A Deeply Fractured US

[GR66]

Me waiting to see the SCOTUS actually deciding that it was an insurrection...

Honestly despite the Republican 'advantage' in the Court, this will be an interesting case, as IMHO the court has been pretty good with it's rulings so far (I am a Republican though), and I think it will depend on how the arguments are presented to the Court. At this point, all of the other cases against DJT are fairly irrelevant (other than him potentially going to jail).

I suspect the SCOTUS will rule against DJT, simply because the evidence does support the fact that he did in fact encourage and aid the Jan 6 events, and his chances for President will be sunk for good, then the Republican Party can back Nikki Haley, and have an actual chance at victory.

Am I correct in understanding that there are actually two separate issues that the SCOTUS is having to address?
1) The general question of whether a sitting President is immune from prosecution for any offense that he/she commits while President.
2) The specific Colorado question of whether Trump can be barred from running for federal office due to his involvement in the "insurrection" of January 6th

If the ruling on #1 is yes (i.e. the President is immune from prosecution) then does that automatically negate #2, or can he still be barred from office even if he is not convicted in court of participating in an insurrection?

I can see a possible CYA ruling that he is immune from prosecution but he could be barred from running for office IF he was convicted in a court of law of participating in an insurrection (which couldn't happen due to #1)

 

[Navy_Pete]

Even if SCOTUS feels stuck agreeing with the ‘engage in insurrection’ reasoning, they also have the option of finding that President is not an applicable ‘office’ for purpose of article 14, as the original lower court did.

That is such a ridiculous line of reasoning though; you can't be a sheriff or clerk but you can run for President. That's why I prefer plain language contracts, as you don't split hairs and generally the intent is well understood anyway so you sort things out without getting lawyers involved.

The US seems worse for that kind of gatekeeping on the justice system where the use of legalese is designed to make things as opaque as possible and require legions of high priced lawyers to quibble over punctuation or interpretation of a single word 200 years later. Seems a bit of the opposite of 'freedom and liberty'.

 

[brihard]

That is such a ridiculous line of reasoning though; you can't be a sheriff or clerk but you can run for President. That's why I prefer plain language contracts, as you don't split hairs and generally the intent is well understood anyway so you sort things out without getting lawyers involved.

You’re getting yourself mixed up. Section three of the fourteenth amendment says that if 1) you’re ‘an officer’ and 2) ‘engage in insurrection’, then you’re ineligible for president. The question of whether the President is ‘an officer’ in the context of the DJT decisions isn’t to determine if he can be disqualified from president because President is ‘an officer’, but rather to determine if, while engaged in insurrection, he was ‘an officer’ in his role as president. The lower court held that, yes he engaged in insurrection, but that he was not ‘an officer’ while President, and so wasn’t disqualified from running again. Weird reasoning. I read the lower decision, and I did follow the court’s logic, though it felt like a real stretch and that they were trying to make the law say something it didn’t. That’s why the lower court did not rule DJT ineligible for president. The state Supreme Court reversed that part of their decision.

 

[QV]

That is such a ridiculous line of reasoning though; you can't be a sheriff or clerk but you can run for President. That's why I prefer plain language contracts, as you don't split hairs and generally the intent is well understood anyway so you sort things out without getting lawyers involved.

The US seems worse for that kind of gatekeeping on the justice system where the use of legalese is designed to make things as opaque as possible and require legions of high priced lawyers to quibble over punctuation or interpretation of a single word 200 years later. Seems a bit of the opposite of 'freedom and liberty'.

The opposite of freedom and liberty is when government institutions are actively trying to eliminate one of the two major candidates who has at least 40%, and growing, of the likely vote.

 

[KevinB]

The opposite of freedom and liberty is when government institutions are actively trying to eliminate one of the two major candidates who has at least 40%, and growing, of the likely vote.

The 14th Amendment came out of the Civil War, where Republicans didn’t want Democrats who had been in office prior coming back. The cases have been raised by Republicans in several states who want Trump off the ballot.

It’s the law of the land, maybe it should be enforced…

 

[Brad Sallows]

The provision in question had a specific application, aimed against former Confederates. Enter the try-anything, what-can-be-squared-with-the-law-is-right (input legitimacy), damn-the-consequences (output legitimacy) crowd.

In a solidly Democratic-leaning state, a Democratic-leaning judge declined to push all the way and instead a bare majority split of judges appointed by Democratic governors did so. These aren't signs of a strongly-reasoned outcome that will stick.

Opprobrium of course has risen from conservative and libertarian quarters, but also from soundly progressive opinion writers. People are indulging in motivated reasoning that what has transpired is correct and right, and that the USSC will uphold it. Maybe, but I doubt they're going to jump on a novel legal theory while no-one seems to be interested in pursuing a criminal charge that would give substance to the original judge's finding.

Removal of Trump from the ballots in any number of states unlikely to vote for Trump doesn't affect what will happen to the electoral college vote. It will antagonize Trump supporters, and some independents. Some of the people too apathetic to vote will be motivated to do so. I suppose the net effect will be to increase Trump's vote in states where it matters.

[Add: Glenn Reynolds has turned an amusing phrase: "That the result looks like a giant game of civilizational Jenga, with one support after another for civil society being withdrawn, is lost on them."]

 

[Brad Sallows]

The 14th Amendment came out of the Civil War, where Republicans didn’t want Democrats who had been in office prior coming back. The cases have been raised by Republicans in several states who want Trump off the ballot.

It’s the law of the land, maybe it should be enforced…

Confederates, not Democrats. I suppose the usual victors-punishing-vanquished sentiment played a role. Obviously the Amnesty Act passed a few years later meant something, too.

 

[brihard]

The opposite of freedom and liberty is when government institutions are actively trying to eliminate one of the two major candidates who has at least 40%, and growing, of the likely vote.

Do you believe a former president should be immune from the disqualification provision of the 14th amendment if they are a potential candidate in an upcoming election? Is there a reason you would believe this even if there’s nothing in the constitution carving it out?

 

[Brad Sallows]

Do you believe a former president should be immune from the disqualification provision of the 14th amendment if they are a potential candidate in an upcoming election? Is there a reason you would believe this even if there’s nothing in the constitution carving it out?

Unless "president" is an "officer of the United States", the provision doesn't apply unless one of the other categories (senator, House rep, etc) applies.

Some of the arguments here. The authors stipulate that the anti-Trump position is conceivable, but argue that there is still a burden to argue the point successfully.

 

[brihard]

Unless "president" is an "officer of the United States", the provision doesn't apply unless one of the other categories (senator, House rep, etc) applies.

Some of the arguments here. The authors stipulate that the anti-Trump position is conceivable, but argue that there is still a burden to argue the point successfully.

Right now the binding ruling of the court is that he was at the time, and it does. That stands until and unless reversed. That’s part of what the SCOTUS will have to decide.

The question of whether he engaged in insurgency is a question of fact, which normally gets greater appellate deference. Even in the split decision, all three dissents still agreed that he did engage in insurrection. The questions of law - whether Trump was an ‘officer’, and whether 14(3) applies to a party primary under state election law (which is more specifically what was actually decided), are more open to judicial reversal.

But any of this is potentially in play, and only time (and SCOTUS’ decision) will tell.

 

[KevinB]

Confederates, not Democrats. I suppose the usual victors-punishing-vanquished sentiment played a role. Obviously the Amnesty Act passed a few years later meant something, too.

Which Party did the Confederates align with at the time?

As for the Amnesty Act
Specifically, the Act removed voting restrictions and office-holding disqualification against most of the secessionists who rebelled in the American Civil War, except for "senators and Representatives of the Thirty-sixth and Thirty-seventh Congresses and officers in the judicial, military, and naval service of the United States, heads of Departments, and foreign ministers of the United States.

One would then assume that the 14th Amendment would also apply to a President who was engaged in Insurrection. Given the cutouts made in the Amnesty Act of 1872.

 

[KevinB]

Whom the gods would destroy, they first make mad.

A fitting Trump obituary. They definitely have done the second.

 

[Kirkhill]

The implicit faith in The Court is touching.

The underlying problem in the fracture is that there are Two Courts. There is Our Court and there is Your Court. And both sides have been just as keen to play up that divide so that now there is no credible court.

No matter what any court decides a significant portion of the population will disagree.

Democrat prosecutors and judges are persecuting Donald Trump and his supporters. Trumps numbers go up.
Republican prosecutors and judges are making vile decisions. Take to the streets, swarm them and demand their replacement.

We're not quite as bad here in Canada but there is an increasing divide between the decisions that our judges make and the decisions much of our population would make.

 

[mariomike]

I suspect the SCOTUS will rule against DJT, simply because the evidence does support the fact that he did in fact encourage and aid the Jan 6 events, and his chances for President will be sunk for good, then the Republican Party can back Nikki Haley, and have an actual chance at victory.

Even if Nikki were to lose, I think she would be pretty gracious.

 

[Brad Sallows]

Which Party did the Confederates align with at the time?

As for the Amnesty Act
Specifically, the Act removed voting restrictions and office-holding disqualification against most of the secessionists who rebelled in the American Civil War, except for "senators and Representatives of the Thirty-sixth and Thirty-seventh Congresses and officers in the judicial, military, and naval service of the United States, heads of Departments, and foreign ministers of the United States.

One would then assume that the 14th Amendment would also apply to a President who was engaged in Insurrection. Given the cutouts made in the Amnesty Act of 1872.

Not if what was done doesn't rise to the level of declaring independence (seceding) and taking up arms, or taking up arms to overthrow everything (ie. take control without seceding). The point is that obviously some people manage to limit the scope of their anger. There is a great deal of political and social harm in the continuing insistence that what happened was "insurrection" and requires everyone involved to be pursued to the fullest extent of the most novel interpretations of laws.

 

[KevinB]

18 U.S. Code § 2383 - Rebellion or insurrection​

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

I would think that inciting a mob to storm the US Capital building while the Electoral Vote was being tallied probably fits that.

 

[Brad Sallows]

Right now the binding ruling of the court is that he was at the time, and it does. That stands until and unless reversed. That’s part of what the SCOTUS will have to decide.

That has nothing to do with what people believe. Courts make errors. People can continue to believe there is no applicable disqualification provision, even if the USSC decides in favour of disqualification. Common sense and law are two different domains.

Principles of war are applicable to any adversarial process (business, politics). "Avoid the unnecessary battle" is proving to be a hard one for some folks.

 

[brihard]

That has nothing to do with what people believe. Courts make errors. People can continue to believe there is no applicable disqualification provision, even if the USSC decides in favour of disqualification. Common sense and law are two different domains.

Principles of war are applicable to any adversarial process (business, politics). "Avoid the unnecessary battle" is proving to be a hard one for some folks.

People believe all kinds of wacky shit all the time and that’s fine. The court ruling applies to specifically what was ruled on: DJT’s presence on the Colorado Republican primary ballot. A SCOTUS ruling affirming the appeal court wouldn’t even automatically disqualify him in other states; there would still have to be legal action to effect that under each state’s respective election law. Nothing is directly at stake outside of Colorado as of yet, though of course if ACOTUS affirms this we could expect similar challenges to move forward in other states.

No matter what happens, a lot of people will be pissed. Personally I think it would be much healthier for American society to see him stay on the ballot and simply lose. The courts, however, still have a job to do. Colorado Supreme Court explicitly acknowledged this in their introduction.

 

[Brad Sallows]

18 U.S. Code § 2383 - Rebellion or insurrection​

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

I would think that inciting a mob to storm the US Capital building while the Electoral Vote was being tallied probably fits that.

You do. Others disagree. My view is that a process formality was interrupted. No serious (coordinated, prolonged) effort was made that would have resulted in forcing Congress, at gunpoint, to go through a charade of declaring Trump the winner. I get that people are upset about the loss of face, but that doesn't merit vindictive responses. Provisions that talk in terms of armed rebellion and civil war ought be reserved for the genuine articles, not massaged for political revenge.

"Inciting a mob to storm the US Capitol" sounds like Trump was on the steps handing out torches and calling for violence. The reality of what transpired simply doesn't uphold that rhetoric.

 

[KevinB]

"Inciting a mob to storm the US Capitol" sounds like Trump was on the steps handing out torches and calling for violence. The reality of what transpired simply doesn't uphold that rhetoric.

I'd argue he did -- he called for a rally, said it was going to "wild, and Democrats where not going to like it"
He then didn't lift a finger until hours after the Capital had been breached, and several people where dead.

I know folks on Capital Police and on the VPPD team that where in the Capital during the events of Jan6th, I can tell you from their perspective it was most certainly an insurrection and a violent event.

I also know a bunch of people who went on Jan 6th and did a U turn when they realized what DJT was egging on, and what was about to unfold.