Here it is.
I like the way the key citation I've been using in my posts on this issue — see here, here, here, and here — appears in the 3rd sentence of the brief:[I]t is a “‘fundamental principle of our representative democracy,’ embodied in the Constitution, that ... ‘the people should choose whom they please to govern them.’” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 783 (1995) (first quoting Powell v. McCormack, 395 U.S. 486, 547 (1969); then quoting 2 Elliot’s Debates 257 (A. Hamilton, New York)).
That's a principle that ought to be kept in mind in considering each of the 5 different grounds for overturning the Colorado Supreme Court's decision:
1. ... President Trump is not subject to section 3. The president is not an “officer of the United States” as that term is used in the Constitution....
2. ... President Trump did not “engage in insurrection.” The Colorado Supreme Court tried to impute the conduct of others to President Trump. ... President Trump never participated in or directed any of the illegal conduct that occurred at the Capitol on January 6, 2021. In fact, the opposite is true, as President Trump repeatedly called for peace, patriotism, and law and order.
3. The Court should... allow the judiciary to enforce section 3 only through congressional implementing legislation.... given... the antidemocratic nature of section 3, and the danger that courts will apply the “engaged in insurrection” test in a partisan or tendentious manner.
4. The Colorado Supreme Court’s ruling violates the holding of U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), which prohibits states from prescribing their own qualifications for the presidency or modifying the Constitution’s eligibility criteria in any manner.... The Constitution requires that the President qualify under section 3 only during the time that he holds office. Yet the Colorado Supreme Court is demanding that presidential candidates qualify under section 3 at the time of the primary and general elections—and at the time of any state-court ruling that weighs in the candidate’s eligibility— even though Congress could remove the section 3 disability before Inauguration Day.
5. The Colorado Supreme Court’s ruling violates the Electors Clause, which requires states to appoint their presidential electors “in such Manner as the Legislature thereof may direct.” U.S. Const. art. I, § 1, ¶ 2. Nothing in Colorado’s Election Code allows the judiciary to order the Secretary of State to remove President Trump from the Republican presidential primary ballot.
The argument that is most appealing to the layperson is, I think, #2.
How did the Colorado courts determine that Trump "engage[d] in insurrection"? There was the Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol (which Trump unsuccessfully attempted to exclude based on hearsay). And there was "testimony from Peter Simi, a sociology professor, whom the district court qualified as an expert on political extremism and 'the communication styles of far-right political extremists.'"
The district court found that President Trump intended to incite violence on January 6, 2021, by relying on Simi’s analysis of President Trump’s purported “history with political ex- tremists,” as well as Simi’s opinion that President Trump “developed and employed a coded language based in doublespeak that was understood between himself and far-right extremists, while maintaining a claim to ambiguity among a wider audience.”
The district court wrote:
As Professor Simi testified, Trump’s speech took place in the context of a pattern of Trump’s knowing “encouragement and promotion of violence” to develop and deploy a shared coded language with his violent supporters. An understanding had developed between Trump and some of his most extreme supporters that his encouragement, for example, to “fight” was not metaphorical, referring to a political “fight,” but rather as a literal “call to violence” against those working to ensure the transfer of Presidential power.... Trump understood the power that he had over his supporters.Simi relied exclusively on public speeches and the January 6th report to opine on these reactions to President Trump’s words; he conducted no research, interviews, or fieldwork of his own. Simi also disclaimed any opinion on President Trump’s intent or state of mind.Yet the district court used Simi’s testimony to support its factual finding that President Trump intended to incite violence despite Simi’s concession that he could not testify to President Trump’s intent or state of mind....
But this Court should not allow a candidate’s eligibility for the presidency to be determined or in any way affected by testimony from a sociology professor who claims an ability to decipher “coded” messages. The fact remains President Trump did not commit or participate in the unlawful acts that occurred at the Capitol, and this Court cannot tolerate a regime that allows a candidate’s eligibility for office to hinge on a trial court’s assessment of dubious expert-witness testimony or claims that President Trump has powers of telepathy....
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52 comments:
I'll bet you would have made a great law professor if you hadn't spent your career as a prominent blogger.
Well done. You weren't supposed to look that hard. I expect the logic and reason and argument will all be ignored and the ruling will be allowed to stand. It will serve as a model for other states. Appeals will take enough time for the electoral precedent ofstandinglachesmoot to become relevant again.
In the future all this will be reversed when conservative states retaliate to keep a prominent Democrat off the ballot...
...such is the state of our 'legal' system...
Looks to me like the Rocky Mountain judiciary are pretty high on themselves and haughtily look down on other states.
It was the biggest obstacle standing between the Newts revolution, the first GOP majority in like 100 years and one of the biggest line items in the infamous contract with America. The left dubbed it the contract on America.
Term limits was DOA.
Let's be real. The unlawful acts that occurred on J6 were:
1) Certifying a President elected via absentee voter fraud in WI, GA, PA, MI, and AZ.
2) FBI and Gov't set up and entrapment of American Citizens
3) Sentencing those entrapped to long prison sentences which is cruel and unusual punishment.
4) The murder of Ashli Babbitt
No ticky no shirty. Trump may very likely be an insurrectionist, allegedly. However, he's presumably innocent until proved guilty by a unanimous jury of peons and schlubs too stupid to get out of the duty. I doubt it will happen, but it would be nice if a supreme court ruling confirming innocence on the accused would also result in the abolishment of asset forfeiture. As I say that, Trump has not been formally accused of insurrection. So far it's just rumor and in you endo. Therefore the Colorado Court has no legs to stand on.
I like the way the key citation I've been using in my posts on this issue — see here, here, here, and here — appears in the 3rd sentence of the brief:
The truest sign of someone's intelligence is how often they agree with me... :)
Didn’t we learn our lesson about relying on a single “expert” for anything from the Fauci debacle?
Explain exactly how persons in Colorado would legally pursue objections to a candidate who sought a third term as President. Procedurally, how would they go about it?
Cutting to the chase; I expect that they would proceed in a substantially identical way as did the Respondents in Trump v Anderson.
I don't mind if someone wants to argue that Trump wasn't an insurrectionist. I think that he was, clearly, and is Constitutionally unfit for office. We can fight that out in court. But please don't try to school me that the Anderson Plaintiff/Respondents are proceeding illegitimately or in opposition to clear Constitutional terms.
The CO Supreme Court has told the entire world that 4 members are partisan hacks.
In NE we have judicial retention elections. If CO is the same, the 4 in the majority should not be retained.
Nice work, Ann.
This really needs to be 9-0 decision.
So the “expert” decoded Trump’s speech by saying he “literally” meant fight when he said “we’re going to fight”? What about all the hundreds of times Trump said the exact same thing and yet there was no violence? Helluva hearing y’all had there Colorado! I’d like to see the other analysis this megabrain did on similar mundane political rhetoric that resulted in negligible violence. Those codes must be both subtle and irresponsibly powerful!
"An understanding had developed between Trump and some of his most extreme supporters that his encouragement, for example, to “fight” was not metaphorical, referring to a political “fight,” but rather as a literal “call to violence” against those working to ensure the transfer of Presidential power...."
IOW, dog whistles.
I'm worried that Professor Simi will start reviewing this blog and make a seminal statement that Althouse has been sending coded message to her readers for 20 years.
What does cruel neutrality really mean? And what coded directions are being sent through Althouse's clear aversion to men wearing shorts?
We need an expert's analysis.
Interestingly, the brief does NOT argue whether the Jan 6 protest was an actual insurrection. The brief never calls the event an "insurrection", always referring instead to "illegal activities", but it also does not challenge the Colorado Supreme Court's characterization of those events as an insurrection.
I wonder why? Perhaps they felt it was easier to argue that Trump did not participate in the event than argue over the definition of the word "insurrection".
"The argument that is most appealing to the layperson is, I think, #2."
I think #3 is pretty compelling as well. It doesn't take a lawyer to understand that if this is allowed to stand it will happen again and again and again. Our elections will become even more dysfunctional than they are now.
“claims that President Trump has powers of telepathy”
If Trump’s appeal rests on that hyperbolic assertion, he’s going to lose. To put that in your appeal brief signals that you think your client has a weak case.
Innocent until proven guilty? Not for BAD people. So says the left.
One of several* reasons I fear for the future of my children and grand children.
* Freedom of speech, spying on Americans, use of governmental influence to dictate media, DEI/equity... and so much more.
Well done.
All seven justices on Colorado's Supreme Court are democrats. Four joined in an unsigned per curiam opinion, i.e., they lacked the guts to put their name on a case decided 4-3. We need a revolution in Colorado, now.
Thank you, Hostess. For breaking that down.
Learnin' stuff everyday.
OT:
Legal topic, though.
WHY CAN'T THIS FAMILY SUE THE BIDEN ADMIN? An illegal immigrant who was waiting for a jail bed to come open so he could serve his sentence for a previous drunk driving conviction after being deported FOUR TIMES killed a woman and her son in a drunk driving crash. Nothing can bring them back, but why can't the family sue the Biden Admin for failing to keep this guy OUT of the country he'd been expelled from FOUR TIMES?? I'm asking a real question.
Nice brief that cites Scalia and Joseph Story.
This CO S. Ct case should be taught in law school as a BAD example of legal reasoning.
If I was on the CO S. CT and in the majority, I'd be completely embarrassed to join such an opinion.
SCOTUS should apply a total beatdown on those hacks.
But this Court should not allow a candidate’s eligibility for the presidency to be determined or in any way affected by testimony from a sociology professor who claims an ability to decipher “coded” messages.
Whoof, sounds like a left-wing expert at hearing the infamous "right-wing dog whistle."
Despite the bluster, arrogance and sanctimony of the anti-Trumpers, a close look behind the substance of each individual individual lawfare campaign against Trump reveals just how truly pathetic and evil they really are, from NY to Georgia to Colorado to DC.
This is a list of the justices who must stand for retention election in 2024 in order to remain on the bench. Justices may choose not to stand for election. The list is subject to change if justices retire or are appointed.
■ Maria Berkenkotter
■ Brian Boatright
■ Monica Márquez
Marquez needs to be voted out. The Right should launch a vigorous campaign against her.
Monica is gay. Immune from losing her retention election. She's also a Yalie.
Should be 9-0.
But if there's a spoiler (or two) it'll one of the girls.
Professor, I’m wondering which of the five is most appealing to you, a law professor, and which you thing will be most appealing to the Supremes?
I always thought I was number 1. “The president is not an officer of the United States”. And I imagine the lawyers think so as well since they lead with that point.
Love your view though.
Colorado leftists are of the Creepy Newsome variety.
They are punitive.
My last two words above should read ”irresistibly powerful!”
So the “expert” decoded Trump’s speech by saying he “literally” meant fight when he said “we’re going to fight”?
I assume this expert will also be testifying in the insurrection/disqualification case being made against Schumer for his ""I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions" call to violence (that actually led to someone driving across country armed to the teeth looking to carry out Schumer's threat). Right??
I like your analysis, but I need to ask: Are you perhaps being red-pilled by the unrelenting lawfare being conducted against Mr. Trump?
I don't know how you guys can still think Trump didn't like, insurrect and stuff.
They brought in a mind reader! What more do you want?
Look, when you squeeze an orange, orange juice comes out because that's what's inside. Trump is orange. This isn't complicated.
I wish I had more confidence in SCOTUS. Allowing the travesty of the pretrial incarceration of J6 defendants has been unforgivable.
This from a 30-year veteran prosecutor.
I wish I had more confidence in SCOTUS. Allowing the travesty of the pretrial incarceration of J6 defendants has been unforgivable.
This from a 30-year veteran prosecutor.
Milo Minderbinder said...
“Well done.
All seven justices on Colorado's Supreme Court are democrats. Four joined in an unsigned per curiam opinion, i.e., they lacked the guts to put their name on a case decided 4-3. We need a revolution in Colorado, now.”
My memory is that they are all Ivy League LS grads. And I think that you can see that in their practice of LawFare in their decision. Too cute by half. Most of the others, while Dems, are DU law grads.
I think that U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 783 (1995) should be dispositive. There, the state (AR) added the requirement of term limitations to the Constitutional requirements for US Senators and Representatives. The Thornton Court rejected those additional requirements. Before I looked up the case, I assumed that Thornton was the Denver suburb of that name, because CO also had term limits on these offices struck down. Which is why the Trump CO Supreme Ct decision surprised me. If the states can’t add additional requirements for Senators and Representatives, then why should they be able to do so for Presidents and VPs?
I read a bunch of Petitioner (I.e. pro-Trump) Amici briefs last night, linked at Volokh. I think that the most persuasive points involve public policy. If the CO decision is allowed to stand, we can expect to see Trump removed from the ballet in some (more) states, and FJB in others. That wouldn’t be good, esp in regards to legitimacy of the upcoming Presidential election. But I don’t see the Supreme Ct pushing that point, but just keeping it in the backs of their minds. My vote for #1. Quick and dirty. I think that it would appeal to CJ Roberts and his minimalist tendencies. My second choice is #3. Determination of whether Trump participated in an Insurrection is just too messy. So is determining whether Trump got sufficient Due Process too is just too messy.
Can't have a witch trial without spectral evidence! The Colorado trial court admits as expert a sociologist, who is expert in the coded way that right-wing extremists talk to each other. As with the original spectral evidence, it is virtually impossible to rebut such evidence; by accepting it as expert, the court is accepting the reality of such a code, as well as his ability to decode it. Ordinary meaning of words like "fight" or "resist" as used, say, by Democrat or Socialist politicians don't apply. Apparently, the Left doesn't employ code in its encouragement of mostly peaceful but fiery protest.
How this UNLV-educated sociologist came to uniquely possess this right wing decoding ability is not important. Questioning expertise is not something we do in Colorado.
Why do the lawyers Trump hires always suck so much?
The best argument is that the Congress which counts the votes of the electoral college has sole jurisdiction on this issue. Furthermore, it is none of the government's business who private political parties choose to nominate via primary elections.
Neither of which is argued.
Trump's lawyers have learned to simply make the arguments that HE wants to hear, that he is willing to pay them money for, rather than the arguments that might actually have merit.
Yes, I called Trump's lawyers whores.
I've only taken a couple of business law courses is high school and college.
I must of had a good civics teacher. Because my first response was much in line with our host.
There can only be one constitutional process for sec 3.
Congress has to refuse to count the EC votes for a person that participated in an Insurrection.
Why?
Congress answers to the people every two years. Congress removing an elected President will have their actions judged by the People at the ballot box.
After having digested that truth, tell me there exists any other process that includes the People.
The "expert", on whom the CO Sup. Ct. based it's decision, said:
"An understanding had developed between Trump and some of his most extreme supporters that his encouragement, for example, to 'fight' was not metaphorical, referring to a political 'fight,' but rather as a literal 'call to violence' against those working to ensure the transfer of Presidential power...."
How many Trump supporters did the "expert" interview, and for how long in each instance, in reaching his conclusion about these persons' "understanding?"
I spent a lot of my almost-half-century legal career dealing with "expert" witnesses. I can't imagine any half-way competent court or agency allowing an expert witness to give such testimony if he/she hadn't developed a substantial basis for such testimony.
I don't consider the simple words of a Sociology Professor that conducted no auditable research to be substantive due process to deprive a person the liberty of running for President.
Here's an idea: why doesn't the SCOTUS just degfang the insurrectionst portion of the 14A. Just say it applied to Confederates who took up arms against the US Government and it has no bearing in 2024.
I'm sick and tired of lawyers twisting words to get results that absolutely no one who voted for the admendment would've supported.
If you change the meaning of words and ignore the original meaning, then you've just rewritten the Constitution. But then does anyone care? Its all just a game. If we had 5 SCOTUS Democrat Judges, Trump would now be in jail or at least off the ballot in every blue state. Because the Democrats/Liberal justices start with the result they want, and then come up with the reasons.
The Dumbo-cons never want to admit that. So we continue to play the "Is it constitutional?" game, when the real question is "Who are the Judges?"
" Sociology Professor"
That's not a real job.
In the face of conflicting arguments on how to apply the 14th Amendment, the courts might reasonably conclude that for an issue involving the election of someone in an election that best way forward is to let the voters decide in an open and free election. How much trouble does a democratic institution get into by opting for a democratic solution?
The Supreme Court is going to keep Trump on the ballot in elections subject to normal rules and laws.
By similar reason, the Supreme Court will probably let trials proceed and juries reach their findings on the facts. There may be less lawyering on all these appeals than people think.
You included this, but failed to bold it, despite it being the key part:
Yet the district court used Simi’s testimony to support its factual finding that President Trump intended to incite violence despite Simi’s concession that he could not testify to President Trump’s intent or state of mind....
Their "expert" explicitly says on the stand:
19. See Trial Transcript Day 2, 205:19–23, available at http://bit.ly/3S3HTuv (“Q. . . . [D]o you have evidence that it was President Trump’s intention to call them to action? A. My, you know, opinion is not addressing that issue. Again, not in President Trump’s mind.”).
There are So many different ways the District Court's process and ruling were total trash
Justice Samour also argued that the district-court proceedings violated due process by denying discovery, rushing the proceedings, and basing factual findings on a hearsay congressional report and experts of dubious reliability. Pet. App. 158a (¶ 342) (“I have been involved in the jus- tice system for thirty-three years now, and what took place here doesn’t resemble anything I’ve seen in a courtroom.”).26
If you all want to play that game, we're more than happy to play it right back at you.
See: "nuking the filibuster", and SCOTUS members Gorsuch, Kavanaugh, and ACB
I've often been completely unimpressed with Trump's lawyers. But this filing is excellent
AlbertAnonymous said...
Professor, I’m wondering which of the five is most appealing to you, a law professor, and which you thing will be most appealing to the Supremes?
I always thought I was number 1. “The president is not an officer of the United States”. And I imagine the lawyers think so as well since they lead with that point.
The problem with using 1. "the President is not an `officer of the United States'" is that the Democrats will then disallow the GOP members of Congress to be on the ballot, since they are mentioned in 14A. Thus, it doesn't stop the silliness.
I think that #1 is the most probable avenue for reversal (I don’t think Remand, due to timing). Quick and easy, which I expect to see from CJ Roberts here. There is plenty of precedent supporting that interpretation (that the President VP, ad Congress are not Officers). One of the cannons of statutory construction is that if you have a list of specific items, followed by a general category, the specific items aren’t in the general category. Used consistently through the Constitution, the result is very likely that government employees can be divided into three categories: elected officials (Pres, VP, and Congress), Principal Officers (appointed and Senate confirmed), and inferior officers (appointed by Principal Officers, with no Senate confirmation required).
I expect that #3 (§ 3 isn’t self executing) to be the next likely grounds for their decision. § 5 provides that Congress can enact laws to enforce the 14A, and § 3 has a provision for Congress to remove § 3 disabilities. A brief by most of the Republicans in Congress (led by Sen Ted Cruze) pushed this hard on Supremacy and Political Question grounds.
The win, by Trump, is likely to be driven by the horribles, the chaos, of having each state able to determine who was on the Presidential ballot. But this is more a policy aspect than a substantive one.
One of the reasons that I see the decision being based on #1 or #3 is that if they don’t, then they will have to address the messier aspects, such as Due Process. How much process was due? It isn’t just the CO electors who have a stake in the manner, but also Trump and the more than 73 million (2020) voters who would vote for him. The 5 day hearing, without discovery, and no avenue for those affected to have their full say, including discovery and witnesses, should be required for sufficient Due Process. The Supreme Court could just say that the CO courts didn’t provide enough, and remand. It then they might fae another kangaroo out decision, from a 6 day hearing this time. So, they would need to draw some lines as to sufficient Due Process, and that gets messy. And that is regardless of whether they affirm or reverse/remand - unless the CO decision can be flushed with #1 or #3.
Bruce Hayden said...
I think that #1 is the most probable avenue for reversal (I don’t think Remand, due to timing). Quick and easy, which I expect to see from CJ Roberts here.
I think we will only get a "Roberts minimalist" ruling here if there are at least 7 votes for it (probably Kagan, who occasionally pulls her head out of her ass, but only very occasionally).
If the Dems refuse to vote against this idiocy, then I hope and expect the response a complete beatdown of teh Co SJ ruling, from start to finish
1: The CO District Court did not follow the rules set forth in the law it claimed to be following (esp WRT time limits), so everything it did is null and void.
2: Use of an "expert witness" on "X language use" is always illegitimate, unless the "expert" has personally interviewed and worked with the exact people (NOT "people he claims are like the people" whose actions are being examined..
3: If the "expert witness" has worked with those exact people, then the defense must be given full and complete access to every single bit of data collected by the "expert" during his "research", and the defense must be given sufficient time to go over the data so they can challenge the "expert"
4: Section 3 is ONLY executed by Section 5, which is to say by first convicting an individual of insurrection under a law passed by Congress, in Federal Court.
5: Section 3 ONLY prevents someone from taking office. it does not prevent them from running for the office, or from winning the election
6: Neither President Trump, nor any other person, "engaged in insurrection" on Jan 6. The fact that 3 years later, and hundreds of trials / convictions later, not one single person has even been charged with insurrection by the Biden Justice Department proves this is so.
7: 4 & 5 from Trump's lawyer's briefs are also true.
Then we can watch all the people who are attacking Trump for "not accepting the E Jean Carrol Manhattan court ruling against him" refuse to accept the SCOTUS ruling against them
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