Trump, after doing the thing that made him constitutionally ineligible to run again
At first blush, I’d say there was no real choice for the Colorado Supreme Court in the Trump case.... I have, myself, entertained conversations about bringing an action to force him off the ballot here in Maryland. (A group I’m involved in did file a request at the MD Bd of Elections to reject a GOP candidate for Governor, based on some fairly minimal participation on Jan. 6). I even wrote this piece here at DailyKos 4 months ago arguing in favor of pursuing efforts to disqualify him. Now, I’m not so sure how this effort will turn out...so, let’s look into the mouth of this beast.
In Trump’s case, there was a trial in Colorado and the court found that Trump had engaged in both incitement to insurrection but also supporting and participating in the Insurrection that culminated on January 6, 2021. This wasn’t akin to what Al Gore did in pursuing a recount in Florida in 2000. This was unlike anything in American history, and was an effort to overthrow an electoral result by using force and intimidating the Congress.
Trump did commit insurrection. And the 14th Amendment says that he’s disqualified from office. And yet...
What does that mean for the Supreme Court of the United States? Only one of the justices was on the Court in 2000 to overturn the decision of the Florida Supreme Court to proceed with the recounts that the Gore campaign was seeking — the increasingly notorious Clarence Thomas, who will be increasingly called on to recuse himself based on his own wife’s efforts to join planning for the insurrection.
However, Thomas isn’t the only one with ties to that infamous judicial intervention to select George W. Bush as the next President. Justices Roberts, Kavanaugh and Coney Barrett were all involved in one way or another. Roberts advised the legal team that argued on behalf of Bush. Kavanaugh, having helped the Special Counsel that pursued Bill Clinton, joined in legal efforts around the recount in one of Florida’s counties. Justice Barrett testified that she did go to Florida and was involved, but incredibly claimed not to recall what it was that she worked on there.
Will those Justices stick to the plain meaning of the Constitution in this case, or will they find some reason to reject the historic decision of the Colorado Supreme Court, as SCOTUS did in 2000 with respect to the Florida Supreme Court?
At some level, this is just guesswork, and ghe answer may well depend on how the justices expect to rule on whether Trump’s DC trial can proceed this Spring — but there is a serious question which the dissent addressed in the Colorado decision, at least as it relates to Colorado law. That is, even if an insurrectionist is deemed ineligible per the 14th Amendment, how is that determined and implemented in practical terms.
It would be problematic in the extreme for some states to kick Trump off the ballot only to see him on the ballot in other states, perhaps even with a chance to still win the Electoral College.
Given that profound concern, I do not see how SCOTUS can merely decide that the Colorado court was within its rights to issue its order which would remove Trump from the ballot in Colorado. SCOTUS must decide whether any court can decide Trump committed insurrection, without any criminal court (or an equivalent military tribunal) making that judgment first. And, if so, then SCOTUS may have to issue a decision which applies nationwide.
Given that reality, SCOTUS will be squarely faced with the decision itself about whether to give Trump the boot. That includes 3 Justices appointed by Trump himself and the one whose wife probably aided and abetted insurrection, or, at least, tried her darnedest to be included in the plot.
And, it also includes the nakedly partisan Samuel Alito, as well as Neil Gorsuch, who was pointedly addressed by the majority opinion in Colorado decision. Gorsuch was born in Colorado, as a lawyer represented Colorado’s most famous billionaire, Phillip Anschutz, and with Anschutz’s blessing, was nominated and then confirmed as judge on the 10th Circuit Court of Appeals. That gig meant moving back to Colorado. While in that job, Gorsuch’s court heard the appeal of a decision that backed the Co Secretary of State’s decision to exclude a naturalized citizen from the ballot for President in 2012.
Gorsuch wrote the following in the order of the 10th Circuit Court in Hassan v. Colorado:
"[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."
If that’s not ironic enough for you though, you should know that Trump was represented by the former CO Secretary of State from the Hassan case, Scott Gessler. Gessler argued that the 14th Amendment disqualification was different than question of “qualifications” like age and birthright citizenship, which can be readily determined. Gessler argued that there’s no process for elections officials or the Secretary of State to make a determination that an individual is disqualified for insurrection.
For all the frivolous claims Donald Trump has thrown up to obfuscate, delay and deflect in his various cases, this is the least frivolous one. It would be a difficult precedent if a court could entertain a civil motion to disqualify and conduct its own evidentiary hearing under unclear standards. That is open to serious abuse — and, as I wrote above, could result in irreconcilable outcomes in different states.
As I wrestled with the idea of helping to lead an effort in Maryland to keep Trump off the ballot here, I had no doubts as to whether he OUGHT to be disqualified, That, however, is different from deciding how that determination should be reached -— whether an elections official could make that decision (perhaps after holding an evidentiary hearing of their own) or upon an order of a court in the state (or even a federal district court), and whether any one state could make such a determination for itself, regardless of how and whether other states are addressing the issue.
Ideally, there would be a charge of insurrection or the equivalent, and a full-fledged criminal trial with all the due process protections of a criminal trial, and guilt decided beyond any reasonable doubt. Not a decision by the same person deciding what evidence will be received, and then deciding based on their gut as to what is most likely the case. The advantage to that is that you would have a guilty verdict wholly separate from the question of eligibility for the ballot. That would only be decided later as a consequence of the criminal trial. Any decision, then, by a state election official to ignore the conviction would itself be a violation of the Constitutional mandate for Full Faith and Credit.
Failing that — and that’s where we find ourselves — we are left either with each state deciding for itself, or for SCOTUS to step in and decide for the country. My guess is that SCOTUS won’t be willing to accept the lower court’s finding of fact that Trump did commit insurrection. Because the politics of the situation are inescapable, they’d only support the CO Sup. Ct decision if they wanted Trump off the ballot nationally.
SCOTUS cannot seriously say that the CO court had a fair process and the power to disqualify Trump, but then say that the issue is undecided for the nation as a whole. Would it be OK for a CO court to decide he did commit insurrection, but a Florida, Georgia or Arizona court decide he did not? Would the first be entitled to Full Faith and Credit, or could each state have its own process and reach different decisions?
The alternative would be for SCOTUS to find that the CO lower court heard the evidence and that it should be settled. They may take the opportunity to get rid of Trump this way, but I doubt it.
They’re much more likely to rule that this process is insufficient, at least unless and until Congress uses its power in Sec. 5 of Amendment 14:
“Section 5.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
One of the Senators at the time argued that this provision existed to give Congress to pass legislation on point, should some state enact rules that would interfere with the intent and purpose of the Amendment.
“Senator Jacob M. Howard explained, Section Five “enables Congress, in case the State shall enact laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional enactment.”
In the wake of the Insurrection, there has been much discussion as to whether the Section 3 disqualification is in some way self-executing, and how — especially in the absence of ANY Congressional enactment regarding enforcement. At some level, I think it is self-executing, but not WITHOUT a fair CRIMINAL trial or confession. At least, I’m concerned about a determination that any elections official could decide or any court could decide for election officials, without a full and fair contest of the question under the strictest standards of finding guilt.
Impeachments — and even impeachment investigations — hadn’t happened since Reconstruction, until the Nixon hearings, but then not again for more than 20 years, until Clinton lied to a civil jury about an affair. And then, not again for 20 years, until Trump tried to extort another country to help him smear his most likely opponent in the next election. And then, again when Trump tried to force Congress to reject Joe Biden’s election.
And yet, now, we may have an impeachment investigation of Biden, based on nothing. What seems just and right, and even a Constitutional obligation in one instance, can be returned in the future under less noble circumstances, weaponized for partisan reasons. Guardrails here will be very important.
My guess is that SCOTUS decides decides that there hasn’t been a fair process to kick Trump off the ballot, but then in coming weeks to let Jack Smith put Trump on trial this Spring. They may even note, in overturning the CO decision, that a federal criminal court verdict finding Trump guilty of offenses connected the Insurrection would be a sufficient predicate for kicking Trump off the ballot — or at least leave the impression that they’d be willing to revisit disqualification after Trump’s Jan. 6th trial.
