingers_of_fire at 6:29 AM on February 8 [7 favorites]

Fiat justitia ruat caelum, motherfuckers!
posted by lalochezia at 6:42 AM on February 8 [21 favorites]

"All I want to do is this: I just want to find 11,780 votes, which is one more than we have," Trump says, according to audio of the call. "There's nothing wrong with saying, you know, that you've recalculated."

and e.g. #119 on pg 41-42 of US v Trump

and let's not forget

Defendant issued a Tweet intended to further delay and obstruct the certification: "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!"

sure sounds like some insurrection-ing-ing type things to me. Amazes me every day a mass of people can be okay with letting him even tangentially near an elected position. We have the tapes, we have the receipts, we have the dying body of this democracy on the operating table, and people will go "well he hasn't been lawfully convicted yet."

how about this: he can run in 2028 if he's alive and hasn't been convicted.
posted by eschatonizer at 6:43 AM on February 8 [27 favorites]

and people will go "well he hasn't been lawfully convicted yet."

And don't think that this isn't a 'moving the goalposts' thing -- "well, he's been convicted but he hasn't been sentenced", "he's been convicted and sentenced but there's still steps in the appeals process", all the way down to "well, the courts are biased, there's no chance he would have ever gotten justice".
posted by AzraelBrown at 6:46 AM on February 8 [51 favorites]

Is the live audio link working for anyone? On iOS the page is loading but there is a “corruption” error…
posted by soylent00FF00 at 6:47 AM on February 8

If the standard was "has been convicted of a crime that could reasonably be considered to be insurrection adjacent" then we'd be on firmer ground than the standard of "he's not actually been convicted but it sure looked like insurrection to us" standard.

And this is how Trump finds the necessary daylight to continue doing what he's doing--he keeps laundering the debate such that the original meaning is lost and replaced with an interpretation that seems "truthy" to the average person. There are lots of "standards" when it comes to interpreting the law and it's only Trump's defense that insists "conviction" is necessary for the 14th Amendment to be applicable. It's my understanding that there's ample case history establishing a different standard, and that's what the Colorado Supreme Court based their decision on. They're not dopes; they're highly qualified jurists and their work has been reviewed by lots of other highly qualified experts who have reached the same conclusion.

Another way of looking at it: You have to be 35 years old to be elected President. Does a court have to find you 'guilty' of not meeting that qualification in order for you to be barred from the ballot?
posted by RonButNotStupid at 6:48 AM on February 8 [47 favorites]

Clarence Thomas should recuse himself; he won't. There's a reason Mitch McConnell refused to allow an Obama-appointed justice; they wanted control of SCOTUS. The GOP is totally corrupt. Not that I wouldn't be delighted to be proven wrong.
posted by theora55 at 6:53 AM on February 8 [27 favorites]

The argument that if Trump is ruled ineligible to run it will release chaos...is a terrible argument.

If that's the rationale that SCOTUS will use, then they damn sure better not overturn Chevron. Not that there's any reason to expect logical consistency from this court.
posted by xigxag at 6:54 AM on February 8 [7 favorites]

I saw an interesting take - that much of the 14th amendment is clarification for other sections of the Constitution, thus making Sec 3 of the 14th an amendment to the qualifications for President. Thusly it is self enacting, must be 35, born in USA (soil), lived in country for 14 years AND - din't try to overthrow the govt.

I'm not sure how this is not plainly read.
posted by djseafood at 6:55 AM on February 8 [13 favorites]

Clarence Thomas should recuse himself; he won't.

The ruling is going to be whatever Harlan Crow wants. Everyone knows it, so let's quit pretending any of the rest matters.
posted by aramaic at 6:56 AM on February 8 [12 favorites]

The live audio page loads just fine for Chrome under Windows. It's not connecting, but I think that's because it hasn't started yet.
posted by Spike Glee at 6:57 AM on February 8

I just realized that with Trump's comment on immigrants poisoning the blood, we are actually at risk of electing Lord Voldemort.
posted by dances_with_sneetches at 6:57 AM on February 8 [5 favorites]

My uneducated opinion is that the oligarchs believe that keeping grotesque idiot manchild off the ballot gives an easy win to the enemy*. But I have no doubt they loathe him... possibly even more than I do. Is our only hope that he has pissed off the wrong people, finally?

Clearly the three justices he got to appoint are not loyal to him. They are loyal to richer, quieter monsters and we just don't know what they will decide. There is probably mixed opinion, even in that group.

I'm going to read this thread all day despite how terrible and anxiety-provoking it is. It would be nice if the doomiest of the doom people didn't post a laundry list of worst case scenarios... but maybe that's how other people deal with their anxiety.

*But I also recall reading credible reporting that rich people often do better when Democrats are running the place.
posted by Glinn at 7:02 AM on February 8 [11 favorites]

Now I'm connected, but don't hear anything.
posted by Spike Glee at 7:03 AM on February 8

I just realized that with Trump's comment on immigrants poisoning the blood, we are actually at risk of electing Lord Voldemort.

Hitler, actually.

I keep thinking that SCOTUS will remember that they have life appointments, barring Thomas' complaints that he apparently can't afford to buy an RV on his salary, and that they really don't have to bend a knee to 45 when they can still happily continue to revert the US back to the state of law in 1920 or so without his help.
posted by Atreides at 7:03 AM on February 8 [7 favorites]

OK, it's started.
posted by Spike Glee at 7:10 AM on February 8

Re. that often-cited argument that Trump hasn't been convicted on an insurrection charge: Historian Kevin Kruse notes* that Congress barred six elected representatives from taking office, on 14th Amendment grounds, because they had fought for the Confederacy -- but had never been convicted of anything.

* sorry, Substack link. Kruse has said he's looking for alternatives.
posted by martin q blank at 7:11 AM on February 8 [28 favorites]

I'm fully expecting SCOTUS to punt and say "well, 14A says an insurrectionist can't hold office, but they still can run if they want. So get back to us later."

It's standard template for TFG. Ignore the spirit of the law and challenge the letter.
posted by JoeZydeco at 7:24 AM on February 8 [20 favorites]

I realize quoting Hitler. Still, I would phrase it, to complete his thoughts, he only needs to refer to mudbloods.
posted by dances_with_sneetches at 7:31 AM on February 8 [3 favorites]

I think that this is a bad case to put before the supreme court and it's only going to make things worse. It would be nice if that weren't true, but it clearly is. What's going to happen is that the SC will rule that Trump can be on the ballot for [reasons] and that will cut the legs out from under any complaints about or action against January 6 people in general. It will set a precedent that it is basically okay to have people try to storm Congress because they don't like an election result. That won't be the law, but it will be the public perception.

This type of hail mary case that goes against the mood of the government and the country simply never works. It's the legislative equivalent of the Weathermen or the RAF - the idea that you can just....do this one thing, and it will make a huge change in itself, or wake people up or something, even though it is utterly foreign to the culture and mood of the society. All that happens is that the people who were sort of against you are now really, fanatically against you.

People really do not grasp that law exists to protect the powerful. Very occasionally, if the government isn't too corrupt and times aren't too bad, it can be leveraged to deliver justice. A lot of people came up between, eg, 1960 and 2000 and sort of got the idea, because society was a bit more level and the economy in the US was overall strong, that the law was a source of justice. Conditions have reverted to the mean; the law is just an instrument of abuse, and people need to get wise to that.
posted by Frowner at 7:34 AM on February 8 [47 favorites]

That is, you can pass some just laws, but good luck enforcing them.
posted by Frowner at 7:35 AM on February 8 [14 favorites]

Laws are threats made by the dominant socioeconomic ethnic group in a given nation. It's just a promise of violence that's enacted and police are basically just an occupying army.
posted by nushustu at 7:37 AM on February 8 [19 favorites]

and people will go "well he hasn't been lawfully convicted yet."

God, I hate that this situation is making me defend Trump, but actually, there are really good reasons to insist that laws demand convictions before penalizing people for crimes even though we may be 100% sure that Trump definitely committed those crimes.

Presumption of innocence means that 'everybody knows someone did a crime' isn't enough, nor is 'they were charged with a crime'.

I think it would be eminently reasonable to say, "You must be convicted with a insurrection crime to be barred from the ballot for insurrection". I think it's unfair that while people with less power are being charged and convicted for much lesser crimes all over America, that he has not been charged and convicted for such things already, but it's also not a reason to throw out the presumption of innocence just because the 'justice system' would rather go after the poor than the wealthy and powerful.
posted by corb at 7:39 AM on February 8 [18 favorites]

I'm fully expecting SCOTUS to say that the voters must at all costs be given the chance to vote for Boaty McBoatFace if that's what they reeeeeeeeeeeeeally want, because Freedom.
posted by Dashy at 7:44 AM on February 8 [4 favorites]

You gotta get a conviction if you want to apply a just punishment.

If the court goes that way (and they should) the insurrection trials are going to turn into enormous political shitshows, which does not help at all.

But you gotta be guilty before the law before you can be penalized by the law, or there's not even a pretense of law.
posted by seanmpuckett at 7:44 AM on February 8 [3 favorites]

The 14th does not say you must be convicted.
posted by Dashy at 7:46 AM on February 8 [53 favorites]

"The justices and Donald Trump’s lawyer, Jonathan Mitchell, have been debating whether Section 3 of the 14th Amendment is “self-executing,” which means that the law can go into effect without congressional action detailing how the provision should be enforced." (WaPo update at 10:45 EST)
posted by Iris Gambol at 7:48 AM on February 8 [1 favorite]

The justices and Donald Trump’s lawyer, Jonathan Mitchell, have been debating whether Section 3 of the 14th Amendment is “self-executing,” which means that the law can go into effect without congressional action detailing how the provision should be enforced.

ohhhh...So this is actually going to end up being a ruse to effectively negate/invalidate the 14th, which has long been a favorite wet dream of the right. Sneaky bastards.
posted by Thorzdad at 7:52 AM on February 8 [5 favorites]

laws demand convictions before penalizing people for crimes

It's not a crime, though. I mean, he did lots of crimes but that's not what's at issue here -- any more than it was in the Carroll defamation case or the wrongful death case against OJ Simpson. He got due process in the form of a fair and thorough hearing before an impartial magistrate -- exactly what he and any other person is entitled to in such litigation.
posted by Not A Thing at 7:53 AM on February 8 [14 favorites]

Interpretation of the 14th is what this has to come down to. And so I fully expect an unholy coalition of "originalists" and "strict interpretationists" to sink this, with the former saying "This was written to address the cases of those who fought for the Confederacy" and the latter saying "See, it doesn't include the word 'president' so nyah, nyah, it doesn't apply here."
posted by martin q blank at 7:53 AM on February 8 [5 favorites]

I’m expecting nonsense, because law isn’t real.

I’m expecting extra double nonsense because this is in their precious constitution which they pretend to care about so they’ll come out with the most puffed up elliptical shit possible to justify supporting their guy.
posted by Artw at 7:53 AM on February 8 [16 favorites]

I just realized that with Trump's comment on immigrants poisoning the blood, we are actually at risk of electing Lord Voldemort.

Hitler, actually.

Bringing it all back home: Adolf Hitler's race hatred was underpinned by the work of American eugenicists. (I don't mean to belittle the Germans; the Nazis drew on their own long and distinguished history of anti-Semitism as well.)
posted by Mr.Know-it-some at 7:55 AM on February 8 [13 favorites]

"You must be convicted with a insurrection crime to be barred from the ballot for insurrection"

Seems impossible if the state that someone is from is also insurrectionist. But when running for a federal office, a candidate could be disqualified in the same decision they are found to be an insurrectionist. Likewise, one cannot be convicted of being foreign born, or underage, until the moment arises that it disqualifies them from an office.
posted by Brian B. at 8:02 AM on February 8 [8 favorites]

There's a LOT of ground between "convicted of insurrection" and "looks like insurrection to me." We have, just for example, a metric crap-ton of actual evidence and sworn testimony from the US House Select Committee on the January 6 Attack.

So, yes, IF (and it's a gigantic goddamn "if") the Supreme Court supports Colorado's 14th Amendment based disqualification of the Douchebag-in-Chief, then, sure, of course red states will try to gin up some bullshit "reasons" to disqualify Biden (or others), BUT they will have nothing like the same basis to support that argument.

I have no confidence that the Supreme Court will do any such thing. Just saying that a standard that does not require a literal conviction seems perfectly reasonable, so long as you have to provide actual evidence to support the claim of insurrection.
posted by fikri at 8:04 AM on February 8 [5 favorites]

A year and a half ago, New Mexico removed a county commissioner, Couy Griffin, from office; Griffin was convicted of trespassing on Jan. 6. "The ruling from Mathews marks the first time in more than 150 years that a court has disqualified a public official under Section 3 of the 14th Amendment and the first time any court has found the events of Jan. 6 were an insurrection, according to CREW." (CBS)

WaPo update: "Justice Elana Kagan pointed out that Trump is arguing that Congress has to pass a federal law to label someone an insurrectionist, and that Trump should be on the ballot because even if he is an insurrectionist, two-thirds of Congress could allow him to serve. 'If Congress has the ability to lift the vote by a two-thirds majority, then surely it can’t be right that one house of Congress can do the exact same thing by a simple majority,' refusing to deem him an insurrectionist in the first place.

"'There certainly is some tension,' attorney Jonathan Mitchell said, but 'we don’t think this problem is fatal.' Alito then jumped in and said, 'I don’t even see why there’s a tension.' He said it was 'two separate things' for Congress to label someone an insurrectionist and to take that label away, comparing it to a pardon."
posted by Iris Gambol at 8:18 AM on February 8 [3 favorites]

I keep seeing this: "A court needs to determine if T.rump engaged in an Insurrection."

The Colorado Supreme Court determined that T.rump DID ENGAGE IN INSURRECTION. and therefore disQ'd him.

How is this not exactly equivalent?
posted by djseafood at 8:21 AM on February 8 [32 favorites]

I'm all for requiring a conviction before a penalty can be applied, but being ineligible to become the President is not a penalty. If it were, everyone under 35 could rightly complain of being penalized without being convicted of any crime. The 14th amendment itself supports this interpretation by explicitly referring to ineligibility as a "disability" rather than a penalty.
posted by shponglespore at 8:21 AM on February 8 [37 favorites]

I’m expecting nonsense, because law isn’t real.

This is the one thing that Donald Trump has actually accomplished - he has demonstrated that there is no law, because all laws can be subverted or reinterpreted in so many ways as to be meaningless. It was always nothing but pretend, but now we're seeing that turned into action.
posted by briank at 8:22 AM on February 8 [18 favorites]

I don't know what this Griffith's case is they're discussing, but the tone of the questioning by SCOTUS is really worrying me.

To my non-lawyer ears, they seemed friendly and even suggested strengthening arguments to Trump's lawyer, and they seem downright hostile to the opposing counsel.
posted by digibri at 8:27 AM on February 8 [2 favorites]

Legal positivism has certainly been given a bloody nose.
posted by MonsieurPEB at 8:29 AM on February 8

To my non-lawyer ears, they seemed friendly and even suggested strengthening arguments to Trump's lawyer, and they seem downright hostile to the opposing counsel.

It’s not a court of law, so them playing to their ally should be expected.
posted by Artw at 8:29 AM on February 8 [1 favorite]

Honestly, I'm ready for an open, unequivocal statement from the Trump appointees on SCOTUS that precedent and the Constitution do not matter, and that all future politics in the US will be naked partisan struggle. We might as well get it over with.

Kavanagh getting his rapey shit thrown up in his face has shown that hearings are a drag, so just not bothering having them before the rubber stamping would probably be the prefered option.
posted by Artw at 8:31 AM on February 8 [3 favorites]

I like to consider myself a person who tries to stay informed; this time, though, I think that I'm going to avoid attention (save for occasionally peeking in this thread) for my own sanity.

I generally started taking a page from the Sedevacantists and their view of the Papacy when it came to how I related to the presidency back in 2016. That's kind of carried over; these days I consider myself more so a citizen of New York City than I consider myself a citizen of the United States.
posted by EmpressCallipygos at 8:31 AM on February 8 [6 favorites]

Seems impossible if the state that someone is from is also insurrectionist.

Insurrection against the federal government would I imagine be federal charges, not state charges. Different court system.
posted by corb at 8:32 AM on February 8

If there is some doubt about whether or not a candidate is 35 years old, you hold a hearing. You don’t need to be convicted of being the proper age.
posted by bigbigdog at 8:32 AM on February 8 [13 favorites]

If he gets back into the White House, he's only ever leaving feet first, and then you'll have to figure out how to remove his VP.
posted by pracowity at 8:38 AM on February 8 [6 favorites]

Alito, currently yammering, is such an arrogant asshole.
posted by bluesky43 at 8:39 AM on February 8 [6 favorites]

Also the Colorado lawyer is very very good.
posted by bluesky43 at 8:41 AM on February 8 [5 favorites]

if you’re playing chess, and your opponent flips over the table and threatens you with a knife, continuing to play chess according to standard rules is deeply dangerous, both to you and to bystanders. Trump and his people have flipped the board. The legalistic arguments defending him here reveal a fundamental misunderstanding of the material situation at hand. The Supreme Court is never declaring their buddy Trump as ineligible. The likelihood of disqualification is on par with that of them suddenly interpreting the Constitution as requiring communism. Defending him will protect no one. In the existing system, the power structure treats him like a legal exception in these matters. Not one innocent person will be protected by the aforementioned defenses; if he wins, the legal system won’t survive, and in the highly unlikely event that he loses…well, this thread is about the consequences when he loses, and I don’t expect future improvement. Preserving the legal order at this point is rearranging deck chairs on the Titanic. The situation has changed.
posted by vim876 at 8:44 AM on February 8 [19 favorites]

“I think there’s a question that you have to confront is why a single state should decide who gets to be president of the United States? In other words, you know, this question of whether a former president is disqualified for insurrection to be president again, is to just say it — it sounds awfully national to me,” Kagan explained. via The Hill

Isn't election administration by the states just the most bog standard, settled thing around elections?

The Single State argument here can also be made about mass disenfranchisement through voter roll purges but those are fine supposedly.

It really feels like everything is resting on very thin ice, especially with the as-yet-unresolved challenges to Federalism by Texas, et al on the border by Eagle Pass.
posted by Slackermagee at 8:45 AM on February 8 [14 favorites]

I already knew this but based on questioning I’m going to assume the decision that comes down will be that the States cannot bar a candidate from the ballot based on 14.3. They will argue it falls to Congress to make legislation to enable States to do so, and they will not reach the question of whether TFG in fact is an insurrectionist.

Colorado’s lawyer is getting grilled fairly hard, and there is definitely enough reception to TFG’s lawyer’s arguments among the conservative Justices. I would not omit the possibility that at least Kagan joins them as well.
posted by Room 101 at 8:46 AM on February 8 [2 favorites]

It will set a precedent that it is basically okay to have people try to storm Congress because they don't like an election result.

Yes. Isn't that the point of this exercise?

I'm under no disillusion that justice will prevail, but I do think that this case is all about raising the stakes in a way so that they can't be ignored. It's the civilized response to Trump's threats of 'bedlam'. For those in positions of power who are still giving aid to Trump, it's a polite reminder of how much that aid costs them personally and how much it costs the nation. There's no doubt that the Supreme Court will against Colorado, but it's almost certain that their ruling will a) be hot garbage and b) open the door to a lot of unintended consequences that no one, not even the powerful for whom the law benefits, exactly wants.
posted by RonButNotStupid at 8:48 AM on February 8 [4 favorites]

I'm going to be really mad if the decision punts to congress because that's a very intentional way of making sure no one ever runs afoul of section 3. Same for impeachment, that's probably never happening again, you'll never see someone get 2/3 of senators for conviction.

And that's dangerous because then there's no goddamn checks on the executive. Not dangerous for Republicans though, Biden's never going to unilaterally pro-rogue the justices not displaying Good Behavior as required.
posted by Slackermagee at 8:52 AM on February 8 [9 favorites]

Honestly, I'm ready for an open, unequivocal statement from the Trump appointees on SCOTUS that precedent and the Constitution do not matter, and that all future politics in the US will be naked partisan struggle. We might as well get it over with.

It's worth noting that the Colorado court was mostly liberal, and the vote there was close - I am not expecting the vote here to split along partisan lines - it seems likely that one or two liberal justices will joins the conservatives.
posted by coffeecat at 8:56 AM on February 8 [4 favorites]

It's long past time for Biden to pack the court before it's too late.
posted by OHenryPacey at 9:00 AM on February 8 [14 favorites]

I shall not today attempt further to define the kinds of actions I understand to be embraced within that shorthand description ["insurrection"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and this is totally fucking that.
posted by The Card Cheat at 9:00 AM on February 8 [7 favorites]

So many incoming NY Times editorials about respecting the legitimacy of this court.
posted by Artw at 9:05 AM on February 8 [17 favorites]

This is one of those instances where the correct decision is obvious and yet there's a considerable likelihood that won't be the decision. It's what you get when you delegate law making to judges instead of lawmakers.
posted by tommasz at 9:05 AM on February 8 [1 favorite]

> This is one of those instances where the correct decision is obvious and yet there's a considerable likelihood that won't be the decision. It's what you get when you delegate law making to judges instead of lawmakers.

The army of millions making excuses and inventing justifications for everything Trump says and does are largely the same people who got so angry about Clinton's "It depends on what the meaning of what the word 'is' is," and yet here they are continually splitting hairs into separate strands so fine they can only be observed with an electron microscope.
posted by The Card Cheat at 9:11 AM on February 8 [12 favorites]

There's no way this court removes him from the ballot. The only question is if they go with a 9-0 punt or if they have a 6-3 or 5-4 order dripping with distain. From the oral arguments, I think they're going with distain.

I think this is correct (and always has been). Anyone here who thought the actual outcome was in doubt or that Trump was going to "lose" hasn't been paying attention to this Court -- even to its liberal wing.

My disagreement is in how argument has gone so far. From oral argument (which is not always a good a tell, especially from live-blogging, but it's what I have) it feels to me like it will be 9-0, possibly 8-1, based on some version of "states cannot enforce this particular part of the 14A on their own, they need Congress to . . . do something." Does it make sense? Well, not really, but both sides of the Court seem to like it as a way to avoid the chaos that actually respecting CO's decision would bring.
posted by The Bellman at 9:26 AM on February 8 [4 favorites]

Just astounding that this appears to be resting on defining insurrection. Has anyone asked the justices to define "peaceful transfer of power" and maybe work fucking backwards?
posted by Slackermagee at 9:27 AM on February 8 [25 favorites]

I miss the days when Godwin’s Law was an illustration of how unhinged Internet discussions tend to get and not just a reflection of the actual political landscape.
posted by rikschell at 9:30 AM on February 8 [30 favorites]

Congress did something when it passed the 14th Amendment, this would be it's proper execution.
posted by djseafood at 9:32 AM on February 8 [18 favorites]

a standard that does not require a literal conviction seems perfectly reasonable, so long as you have to provide actual evidence to support the claim of insurrection.

Agree. And yet we've spent how much time and money on the retaliatory "impeaching" of Biden and Mayorkas (and whoever's next)? That's the down side, that the GOP will turn any reasonable standard into a circus.
posted by Dashy at 9:37 AM on February 8 [2 favorites]

Congress did something when it passed the 14th Amendment, this would be it's proper execution.

I agree. It's a weak argument. But I think it's what they have, and it's pretty clear that at least 7 of the Justices (and probably 8 or even 9) want to reverse the CO decision. So now their poor clerks have to figure out how to coherent opinions doing that -- at least in the case of the clerks whose Justices still care about coherency and something resembling law (as opposed to just vibes).
posted by The Bellman at 9:38 AM on February 8 [3 favorites]

Isn't the problem here that at least three of the justices should ever have been in the Supreme Court, regardless of their political background (though the three I'm thinking of are all conservative)?
They are simply not prepared or able to handle hard questions, and that is what a Supreme Court Justice has to do. All the simple tasks are handled elsewhere, obviously.

In recent years, other Supreme Courts have handled difficult questions and gone against the popular opinions. Depending on the situation, things have gone in different directions, but in Poland and here in Denmark people have looked at the decisions and mostly decided not to vote for the crooks. In Israel there is obviously a huge other thing in the room. I don't know a lot about Brazil, but I bet someone else here does.
posted by mumimor at 9:43 AM on February 8 [4 favorites]

Not only should he be kept off the ballots, Trump should be thrown into a prison cell for continuing to threaten violence and the violent overthrow of our democratically-elected government, even if by proxy. Republican terrorism has got to be stopped.
posted by They sucked his brains out! at 9:43 AM on February 8 [13 favorites]

So we could potentially be in a situation where SCOTUS decides against Trump (small but nonzero chance), yet he wins anyway, and the Chief Justice is called upon to administer the oath of office. How awkward!
posted by swift at 9:49 AM on February 8

from a (very short) distance, looking at the US now it's like the crooks and bullies are blustering their way around with impunity and the rest of the country is tying itself in knots to find the right words to describe how bad things are, and all the reasons there is no way to do anything about it

and I look at where I live, what's happening, and it certainly feels like that has arrived here also
posted by elkevelvet at 9:49 AM on February 8 [10 favorites]

God, I hate that this situation is making me defend Trump, but actually, there are really good reasons to insist that laws demand convictions before penalizing people for crimes even though we may be 100% sure that Trump definitely committed those crimes.

We require conviction before depriving someone of life, freedom, or property.

We do not require it before depriving you of a driver's license, or a security clearance, or a professional license.

Where does ballot access belong here? They can still write him in, after all.
posted by ocschwar at 9:49 AM on February 8 [66 favorites]

Insurrection against the federal government would I imagine be federal charges, not state charges. Different court system.

Maine's case was decided by the secretary of state, then the state's supreme court. Colorado's supreme court overturned a decision by a district judge about remaining on a primary ballot.
posted by Brian B. at 9:52 AM on February 8

Trump's lawyer said to qualify as an insurrection, "there needs to be an organised concerted effort to overthrow the government of the United States. [January 6] was a riot. It was not an insurrection."

By that definition, the Civil War wasn't an insurrection either, since they seceded from the Union rather than trying to overthrow the government.
posted by cheshyre at 9:57 AM on February 8 [23 favorites]

No conviction is required to deny ballot access to people who are otherwise disqualified from holding an office for age, location of birth, or number of terms. Also, a person could actually be convicted of insurrection, and run for office with no disqualification, provided they had never before taken an oath to support the constitution.
posted by surlyben at 10:01 AM on February 8 [2 favorites]

The only part of this that's going to be interesting in the aftermath is how the so-called originalist Republican justices twist themselves in knots to say the plain and historically-documented (and presented in amicus briefs by historians, if what I've been reading is correct) meaning of 14.3 doesn't apply to Trump.

Also pretty sure this is going to be one of those one-off no-precedent decisions like Bush v Gore, for all that the statement of no-precedent was meaningless in 2000 and will remain meaningless now.
posted by gentlyepigrams at 10:07 AM on February 8 [9 favorites]

i think that today's problems can be traced back partly to Bush v Gore so I think meaningless is not correct.
posted by MonsieurPEB at 10:16 AM on February 8 [6 favorites]

Presenting logical arguments doesn’t matter anymore. I agree that the chess table has been flipped and the knife is out. I also agree the law has never been about justice. LBJ may have gotten some impressive legislation I passed but they just found new things to imprison Black people for. There’s an argument that in order to preserve democracy we have to go high when they go low. I don’t know that the form of democracy we’ve had so far is so worthy of preserving, and there’s no honor in being stabbed to death at a knife fight where you are reciting some really logical arguments.
posted by rikschell at 10:19 AM on February 8 [7 favorites]

And, regardless of what anyone thinks of the merits of the case or whatever, we all know it's going to be at least 6-3 to let Trump be on the ballot. This whole discussion is like talking about the merits of various legal arguments with regards to Dobbs: it's ignoring the fact that the decision was made long ago and has nothing at all to do with the law.

The Republican Justices, as they did in 2000, will vote for the desirable Republican outcome.

And anyone who imagines the Republicans have any significant group of reasonable adults who really hate Trump and are just looking for an excuse to get rid of him is engaging in damaging wishful thinking. Anyone who is still in the Republican Party is fine with Trump, he might not be their first pick but they don't actually object or hate the dude.
posted by sotonohito at 10:24 AM on February 8 [27 favorites]

All the discussion of the need for conviction and other attempts at technical and legal analysis in this thread are silly.

sotonohito has it above: either the Supreme Court allows Trump on the ballot (which is the almost certain outcome and has absolutely nothing to do with the merits of the case or any technical point) in which case what he and the Jan. 6 people did have no consequences or, in the unlikely case that they rule against him, from now on every election will be marred with tit-for-tat attempts to remove the other party's candidate from the ballot regardless of the merit such a challenge. Gumming up the works with endless litigation and generating media firestorms is the point, just as introducing the cry of "election fraud" has forever poisoned the well and will hamper all elections forever since it's a free button anyone can press to screw things up.
posted by star gentle uterus at 10:25 AM on February 8 [8 favorites]

another point to the 14th being self-executing: Congress enacted the Amnesty Act in 1872, forgiving former Confederates
- A Congressional Act forgave them, thus relief from being DQ'd. Same would apply to TFG.
posted by djseafood at 10:31 AM on February 8 [3 favorites]

Legally, predicent wise, and justice wise, he's clearly disqualified. The 14th was used without conviction or further congressional action against successionist confederates. He attempted to overthrow the US government and stop the peaceful transfer of power.

This matches how it has been used and its purpose. A full and fair court proceeding occurred to establish the facts, and the remedy is in line with the text.

The current SCOTUS is not swayed or bound by law, precident or justice. So none of that is relevant, other than possibly finding a flimsy excuse to rule however they want.
posted by NotAYakk at 10:51 AM on February 8 [6 favorites]

This disqualification attempt seems to have problems beyond some overly-friendly Justices. I wish it were a magic bullet but it's probably not. The institutions won't save us (the ballot box will).
posted by mazola at 10:53 AM on February 8

The institutions won't save us (the ballot box will).

The institution of the ballot box will save us where all other institutions have failed even though it’s failed us at least twice in my lifetime!
posted by Uncle at 10:56 AM on February 8 [47 favorites]

The Supremes have a basic issue here which is that there is no requirement to have popular Presidential elections. Presidential primaries are a favor that states do for political parties to help them choose national convention delegates - states don't have to offer them, and parties can and do forgo them and use caucuses or other means to choose delegates.

Using a general election to choose between parties' slates of electors is strictly optional - a state can simply pass a law that says who the electors are, or do it any other way ... a convention of mayors if they wanted, or whatever else.

The question of what the Constitution permits a state to do on ballot access only comes into play if a state allows a ballot in the first place.

So an easy punt is: "Judges and bureaucrats can't limit ballot access based upon who may or may not be an insurrectionist in their opinion. But the legislature can do whatever it wants."
posted by MattD at 11:02 AM on February 8 [7 favorites]

"Donald Trump’s lawyer, Jonathan Mitchell, said the language in Section 3 of the 14th Amendment was 'enacted as a compromise,' in an effort to explain why it isn’t perfect. But it wasn’t a compromise — Southern states refused to ratify it and were forced to." [On July 9, 1868, Louisiana and South Carolina voted to ratify the 14th Amendment, making up the necessary three-fourths majority.]
posted by Iris Gambol at 11:14 AM on February 8 [2 favorites]

CO has its own laws on disqualification, though, right? That's how this case happened. If the CO law on ballot access is supreme then he should be booted.
posted by BungaDunga at 11:14 AM on February 8 [3 favorites]

The argument that if Trump is ruled ineligible to run it will release chaos, or cause MAGA hats to try insurrection again, is a terrible argument.

I'm the home plate umpire in the bottom of the ninth in Game 7 of the World Series. I don't want to call that pitch a strike because the team's fans will get mad.
posted by kirkaracha at 11:22 AM on February 8 [28 favorites]

Elie Mystal Twitter live blog.

It's kind of embarrassing that this is what constitutes the US Supreme Court's line of reasoning. And if you think it's just the conservative ones, read this and then bleach your eyes and brain. A collection of stoners discussing Pink Floyd have deeper, more coherent thoughts.
posted by The_Vegetables at 11:32 AM on February 8 [6 favorites]

it's also not a reason to throw out the presumption of innocence just because the 'justice system' would rather go after the poor than the wealthy and powerful

Not being qualified to hold office is not a criminal punishment. Indeed, it is not a punishment at all. It may feel like punishment to Trump, but that's narcissistic injury. Curiosity compels me to wonder about the details of nuclear weapons, but I'm not being punished by having them withheld. Not being able to go float around on the ISS isn't a punishment, either.

Now, if you're talking about fining him or incarcerating him or otherwise taking his shit, yes, those are punishments that should (ask me about civil asset forfeiture) require a higher standard of process.

It's not like any of this came out of nowhere. A judge didn't just decide sua sponte that Trump shouldn't be on the ballot. Motions were heard, evidence was presented at a hearing, and a ruling was issued. Then that ruling was appealed. Now it's being appealed again.
posted by wierdo at 11:33 AM on February 8 [24 favorites]

It would be very funny for the Colorado State response at the end of the day to be a variation on, "Wow, gee wiz, it's so hard to really define and understand the major points in this opinion, we'll wait for congressional legislation to clarify this, thanks"
posted by Slackermagee at 11:46 AM on February 8 [9 favorites]

It's kind of embarrassing that this is what constitutes the US Supreme Court's line of reasoning. And if you think it's just the conservative ones, read this and then bleach your eyes and brain. A collection of stoners discussing Pink Floyd have deeper, more coherent thoughts.

As multiple someones on multiple various reddit threads have pointed out, most of the actual lawyering is done via the briefs and motions filed ahead of time. This is where the real arguments are, and the justices have already read all of those. Oral arguments are really just an opportunity for everyone to try poking holes in all possible positions and interpretations, which is why oral arguments can get weird and meandering and philosophical and snarky and don't provide much of a guide to how anyone is going to vote or what basis the final opinions are going to be decided on.

It's not an example of judicial reasoning, or coherent considerations of deep legal matters, it's whacking the paperwork with a stick to see if it holds up. If they can whack it from a weird angle they'll do it even if it seems nonsensical.
posted by soundguy99 at 11:52 AM on February 8 [10 favorites]

Sidebar: A collection of stoners discussing Pink Floyd ... A group of stoners is called a BOWL.
posted by achrise at 12:03 PM on February 8 [13 favorites]

It's not an example of judicial reasoning, or coherent considerations of deep legal matters

Sure. That's why they keep asking questions that have basic answers in law.
posted by The_Vegetables at 12:05 PM on February 8

US citizens still don't have a constitutional right to vote, and now we can't even use the 14th Amendment to boot an insurrectionist like Trump off the ballot? Ugh. Just because I'm not surprised doesn't mean I'm happy.
posted by lock robster at 12:34 PM on February 8 [3 favorites]

Not being qualified to hold office is not a criminal punishment. Indeed, it is not a punishment at all. It may feel like punishment to Trump, but that's narcissistic injury.

Once again I implore people to take your eyes off the fact that it's the presidency and we all justifiably hate Trump, and consider the implications of saying it's not a punishment to remove people from the ballot and so it's okay to do so without a conviction.

Can, say, Florida, or Georgia, say that they will bar everyone ever charged, but not convicted or maybe even indicted, with a felony, from the ballot? I will give you two guesses as to the skin color of who that would be most likely to target, with the prosecutors in those jurisdictions, and the effects of that on local government.

Look. If we can't defeat Trump at the ballot box we have a bigger fucking problem than not being able to use, as the post framed, One Neat Trick to knock him out. We have the problem that half the fucking country thinks it's a grand idea even after what he's done. And even if we knock out Trump, that kind of feeling is just going to find another outlet, and we're going to be back in the same place.

People have used Hitler comparisons: so: remember that time that Hitler tried to do an insurrection in 1923 and then when Germany tried him for treason and jailed him everyone lived happily ever after? Yeah, me neither. The law won't fucking save you if the mobs are in the streets.
posted by corb at 12:47 PM on February 8 [38 favorites]

I was disappointed that Justice Jackson “pointed out that the text of the amendment did not explicitly include ‘president’ in the list of offices that could face disqualification for engaging in insurrection.”

When the Senate debated the 14th Amendment they discussed whether the president was an officer.

…there was just a single reference in the Senate debate to the fact that the president and vice president were not explicitly mentioned in Howard's draft as “officer(s) of the United States,” the way members of Congress and state officials had been itemized in the text. Would the disqualification clause of the amendment not cover the top posts in the executive branch?

“Why did you omit to exclude them?” asked Maryland Democratic Sen. Reverdy Johnson.

Maine's Lot Morrill jumped in to clarify.

“Let me call the Senator's attention to the words ‘or hold any office, civil or military, under the United States,’” Morrill said, ending the discussion on that point.

Emphasis fucking added.
posted by kirkaracha at 12:48 PM on February 8 [25 favorites]

remember that time that Hitler tried to do an insurrection in 1923 and then when Germany tried him for treason and jailed him everyone lived happily ever after? Yeah, me neither.

Hitler was convicted of (light) treason and sent to a minimum-security prison on a five-year sentence, but he was released after eight months. He wrote Mein Kampf to pass the time. Hey, at least he was punished a little. Hitler also “claimed the putsch had been his sole responsibility,” so in that specific way Trump is worse than Hitler.
posted by kirkaracha at 1:01 PM on February 8 [4 favorites]

Section 3 of the Fourteenth Amendment and the Spirit of Liberty (Teri Kanefield). Written before oral arguments, but updated since. Good level-headed analysis.

It seems all but a given TFG will remain on the ballot, so this might be the best to hope for:
From all of this, here is a course of action open to the Supreme Court:

(1) Define insurrection so everyone is clear on what definition applies. (2) Deny states the ability to keep Trump off the ballot.

posted by mazola at 1:05 PM on February 8

The problem with Hitler was not that he was convicted and jailed and hence martyred, but that when he came back, the center-left and center-right could not make a coalition to prevent him to take over government. He only got about 30% of the vote in 1933, but because the other parties didn't understand or acknowledge the danger, they let him form a government. He didn't put it that way, but he was "just dictator for a day". And then all the other days.

If we want to use Germany between the wars as our point of reference, the answer would be to convict and jail Trump, and then create an anti-fascist coalition with whoever wants to participate. This would probably exclude some of our good friends as well as the hard right, and I hate that, but it would perhaps save the planet.
BTW the anti-fascist coalition is exactly what is going on in my own country, and everyone hates it, but the alternative is far worse. I expect it to be pretty robust, and even include more parties, though no one really knows.
posted by mumimor at 1:11 PM on February 8 [21 favorites]

Once again I implore people to take your eyes off the fact that it's the presidency and we all justifiably hate Trump, and consider the implications of saying it's not a punishment to remove people from the ballot and so it's okay to do so without a conviction.

I get your principled stand, but I'm just not feeling it.

As with every single goddamn slippery slope argument that's sprung up re: Trump's unprecedented treason, I'm just all out of fucks to give. Let the people who are shamelessly bringing their toboggans be responsible for any unintended consequences that come from holding Trump accountable. If removing Trump from the ballot because he done did an insurrection causes Republican-controlled states to incite a constitutional crisis by removing Biden from the ballot for some petty non-insurrection reason, well, that's their fault. Let the courts figure out how to stop them.
posted by RonButNotStupid at 1:14 PM on February 8 [20 favorites]

the answer would be to convict and jail Trump

To be clear, I'm not against convicting Trump. I save my tears for defendants who can't manage to hire the world's shittiest yet most expensive attorneys. I'm just saying there's an order of operations here, it shouldn't *start* with the ballot, and maybe let's not create precedent that's going to screw everyone else too.
posted by corb at 1:17 PM on February 8 [1 favorite]

It didn't start with the ballot. If you read the decision issued by the Colorado Supreme Court, there was a trial, and Trump's actions were determined to constitute an insurrection: After permitting President Trump and the Colorado Republican State Central Committee (“CRSCC”; collectively, “Intervenors”) to intervene in the action below, the district court conducted a five-day trial. The court found by clear and convincing evidence that President Trump engaged in insurrection as those terms are used in Section Three.
This "he was never convicted" argument is just Trump's own attorney's attempts to move the goalposts. It's an argument that relies on ignorance to make it sound reasonable.
posted by RonButNotStupid at 1:28 PM on February 8 [47 favorites]

It's an argument that relies on ignorance to make it sound reasonable.

that is a great definition for a bad faith argument. thank you for offering it.
posted by MonsieurPEB at 1:42 PM on February 8 [6 favorites]

law is a subset of crime.

this has been your bombastic lowercase pronouncement for the day
posted by bombastic lowercase pronouncements at 1:45 PM on February 8 [11 favorites]

Plenty of people who should know better seem to have forgotten civil trials exist, not just criminal.
posted by ryanrs at 1:46 PM on February 8 [11 favorites]

Look. If we can't defeat Trump at the ballot box we have a bigger fucking problem than not being able to use, as the post framed, One Neat Trick to knock him out.

I would be happier to see him lose the election, on that point we are in agreement. However, we're also talking about the highest law of the land here. If the Constitution is meaningless, so is everything else. If this provision is meaningless, they can all be meaningless.

Say we somehow got enough nationwide support to pass and ratify a Constitutional amendment protecting women's health. Do we really want some future Court to say "nah, we don't like that, so it's actually meaningless"? I mean, we're kinda there already thanks to the Federalist Society, but that doesn't mean we should double down on stupid.

Regardless of what we do, the current bomb throwers populating the Republican Party are going to throw their bombs and take their hostages. They're already doing it, and being emboldened by the day. That's why I feel like concern over what they might do in response is misplaced. They're already doing it. They're not holding back out of some sense of comity or propriety.
posted by wierdo at 1:51 PM on February 8 [18 favorites]

As somebody at Slate pointed out, these justices are originalists when it comes to letting innocent poor people die, but they're consequentialists when it comes to this particular rich person.
posted by clawsoon at 2:03 PM on February 8 [16 favorites]

After permitting President Trump and the Colorado Republican State Central Committee (“CRSCC”; collectively, “Intervenors”) to intervene in the action below, the district court conducted a five-day trial.

that's fine, but did they have jurisdiction? does the state of colorado regularly try people who have committed crimes in dc? do their courts regularly decide on federal cases?

we've already got one side that doesn't give a damn about due process, we don't need two
posted by pyramid termite at 2:11 PM on February 8 [4 favorites]

Is this a two RV case or a three RV case? Or maybe an RV and seven private jet flights? I'm shooting too low, aren't I? This is life time membership to ClubMed level jurisprudence, isn't it? Maybe even use of a house on Bermuda? The Bahamas (too much?)

Law is tricky.
posted by From Bklyn at 2:13 PM on February 8 [10 favorites]

that's fine, but did they have jurisdiction? does the state of colorado regularly try people who have committed crimes in dc?

Not every trial is a criminal trial. IANAL, but it's my understanding that the court wasn't considering whether Trump was guilty of committing a crime, they were determining whether Trump's actions met the definition of something (insurrection) which has implications under Colorado law (you can't be on the ballot if you've participated in an insurrection). In a finding of fact, the court ruled that Trump's actions met the definition of insurrection, THEREFORE no ballot access.

Wasn't there also something similar with a finding of fact to determine Barry Goldwater's eligibility to run for President what with him having been born in Arizona prior to it having become a state (and thus not being a natural-born citizen)? I might be just imagining that. I can't find anything with a quick google search.
posted by RonButNotStupid at 2:22 PM on February 8 [12 favorites]

Golden Toilet will not be removed from the ballot; we all know it.

I don't want Golden Toilet removed from the ballot. Not because he isn't manifestly guilty of sedition—of course he fucking is. I want him on the ballot because he's going to lose by a wider margin than his 2020 defeat, a much wider margin, ~18M votes instead of ~8M, on that order, and pretty much any other Republican would narrowly beat Biden.

He's made almost no new fans since 2020. A small cohort of very young white Tater Tots and incels, plus an even smaller cohort of non-white men bamboozled by other sorts of "strongman" propaganda, and a scattering of devoutly religious Hispanics. Maybe a million people in total. About five million people who supported him in 2020 are now dead. About seven million Gen Z kids have come of age, and yes, some of them will get propagandized by Tik Tok into staying home on the lurid premise that Republican rule will somehow be better for Palestinians, but most of them lean very progressive and can see Golden Toilet as the true enemy. Pretty much everyone who voted against him in 2020 will crawl over broken glass to do it again. Most of the progressives who think Biden is too far to the right will sack up and join Team Grownup. And, most importantly, there are 4-5 million small-c conservative suburban/exurban mostly white people who voted for him in 2020 with deep reservations and are now done, now that he's involved in how many trials? and is visibly decompensating.

I want him to run, and I want him to lose badly, as he will, and for MAGA to be staked in the heart and rendered electorally inoperable. And I strongly believe that what's left of the Republican Party wants this to happen, as well.
posted by outgrown_hobnail at 2:27 PM on February 8 [30 favorites]

if we’re talking moral philosophy i would argue that the republican majority on this court are anti-deontologists: they consider it most moral to most fully fail to fulfill their duties.

(this can be actually a pretty good ethical system but it’s not for powerful people who make a living by purporting to believe that law exists and is not a subset of crime)
posted by bombastic lowercase pronouncements at 2:28 PM on February 8 [3 favorites]

If you insist on re-litigating the 1964 election, Citizen issue raised in Goldwater suit:

SAN FRANCISCO, Sept. 4—Senator Barry Goldwater is ineligible to become President because he was born in Arizona when it was a territory, the California Supreme Court was told today.

Thus, a petition said, the Senator is not “a natural‐born citizen” as required by the Constitution. Mr. Goldwater was born Jan. 1, 1909, Arizona entered the Union in 1912. The suit was filed by Melvin Belli, a lawyer who once represented Jack L. Ruby …

posted by autopilot at 2:29 PM on February 8 [10 favorites]

When we get done with this, we're going to have an entire section of the U.S. Constitution that has no avenue whatsoever available to actually be applicable to anything.

It seems a clear-cut evisceration of the plain meaning of the document, and of the will of the people as evidenced by the process of constitutional amendment, by an un-elected branch.

But hey, whatever. The Constitution is a giant diaphanous wad of slightly used toilet paper and All Is Well.
posted by flug at 2:36 PM on February 8 [7 favorites]

> pyramid termite: "we've already got one side that doesn't give a damn about due process, we don't need two"

Counterpoint from earlier in the thread: "if you’re playing chess, and your opponent flips over the table and threatens you with a knife, continuing to play chess according to standard rules is deeply dangerous"

It is, of course, incredibly uncertain if we're more in the first situation (i.e.: no need to sink to their level, keep playing by the rules and it'll all work out for the best) or in the second situation (i.e.: if the rule you followed brought you to this, of what use was the rule).
posted by mhum at 2:51 PM on February 8 [5 favorites]

there are 4-5 million small-c conservative suburban/exurban mostly white people who voted for him in 2020 with deep reservations and are now done

Also, see Iowa & NH Republican primary exit polls, where Haley handily won "moderates" & "independents", and also college graduates. It seems quite likely that Trump has basically bottomed out, he gets white non-college making between 50k and 150k a year and that's about it.

what's left of the Republican Party wants this to happen, as well

Eh, other way round. Trump owns what's left of the Republican Party, most people who want Trump to go away have left the party and call themselves "independent." Which is why "generic Republican who is Not Trump" or Haley or DeSantis were beating Biden in polls, a bunch of those "independents" would come back to vote R as long as it's not Trump.
posted by soundguy99 at 2:52 PM on February 8 [4 favorites]

I want him to run, and I want him to lose badly, as he will...
posted by outgrown_hobnail at 4:27 PM on February 8

Yeah that's what a lot of people thought in 2016, too.

Also his people have had a lot of time to screw around with even more gerrymandering and vote suppression and getting secretaries of state elected who are true believers who will give their boy the election whether he earned it or not.
posted by joannemerriam at 2:55 PM on February 8 [27 favorites]

I can see the appeal of getting him off the ballot. It would mean the insurrection really was being taken seriously. It would let him have his tantrum now and dash the hopes of his worshipers who imagine his second term as being his step into dictatorship. It would finally mean we're free of him and that even if he loses in 2024 he won't be back in 2028 no matter what.

We're not going to get that, we're going to get the Republican Justices voting for the Republican same as they did in Bush v Gore and if they're feeling especially snarky I bet they'll even say that this case can't be considered precedent as they did in 2000.

But I can get why people are eager to see Trump lose this and be officially off the ballot everywhere.
posted by sotonohito at 3:15 PM on February 8 [9 favorites]

If you read the decision issued by the Colorado Supreme Court, there was a trial, and Trump's actions were determined to constitute an insurrection

Majorities of both houses of Congress also found he participated in an insurrection.
posted by kirkaracha at 3:31 PM on February 8 [12 favorites]

The thing about insurrection is that uniquely, by definition isn’t tried in the courts, it’s tried in the streets and on the battlefield; Trump is an insurrectionist because he tried it and failed on insurrection’s own terms. Those same terms applied to Jefferson Davis and Robert E. Lee, both disqualified, neither tried or convicted.
posted by Fiasco da Gama at 4:08 PM on February 8 [27 favorites]

I can easily see this becoming a sort of tit-for-tat retaliation by Republicans who then take Democrats off the ballot in states they control as vengeance for dropping Trump.

I find myself idly wondering if half the country removing the GOP candidate from the ballot and the other half taking the Dem candidate off, if this might be how a third party finally gets into power.
posted by ricochet biscuit at 4:28 PM on February 8 [3 favorites]

Those same terms applied to Jefferson Davis and Robert E. Lee, both disqualified, neither tried or convicted.

Also George Washington, who got lucky.
posted by Faint of Butt at 4:36 PM on February 8 [11 favorites]

The thing here is that the writers of the 14th were after their civil war, but we're now hoping to apply their words before ours.

After the war, there's no quibbling about who's an insurrectionist. You just got defeated and occupied, you're it, shut up.

The clause on paper is worthy of respect and application but it can't itself do the political (or military) work to crush the insurrection.
posted by away for regrooving at 4:52 PM on February 8 [7 favorites]

Timothy Snyder said that the 14th amendment was supposed to make this process EASY, and our Supreme Court is bending over backwards to keep him on the ballot. 100% he should be off and if the liberal court members say things to the effect of “Well should one state dictate who is president?” If that’s their criteria GET RID OF THE ELECTORAL COLLEGE. JFC.

This would have given Drumpf the out he needed - “Hey, I can’t run, please send me money and we’ll run ads on Faux News (and pay my legal bills…).”

I was for allowing each state to make their decisions and go from there but now I want him off. He’s going to claim victory no matter what - he’ll start claiming victory after Super Tuesday and that any other outcome shows things were rigged. If that isn’t chaos, I don’t know what is but honestly I’m calling up some prepper friends for advice.

We are so screwed at this stage - enough people won’t vote, enough will say “I’ll vote 3rd party to make a statement”, and enough Russian and Chinese money will pay for ads that he’ll walk in. There are no institutions left to save us and the Democrats are so clueless/spineless that they’ll continue playing chess while everyone else is out knife fighting. Something like 80,000 votes across a few swing states put him in in 2016 - now they’re organized and know how to game the system.

The remaining court cases against him will all get delayed/evaporate at this point. If I’d done anything like he did with classified documents I’d be in a jail cell and I’ve had my laptop nuked because of a mistake the US government made.

I was at a conference in 2015 and they asked everyone if Trump would win and like 2% of the crowd said he would and I thought “those guys are idiots” but the reality was we live in a bubble and have limited perspective from the rest of the country.
posted by Farce_First at 4:55 PM on February 8 [14 favorites]

"We are doomed and there is no recourse" is (a) not something you actually know and (b) a terrible position to take, that could even be come self-propelling.

Yeah, if we all sit on our butts and do nothing towards actually getting out the vote/increasing ballot access/talking to your own loved ones who might be on any of the various fences/etc-- yes, then Trump will get elected and everything will be terrible.
So don't do that. And don't tell other people they should by insisting that nothing we do can have any effect at all. It can; it did in 2020.

Relevant local note: AZ has a Democrat for SOS. We're not alone.
posted by nat at 5:05 PM on February 8 [24 favorites]

I don't think that it's that we are doomed, it's that every system, safety net, and guard rail didn't seem to even try?

Grade school ground into me that the electoral college is a safeguard against This One Thing and it immediately failed. 14th amendment? Unless Colorado actually tells the court to stuff it, another failure. Anyone want to enforce the emoluments clause? Anyone feel like maybe the court's Good Behavior requirement should be utilized?

It's just dead letter after dead letter.
posted by Slackermagee at 5:41 PM on February 8 [45 favorites]

some version of "states cannot enforce this particular part of the 14A on their own, they need Congress to . . . do something." Does it make sense? Well, not really, but both sides of the Court seem to like it as a way to avoid the chaos that actually respecting CO's decision would bring.

Ironically not avoiding the chaos; you don't solve an ongoing constitutional crisis by ignoring it. See also the Senate not voting to subject TFG to "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States".

remember that time that Hitler tried to do an insurrection in 1923 and then when Germany tried him for treason and jailed him everyone lived happily ever after? Yeah, me neither.

Remember the probably tens of thousands of people in the course of history who attempted a resurrection, went to prison, and then never managed a noteworthy thing ever again? Of course not, prison spiked their cannon and they became a nothing burger. That prison didn't stop any particular insurrectionist doesn't mean it isn't a valid response.

Also TFG isn't any Hitler. In the unlikely event he actually goes to prison for any length of time its most likely a life sentence. He's not coming out of a multi year prison stint and then leading his cultists to over throw the government five years later.
posted by Mitheral at 6:10 PM on February 8 [4 favorites]

>I want him on the ballot because he's going to lose by a wider margin than his 2020 defeat, a much wider margin, ~18M votes instead of ~8M, on that order, and pretty much any other Republican would narrowly beat Biden.

That was also the logic of the 2016 Clinton campaign.
posted by The Manwich Horror at 6:25 PM on February 8 [13 favorites]

>Remember the probably tens of thousands of people in the course of history who attempted a resurrection

I only remember the one guy.
posted by cashman at 6:27 PM on February 8 [24 favorites]

Timothy Snyder, Law or Fear:

The main author of the Fourteenth Amendment, John Bingham, was an interesting man. He was aware that fear was the enemy of law. ...He also, incidentally, made clear that Section 3 was supposed to apply to the president of the United States.
...
In the debate over the Fourteenth Amendment, it was explicitly clarified that the president was included in Section Three. John Bingham, the chief author of the Fourteenth Amendment, referred to the president as an "officer." This was routine usage at the time, including by the officers in question, the presidents themselves. In any event, Bingham also said that Section 3 applied to the president. In contemporary public discussion of Section 3, it was taken for granted that the president was meant.

posted by kirkaracha at 6:47 PM on February 8 [19 favorites]

Yeah well if John Bingham wanted his amendment to apply to Donald Trump, maybe he should have listed “Donald Trump” in the amendment.
posted by ryanrs at 6:58 PM on February 8 [15 favorites]

Remember the probably tens of thousands of people in the course of history who attempted a resurrection

I'll resurrect or I'll die trying.
posted by otherchaz at 7:13 PM on February 8 [4 favorites]

If your resurrection lasts more than four hours, consult a physician.
posted by kirkaracha at 7:27 PM on February 8 [13 favorites]

Can, say, Florida, or Georgia, say that they will bar everyone ever charged, but not convicted or maybe even indicted, with a felony, from the ballot?

Um, no? How does that follow from a state excluding an insurrectionist from the ballot under the 14th Amendment, section 3? I mean, if your felony conviction is related to a person committing an insurrection, then they should be disbarred based on them having done an insurrection and the felony wouldn't have a thing to do with it except maybe as related facts already decided in a court of law.

Trump isn't being barred from ballots just because secretaries of state feel like it. It's because he actually did the thing the 14th calls out as a disqualifying act. It's a real thing that actually happened and we all saw it.

The idea that anyone is going to start banning folks from ballots for bullshit reasons because Trump gets barred for very real reasons is just nonsense.

If anyone wants to try, well, that's a bold move Cotton...
posted by VTX at 8:45 PM on February 8 [25 favorites]

So - my understanding of the Colorado case was that in the lower court he was found guilty of insurrection, and it also found that the President is an officer of the government - but only the 2nd part was appealed, found wanting in the state appeal court and then overturned in the state supreme court.

My question is what was appealed to the US Supremes? surely only the part that made it to the state Supremes?
posted by mbo at 10:31 PM on February 8 [3 favorites]

(Just as a quick aside, when people go comparing Trump and Hitler it's good to remember that Hitler was a group effort. He never would have gotten anywhere if there wasn't a group of (that varied over time) who saw him as a useful asshole/demagog front to use for their own ends. Nazi Germany was a catastrophe for the vast majority of those involved but there were a handful who profited nicely from it. This is a template that I can well imagine some are thinking of replicating with Trump.)

Justice Roberts is a bummer, man.
posted by From Bklyn at 11:34 PM on February 8 [6 favorites]

I don’t know why TFG can’t be on some ballots, but not others. That’s how our states work.

Bush v. Gore: Recall that Florida’s “hanging chads” vaunted uncountable ballots issue resulted in Bush because: “stability” or whatever smoke and mirrors shit SCOTUS did to tip those scales for their guy. It was a farce.

REAL TALK now. Ginni Thomas is an insurrectionist. Full stop. Every Justice whose been on the bench with Thomas for a minute therefore “pals around with terrorists,” to borrow from Sarah Palin’s parlance. And, crucially, “gives aid or comfort” to borrow from the 14thAm’s parlance. All of them who have ever made nice with Ginni Thomas or ever sat down and broken bread with her should recuse. But no. Apparently, we’re supposed to ignore what we all plainly saw on January 6 and disbelieve our own eyes because “no conviction.” I’m tired.

SCOTUS. Fuck ‘em where they live.
posted by edithkeeler at 12:31 AM on February 9 [23 favorites]

So as not to abuse the edit window, Will Baude is a former Roberts clerk and, for me, maybe the one FedSoc dude who actually makes me feel less crazy when having to consider his side’s arguments.

Will Baude is highly watchable HERE. Baude plainly says Trump is an insurrectionist. Baude’s “Divided Argument” podcast is also instructive, particularly on SCOTUS’ shadow docket.
posted by edithkeeler at 12:40 AM on February 9 [4 favorites]

Hitler was a group effort

That’s a thing that hasn’t really changed, for sure.
posted by Artw at 5:55 AM on February 9 [5 favorites]

The simplest explanation for the way things are likely going here is that's what Leonard Leo wants. You gotta dance with them that brung ya, etc.
posted by Not A Thing at 6:28 AM on February 9 [2 favorites]

I don't know, if I were a craven, mendacious conservative Supreme Court justice, I'd see a lifetime appointment acting as a rubber stamp for Republicans while getting sweet gifts on the side as a pretty self-preserving act. I get money, status, and the appearance of power in exchange for giving them actual power and a rotting fig leaf of pseudo-legitimacy.
posted by jedicus at 6:30 AM on February 9 [4 favorites]

“Garland, Kagan, Betray Democracy in Biden Probe & at SCOTUS”—Countdown with Keith Olbermann, 09 February 2024
posted by ob1quixote at 6:36 AM on February 9

It's wild watching the "originalist" wing of the Supreme Court work to redefine that the 3rd section of the 14th as maybe not applying to people who weren't convicted, or maybe not applying to people who want to run for president, or maybe isn't applicable in this case because it wasn't really an insurrection.

It was put in after laws about insurrection. Why? Because they wanted to have a way to keep insurrectionists out of office, even if the country had decided not to proesecute them in the interest of avoiding national discord. It was understood at the time to apply to, among others, Jefferson Davis, who was mulling a run for president. Trump has called it an insurrection (yesterday!)

And it "wasn't planned"? Motherfuckers showed up wearing shirts that said "MAGA Civil War, January 6, 2021."

"Originalists"? The crystal-clear original purpose of the 3rd section of the 14th was to prevent people like Trump from holding office, full stop.
posted by DirtyOldTown at 7:20 AM on February 9 [30 favorites]

“Thoughts on the Partisan Attack on Biden's Memory,” Dan Pfeiffer, The Message Box, 09 February 2024

The Special Counsel report is going to make Biden's age and competence centerstage for the foreseeable future

posted by ob1quixote at 7:24 AM on February 9 [4 favorites]

“Garland, Kagan, Betray Democracy in Biden Probe & at SCOTUS” yt —Countdown with Keith Olbermann, 09 February 2024

I love you, Keith, I do, but stay with me for a second.

Justice Kagan is smarter than you. Justice Kagan is smarter than me. I know this from personal experience because about 30 years ago she was my professor in a 12-person First Amendment seminar in law school. I spent a lot of one-on-one time with her and I thought I was very smart. This was the University of Chicago Law School so the other 11 people in the room every day (mostly dudes, probably not all) all thought they were very smart too. I was on Law Review, as it happens, so I thought I was SUPER DUPER smart but every one of us was used to being the smartest person in the room and we did not like to be wrong.

Here is what I found out: In any given room, it is a near statistical certainty that Elena Kagan is the smartest person in that room, no matter who is in there. After spending that time with her, I learned that if she and I disagreed, I had probably missed something. And that lesson -- that there are people like that, that you never know who those people are going to be, and that it's important to constantly check yourself -- was one of the most important lessons of my life.

The guy arguing the case for Colorado (Jason Murray) is a former Kagan Clerk. He has already learned this lesson. He argued well and he's an extremely smart lawyer who feels strongly about his position. I find his arguments very compelling. But based specifically on the questions Justice Kagan asked, I have been thinking hard about my own position on this case and asking if there might be something I missed. What I have NOT been thinking is "Justice Kagan is a traitor or a fool." That's insane. Dial it back, Keith.
posted by The Bellman at 7:37 AM on February 9 [47 favorites]

So let's say the Court rules that being an insurrectionist requires a conviction. And let's say that Trunp delays his election trial and wins the election. Then he's convicted post-election, and now "ineligible to hold office." What happens then? Does his VP just march in and say "Sorry boss, Im in charge now."
posted by CheeseDigestsAll at 7:50 AM on February 9 [3 favorites]

One infuriating but not surprising aspect of this case: in recent times, most of the Roberts (?) court has been plainly eager to completely nuke any appearance of legitimacy in pursuit of narrow political goals but now won't risk the same to protect the republic - including themselves.

It's not even a matter of taking one for the team; it's a matter of interrupting one's slavish obeisance to non-legal principles as a sitting judge long enough to activate the vestigial self-preservation instinct.

So, to combine this with The Bellman's comment regarding Kagan being smarter than everyone, the rationale might just be fear. Fear of the people that showed up with intent and planning on Jan 6th. Fear of the institution being wrecked in revenge should a MAGA republican win down the road. Fear that Section 3 is an overreaction and that someone will take a swing at the court in response (which should be moot, it's a part of the constitution but here we are).

There doesn't have to be a "good" or "professional" rationale for any of them, it doesn't really matter how smart they are, they are still mortals like you or I and "show up at or near their residences" has already happened for one of the prior cases in the last two years, IIRC.

So if the opinions are word salad definitely-not-binding-precedent don't discount fear.
posted by Slackermagee at 8:09 AM on February 9 [6 favorites]

Fiat iustitia ruat caelum. Nisi nimis scarus est!
posted by kirkaracha at 8:11 AM on February 9 [8 favorites]

"Originalists"

Yeah see, you'd think that "originalist" would mean someone that adheres to the original meaning of the constitution according to the founders. That alone would be a stupid position, I don't particularly care what a bunch of old rich white sexist slave owners thought about....anything really.

But what it really means is, "The constitution says what I think it says based on the fact that I can read the founder's minds and they all agree with my interpretation."
posted by VTX at 8:59 AM on February 9 [6 favorites]

It's wild watching the "originalist" wing of the Supreme Court work to redefine

It's only wild if you ever took them at their word. The disingenuousness was baked in from the start.
posted by rikschell at 9:00 AM on February 9 [8 favorites]

Here is what I found out: In any given room, it is a near statistical certainty that Elena Kagan is the smartest person in that room, no matter who is in there.

Well the point he's arguing was dumb, no matter how smart you think Kagan is. Removing Trump from the ballot in a single state doesn't prevent him from becoming President. Full stop. Her point was both dumb and logically incorrect. And even if they were just freestyling and oral arguments don't mean anything, the freestyling legal points they were arguing were all incorrect, and it's right for Olbermann to call it out..
posted by The_Vegetables at 9:13 AM on February 9 [3 favorites]

It's only wild if you ever took them at their word. The disingenuousness was baked in from the start.

Well, yeah, this is what I am saying. The use of "originalists" above should be read while rolling your eyes so hard you can see your own brain.
posted by DirtyOldTown at 9:15 AM on February 9 [1 favorite]

Understanding textualism and originalism as schools of post-hoc rationalization rather than legal scholarship makes a lot of things come into better focus -- particularly why textualists never seem to be swayed by linguistic scholarship and originalists never seem to be swayed by historical scholarship.
posted by Not A Thing at 10:04 AM on February 9 [15 favorites]

To reinforce Not A Thing’s point, head over to the recent “Satan teaches
Sunday School “ thread for a deep dive into real Bible scholars vs. “literalist” (originalist) scholars. Bible literalism and Constitutional originalism are very strongly linked. It’s a lot of the same people, and the core ethos is one of incuriosity and a desire for black and white answers to everything.
posted by caviar2d2 at 10:25 AM on February 9 [9 favorites]

The scenario-of-concern, where states rush to ban a presidential candidate from a ballot, is exactly what the electoral college now does after the fact.
posted by Brian B. at 10:32 AM on February 9 [7 favorites]

Another way of looking at it: You have to be 35 years old to be elected President. Does a court have to find you 'guilty' of not meeting that qualification in order for you to be barred from the ballot?

Age is objective. What Trump did is subjective and although I hate the guy and do think his goal was insurrection, but he hasn't been found guilty of any insurrectionist charges yet, so I don't think there is an objective benchmark for states to hang their hats on, and it's opening the door for even more chaos in the future.
posted by furtive at 11:25 AM on February 9 [1 favorite]

In the courtroom of honor, the judge pounded his gavel
To show that all’s equal and that the courts are on the level
And that the strings in the books ain’t pulled and persuaded
And that even the nobles get properly handled
Once that the cops have chased after and caught ’em
And that the ladder of law has no top and no bottom

Even when Dylan wrote those lyrics more than six decades ago, it was widely understood that this “nation of laws” business was a sad, sick joke.
posted by non canadian guy at 11:39 AM on February 9 [4 favorites]

For people saying there needs to be a conviction:

The Congressional Research Service (a public policy research institute of the United States Congress) found that Section 3 of the Fourteenth Amendment does not expressly require a criminal conviction, and historically, one was not necessary. Reconstruction Era federal prosecutors brought civil actions in court to oust officials linked to the Confederacy, and Congress in some cases took action to refuse to seat Members.

As a matter of fact, no one who has been formally disqualified under Section 3 was charged under the criminal “rebellion or insurrection” statute (18 U.S.C. § 2383) or its predecessors.

Specifically, this was understood at the time to be a way to a) forego criminal insurrection trials where it would be politically disruptive/corrosive, while still keeping insurrectionists from holding federal office.
posted by DirtyOldTown at 11:40 AM on February 9 [21 favorites]

Age is objective. What Trump did is subjective and although I hate the guy and do think his goal was insurrection, but he hasn't been found guilty of any insurrectionist charges yet, so I don't think there is an objective benchmark for states to hang their hats on, and it's opening the door for even more chaos in the future.

The court in Colorado determined--in a trial where Trump and the GOP were represented by their attorneys--that his actions fit the definition of insurrection. The judges looked up how the law defines 'insurrection' then asked whether any of the *undisputed facts* of what Trump did or didn't do on January 6th fell into that definition, and they concluded via a very detailed ruling that his actions *did* meet the definition of insurrection.

Now, you can complain that there's some sort of flaw in the logic used by those judges to reach that conclusion, or that their were flaws in how they applied the law, but you can't just dismiss the whole process as some willy-nilly subjective process. That's what Trump wants people to believe.
posted by RonButNotStupid at 11:44 AM on February 9 [36 favorites]

So, I’m still confused about one thing: if the president isn’t an officer, should we change “the office of the presidency” to what….”.the throne”?
posted by zenzenobia at 11:51 AM on February 9 [8 favorites]

IANAL, but you don't have to be charged with a crime in order for a court to determine that you did something.

Just look at the civil suit E. Jean Carroll brought against Trump. In order to determine whether or not Trump slandered Carroll and is liable for damages, the court had to first answer the question of whether or not he raped her. And even though Trump has never been charged with any crime, the court still found that Trump did engage in rape. He is a rapist.

Anyone who says the Colorado ruling doesn't count because it wasn't a criminal trial: Does that mean the ruling in E. Jean Carroll's case also doesn't count?
posted by RonButNotStupid at 12:01 PM on February 9 [8 favorites]

The court in Colorado determined--in a trial where Trump and the GOP were represented by their attorneys--that his actions fit the definition of insurrection.

Majorities of both houses of Congress also determined he had incited an insurrection in his second impeachment trial.
posted by kirkaracha at 12:07 PM on February 9 [17 favorites]

A Ruling for Eligibility Could Doom Trump’s Bid for Immunity, in which Adam Liptak speculates
posted by box at 12:09 PM on February 9 [1 favorite]

Now, you can complain that there's some sort of flaw in the logic used by those judges to reach that conclusion, or that their were flaws in how they applied the law, but you can't just dismiss the whole process as some willy-nilly subjective process. That's what Trump wants people to believe.

There's clearly a level of subjectivity (or maybe more accurately, that the accusation of insurrection isn't quite a slam dunk) because other very blue state officials and judges have decided the opposite.

I guess I could imagine the SC deciding that in fact Trump was an insurrectionist and should be banned nationally, though certainly their questioning didn't hint in that direction. But I can't imagine them producing a decision that says "yep, each state can do their own thing" given the shitshow that will guarantee. I think they'll either close that pathway off totally, or find a way to rule that closes it off for this time around, at least.
posted by Dip Flash at 12:13 PM on February 9 [4 favorites]

kirkaracha already shared a link earlier showing that it is in the congressional record that during debate in the 14th Amendment, it was asked if the wording needed to be changed to include "president and vice-president" but this was shot down immediately (and somewhat snidely), as stupid, since it obviously included them already.
posted by DirtyOldTown at 12:30 PM on February 9 [20 favorites]

I foundered on the part where Trump hasn't yet been convicted of disqualifying crimes. "Everybody knows he's guilty" isn't enough to impose a legal penalty on anybody. A trial and conviction is required.

But after I listened to the oral arguments at SCOTUS, I realized that the issue is Colorado state law, not the impending federal trials. Colorado had a trial and notified Trump (whose lawyers declined to participate). He was found guilty; the Colorado Supreme Court upheld the decision, so Trump boosted the case to SCOTUS.

The issue for SCOTUS seems to be whether to override the Constitutional prerogative of a state (Colorado) to conduct its own electoral process. The task for Andrson's lawyers was to show they used due process leading to their decision. The premises of their action were central to their case, and they were well-supported in history and law.

SCOTUS does not have to rule on whether Trump committed sedition. On the other hand, the federal charge of abetting (etc.) sedition (etc.) will come under their purview upon appeal (assuming he's found guilty).

As I understand it, the problem is a dilemma. Should SCOTUS venture into states' rights issues? There's a tidy can of worms if ever I saw one. Also, if SCOTUS rules in favor of Anderson, will we see a spate of frivolous lawsuits from red states? Now, these suits won't fly, but if they all go through Justices like the one in Amarillo (for example), they may open a new chapter, lowering the bar of ludicrous shenanigans by our elected officials.

The electoral process in the US is already a mess because of deficiencies in the Electoral College. I can't see how any ruling that comes from the Anderson decision will be anything but a small bandage on a large wound.

We've been using safety pins and staples trying to hold our collective shit together since at least the days of Newt the Grinch and his band of Young Turks, who shut down the government for three months as a weapon against Democrats who had the audacity to challenge a Republican agenda. The weaknesses were amplified when Al Gore did the right thing instead of insisting on another recount. Because of Gore's concern for the good of the Republic, we got Dubya, and a tidal wave of silliness has gushed forth ever since. Even with Obama at the helm, the outpouring of bullshit has not shown any signs of abating.

Now we at the intersection of serious national debility and our inextricable complicity in irresolvable international crises. Amerida spurs a lame donkey, leveling its lance at a windmill, yelling "Follow me!" to folks who used to hold us in high esteem. I can't blame them for hesitating.

My hair is not on fire only because I am bald.
posted by mule98J at 1:17 PM on February 9 [17 favorites]

The Congressional Research Service (a public policy research institute of the United States Congress) found that Section 3 of the Fourteenth Amendment does not expressly require a criminal conviction, and historically, one was not necessary. Reconstruction Era federal prosecutors brought civil actions in court to oust officials linked to the Confederacy, and Congress in some cases took action to refuse to seat Members.

As a matter of fact, no one who has been formally disqualified under Section 3 was charged under the criminal “rebellion or insurrection” statute (18 U.S.C. § 2383) or its predecessors.

Specifically, this was understood at the time to be a way to a) forego criminal insurrection trials where it would be politically disruptive/corrosive, while still keeping insurrectionists from holding federal office.

I guess this represents the thinking and research power of the entire internet, but it does seem like I should be hearing this argument from the lawyers addressing the Supreme Court rather on MetaFilter.
posted by straight at 1:19 PM on February 9 [2 favorites]

I can't imagine them producing a decision that says "yep, each state can do their own thing" given the shitshow that will guarantee.

Yeah, I think that ultimately a sound ruling would be that a federal court is the only one who can likely rule and decide on federal insurrection; state courts can rule on state insurrection. You actually don't want state courts being able to interpret this on their own.

Specifically, this was understood at the time to be a way to a) forego criminal insurrection trials where it would be politically disruptive/corrosive, while still keeping insurrectionists from holding federal office.

Yeah, it's a really bad look to be like "We all agreed not to give people due process back then because we thought it might be disruptive, so we're not going to do it now". Civil liberties have come a long way since the Civil War era.
posted by corb at 1:23 PM on February 9 [2 favorites]

Trump warns that the efforts to keep him off the ballot “threaten to disenfranchise tens of millions of Americans” and “promise to unleash chaos and bedlam if other state courts and state officials follow Colorado’s lead.”

Seems like an attempt to intimidate a civilian population through the threat of violence within the jurisdiction of the USA, which is the literal definition of terrorism.

Democratic presidents have dropped hellfire missiles on Americans for less.
posted by Reyturner at 1:28 PM on February 9 [12 favorites]

Yeah, I think that ultimately a sound ruling would be that a federal court is the only one who can likely rule and decide on federal insurrection; state courts can rule on state insurrection. You actually don't want state courts being able to interpret this on their own.

Fair enough

Yeah, it's a really bad look to be like "We all agreed not to give people due process back then because we thought it might be disruptive, so we're not going to do it now". Civil liberties have come a long way since the Civil War era.

You keep making this about due process. Putting aside the state courts vs. federal courts issue, in what way was Trump deprived of due process? The complaint was filed and a trial was held. Trump had the opportunity to defend himself, and at the conclusion of the trial, the judges issued their ruling. The same exact thing happened in New Mexico where Couy Griffin represented himself at trial. There's nothing to imply that a similar trial wouldn't happen for anyone else who has a 14th Amendment complaint filed against them. And the reason the Supreme Court is getting involved at all is because the Colorado decision is being appealed to a higher court!

Could you please elaborate how this isn't due process? It's not like access to the ballot is being denied automatically or without access to judicial review (or is the technical term relief?)
posted by RonButNotStupid at 1:49 PM on February 9 [8 favorites]

It's a really bad look to be like "We all agreed not to give people due process back then because we thought it might be disruptive, so we're not going to do it now". Civil liberties have come a long way since the Civil War era.
Confederates, particularly Confederate leaders didn't need trials to establish that they participated in insurrection. Theirs was not an ambiguous insurrection.

When we're talking about people running for office facing this Amendment later, we're talking about men who were uniformed officers of an insurrectionist army, collecting paychecks from an attempted insurrectionist government, leading attacks to murder the armies of the legitimate republic. A trial wasn't really needed to clear up which side they were on. This wasn't denying due process, it was extending an olive branch.

Following a civil war, a nation cannot practically prosecute and imprison large chunks of its populace. What would it have been after the US Civil War? Something like two out of five adult male citizens? One out of three? The nation had to go on. Peace had to be made. So, they let most of them go, but with the caveat that they would emphatically not be immediately seizing the reins of power in the restored republic.

That was what the 14th Amendment was designed for. Let the nation move on, but without giving control to people who just tried to shatter it.

This was not a permanent condition, by the way. By 1872 with the Republic restored, Confederate Amnesty was passed and the 14th no longer applied to ex-rebels.

If there is a weakness to the 14th Amendment, it is the assumption that we would all be able to agree going forward, as they had at that time, what an insurrection looked like.
posted by DirtyOldTown at 2:12 PM on February 9 [10 favorites]

Putting aside the state courts vs. federal courts issue, in what way was Trump deprived of due process?

But other than that, Mrs. Lincoln, how was the play?

First, it seems like Colorado played some HIGHLY HINKY games with removal, by naming the secretary of state, who presumably is politically unified with Colorado, as a defendant, and then claiming that since she's not in unanimity with Trump and she accepted service in Colorado, there can be no removal to federal court. That's fuck-fuck games.

Secondly, I want you to imagine that this isn't Trump, who is universally obnoxious and disliked, and imagine it was someone else. Imagine having to get lawyers that are bar-admitted in conceivably every state, over what is ultimately a deeply federal question issue. The fact that this isn't in federal court highly smacks of jurisdiction shopping.
posted by corb at 2:14 PM on February 9 [3 favorites]

As an aside, I am sympathetic to corb's concerns about how great an amendment this really is and whether it has huge holes.

It stands today though, and was put into place to deal with pretty much this exact situation.

If the GOP doesn't like it, repeal the Amendment.
posted by DirtyOldTown at 2:21 PM on February 9 [9 favorites]

If anyone is interested in oral arguments but prefers podcasts, the Free Law Project's Oral Argument Recording Archive has feeds for appeals courts and the Supreme Court. (For me, this enables pausing, 1.3x speed up, and other niceties.)
posted by bbrown at 2:21 PM on February 9 [2 favorites]

Really, even my "repeal it then" comment is more flip than I mean to be. There is definitely an argument that this Amendment could create problems. I find "This needs to be reinterpreted for our times" arguments worth considering.

It's just the it doesn't say what it obviously says/wasn't intended for what the people who wrote it said on record it was intended for/doesn't apply to offices they definitely said they intended it to apply to/he didn't do what we all watched him do crowd that drives me nuts.

I absolutely am open to arguments that enforcing it could be a shit show and makes things worse in this case. Smart people like corb may know more about that than I do.
posted by DirtyOldTown at 3:02 PM on February 9

Honestly, I just want to move away from this country before it blows up like a toilet full of excrement and M-80's.

(sigh)
posted by DirtyOldTown at 3:15 PM on February 9 [6 favorites]

corb what does "fuck-fuck games" mean and can I use it? Is that your coinage or is that a legal term?
posted by kensington314 at 3:45 PM on February 9

Frankly, I blame the military. If they had locked up this obvious enemy combatant, and all of his minions (yes, I'm including Matt, Lauren, and Greenie, wicked witch of the south) subjected them to a military tribunal and then executed them by firing squad, as they all obviously and richly deserve, we could be talking about more important things, like why corb hates free jazz improvisation, and whether there is a musical style so egregiously bad that even Hippie Bear doesn't like it. Don't think I've forgotten you, Empress Calypagos I'm just not sure you're as deeply entrenched in the Minimalist Ambient Country Hip Hop Synthwave underground as you claim.
posted by evilDoug at 3:52 PM on February 9 [8 favorites]

> Trump's lawyer said to qualify as an insurrection, "there needs to be an organised concerted effort to overthrow the government of the United States. [January 6] was a riot. It was not an insurrection."

So close - almost there! It was a riot to accomplish what?
posted by edgybelle27 at 3:54 PM on February 9 [13 favorites]

"The most sensible and jealous people are so little attentive to government that there are no instances of resistance until repeated, multiplied oppressions have placed it beyond a doubt that their rulers had formed settled plans to deprive them of their liberties; not to oppress an individual or a few, but to break down the fences of a free constitution, and deprive the people at large of all share in the government, and all the checks by which it is limited."

-John Adams.
posted by clavdivs at 4:11 PM on February 9 [5 favorites]

First, it seems like Colorado played some HIGHLY HINKY games with removal, by naming the secretary of state, who presumably is politically unified with Colorado, as a defendant, and then claiming that since she's not in unanimity with Trump and she accepted service in Colorado, there can be no removal to federal court.

I'm not quite following -- the plaintiff is/was a group of individual Colorado voters, not the state. The Secretary of State was solely a defendant (since the plaintiffs were suing to bar the secretary from placing an ineligible candidate's name on the ballot). Here is the remand order, which seems straightforward. Why should defendant Trump have been able to remove the case without the other defendant's consent?
posted by Not A Thing at 5:01 PM on February 9 [1 favorite]

Betting markets now have Trump as the favourite to win the next election despite plainly being ineligible. Great job supreme court.
posted by zymil at 5:26 PM on February 9 [2 favorites]

> corb: "First, it seems like Colorado played some HIGHLY HINKY games with removal, by naming the secretary of state, who presumably is politically unified with Colorado, as a defendant, and then claiming that since she's not in unanimity with Trump and she accepted service in Colorado, there can be no removal to federal court."

I'm not sure which part of this is supposed to be the hinky part. Was it naming the Sec. of State as a defendant? I thought that would be inevitable given, well, the structure of government. Or was it claiming that she was not in unanimity with Trump? I would have thought that was also inevitable since she was not, in fact, in unanimity with Trump. Perhaps I don't fully understand what the alternatives here were.
posted by mhum at 5:36 PM on February 9 [2 favorites]

This was not a permanent condition, by the way. By 1872 with the Republic restored, Confederate Amnesty was passed and the 14th no longer applied to ex-rebels.

This right here is one among many reasons why, if I ever have access to a time machine, I'd leave baby Hitler alone and instead take out John Wilkes Booth and his crew in the alley across from Ford's theater.
posted by VTX at 5:37 PM on February 9 [9 favorites]

corb what does "fuck-fuck games" mean and can I use it? Is that your coinage or is that a legal term?

Ahahah. You are more than welcome to use it, though be prepared for people to assume you're a military veteran. Its meaning is somewhat nebulous, but it's essentially a sort of particularly nasty form of screwing with someone, a kind of formalized hell created by an asshole with no productive purpose. Everyone knows it's bullshit, the bullshit is kind of the point, but you have to go through with the bullshit anyway because the person involved has more power than you do.

the plaintiff is/was a group of individual Colorado voters, not the state

I mean, officially, yes, but to suggest that there was no tomfoolery even by implication involved between, say, an organization that hand-picked Colorado as their test state, a former majority leader of both Colorado houses, and the Secretary of State of Colorado that would likely have worked with the former is asking rather a lot, in my opinion.

Perhaps I don't fully understand what the alternatives here were.

I mean, I think that the lawsuit was well calculated to achieve the effect it was trying to go for; I don't think it was well calculated to be a serious and thoughtful test of the 14th amendment. There is a fair argument that everyone in reality jurisdiction shops, but I think you're generally not supposed to be this naked about it. Alternatives would have been filing in federal court in the first place, given the fact that it more properly belongs there, and that the judges there would have been better equipped to handle the federal question piece of things, which Colorado *cannot* rule on.

The reason I find it hinky is because I think generally there's not supposed to be collusion, even obliquely, between plaintiff and defendant. You're not supposed to have show trials - they are supposed to be genuine contests. And the best chance for any of the defendants to win on the counts. IMO, would be in federal court. So I'm *extremely* suspicious of why the SoS, if she were a real non-paper defendant, wouldn't want to take that removal to a more favorable venue.
posted by corb at 6:21 PM on February 9 [2 favorites]

FUBAR feels like a D bar and a K bar combined.
posted by clavdivs at 6:47 PM on February 9

I mean...so what?

This is not a criminal trial, there isn't a conviction or sentence. It's simply the court determining the facts. Trump did an insurrection. That's a settled fact by the CO court. As far as the law is concerned, it's now objective fact just like someone being younger than 35*. The 14th amendment says that if you do an insurrection, you can't hold public office. No one has a right to run for public office and no one is being punished by taking that opportunity away.

*If there were ever a situation where someone running for president claims to be 35 but some voters file suit because there is evidence the candidate is actually 32, then the court would settle that fact based on the evidence and whether or not that individual qualifies would flow from that finding.

The facts don't change based on who files the suit, they're just facts.
posted by VTX at 7:19 PM on February 9 [20 favorites]

Either Trump is forced off the ballot or the Law is tortured by Supreme Court Justices. It's sort of a win-win and also a lose-lose scenario which is very [Whatever] States of America.
posted by srboisvert at 9:16 PM on February 9

I mean, I think that the lawsuit was well calculated to achieve the effect it was trying to go for; I don't think it was well calculated to be a serious and thoughtful test of the 14th amendment. There is a fair argument that everyone in reality jurisdiction shops, but I think you're generally not supposed to be this naked about it. Alternatives would have been filing in federal court in the first place, given the fact that it more properly belongs there, and that the judges there would have been better equipped to handle the federal question piece of things, which Colorado *cannot* rule on.

Seems to me that this mixes up two different things: [1] whether a candidate is deemed eligible to appear on ballots in a state (which looks like a question for state courts) and [2] whether a candidate is deemed eligible to actually serve in a federal office (which would be a question for federal courts). In the present case, it seems to me that the first question has to be settled state by state. Colorado's procedure looks entirely reasonable, and there is no real basis (though I fully expect there will be an invented one) for overturning their decision. The second question would be settled by the federal courts -- and probably the supreme court would have original jurisdiction -- in the event that Trump was actually elected and someone sued on the grounds that he is not eligible to serve in the role.

Put a bit differently, I disagree with the claim that this specific suit, which is about [1], "more properly" belongs in federal court. It seems to me that it doesn't belong in federal court, since [1] isn't really a federal issue. At best, it's a question of interpreting the Constitution. But of course state courts regularly do that -- for example, when they decide whether a state law conflicts with an incorporated amendment to the Constitution.

Not to put too fine a point on it, but lots of candidates for President have been differentially excluded from elections in the various states. I mean, in the 2020 presidential election, Vermont and Colorado had 21 candidates on the ballots; whereas, Nebraska, Pennsylvania, and several other states had only 3 candidates. More details here. That was not a scandal, and it wouldn't necessarily be a scandal for different states to answer a disqualification question differently with respect to the same person, especially in cases where a relevant factual question is difficult to determine.
posted by Jonathan Livengood at 9:59 PM on February 9 [14 favorites]

That raises a question for me about the 14th amendment when it was first implemented. In some cases I know congress refused to seat members, so presumably those folks were deemed "eligible" in their states and appeared on that state's ballots. If no one sues to keep them off the ballot or out of office in that state, it makes sense that it would be whatever body they were elected to would then cite the 14th in not seating them.

But was anyone barred from being on or removed from ballots under the amendment?
posted by VTX at 10:17 PM on February 9

Seems to me that this mixes up two different things: [1] whether a candidate is deemed eligible to appear on ballots in a state (which looks like a question for state courts) and [2] whether a candidate is deemed eligible to actually serve in a federal office (which would be a question for federal courts

Someday I'll need to figure out why Metafilter is better at getting me to activate the portions of my brain that think about law than, I don't know, actual law school. But in the meantime...

So jurisdictional questions aren't just about where something takes place: there's also something called "subject matter jurisdiction", which is how a lot of issues get into federal court on the "federal question" that I was talking about in the first place. Essentially, because the state issue isn't *really* a state issue, it's really a federal issue that the state is just trying to deal with within the borders of the state. This was always going to end in federal court, they just tried to short circuit having federal judges look at it in the early stages, probably because their pleading reads like a Dan Brown novel in the middle sections. (With a lot of liberties taken with framing, good fucking god)

But the thing is, this isn't a complaint to a state law that just *happens* to have Constitutional implications, this is a complaint - dare I say, a well-pleaded complaint - about a number of federal questions, including:

1) what constitutes a federal insurrection
2) how the 14th amendment of the Constitution should be interpreted
3) whether states get to choose to enforce the 14th amendment without guidance from the federal government

And the people who get to decide these things are not the states but the federal government - that's, I imagine, why SCOTUS took this shit up lickety split and why even the liberal justices are raising skeptical eyebrows at Colorado.
posted by corb at 10:58 PM on February 9 [4 favorites]

This is all so frustrating. All these arguments seem to turn on issues totally unrelated to the fact that a sitting president encouraged and organized a fucking insurrection against the government. If the founders were such fucking geniuses why is it so hard to figure out what they meant with any clarity? We the people have no fucking idea what we're doing here.

And just in case anyone hasn't noticed the press, lead by the NYT, is turning the special counsel report on Biden into another 'what about her emails'.
posted by bluesky43 at 7:10 AM on February 10 [18 favorites]

we could be talking about more important things, like why corb hates free jazz improvisation, and whether there is a musical style so egregiously bad that even Hippie Bear doesn't like it. Don't think I've forgotten you, Empress Calypagos. I'm just not sure you're as deeply entrenched in the Minimalist Ambient Country Hip Hop Synthwave underground as you claim.

evilDoug, Jazz works. Sigoth and I are going to New Orleans next month. We'll encamp in a sleazy hotel just off Bourbon Street and wander through dive after dive. However, don't start in on my favorite bedrock music: Americano. I won't list any amazing examples of it here, but I will remind you that The Road Goes On Forever, And The Party Never Ends.

The military tribunal and firing squad theory lies buried under an unyielding mass of my wet dreams, and will never (I hope) see the light of day. The weakness in our system residing in the tension between federal and state prerogatives, as outlined in the Consitution, is supposed to catch things that fall through the cracks. It worked well when Eisenhauer sent the 82nd Airborne down south to show the governor what getting frisky with Supreme Court decisions might lead to.

I truly don't want to see how our military would try to suss out the part of their oath (..to obey all lawful orders...) would play itself out if division-ranked officers had to actually obey the demented mumblings of an oversized Cheeto with tiny hands. I am on tenterhooks now as I watch SCOTUS scurry about, flapping their robes and untwisting their underwear over an issue that could change the course of our history--for the worse.
posted by mule98J at 9:58 AM on February 10 [7 favorites]

> This is all so frustrating. All these arguments seem to turn on issues totally unrelated to the fact that a sitting president encouraged and organized a fucking insurrection against the government. If the founders were such fucking geniuses why is it so hard to figure out what they meant with any clarity? We the people have no fucking idea what we're doing here.

If you’re rich and white and conservative and powerful enough, the entire justice apparatus of the United States will go into overdrive to determine how many angels have to dance on the head of a pin before they can even *think* about punishing you for attempting to overthrow the government, but if you’re none of those things the cops have free reign to beat you into a coma for allegedly paying for three bananas when you took four.
posted by The Card Cheat at 10:59 AM on February 10 [17 favorites]

Yeah, I am personally incredulous that Trump actually, personally, being directly involved in an actual insurrection doesn't seem to be a factor in any of this.
posted by sotonohito at 4:34 PM on February 10 [7 favorites]

I have a relative who is a sort of Trumpist though it makes no sense at all. They are not American and don't have to choose. They are religious but very far from evangelist. They have very close American friends, but those friends are Jewish. They disagree with every single Trump policy. But they still try to defend Trump voters. I can't explain it.
I guess the imagined threat of liberalism (let alone socialism) is the main argument, but they are for globalism, abortion and free healthcare and against American isolationism.
Obviously their opinions don't matter when it comes to the facts on the ground of American elections, but I feel it does tell me something about Republicans. About Jewish Americans voting for a racist, bigoted fascist president.
It also tells me about some Republicans voting for a person who is obviously unfit, because they imagine the alternative is radical.
It's funny in a very sad way because in this leftist bubble we all know that the US Democratic Party is so far to the right of any Social Democratic Party in the rest of the world that it is ridiculous to even compare the two systems.
posted by mumimor at 5:36 PM on February 10 [7 favorites]

But the thing is, this isn't a complaint to a state law that just *happens* to have Constitutional implications, this is a complaint - dare I say, a well-pleaded complaint - about a number of federal questions ...

This is essentially the thing I disagree with you about. The complaint isn't about any federal question. It isn't about the interpretation of the 14th amendment, though the court has to interpret the 14th amendment in order to decide the matter that the complaint is actually about. The complaint is about the enforcement, by the Colorado Secretary of State, of Colorado's election laws. The ones here.

In your Cornell link, you'll see that federal question jurisdiction doesn't apply here, since the cause of action doesn't arise under federal law. Again, the cause of action arises under Colorado's election laws, since it is Colorado and not the federal government that runs elections in the state of Colorado.

Suppose the Democrats had chosen to put forward a 34-year-old candidate. A citizen wants to sue to stop that candidate from appearing on the ballot. Do you really want to say that a federal court has original jurisdiction in such a case?
posted by Jonathan Livengood at 8:16 PM on February 10 [10 favorites]

And the people who get to decide these things are not the states but the federal government

I don't think we're at any risk of agreement so I'll just leave this here, but I do feel compelled to point out that this isn't right. Federal question jurisdiction is a source of subject matter jurisdiction for the federal courts, but a suit being about a federal question does not deprive state courts of jurisdiction. Some federal laws (IP, admiralty, ERISA, etc.) are exclusively within federal jurisdiction but the constitution is not one of them. To take the most obvious example, section 1983 claims can be brought in state court (and sometimes have to be, e.g. in the case of prisoners who have exhausted their PLRA strikes). Heck, until the Court's recent abrogation of Williamson County, claims under the federal Takings Clause could only be brought in state court. ... So in sum, there's really nothing remarkable about Trump having to meet the standard requirements for removal here, because there was nothing unusual about the state court having jurisdiction.
posted by Not A Thing at 8:35 AM on February 11 [8 favorites]

It also tells me about some Republicans voting for a person who is obviously unfit, because they imagine the alternative is radical.

Republicans keep it all together by enforcing obedience. Sure there are lots of Republicans who are definitely in it for the fascism and the racism, but everyone knows at least someone whom they would otherwise describe as intelligent and reasonable who still will vote for the Republican nominee even if it's Trump because Democrats are somehow worse even though they can't describe how (something, something...socialism?)

This is one reason why some party leaders are going all in for Trump and why others--the Romneys, the Sununus, etc--aren't exactly campaigning for Biden despite loathing Trump and knowing the danger he presents. They all know modern conservatism is pretty bankrupt and the moment a good chunk of Republican voters come to the conclusion that it's OK not to vote for the Republican, they're never going to hew the party line as strictly again.
posted by RonButNotStupid at 6:09 AM on February 12 [10 favorites]

It would be amazing if after losing the nomination process, Nikki Haley started stumping for Biden while encouraging her supporters to continue the fight against Trump by voting against him in November.

But it's far more likely that she'll just fall into line. Because keeping the Republican myth alive that Democrats are always worse no matter who the Republican nominee is so important. Because otherwise they have nothing to offer but a tax cuts for the wealthy.
posted by RonButNotStupid at 6:17 AM on February 12 [7 favorites]

3rd party run would be way better than endorsing Biden, imo.
posted by ryanrs at 11:20 AM on February 12 [1 favorite]

3rd party run would be way better than endorsing Biden, imo.

I appreciate this sentiment but this plan gave us Bush Jr. thanks to Nader. And Bush Jr. gave us like a million dead civilians globally, but you do you. If they replaced Biden with a lump of clay, I’d vote for the lump of clay. But anything that removes votes from Biden will only make Drumpf’s BS claim stronger.

Haley will be a non-issue the second she stops running - the press will forget her completely. Then it’ll be 24/7 Drumpf saying things to the effect that he’s won already or that if he loses, it’s a rigged system. Russia and China will back him and the rest of the GOP financially (I wish there was reporting on this - Hello, NRA! Thanks Citizens United!) and the Dems and Biden will be touting their actual accomplishments but too late. Expect nothing out of Congress the rest of the year - that supports failure in Ukraine but if that’s what’s paying the GOP’s bills, who will be surprised?

The line between Drumpf and the US dollar no longer being the global reserve currency is pretty straight, but my sense is this that the average GOP fascist isn’t up for macroeconomic debate beyond the idiocy of “let’s return to the gold standard!”
posted by Farce_First at 4:21 PM on February 12 [3 favorites]

Gotta agree, I don't see either Haley sticking around at all once she inevitably drops out, nor would I see a third party run by Haley taking in any Republican votes.
posted by sotonohito at 6:35 PM on February 12 [2 favorites]

> Farce_First: "I appreciate this sentiment but this plan gave us Bush Jr. thanks to Nader."

Counterpoint: 3rd party candidate Ross Perot is how you got Bill Clinton instead of Bush Sr.'s 2nd term.
posted by mhum at 6:38 PM on February 12 [10 favorites]

Gotta agree, I don't see either Haley sticking around at all once she inevitably drops out, nor would I see a third party run by Haley taking in any Republican votes.

We'll see if any of her increasingly direct zingers actually land (the latest, about his most dangerous moment being on the golf course, was funny but I don't think anyone changed their minds because of it). But otherwise, yeah, I think anyone who is leaning towards her won't vote Trump, whether she is in the race or not. If she ran as a third party candidate, she might keep a few of those, but it's not (currently) something that would pull in lots of Trump voters.

I like the new, feisty Hailey and hope she keeps dropping one-liners on him for weeks.
posted by Dip Flash at 7:00 PM on February 12 [4 favorites]

^Haley's feistiness returned from holiday.
posted by Iris Gambol at 7:53 PM on February 12 [1 favorite]

“Judge again dismisses charges against members of California white supremacist group,” Brittny Mejia, The Los Angeles Times, 21 February 2024

In his decision, Carney granted the defendants’ motion to dismiss, agreeing that Rundo and Boman were being selectively prosecuted, while “far-left extremist groups, such as Antifa” were not.

posted by ob1quixote at 4:14 PM on February 21 [2 favorites]

Ah yes, antifa. I’m sure he could give names and concrete examples.
posted by Artw at 5:37 PM on February 21 [1 favorite]

There are three specific individuals identified (by initials) in the order. I have to give defense counsel some credit for what must have been a massive amount of work laying the groundwork here.

FWIW I doubt if this decision is going to fare any better on appeal than this judge's last dismissal in this same case, but it's not quite as baseless as the headlines make it sound.
posted by Not A Thing at 5:53 PM on February 21 [2 favorites]

“‘Project 2025’ Promises Revenge, Oppression, and Autocratic Rule,” Thomas Zimmer, Democracy Americana, 21 February 2024

The Right’s plans for a return to power are driven by a radicalizing siege mentality and a desperate desire to restore dominance

posted by ob1quixote at 6:17 PM on February 21 [2 favorites]

The first example give is some people getting stabbed at a klan rally… which omits that the klan did the stabbing.

I’m going to suggest the defendant and the judge are as honest as each other on this one.
posted by Artw at 6:53 PM on February 21 [3 favorites]

OK, so let me get this straight. If I mention Jury Nullification as a means of correcting systemic racism when I'm being selected for a jury pool I might be found in contempt of court and possibly subject to penalties including an unspecified stay in prison.

But it's totally fine for a Republican judge to openly say that since he doesn't think enough left wing people are being arrested he's going to drop charges against right wing people who are obviously guilty.

Did I get that right?

He actually, no fooling, said his motive in letting provable right wing terrorists go was that he didn't think the pigs were hard enough on the left?
posted by sotonohito at 10:39 AM on February 22 [8 favorites]

I haven’t looked at the other cases but I’d bet you money any violence in them is disproportionately right wing as well.
posted by Artw at 11:29 AM on February 22 [2 favorites]

Conceptually, this doesn't seem wrong. If the police were arresting only people with BLM t-shirts and letting people with MAGA hats go, or vice-versa, when they were allegedly observed committing the same crimes, then the judge should dismiss the case.

Factually, I doubt that's the case, given the judge's history.
posted by Mr.Know-it-some at 12:22 PM on February 22 [2 favorites]

“FBI Biden ‘Informant’ Smirnov Arrested Again!” [49:35]—Countdown With Keith Olbermann, 23 February 2024
posted by ob1quixote at 1:19 PM on February 23 [1 favorite]

At CPAC they wildly cheered a speaker who said the goal was to end democracy. Yes, really. No exaggerations, no paraphrasing, no hyperbolic reporting, he actually, literally, said the words:

"Welcome to the end of democracy. We are here to overthrow it completely."

And the people at CPAC actually, literally, cheered and applauded.

And around 50% of Americans are fine with this. Even if they aren't fans of abolishing democracy they'll go along with it as long as they also get abortion bans, or guns everywhere, or more military spending, or whatever.

I have been insufficiently cynical and misanthropic and I have WILDLY overestimated the decency and intelligence of the average American. I didn't think that was possible, but apparently it is.

Maybe, possibly, a full bore "this is how nations descend into Fascism, this is how Nazism got started, if you vote Republican you are like a German in 1933 voting for Hitler" sort of campaign will shame some of them into staying home?

Or maybe not. Hitler was wildly popular in the 1930's. It wasn't until after the Allies kicked their asses and occupied their country that Germans started thinking maybe that Hitler fella wasn't so great after all.
posted by sotonohito at 12:50 PM on February 24 [9 favorites]

It’s somewhat less than 50%, on the other hand they’ve already partially succeeded so who knows what percentage they need.
posted by Artw at 2:40 PM on February 24 [2 favorites]

Exclusive: Key figure in fake electors plot concealed damning posts on secret Twitter account from investigators
posted by Artw at 10:36 AM on February 26 [4 favorites]

Your grandfather’s GOP is just about completely gone
posted by Artw at 1:55 PM on February 28 [3 favorites]

How Trump’s Enablers Are Making Authoritarian Rule More Likely - Mitch McConnell’s real legacy? He consistently enabled Trump and MAGA for years—then failed to act against Trump when it really could have counted.
posted by Artw at 7:16 AM on February 29 [5 favorites]

I don't think the timing of that alongside SCOTUS taking up the immunity case is at all accidental. McConnell knows the fix is in, his job is done.

Now all he has to do is watch as the Dem leadership and the blue MAGA base destroys the party over the next couple of months through hippy punching, getting the FBI to round up Arabs and Muslims as Pelosi promised, and glorifying genocide.
posted by Glegrinof the Pig-Man at 8:51 AM on February 29 [5 favorites]

ob1quixote: ““‘Project 2025’ Promises Revenge, Oppression, and Autocratic Rule,” Thomas Zimmer, Democracy Americana, 21 February 2024 ”

“What ‘Project 2025’ Would Do to America,” Id., 29 February 2024
posted by ob1quixote at 8:07 PM on February 29 [1 favorite]

Supreme Court Rules Trump Stays on Colorado Ballot (NYT):

The justices ruled that the 14th Amendment did not allow states to bar the former president from the ballot. The justices gave different reasons, but the decision was unanimous.

posted by autopilot at 8:27 AM on March 4 [4 favorites]

Trump was wrongly removed from Colorado ballot, US supreme court rules

The majority opinion went on to say that the only way to enforce section 3 was by specifically tailored congressional legislation to determine which individuals should be disqualified for insurrection. But Justices Amy Coney Barrett, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson all said that finding went beyond the scope of the case, with the liberal justices specifically saying the court was shielding insurrectionists from accountability.

Unanimous decision, with a dollop of unnecessary bullshit.
posted by mazola at 12:19 PM on March 4 [1 favorite]

^The Supreme Court decision is now its own FPP, courtesy of kirkaracha.
posted by Iris Gambol at 1:06 PM on March 4 [1 favorite]

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