I think the Court has said it will quickly rule on the question.
Here is a hypothetical. The court rules states cannot disqualify a candidate, but Congress can disqualify whoever is elected by a 2/3 vote. As if that will happen given the divisions in it. Might make Jan 6, 2021 look like a picnic.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
It doesn't take a two-thirds vote of both houses to rule someone disqualified from office, it takes two-thirds of both houses to remove the disqualification of oath-breaking insurrectionists. That's a big difference.
Here is a hypothetical. The court rules states cannot disqualify a candidate, . . .
As I noted elsewhere, this would be a particularly difficult ruling for Justice Gorsuch to make in any kind of intellectually consistent way. He already ruled, back when he was Judge Gorscuch of the Tenth Circuit Court of appeals, that the state of Colorado is within its rights to withhold ballot access to constitutionally ineligible candidates for president. In that case it was a naturalized citizen who wanted to be on the general election ballot for president.
. . . we expressly reaffirm here, a state's legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office. . . .
Entered for the Court
Neil M. Gorsuch
Circuit Judge
I'm not sure there's an intellectually honest way to come down differently in this case, but since when has intellectual honesty mattered to Trump appointees?
What did you make of the Chief Justice’s “what if” argument? As I understood it, he argued that if the Colorado decision was upheld it might encourage other states to remove other candidates from the ballot. Turning 2024 into a shambles.
What did you make of the Chief Justice’s “what if” argument? As I understood it, he argued that if the Colorado decision was upheld it might encourage other states to remove other candidates from the ballot. Turning 2024 into a shambles.
It's not the job of SCOTUS to second guess what bad actors might do if the law is applied - it's to rule on the law.
What did you make of the Chief Justice’s “what if” argument? As I understood it, he argued that if the Colorado decision was upheld it might encourage other states to remove other candidates from the ballot. Turning 2024 into a shambles.
I think it deliberately overlooks the fact that states routinely control ballot access and frequently remove (or, more accurately, never add) certain candidates from their ballot. For example, the Libertarian party is on the ballot in only 39 states. The Green party is on the ballot in 27. The fact that other states have used various requirements (e.g. signatures collected, past electoral victory, number of registered members, etc.) to keep certain candidates off their ballots has not, to date, made a shambles of the American electoral system. On the other hand, letting anyone who wants to be included on a state provided ballot without restriction does seem like the kind of thing that would produce a shambles.
In that broader context it seems like an argument that it's offensive for major political parties to have to follow the same rules as third parties.
On a deeper level it seems troubling that a self-described "textualist" is advancing a consequentialist argument that essentially boils down to "enforcing the Constitution as written is too difficult". Or at least I would find it troubling if I thought textualism was an honest Constitutional interpretive framework and not a hustle perfected by the Federalist Society.
Yes. An argument from comsequences seems a funny way for a textualist to go. I felt something similar about the argument suggesting that 14.3 was there to control and prevent the election of confederacy rebels post the civil war. Personally I think it's fine to argue that parts of the Constitution are arcane because they have been overtaken by history but that's not the normal territory of textualists. It's a sensible evolutionary approach which still leaves room to argue how the texts might have relevance in today's context.
I conclude that at least some SCOTUS members are only textualists when it suits them. No doubt about the verdict of course.
What did you make of the Chief Justice’s “what if” argument? As I understood it, he argued that if the Colorado decision was upheld it might encourage other states to remove other candidates from the ballot. Turning 2024 into a shambles.
I think it deliberately overlooks the fact that states routinely control ballot access and frequently remove (or, more accurately, never add) certain candidates from their ballot. For example, the Libertarian party is on the ballot in only 39 states. The Green party is on the ballot in 27. The fact that other states have used various requirements (e.g. signatures collected, past electoral victory, number of registered members, etc.) to keep certain candidates off their ballots has not, to date, made a shambles of the American electoral system. On the other hand, letting anyone who wants to be included on a state provided ballot without restriction does seem like the kind of thing that would produce a shambles.
In that broader context it seems like an argument that it's offensive for major political parties to have to follow the same rules as third parties.
On a deeper level it seems troubling that a self-described "textualist" is advancing a consequentialist argument that essentially boils down to "enforcing the Constitution as written is too difficult". Or at least I would find it troubling if I thought textualism was an honest Constitutional interpretive framework and not a hustle perfected by the Federalist Society.
This.
I find it hard to imagine that SCOTUS will conclude that Trump can be barred from running by the States. However, given their stated positions on States' rights and Textualism, there is no intellectually honest - or even vaguely consistent way - to reach that position. The question really is, how much of a dog's dinner of the law will they make in the process? I'm thinking Bush vs Gore on steroids.
From a consequential perspective, I worry that banning Trump from running is a dangerous route and think it could make things worse. However, the 14th Amendment is law and therefore should be enforced.
IANAL, just an interested amateur but the Rule of Law is the very foundation of our democracies*
I find it hard to imagine that SCOTUS will conclude that Trump can be barred from running by the States. However, given their stated positions on States' rights and Textualism, there is no intellectually honest - or even vaguely consistent way - to reach that position.
It’s probably worth pointing out that not all the justices claim to be textualists or originalists.
I only got to hear parts of the argument, and I haven’t had a chance to go back and listen to the whole thing. But I was brought up a little short when I first tuned in and heard just how skeptical Justice Kagan seemed to be of the plaintiffs’ arguments. I hadn’t expected that. Then I heard similar skepticism from Justice Jackson.
The commentary I’ve heard in the pundit-sphere, including from regular SCOTUS-watchers I have respect for and confidence in, all seems to expect a 9-0 or maybe 8-1 decision. That commentary also anticipates there may be some sort of bargain, where Trump wins this case and loses the immunity case, either on the merits or by the Court not taking it and allowing the trial to move forward.
Hard to see how he cannot lose the immunity case but I guess there is scope for the SCOTUS to refine the limits to immunity if they wanted. That might take time and that’s a game I can see the 6-3 majority might play. The purist argument incidentally favours delay.
I do not think any court will grant immunity. No one in their right mind will allow an American president to have the authority to send a SEAL team to assassinate his/her political rivals.
I do not think any court will grant immunity. No one in their right mind will allow an American president to have the authority to send a SEAL team to assassinate his/her political rivals.
I think Posse Comitatus and a bunch of other laws would make it an illegal order, which might be a more effective means of deterrent (even if the President promises pardons).
I do not think any court will grant immunity. No one in their right mind will allow an American president to have the authority to send a SEAL team to assassinate his/her political rivals.
I think Posse Comitatus and a bunch of other laws would make it an illegal order, which might be a more effective means of deterrent (even if the President promises pardons).
But if the president has total immunity from criminal prosecution, even after leaving office, (what Trump's attorneys are arguing here), the fact that something is illegal would be no deterrent at all.
I do not think any court will grant immunity. No one in their right mind will allow an American president to have the authority to send a SEAL team to assassinate his/her political rivals.
I think Posse Comitatus and a bunch of other laws would make it an illegal order, which might be a more effective means of deterrent (even if the President promises pardons).
But if the president has total immunity from criminal prosecution, even after leaving office, (what Trump's attorneys are arguing here), the fact that something is illegal would be no deterrent at all.
I'm talking about to the SEAL team (or more likely their commanding officers) who would be liable for prosecution for illegal acts even if the president could give the orders with impunity.
Here is a hypothetical. The court rules states cannot disqualify a candidate, . . .
As I noted elsewhere, this would be a particularly difficult ruling for Justice Gorsuch to make in any kind of intellectually consistent way. He already ruled, back when he was Judge Gorscuch of the Tenth Circuit Court of appeals, that the state of Colorado is within its rights to withhold ballot access to constitutionally ineligible candidates for president. In that case it was a naturalized citizen who wanted to be on the general election ballot for president.
This is what puzzles me. Maybe one of our lawyers can help, but I just don't understand why states aren't allowed to enforce (this particular) federal election law. I heard the same analysis as Nick where it sounded like the decision wasn't going along ideological lines. Obviously Thomas and Alito are going to do whatever benefits Trump, but why are the liberal justices going along with them?
The federal government doesn't administer the presidential election, each state does. So if the states aren't allowed to enforce the constitutional requirements...? Can we just start running 12-year-olds and non-citizens?
(If it turns out we can't stop kids from running for president, my son will be thrilled. He's been yearning to be in charge around here for a long time 😁)
I find it hard to imagine that SCOTUS will conclude that Trump can be barred from running by the States. However, given their stated positions on States' rights and Textualism, there is no intellectually honest - or even vaguely consistent way - to reach that position.
It’s probably worth pointing out that not all the justices claim to be textualists or originalists.
<snip>
The commentary I’ve heard in the pundit-sphere, including from regular SCOTUS-watchers I have respect for and confidence in, all seems to expect a 9-0 or maybe 8-1 decision. That commentary also anticipates there may be some sort of bargain, where Trump wins this case and loses the immunity case, either on the merits or by the Court not taking it and allowing the trial to move forward.
Fair point. There were specific judges I was think of who will tie themselves in rather ridiculous knots to reach particular positions and use a 'textualist approach' to create a veil of intellectual consistency, rigour and method to hide behind.
I'm not sure I buy the 9-0 prediction though. I am not a court watcher but I have heard said by several seasoned ones that predictions based on the questions a Supreme asks in oral evidence are usually wrong.
Here is a hypothetical. The court rules states cannot disqualify a candidate, . . .
As I noted elsewhere, this would be a particularly difficult ruling for Justice Gorsuch to make in any kind of intellectually consistent way. He already ruled, back when he was Judge Gorscuch of the Tenth Circuit Court of appeals, that the state of Colorado is within its rights to withhold ballot access to constitutionally ineligible candidates for president. In that case it was a naturalized citizen who wanted to be on the general election ballot for president.
This is what puzzles me. Maybe one of our lawyers can help, but I just don't understand why states aren't allowed to enforce (this particular) federal election law. I heard the same analysis as Nick where it sounded like the decision wasn't going along ideological lines. Obviously Thomas and Alito are going to do whatever benefits Trump, but why are the liberal justices going along with them?
The federal government doesn't administer the presidential election, each state does. So if the states aren't allowed to enforce the constitutional requirements...? Can we just start running 12-year-olds and non-citizens?
My impression was that Kagan and Jackson at least were very troubled at the thought that there is no uniform standard for states to make decisions on disqualification under Section 3 of the Fourteenth Amendment. Whether a candidate meets the age requirement is (presumably) a cut-and-dry decision, with little likelihood that states would come to different conclusions. (Though who knows these days.) Citizenship should be similarly easy to answer. (Though the birther conspiracy theories could suggest otherwise.)
But in the case of the Disqualification Clause, they seemed concerned that we could easily end up with decisions all over the map, as it were, with some states finding him disqualified and others not. My impression was that some of the liberal justices find that to be an untenable situation for one of the only two offices elected on a national basis.
One of the things they seemed to focus on was that in the Enforcement Act of 1870, Congress provided a mechanism by which the US Attorney General could go to court to seek removal from office of anyone disqualified under the Disqualification Clause, and that, they seemed to assume, would have provided some national consistency. (Of course, I’m not sure how that would work if the Attorney General in question is an appointee of and in the Cabinet of the president whose right to hold office is being challenged.). That provision of the Enforcement Act of 1870 was repealed in the 1940s, as part of a general reorganization of federal statutes.
Of course, we wouldn’t be having any of this discussion if the Senate had done what it should have done and convicted Trump when he was impeached in 2020. (Sorry, just needed to vent a moment.)
I am not a court watcher but I have heard said by several seasoned ones that predictions based on the questions a Supreme asks in oral evidence are usually wrong.
My experience* is that you can get a very good sense of where judges/justices are, at least at the time of oral argument, but their questions and the things they focus on, as well as by what they don’t ask and don’t focus on.
*FWIW, which I’ll readily submit may not be much, 30+ years that included lots of appellate work in state and federal appellate courts, including SCOTUS.
My experience* is that you can get a very good sense of where judges/justices are, at least at the time of oral argument, but their questions and the things they focus on, as well as by what they don’t ask and don’t focus on.
But in the case of the Disqualification Clause, they seemed concerned that we could easily end up with decisions all over the map, as it were, with some states finding him disqualified and others not. My impression was that some of the liberal justices find that to be an untenable situation for one of the only two offices elected on a national basis.
Three offices. If election of the president and vice president by the electoral college count as a "national election", I can see no reason why the election of the Speaker of the House by the House of Representatives shouldn't also count as a "national election".
But in the case of the Disqualification Clause, they seemed concerned that we could easily end up with decisions all over the map, as it were, with some states finding him disqualified and others not. My impression was that some of the liberal justices find that to be an untenable situation for one of the only two offices elected on a national basis.
Three offices. If election of the president and vice president by the electoral college count as a "national election", I can see no reason why the election of the Speaker of the House by the House of Representatives shouldn't also count as a "national election".
Nobody on election as a House member is legally obligated to vote for a particular candidate for Speaker, nor is their election solely for the purpose of choosing a Speaker.
Three offices. If election of the president and vice president by the electoral college count as a "national election", I can see no reason why the election of the Speaker of the House by the House of Representatives shouldn't also count as a "national election".
Nobody on election as a House member is legally obligated to vote for a particular candidate for Speaker, nor is their election solely for the purpose of choosing a Speaker.
The same could be said of presidential and vice presidential electors, at least on the first count. Many states do not have any laws covering faithless electors. As for the second, I'm not sure why having other functions makes the election of the Speaker any less of a national election in the same sense as the electoral college vote.
The only really disquieting thing is that more than one Supreme Court justice thinks that a Presidential Election is a unitary national election rather than 50 state-rum elections at the same time.
But that really just tip-toes around the elephant in the room: the Disqualification Clause, if enforced like age and citizenship qualifications, is far more subjective and by nature open to political abuse of judgement and discretion. I believe that is truly what worries the Supreme Court, Even hard-right justices, for if one doesn't think that there was an Insurrection they are simply engaging in a variation of this argument.
But in the case of the Disqualification Clause, they seemed concerned that we could easily end up with decisions all over the map, as it were, with some states finding him disqualified and others not. My impression was that some of the liberal justices find that to be an untenable situation for one of the only two offices elected on a national basis.
Three offices. If election of the president and vice president by the electoral college count as a "national election", I can see no reason why the election of the Speaker of the House by the House of Representatives shouldn't also count as a "national election".
Eh. Maybe, if by “national election” you mean something different from what I meant—an election conducted in all 50 states, the District of Columbia, and the five territories whose permanent inhabitants may have US citizenship, rather than an election confined to one state or territory or DC, or to a subdivision of a state, territory or DC. Kevin McCarthy and Mike Johnson didn’t appear on any ballot other than those in the districts from which they were elected, and Colorado would never be in the position of deciding whether Speaker Mike Johnson should be on the ballot.
Well, there is the provision in the Constitution that, should the electoral college ever deadlock in something other than a majority vote, each state in the House of Representatives shall have one vote for the election of the president in that body.
I believe part of the reasoning in the Speaker comes third in the line of succession, should the president and vice president become incapacitated at once is that the selection of the Speaker is tantamount to a national election
Well, there is the provision in the Constitution that, should the electoral college ever deadlock in something other than a majority vote, each state in the House of Representatives shall have one vote for the election of the president in that body.
Yes, but that’s the House electing the president under specific rules.
Because the issue was different states making different decisions about whether Trump or another candidate can appear on the ballot, I was using “national election” to mean an election where candidates’ names appear on the ballot nationwide, not just in a state (territory or DC), or a subdivision of a state (territory or DC).
But that really just tip-toes around the elephant in the room: the Disqualification Clause, if enforced like age and citizenship qualifications, is far more subjective and by nature open to political abuse of judgement and discretion. I believe that is truly what worries the Supreme Court, Even hard-right justices, for if one doesn't think that there was an Insurrection they are simply engaging in a variation of this argument.
That may be so, but it is nevertheless in the Constitution. The only alternative is to simply say that part of the Constitution is unconstitutional, something that’s supposedly outside of the Supreme Court’s jurisdiction.
But that really just tip-toes around the elephant in the room: the Disqualification Clause, if enforced like age and citizenship qualifications, is far more subjective and by nature open to political abuse of judgement and discretion. I believe that is truly what worries the Supreme Court, Even hard-right justices, for if one doesn't think that there was an Insurrection they are simply engaging in a variation of this argument.
That may be so, but it is nevertheless in the Constitution. The only alternative is to simply say that part of the Constitution is unconstitutional, something that’s supposedly outside of the Supreme Court’s jurisdiction.
That's the puzzling thing for me (again, a total legal ignoramus; please correct me as needed, Nick and others). If the framers of the 14th Amendment had wanted the states not to have full control over their own ballots, they should have written it that way. They had just fought the Civil War, for heaven's sake, they weren't unaware of the danger of state officials going rogue.
I suppose it is theoretically possible that the Supreme Court could announce that they have found a contradiction in the Constitution and thus a new amendment would be needed. That would almost certainly be a fiasco. No, I know of no such contradiction.
Jury selection will begin on March 25 in Trump's criminal trial in New York for crimes related to the hush money payments to Stormy Daniels. Trump's former attorney, Michael Cohen 86067-054 was convicted of his involvement in this matter in 2018, though in Cohen 86067-054's case the charges were federal. As things currently stand, that would make this the first of Trump's four criminal indictments to go to trial.
$354,868,768 to Trump himself and his various businesses
$4,013,024 each to Eric Trump and Don Jr.
$1,000,000 to former Trump Organization CFO Allen Weisselberg
Additionally none of the men on that list above is allowed to serve as an officer or director of any New York corporation for three years, and Weisselberg got a lifetime ban on serving in a financial control function of any New York Corporation. Trump himself and his various businesses are also forbidden from applying for loans from any financial institution chartered or registered in New York state.
The Trump Organization was not dissolved, as the prosecution had requested, but instead it will be under a court appointed controller for at least three years.
Sorry, my mistake. Trump's adult sons, Eric and Don Jr., are only barred from being officers or directors of New York corporations for two years. The three year ban applies to their father and Weisselberg.
No doubt he will appeal but will also have to find money upfront to do so. It's a judgement that would have sunk any previous candidate but the Trump faithful believe their man when he tells them he's a victim. And the GOP still seems mostly on board.
His indignant and rambling response was fact checked to death on CNN. But it's the only script he's got and, for the time being, seems to be the only one he needs. However absurd it may be.
Another point. I've just realised what when Trump uses the word "perfect" (as in this latest response, also with Raffensperger, and with the Ukraine PM conversation) it's a tell. He knows he needs to cover up a mistake and from an early age he was taught never to apologise, never to admit. Hence the aggressive use of "perfect".
His dad undoubtedly taught him to project “no mistake”. “Never apologise, never admit”. He does double down, all the time. But the hyperbole of this use of “perfect” made me wonder. The need to project an error free performance does not exclude awareness of error, just the imperative to deny it. I may be sensing a degree of self awareness he no longer has. Years of lying could do that,
A clear case by one of the defendants of muddying the waters. Fany Willis lost it, but to some effect. Up to the judge now. I hope he gives her a pass.
Looks like Trump repeated his defamation of E Jean Carroll yet again this weekend in his outburst in Michigan. That could add further to his trials and tribulations. She’s already said she’d sue him again if he defamed her again.
I don’t think he’ll get prison time in the Stormy Daniels cases but he could get yet more substantial fines.
Who’d be his lawyer? They don’t get paid either and if they sued him there might not be a lot left. Is working for Trump good for a lawyer’s reputation, or does it add to their notoriety?
Looks like Trump repeated his defamation of E Jean Carroll yet again this weekend in his outburst in Michigan. That could add further to his trials and tribulations. She’s already said she’d sue him again if he defamed her again.
I don’t think he’ll get prison time in the Stormy Daniels cases but he could get yet more substantial fines.
Who’d be his lawyer? They don’t get paid either and if they sued him there might not be a lot left. Is working for Trump good for a lawyer’s reputation, or does it add to their notoriety?
In the Stormy Daniels case, Trump has been charged with a Class E felony in New York State. The penalty can be at least four years in prison plus fines. His accomplice, Micheal Cohen, did get prison time. Since Trump has been shown to be incorrigible, I am betting jail time.
It would be poetic justice if he did get jail time, but I’m not sure how strong the evidence is, apart from Cohen’s testimony. We’ll see.
I’ve got a feeling that a judge would be tempted to fine him rather than work out how the secret service can defend him in jail. I suppose the judge could defer jail time until after the election. By verdict time it should be clear by GOP election that he will be the GOP candidate.
Anyone other than Trump would stand down under those circumstances. I don’t see that happening.
I’ve got a feeling that a judge would be tempted to fine him rather than work out how the secret service can defend him in jail.
I'm sure they could designate a secure room in the White House basement to be a NY state prison if it became necessary. Otherwise solitary confinement would suffice for the Secret Service to protect him.
I am sure, if he gets prison time New York will find a suitable place for him. It won't be at the White House, though, since the District of Columbia is not even near New York.
I am sure, if he gets prison time New York will find a suitable place for him. It won't be at the White House, though, since the District of Columbia is not even near New York.
It's not unheard of for states to contract prison space elsewhere - Vermont apparently holds some prisoners in Mississippi.
It would be poetic justice if he did get jail time, but I’m not sure how strong the evidence is, apart from Cohen’s testimony. We’ll see.
I’ve got a feeling that a judge would be tempted to fine him rather than work out how the secret service can defend him in jail. I suppose the judge could defer jail time until after the election. By verdict time it should be clear by GOP election that he will be the GOP candidate.
Anyone other than Trump would stand down under those circumstances. I don’t see that happening.
I think a conviction is highly likely for several reasons including; NY prosecutors wouldn't bring the case if they didn't feel confident of winning (this is always a factor but hugely so if Mr Trump is the defendant); I understand there is a lot of documentary evidence to support the eye witness accounts; Jurors will reason that if Cohen made the payments, Trump must have known and instigated it - with the evidence before them as well, I suspect they will reach the threshold of beyond reasonable doubt.
Natural justice would imply that if Cohen got jail time, then a convicted Trump should do as well. The politics should play no part in it.
I have for a long time thought that "should" is the most dangerous word in the English language.
Comments
That is pretty much the exact opposite of what the Fourteenth Amendment says.
It doesn't take a two-thirds vote of both houses to rule someone disqualified from office, it takes two-thirds of both houses to remove the disqualification of oath-breaking insurrectionists. That's a big difference.
As I noted elsewhere, this would be a particularly difficult ruling for Justice Gorsuch to make in any kind of intellectually consistent way. He already ruled, back when he was Judge Gorscuch of the Tenth Circuit Court of appeals, that the state of Colorado is within its rights to withhold ballot access to constitutionally ineligible candidates for president. In that case it was a naturalized citizen who wanted to be on the general election ballot for president.
I'm not sure there's an intellectually honest way to come down differently in this case, but since when has intellectual honesty mattered to Trump appointees?
It's not the job of SCOTUS to second guess what bad actors might do if the law is applied - it's to rule on the law.
I think it deliberately overlooks the fact that states routinely control ballot access and frequently remove (or, more accurately, never add) certain candidates from their ballot. For example, the Libertarian party is on the ballot in only 39 states. The Green party is on the ballot in 27. The fact that other states have used various requirements (e.g. signatures collected, past electoral victory, number of registered members, etc.) to keep certain candidates off their ballots has not, to date, made a shambles of the American electoral system. On the other hand, letting anyone who wants to be included on a state provided ballot without restriction does seem like the kind of thing that would produce a shambles.
In that broader context it seems like an argument that it's offensive for major political parties to have to follow the same rules as third parties.
On a deeper level it seems troubling that a self-described "textualist" is advancing a consequentialist argument that essentially boils down to "enforcing the Constitution as written is too difficult". Or at least I would find it troubling if I thought textualism was an honest Constitutional interpretive framework and not a hustle perfected by the Federalist Society.
I conclude that at least some SCOTUS members are only textualists when it suits them. No doubt about the verdict of course.
This.
I find it hard to imagine that SCOTUS will conclude that Trump can be barred from running by the States. However, given their stated positions on States' rights and Textualism, there is no intellectually honest - or even vaguely consistent way - to reach that position. The question really is, how much of a dog's dinner of the law will they make in the process? I'm thinking Bush vs Gore on steroids.
From a consequential perspective, I worry that banning Trump from running is a dangerous route and think it could make things worse. However, the 14th Amendment is law and therefore should be enforced.
IANAL, just an interested amateur but the Rule of Law is the very foundation of our democracies*
AFZ
*to quote a quite famous lawyer.
I only got to hear parts of the argument, and I haven’t had a chance to go back and listen to the whole thing. But I was brought up a little short when I first tuned in and heard just how skeptical Justice Kagan seemed to be of the plaintiffs’ arguments. I hadn’t expected that. Then I heard similar skepticism from Justice Jackson.
The commentary I’ve heard in the pundit-sphere, including from regular SCOTUS-watchers I have respect for and confidence in, all seems to expect a 9-0 or maybe 8-1 decision. That commentary also anticipates there may be some sort of bargain, where Trump wins this case and loses the immunity case, either on the merits or by the Court not taking it and allowing the trial to move forward.
I think Posse Comitatus and a bunch of other laws would make it an illegal order, which might be a more effective means of deterrent (even if the President promises pardons).
But if the president has total immunity from criminal prosecution, even after leaving office, (what Trump's attorneys are arguing here), the fact that something is illegal would be no deterrent at all.
I'm talking about to the SEAL team (or more likely their commanding officers) who would be liable for prosecution for illegal acts even if the president could give the orders with impunity.
This is what puzzles me. Maybe one of our lawyers can help, but I just don't understand why states aren't allowed to enforce (this particular) federal election law. I heard the same analysis as Nick where it sounded like the decision wasn't going along ideological lines. Obviously Thomas and Alito are going to do whatever benefits Trump, but why are the liberal justices going along with them?
The federal government doesn't administer the presidential election, each state does. So if the states aren't allowed to enforce the constitutional requirements...? Can we just start running 12-year-olds and non-citizens?
Fair point. There were specific judges I was think of who will tie themselves in rather ridiculous knots to reach particular positions and use a 'textualist approach' to create a veil of intellectual consistency, rigour and method to hide behind.
I'm not sure I buy the 9-0 prediction though. I am not a court watcher but I have heard said by several seasoned ones that predictions based on the questions a Supreme asks in oral evidence are usually wrong.
AFZ
But in the case of the Disqualification Clause, they seemed concerned that we could easily end up with decisions all over the map, as it were, with some states finding him disqualified and others not. My impression was that some of the liberal justices find that to be an untenable situation for one of the only two offices elected on a national basis.
One of the things they seemed to focus on was that in the Enforcement Act of 1870, Congress provided a mechanism by which the US Attorney General could go to court to seek removal from office of anyone disqualified under the Disqualification Clause, and that, they seemed to assume, would have provided some national consistency. (Of course, I’m not sure how that would work if the Attorney General in question is an appointee of and in the Cabinet of the president whose right to hold office is being challenged.). That provision of the Enforcement Act of 1870 was repealed in the 1940s, as part of a general reorganization of federal statutes.
Of course, we wouldn’t be having any of this discussion if the Senate had done what it should have done and convicted Trump when he was impeached in 2020. (Sorry, just needed to vent a moment.)
My experience* is that you can get a very good sense of where judges/justices are, at least at the time of oral argument, but their questions and the things they focus on, as well as by what they don’t ask and don’t focus on.
*FWIW, which I’ll readily submit may not be much, 30+ years that included lots of appellate work in state and federal appellate courts, including SCOTUS.
Your interpretation on the Liberal justices makes sense. There clearly is a huge possibility of stares doing very odd things with the national ballot.
AFZ
Three offices. If election of the president and vice president by the electoral college count as a "national election", I can see no reason why the election of the Speaker of the House by the House of Representatives shouldn't also count as a "national election".
Nobody on election as a House member is legally obligated to vote for a particular candidate for Speaker, nor is their election solely for the purpose of choosing a Speaker.
The same could be said of presidential and vice presidential electors, at least on the first count. Many states do not have any laws covering faithless electors. As for the second, I'm not sure why having other functions makes the election of the Speaker any less of a national election in the same sense as the electoral college vote.
But that really just tip-toes around the elephant in the room: the Disqualification Clause, if enforced like age and citizenship qualifications, is far more subjective and by nature open to political abuse of judgement and discretion. I believe that is truly what worries the Supreme Court, Even hard-right justices, for if one doesn't think that there was an Insurrection they are simply engaging in a variation of this argument.
I believe part of the reasoning in the Speaker comes third in the line of succession, should the president and vice president become incapacitated at once is that the selection of the Speaker is tantamount to a national election
Because the issue was different states making different decisions about whether Trump or another candidate can appear on the ballot, I was using “national election” to mean an election where candidates’ names appear on the ballot nationwide, not just in a state (territory or DC), or a subdivision of a state (territory or DC).
That may be so, but it is nevertheless in the Constitution. The only alternative is to simply say that part of the Constitution is unconstitutional, something that’s supposedly outside of the Supreme Court’s jurisdiction.
That's the puzzling thing for me (again, a total legal ignoramus; please correct me as needed, Nick and others). If the framers of the 14th Amendment had wanted the states not to have full control over their own ballots, they should have written it that way. They had just fought the Civil War, for heaven's sake, they weren't unaware of the danger of state officials going rogue.
Additionally none of the men on that list above is allowed to serve as an officer or director of any New York corporation for three years, and Weisselberg got a lifetime ban on serving in a financial control function of any New York Corporation. Trump himself and his various businesses are also forbidden from applying for loans from any financial institution chartered or registered in New York state.
The Trump Organization was not dissolved, as the prosecution had requested, but instead it will be under a court appointed controller for at least three years.
Trump says he will appeal.
His indignant and rambling response was fact checked to death on CNN. But it's the only script he's got and, for the time being, seems to be the only one he needs. However absurd it may be.
https://twitter.com/RDEliason/status/1758876229849985116?t=i7B0qozA1IcykC_t4jxS-Q&s=19
YMMV - and indeed mine, but I thought it helpful to the discussion.
AFZ
I don’t think he’ll get prison time in the Stormy Daniels cases but he could get yet more substantial fines.
Who’d be his lawyer? They don’t get paid either and if they sued him there might not be a lot left. Is working for Trump good for a lawyer’s reputation, or does it add to their notoriety?
In the Stormy Daniels case, Trump has been charged with a Class E felony in New York State. The penalty can be at least four years in prison plus fines. His accomplice, Micheal Cohen, did get prison time. Since Trump has been shown to be incorrigible, I am betting jail time.
I’ve got a feeling that a judge would be tempted to fine him rather than work out how the secret service can defend him in jail. I suppose the judge could defer jail time until after the election. By verdict time it should be clear by GOP election that he will be the GOP candidate.
Anyone other than Trump would stand down under those circumstances. I don’t see that happening.
I'm sure they could designate a secure room in the White House basement to be a NY state prison if it became necessary. Otherwise solitary confinement would suffice for the Secret Service to protect him.
It's not unheard of for states to contract prison space elsewhere - Vermont apparently holds some prisoners in Mississippi.
Natural justice would imply that if Cohen got jail time, then a convicted Trump should do as well. The politics should play no part in it.
I have for a long time thought that "should" is the most dangerous word in the English language.
AFZ