I trust that legal ninja Jack Smith to make whatever the best move is. 
I don’t think they’ll do that. He’s not being charged with insurrection; it’s just being used as evidence. The standard the CO Supreme Court used was clear and convincing. I’d also be surprised if they lowered it to merely preponderance.
They also won’t relitigate the district court judge’s findings of fact; that’s not what they do. What they might do is rule that certain evidence should or should not have been admitted.
f this isn’t going to become a national joke, they surely have to establish the procedure for finding of fact that’s applicable to 14A for all states. I don’t see how that can be one state court’s ruling.
Not the same thing. The ruling in that case was that states can’t add additional qualifications beyond what the Constitution says. This case is one where a state is deciding on a qualification that’s in the Constitution.
Cite that this court has any objection at all to being a national joke?
Fair point, but I still think it’s absurd if an individual state can disqualify a presidential candidate, while others are free to keep him on the ballot, all relative to the same Federal law. Any ruling (or refusal to take the case) that doesn’t resolve this seems like the precursor to chaos.
Again, this is a non-expert’s opinion.
What about States’ Rights? Should states be able to ban abortions, even though such bans fly in the face of equal protection?
Since Roe was overturned, I think the answer is yes. It’s a power that was restored, right or wrong, to the states by SCOTUS. So they get to decide what’s legal in their own state. We can see the shenanigans that have followed.
But if you’re implying this is analogous to this business, I’d disagree. States can, and do, have different gun restrictions, for example, but none of them are free to run afoul of Heller. SCOTUS and the Constitution decide the guardrails within which states have latitude.
Similarly, if the Constitution says no person who committed the 14th bad acts is eligible for the presidency (and even its applicability to the presidency seems to be an open question), then ISTM that rule—whatever it means—must apply uniformly to all the states.
If the wording was preceded by “If the respective states individually determine…” it would be odd, and an invitation to chaos, but then I’d see how different ballots could include different candidates. But it wasn’t. It said such a person is ineligible, period.
If by some amazing chance the Supreme Court rules that Colorado was correct in the matter of fact (that Trump did indeed participate in insurrection), and the constitution is clear that he is therefore ineligible to be put on the ballot in ANY state:
I believe I might well drink myself into a coma.
No, no! Do that if they rule the other way.
If they rule the good way, just drink until you pass out. Then you can do it again tomorrow.
Actually, the best outcome is the chaos one, because all of the chaos will fall on the Republican Party. They’d first of all have to choose whether to run Trump or someone else, and if they choose someone else, then Trump will throw one of his temper tantrums and tell all his voters to stay home. Or they choose Trump, and just don’t compete in the states that block him. Either way, the result is a Democratic landslide, including in a bunch of downballot races.
If the Supreme Court decides that Trump just plain isn’t eligible at all, then the Republicans will have to run someone else, and while that someone else probably won’t do as well as Trump will, the damage to them overall will be less.
Not sure how helpful that is. Insurrection in that law is defined as engaging in rebellion or insurrection, or helping anyone who does that. It’s going to be hard to set a legal precedent using a tautology.
In all likelihood they’d probably go with what the law defines seditious conspiracy to be as a guidance.
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.
I mean, that also fits very nicely with the dictionary definition of insurrection.
It’s not like these are words of mystery. And we have ample records of what was going on when they were codified. So it’s not hard to determine what was meant when they were written.
If they were going to use criminal conviction in Federal court as the criterion for the application of 14A disqualification, it seems to me that they would have to specify exactly what statute(s) would count.
It seems to me there are a number of possibilities regarding Colorado and the Supreme Court, all with varying degrees of chaos attached.
1.The Supreme Court refuses to hear the case.
The Colorado Supreme Court put a stay on their own ruling until January 5th UNLESS an appeal is filed, which it most certainly will be. If an appeal is filed and the SC refuses to take it up then the stay will remain in effect (i believe) and trump will be able to appear on the Colorado ballot. Status quo chaos.
- The Supreme Court takes the case and rules against Colorado.
Then trump will be able to appear on the Corrado ballot. Status quo chaos.
- The Supreme Court takes the case, rules in favor of Colorado but says it’s up to each state to decide.
trump will appear on some ballots, be left off others, states will fight internally and externally. Maximum chaos in this instance, I think. There is a hodge podge of rules and a free for all that could dwarf January 6th as everyone fights everyone else for the next 10 months and no matter who wins the other side will cry foul.
- The Supreme Court takes the case, rules in favor of Colorado, and says trump is in fact ineligible under the Constitution to be president and cannot be on any ballots.
Short term chaos, plenty of blather about election interference and tyranny and all that. Then the Republican establishment, such as it exists anymore, will plow ahead with another candidate, trump will stomp and have tantrums on his fake social media platform that are paid less and less attention as time goes by, and by November he’ll hopefully be a nasty footnote in history. Or we’ll all still be arguing about it, but at least trump won’t be president.
Only in the case that the Supreme Court leaves it up to individual states do I see real danger*. i could be totally wrong, but that’s the way i see it now.
*Aside from the existential danger to Democracy if trump should actually run and win.
I can’t agree with your supposition that the stay will remain if the Supreme Court refuses the case. As soon as they refuse, the appeal is over and the stay lifted. IMO.
I think you’re right, if they actually refuse the case overtly and publicly refuse to hear the appeal. That would make sense. I was thinking of them just never taking it up at all, ignoring the appeal until after the primaries. In that event the stay would remain in place and trump would appear on the Colorado primary ballot.
When the lower court in Colorado found Trump to be eligible, what it found was that Trump did indeed engage in insurrection (a finding of fact), but that the Presidency is not an “office under the United States” so the 14th Amendment doesn’t apply (finding of law).
On the appeal, the Colorado Supreme Court said that why yes, the Presidency is an office under the United States. They didn’t really address the finding of fact, which I understand is usually left up to the original courts who heard the arguments from the witnesses themselves, judged who was credible, etc.
So now SCOTUS is considering it. The legal analyses that I’ve seen pretty much all say that whether Colorado’s ruling stands or falls depends on whether the “office” term applies here, and not on whether Trump’s action constitute insurrection. Does everyone agree that this is the deciding factor?
It’s very unlikely, if not impossible, for the Supreme Court to overrule a finding of fact. More likely, they’ll say the finder of fact needs to reconsider, taking into account something else. And that’s if they address the facts, instead of only the law.
If reproductive rights were enshrined in the Constitution then no.
If the Supreme Court does not take issue with the fact that Trump committed insurrection, and merely agrees with the lower court that this does not apply to the president (not an office).
Does that then effectively give the green light to Biden to commit insurrection in order to remain in office?