SCOTUS Invites Jack Smith to Supersede Trump with Inciting Insurrection
The Supreme Court has not only held that states cannot enforce the 14th Amendment for Federal offices,
This case raises the question whether the States, in addition to Congress, may also enforce Section 3. We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.
But it held that Congress must exclude insurrectionists from office.
The respondents nonetheless maintain that States may enforce Section 3 against candidates for federal office. But the text of the Fourteenth Amendment, on its face, does not affirmatively delegate such a power to the States. The terms of the Amendment speak only to enforcement by Congress, which enjoys power to enforce the Amendment through legislation pursuant to Section 5.
It points to the predecessor to 18 USC 2383 as means to exclude someone.
Instead, it is Congress that has long given effect to Section 3 with respect to would-be or existing federal officeholders. Shortly after ratification of the Amendment, Congress enacted the Enforcement Act of 1870. That Act authorized federal district attorneys to bring civil actions in federal court to remove anyone holding nonlegislative office—federal or state—in violation of Section 3, and made holding or attempting to hold office in violation of Section 3 a federal crime. §§14, 15, 16 Stat. 143–144 (repealed, 35 Stat. 1153–1154, 62 Stat. 992–993). In the years following ratification, the House and Senate exercised their unique powers under Article I to adjudicate challenges contending that certain prospective or sitting Members could not take or retain their seats due to Section 3. See Art. I, §5, cls. 1, 2; 1 A. Hinds, Precedents of the House of Representatives §§459–463, pp. 470–486 (1907). And the Confiscation Act of 1862, which predated Section 3, effectively provided an additional procedure for enforcing disqualification. That law made engaging in insurrection or rebellion, among other acts, a federal crime punishable by disqualification from holding office under the United States. See §§2, 3, 12 Stat. 590. A successor to those provisions remains on the books today. See 18 U. S. C. §2383. [my emphasis]
Taken in tandem with SCOTUS’ punt on Trump’s immunity bid, this seems like an invitation for Jack Smith to supersede Trump with inciting insurrection. After all, SCOTUS has now upheld the DC Circuit opinion that says there’s no double jeopardy problem with trying someone for something on which they were acquitted after impeachment.
Jack Smith could — today — charge Trump with inciting insurrection in response to this order. It is the one Constitutional means to disqualify him, according to this order.
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Thank you.
Supreme Court ruling in a nutshell: “No, *one* is above the law.”
Don’t think for a minute that six justices would not find a way to keep Trump on the ballot regardless of what he is charged with.
This ruling refers mostly to the Primary ballot, which have already been mailed out with Trump as a candidate.
Nonetheless, regardless of what he’s charged with, he’s being allowed to continue getting away with it. It’s like a warning sign and precursor to a ruling on immunity.
It gets very complicated for the general, since the state would need to disqualify not only VP but also underlying Presidential Elector candidates (who are the ones actually being elected on that day).
I think that’s backwards. President and VP can’t be disqualified because as you say they aren’t on the ballot. Insurrectionist electors *can* be DQed, under the explicit text of A14S3, but whether they are considered state or federal appointments is beyond me to determine. If the latter, then this decision seems to say only Congress can DQ them.
First off, Presidential Electors are state office holders. Second and more important, Congress can do whatever it wants with a procedure the Constitution grants solely to that branch. That’s why they agree to use the text of the Electoral Count Act as rules they follow during that specific joint session. They aren’t even required to use the act and could instead modify or even create specific rules to deal with that count should it be necessary. It’s not like this is the would be the first problematic Presidential election they have dealt with, which was the primary mover of the act because it’s a lot easier to make changes and quicker than amending the Constitution.
Now I’m even more confused. They are State office holders, but are explicitly listed as disqualifiable in the Amendment, and now the Supreme Court says only Congress can actually bar them. What am I missing?
As I read the decision, States can determine for themselves how to go about disqualifying State officials pursuant to 14As3. The decision is that States have no role in determining whether to and how to disqualify people from holding federal office.
I realized this is probably a multiplication of unlikelihoods anyway. You would have to find an insurrectionist among some parcel of elected electors, which probably means someone convicted of insurrection and not just present at 1/6, and even in the event of formal DQ, the party could simply replace the offender (in every state?).
But if they are state office holders they can be removed from those. This would be a deterrent for others in the future.
The ruling that took him off the ballot was stayed. He was on the ballot no matter what the SC did.
Exactly. I agree.
Now, let’s see if Smith does it.
And the language of 18 USC § 2383 is quite broad:
“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.”
“Aid and comfort” would certainly encompass Trump’s calling the jailed insurrectionists “hostages,” as would his allowing them to run rampant for several hours in the Capitol as he watched and bated them with Pence-bashing tweets before asking them to disperse (which they did immediately thereafter, verifying his control over them).
Not that his incitement of them, itself, was in anyway disprovable: his “spontaneous” decision — which was planned days in advance — to exhort them to march on the Capitol despite the rally permit disallowing any march (per the DOI IG report on the Eclipse rally, p. 14, issued 2.5 months ago) nails down that bit of inculpatory evidence.
https://www.doioig.gov/sites/default/files/2021-migration/SpecialReview_Review%20of%20the%20U.S.%20Department%20of%20the%20Interior%E2%80%99s%20Actions%20Related%20to%20January%206%2C%202021.pdf
“Aid and comfort” would certainly encompass Trump’s calling the jailed insurrectionists “hostages,”
More directly, he has pledged to pardon ALL of them.
The list would be long.
But they’re going to take their sweet time deciding if he has immunity for it.
Have your cake and eat it too.
Sure. But it means if he is convicted post-election he would be DQed, unless 2/3 of COngress said differently.
And it gives Smith time to do that.
Pardon my nihilism, but what chances do you have of getting 2/3 vote from Congress, when well over half of the members of both houses are unindicted co-conspirators to the 2020 coup attempt.
The calculus is the other way round for this as compared to impeachment. The two-thirds are needed to remove the disqualification from holding office.
You misunderstand her. It takes 2/3 of both houses to remove the disability. Congress can simply disqualify him from holding office when they certify the electoral count, which only requires a simple majority of both houses. May take awhile, but the Electoral Count Act has a mechanism built in to make sure a President is able to take the oath.
I think she’s saying if Trump is convicted of insurrection he would be automatically disqualified from holding federal office. Only a 2/3rds vote from Congress could remove that disqualification.
Yes but what would be the consequence of the actual conviction for insurrection? It carries a sentence of up to ten years. For argument sake let’s say he’s sentenced to the ten years. Now congress gets their 2/3rds removal of the office holding burden. Does he then lead the executive branch from jail? Does he get a four year suspension of sentence? Does Congress void his sentence? Do they or could they even have the authority to do that? This is all whack and it reveals just how messed up humans are still cowing to power positions after all these centuries.
That’s the point. It would be nearly impossible to get a 2/3 majority required to remove Trump’s ineligibility from serving in federal office.
Let’s follow that train of thought. Let’s suppose SC rules he doesn’t have immunity. And let’s suppose Smith even charges him with inciting insurrection. If Trump wins the election and the trial has not started (or at least hasn’t concluded) by say Jan 20, he could fire Smith, and proceed to not be impeached (because Congress can’t pass anything). Seems like a complete recipe for disaster.
But such a trial likely would conclude before 1/20/25.
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So, if an Insurrection trial ends in conviction after he wins the election but before inauguration, he’s DQ’d from the presidency, correct?
Suddenly brings a lot of new importance to his choice for Vice-President, no? And in defeating him in the election to make that point moot.
If a trial holds, and it survives appeal, that any person – including a serving president – is precluded from serving in the federal and state offices listed in section three of the 14th Amendment, that person would necessarily be removed from federal or state office.
My question was more in regard to Zugzwang’s point about a Trump DoJ dropping an ongoing Insurrection prosecution/trial on a President Trump’s orders.
I’ll agree with you that if Trump takes office, Section 3 DQ happens only after conviction is upheld on appeal (up to SCOTUS).
So I’ll change my original concern from vice president-elect becoming president-elect, to what this means to Trump’s selection of his running mate. Would it motivate a choice of someone like Vivek Ramaswamy as VP (heck, how about Steve Bannon? or Stephen Miller?), in an attempt at making that presidential succession as disastrous as Trump himself?
I mean, if it’s say, Katie Britt (the least insane of at least semi-realistic VP choices under discussion—she’s getting the formal GOP SOTU response), who would not jump at that over Trump?
“in an attempt at making that presidential succession as disastrous as Trump himself?”
The frightening part of that thought is that there would then be an unelected President for up to 4 years.
You mean like Gerald Ford.
Ford was in office for roughly 28 months, succeeding Nixon after his resignation according to the Constitution’s Article II, Section 1, Clause 6; he was not a disaster while in office like universal fascists Steve Bannon or Stephen Miller would be, or a complete hack like Ramaswamy.
And unlike the named possible successors to a gods-forbid Trump second presidency, Ford was a rational man who meant well, respected the office and his oath, and had previously held elected office. Bannon, Miller, and Ramaswamy can’t claim any of that, and Bannon’s an ex-con.
And just who do you think is going to remove him?
Sounds like a recipe for an armed standoff on the south lawn.
That wouldn’t last long.
No, it doesn’t.
“So, if an Insurrection trial ends in conviction after he wins the election but before inauguration”
The decision would be appealed (just a guess), and the DQ would be stayed. The appeals court might not rule until after inauguration. It they confirm the DQ, the president would have to be removed from the Oval Office. His supporters would be displeased. Some of them are his 2A friends.
That is only true if 18 USC 2383 is to be regarded as an appropriate mechanism for imposition of a 14As3 disqualification.
As I state below, this appears to be the implication of the majority’s reasoning. https://www.emptywheel.net/2024/03/04/scotus-invites-jack-smith-to-supersede-trump-with-inciting-insurrection/#comment-1042730
But that is potentially problematic.
I would have to think, that if Smith adding inciting an insurrection to his charges that it would impel the justices to rule more quickly on the immunity as well. How could they continue to take their time on the case (compared to how quickly they can act when there is a calendar event pushing things – like the disqualification ruling or Bush v Gore) when a possible candidate might be disqualified from office?
Am I not being cynical enough about the conservative justices desires to enable Trump in the upcoming election? Could they really leave this on the table until June if Smith did that?
Also, is there really any chance Smith would do that, or are you being a bit flippant?
Based on how quickly SCOTUS issued their Bush vs. Gore decision, and how quickly they ruled on several Trump 2020 election cases, I believe they would quickly issue rulings on Insurrection charges.
Smith has always had a good case for Insurrection. I believe he intentionally waited to file Insurrection charges until SCOTUS issued a ruling such as this one today.
Now, there is no reason for Smith to wait any longer. And I don’t think he will wait any longer.
I’ll respectfully disagree, at least at this time. Filing insurrection now as a superseding indictment will inevitably push the case beyond the election because of the briefings and the defense ability to discover exculpatory evidence. Insurrection would also mean filing conspiracy and those co-defendants also get the time to prepare. Those prep steps would doubtless go to the SCOTUS as well, which is why Alito/Thomas (allegedly) would be baiting SC Smith into the idea.
I don’t think it will work. SC Smith doesn’t need to muddy any more waters here, since he already has a strong hand post-immunity ruling and Chutkan is prepared to go within 90 days (the remaining prep time for the defense) and most of the pretrial rulings for Defendant-1’s excuses are already logged into the present case.
This is especially true if the GA case continues as it should. Note also that if Defendant-1 prevails in the election Smith’s case would be gutted anyhow regardless if a superseding filing came along. I don’t see the upside of doing it.
The evidence would be exactly the same.
He would get ONE new bid of MTD. But I think that’s it.
Exactly.
The Chutkan Trial without Insurrection charges added to it will not be held until after the November 2024 election and likely not until late Spring 2025.
So, Smith has nothing to lose and everything to gain by adding Insurrection charges.
Regarding Clarence Thomas recusing himself, it won’t matter because Thomas will be in minority anyway as, I believe, Roberts, Barrett and Kavanaugh will rule Trump committed Insurrection.
Today’s ruling is not as good for Trump as he thinks it is.
And many of the convicted minions that Garland’s prosecutors convicted in J-6 cases will help prove Trump is an Insurrectionist.
The problems with that are:
1 unless the trial is concluded prior to 20Jan 2024 then if Trump is elected he can cause the indictment to be discontinued by his tame AG.
And 2: should the trial conclude after Trump wins the election but before inauguration date, and Trump is convicted of insurrection and sentenced and disqualified pursuant to 18 USC s 2383, then his conviction and sentence, including disqualification under that section, may be pardoned. If Trump is unable to be inaugurated, his VP gets sworn in. And following the pardon of Trump, what is to prevent that VP then stepping aside to allow Trump to take office?
Would pardoning of the disqualification of a candidate stick? IANAL but I understand if the candidate accepts a pardon, they agree that they were still guilty of the original crime and their sentence is commuted (e.g. Such as a prison sentence). However as they are still guilty, they still would be guilty of insurrection and thus ineligible for office. (I understand that after the civil war some insurrectionists were allowed to regain office, as determined by congress).
SteveBev answered by question below, ” that 14A s3 is not subject to the Presidential pardon power.”
Thank you.
If Trump wins the election the only thing he would give a fuck about is his impunity. His acolytes and enablers the same.
What would be the mechanism for anyone to try and thwart it?
? Further impeachment for a corrupt use/abuse of the pardon power.
? What other method could anyone employ to prevent him from taking office – Chief Justice refusing to swear him in? He’ll cause the appointment on a compliant Justice to to the job.
His acolytes who live the lie that all forms of accountability for him are illegitimate attacks on founded on malice would revel in scoffing at the law.
And what’s to prevent a compliant attorney from drafting the pardon in terms which parroted his fictions that the conviction, sentence and disqualification were a monstrous intention by his political enemies.
What’s the basis for your timeline? There’s been other estimates offered (including here) that put the trial in September.
MTD?
Motion to Dismiss. I would observe that it does create the opportunity to raise further reasons for delay.
BTW, the trial would occur 90 days after the likely May ruling, according to Meidas (both experienced lawyers in the federal system) but that also depends upon Judge Cannon not claiming the August trial date. Trial should be done by late October.
Thank you!
Jack Smith knows what kind of case he plans to try. I decline to speculate on his reasons for charging the offenses that he has charged. I suspect, however, that Smith is more interested in sending Donald Trump to prison than in merely disqualifying him from holding federal office.
That having been said, there are strategic reasons not to add an insurrection charge under 18 U.S.C. § 2383. I would observe that many of the offenses Donald Trump is charged with carry maximum penalties of incarceration twice as long as that provided for insurrection. Trump is 77 years old. Even if an insurrection charge were added and Trump were sentenced consecutively, the chance of his actually serving a day on the insurrection sentence is infinitesimal.
Adding an insurrection charge would broaden the scope and complexity of discovery and other pretrial proceedings. It would lengthen the duration jury trial, perhaps considerably. The injection of additional issues would (marginally) increase the chances of Trump being granted bail pending appeal pursuant to 18 U.S.C. § 3143(b).
As I said, I don’t claim to know what Jack Smith is thinking. But each of these reasons for not charging insurrection is plausible.
It could be post-election, but wouldn’t the conviction have to be pre-inauguration? Otherwise couldn’t he at least invoke the DOJ’s no-prosecuting-a-sitting-President policy, if not also fire the Special Counsel outright and attempt a self-pardon?
And as long as either the House or Senate is in GOP hands, they could shut down the government to block a pre-inauguration trial and conviction from completing?
And if somehow Trump were DQed as President-elect, we could end up with his VP pick, maybe an election denier like Kari Lake, serving as President. Unless they are convicted and DQed too.
Lawyer & civil rights activist, Stephanie Jones, outlines how SCOTUS taking the immunity case could actually prevent further delays in the various Trump trials. Worth reading & considering.
https://blog.stephaniejones.com/2024/03/01/yes-the-supreme-court-could-have-declined-the-case-but-then-what/
So she says.
By my reading, if one were to engage in a successful insurrection and replace the members of congress with people who engaged in that insurrection, they would be the only group to hold themselves accountable? Seems like a hole big enough to drive a semi truck through.
The problem is this is a back and forth process:
Trump was impeached by the House for inciting an insurrection, but the Senate Republicans backed out of a conviction because, as McConnell said “This is why we have a justice system, let the court decide.”
Now the Supreme Court just punts it back to Congress saying only Congress can invoke and enforce the 14th Amendment.
Three card monte, and we’re the marks.
As much as I hate to say it, I believe that SCOTUS got this one right. There is too much of a patchwork of different state laws for eligibility for the ballot, that there is no way SCOTUS could come up with a unifying test to satisfy them all. Due process demands some sort of process, so logically Congress would have to be the ones to act.
That seems reductionist. As the minority concurrence states, the Court didn’t need to resolve every possible circumstance to decide the case or controversy presented by Trump’s case.
Well, yes I agree with that. I think the majority went way too far in saying that as it stands Congress has to enact a law to enforce section 3. But the issue I have with the minority opinion is, then what do we do with the current election?
Say you just reverse the CO Supreme Court decision. What are the other states going to do? Certainly if any other state found Trump was ineligible for the ballot, we’d be right back where we started.
And I think we need the Supreme Court to weigh in somehow as to how one goes about disqualifying a candidate for federal office. I wish we could leave Congress out of it, but honestly not sure how we do that.
Would adding insurrection charges provide the Trump team with more opportunities to delay proceedings with additional motions, or other delay tactics? I think the charges would be valuable, both historically and just being a complete indictment, but not necessarily at the risk of not being able to have a trial prior to Jan 6 2025.
The Opinion is Per Curium, but with separate concurrences from:
+ BARRETT concurs in part and concurring in judgement [pdf14/20];
+ SOTOMAYOR, KAGAN, and JACKSON, concurring in the judgment [pdf15/20].
Ric Hasen, Election Law Blog:
Breaking: Supreme Court Unanimously Holds Colorado Cannot Disqualify Trump, But Divides Bitterly 6-3 Over Limits on Congress’s Power to Do So; Gives SCOTUS the Final Word on Trump Disqualification [This post is in progress]
https://electionlawblog.org/?p=141763 Ric HASEN 3/4/24 7:16 am
I’m old enough to remember when conservatives despised “judicial activism.”
It’s only “judicial activism” when it discomfits Republicans. After all, there’s a good reason for the abbreviation IOKIYAR.
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Hey, the Chief is just calling balls and strikes. He said so, right?
The case was set to go moot on Wednesday. The SC had to rule fast, or not at all. Their ruling was not a well-polished gem. They didn’t have time to get all their concurrences on the same page.
Given the rifts on the Court, it’s unlikely time was the limiting factor.
I think the bar is even lower than a criminal conviction. The Court says Jack Smith could make a civil case that Trump be disqualified. He should do that in the 9th Circuit immediately. :-)
Reading Marcy’s extract, it seems that the decision also implicitly rejects the claim that the President isn’t an officer under A14S3. Did I read that right, did they address it more directly. or have they left that open for a later battle?
I think you’re right. The majority detailed (too much according to Sotamayor, Kagan, Jackson and Barrett) a process by which Trump could have been disqualified based on a process outlined in the Enforcement Act of 1870. I think that implicitly means the President is an officer covered by section 3.
Yes, the “POTUS is not an officer of the US” was on their plate and it was a “Trump card,” if you will, negating the need for all the other arguments. If they had held that that was so, all the other arguments become superfluous, iow, and their ruling becomes totally misdirected.
Also, the fact that the ruling repeatedly refers to the affected category of citizens as “federal officers and candidates” by definition in the suit itself, that categorization lumps presidential candidates into that group because he’s the subject of it all.
I expect that Roberts got T, A, and G to let go of that one, even in a partial concurrence, so that the final result was more palatable to that portion of the public with two brain cells to rub together.
Implicit is an uncertainty that invites litigation, which would take about as long to conclude available appeals as a second Trump regime.
If Jack Smith superseded the current election indictment with an added insurrection charge, could than not increase the delay and the trial time?
Perhaps not if Smith uses a civil case in the 9th Circuit. Unfortunately, that long progressive circuit has become more conservative, owing to the FedSoc’s sustained campaign to achieve that end. But it’s unlikely a trial could conclude before the election, which means no appeal would be completed until after it.
Why not use the DC Circuit? They’re already too overloaded?
The SCOTUS majority in the passage quoted above from p10 —
[“Instead, it is Congress that has long given effect to Section 3 with respect to would-be or existing federal officeholders …And the Confiscation Act of 1862, which predated Section 3, •effectively provided• (my emphasis) an additional procedure for enforcing disqualification. … A successor to those provisions remains on the books today. See 18 U. S. C. §2383.”]
— seems to exhibit a lack of clarity of the differences between 18 U. S. C. §2383 disqualification and 14A s3 disqualification, and appears instead to elide the two, despite the two major differences between them.
The first difference is the oath breaking requirement for the latter.
The second difference is that 14A s3 is not subject to the Presidential pardon power.
But taken on its face, the reasoning of the majority appears to suggest that conviction under 18 U. S. C. §2383 ‘effectively provide[s]’ a mechanism for enforcement of a 14A s 3 disqualification on a person proven to have satisfied its requirements.
I doubt that this is a proper reading, nor a proper historical understanding of the interrelationship between 14As3 and Confiscation Act of 1862 – 14As3 was created because Andrew Johnson handed out pardons to confederates convicted and disqualified under the 1862 Act. But…
The But …
If the majority was really saying that 18 USC 2383 provides a mechanism for enforcing 14As3, then their discussion of the type of legislation Congress would need to pass to enforce 14As3 against federal officers, was superfluous for reasons in addition to the criticism voiced in the concurrences. In that latter discussion, the majority give no hint that such legislation would be a mechanism additional to the mechanism already mentioned and thus covering cases not covered by it.
18 USC 2383 provides one consequence for engaging, etc., in an insurrection. But it’s a criminal statute. Sec. 3 does not seem to require a criminal conviction or standard of proof, which suggests there are many other possible ways to implement Sec. 3.
And to some extent that is the point.
Disqualification pursuant to conviction for the criminal offence of insurrection is a criminal penalty. And was subject to the Presidential pardon power.
The disqualification pursuant to 14A s3 was conceived by many of its advocates as a civil rather than criminal penalty (though this was never fully resolved) and the removal of the disqualification by Congress was intended to replace Presidential pardons in respect of it.
“Third, Section Three vested the authority to grant absolution in Congress rather than in the President. This is consistent with the broader structure of the Fourteenth Amendment, which focuses on the power and composition of Congress.[35] Section Three is also a striking exception to the President’s pardon power aside from impeachment, and reflects the bitter antagonism between Congress and President Andrew Johnson that led to the proposal of the Fourteenth Amendment in the first place.[36]”
https://constitutionalcommentary.lib.umn.edu/article/amnesty-and-section-three-of-the-fourteenth-amendment/#:~:text=%5B35%5D%20Section%20Three%20is%20also,Amendment%20in%20the%20first%20place.
(As to whether the disqualification amounted to a criminal penalty see ibid: text and fn 42 – 50)
The Senate rejected an amendment to exempt prior recipients of a pardon from 14As3 ; however the AG opined that where a Presidential pardon had been granted to confederates that persons thus pardoned would not be made subject to a 14A s3 disqualification ( see ibid fn 37)
Even if he is tried and convicted of insurrection, if the 175+ insurrectionist-supporting Congresspersons decide that he can remain on the ballot, what’s stopping them from refusing to uphold the 14th Amendment? Doesn’t this ruling allow for Congress to make that call? We already know that the Republican Party is in lockstep with DJT, and with the “sane” Republicans all bailing out of the ship, who is to stop a majority decision by the insurrectionists to keep him on the ballot?
The 2/3s override doesn’t prevent Congress from refusing to invoke the 14th in the first place, does it?
Depends on whether, and, if so, how Congress implements Sec. 3.
Roberts, Thomas, Alito, Gorsuch, and Kavanaugh [maybe Barrett?]:
I think M.J Stern describes that part here:
The Supreme Court’s “Unanimous” Trump Ballot Ruling Is Actually a 5–4 Disaster https://slate.com/news-and-politics/2024/03/supreme-court-trump-colorado-ballot-disaster.html MARK JOSEPH STERN MARCH 04, 2024
And Chris Geidner adds:
Breaking: Supreme Court, 9-0, says Colorado can’t kick Trump off ballot Underlying the unanimous ruling, a 5-4 dispute about the majority limiting federal power to enforce the 14th Amendment’s “insurrection” disqualification clause.
https://www.lawdork.com/p/supreme-court-trump-colorado-ruling CHRIS GEIDNER MAR 4, 2024
[harpie: “the men”…lol]
Unfortunately, I think these are proper readings of the majority intended conclusions.
And, notwithstanding that the section of the opinion on what would be legislatively required to implement 14As3 as it pertains to federal officers is arguably ‘dicta’, that portion illuminates and probably resolves the seeming ambiguity in the earlier section of the opinion which mentions 18 USC 2383.
For that reason, I don’t think that the majority intended that part of the opinion it to be read as meaning 18 USC 2383 provides a mechanism for implementing a 14As3 disqualification, but merely amounted to noting that 18 USC 2383 had its own separate disqualification.
I would prefer to be wrong about this, but the implication of this reasoning is that a conviction for 2383 could result in disqualification, but such disqualification would not be subject to removal by 2/3 vote by Congress.
But as you alluded to earlier, disqualification via 2383 would be subject to removal by Pardon?
S2383 is a criminal offence which specifies the punishment
“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.”
The President’s pardon power Art II s 1 cl 3
“and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
full pardon granted by the President and accepted by its subject prevents or removes any of the penalties and disabilities consequent upon conviction .
power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.
The president’s pardon power does not extend to Impeachment
Nor to disqualification from office imposed in consequence of impeachment
Art 1 s 3 cl 7 Impeachment Judgement Clause
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law
Nor does the President have pardon power re 14A s3, the excercise of removal of the disability being reserved to Congress
which is also a striking exception to the President’s pardon power aside from impeachment, “But Congress may by a vote of two-thirds of each House, remove such disability.”
The disqualification pursuant to 14As3 is thus more akin to that which is contingent on Impeachment – which is a civil penalty not a criminal one, implying that 14As3 disqualification is also a civil penalty
Thank you, I appreciate your detailed nuanced answers.
By my fast reading of the per curiam opinion, this opens a big can of worms with respect to the access to the federal ballot by people and parties other than Republicans and Democrats.
At present, the states have their own individual mechanisms for third party and independent candidates to get on the ballot. They include some form of signature gathering, with varying numbers/percentages of signatures needed. Some are counted statewide, while others require a certain number to come from each of the various parts of the state (like congressional districts).
It seems to me, in my fast reading, that a third party or independent candidate for a federal office could now simply walk up to the state election’s office and say “You have to accept my candidacy, because you don’t have the authority to make any judgments on who is eligible for a federal office.”
If so, that will be a nightmare for election officials, as they will have to figure out how to accommodate all these fringe candidates, from listing them on the ballot to counting the results.
I wondered about the breadth of the limits SCOTUS seemed to put on states here. The presidential election is, in fact, 50 state elections that are already subject to tons of state laws around ballot access. Congress never delegated to states the ability to require a specific number of signatures to get on the ballot, for example. Are those rules uniform across the states? I don’t think they are.
The rules are far from uniform: https://ballotpedia.org/Ballot_access_for_presidential_candidates#Requirements_for_independents
I think under the opinion, the states’ inability to disqualify candidates for federal office extends only to A14s3 grounds.
I thought the same thing. Did SCOTUS open up the ballots to long lists of wanna be candidates who are currently kept off by a variety of different state requirements?
What about the other rules? There was someone who was rejected in CO because they are not a US citizen but has been allowed on the ballot in some other state. And there were cases brought attempting to keep Obama off the ballot over the birth certificate business.
“There was someone who was rejected in CO because they are not a US citizen but has been allowed on the ballot in some other state.”
This assertion is useless without citation. And literally not even remotely believable given the natural-born citizen clause of Article 2. I have a difficult time believing that any state would grant ballot eligibility to an issue specifically barred by the Constitution.
For a while Cenk Uygur (of “The Young Turks”) was making a quixotic bid for the Democratic nomination, despite not being a natural born citizen. Is that to whom nord dakota refers?
How would I know? Without any citation, knowing that is impossible.
But one thing is for sure: any effort to “draft” Uygur without a Constitutional Amendment is dead in the water.
Cenk Uygur was listed on the Minnesota Democratic primary ballot:
https://www.axios.com/local/twin-cities/2023/12/13/minnesota-presidential-primary-ballot-2024
Teri Kanefield covered this in her excellent blog post about the process.
The whole post is well worth reading.
At this point in time I believe ruling to be moot. Same with the moored immunity case.
Trump will disqualify himself by reason of progessive dementia by June/July. The MSM is 𝘧𝘪𝘯𝘢𝘭𝘭𝘺 beginning to address the issue, if only because every time Trump speaks he further damns himself. Hell, even Trump’s team acknowleges his mental decompensation; they’re just focused on hiding it as much as possible.
The RNC, in a cut-off-its-nose-to-spite-its-face fit of pique, may well nominate the mentally debilitated criminal in hopes the deplorables ignore this additional red flag. Or they might choose to double down on their stupidity and argue “Hey, Look at Ronny Reagan!”, without, you know, getting into the specifics of that horror show.
But I can’t see America willingly voting for an obviously mentally enfeebled version of Dwayne Elizondo Mountain Dew Herbert Camacho.
A better argument would help. As for whether 40% of Americans would vote for an obviously unqualified candidate, see, Donald Trump.
There were a total 136,669,276 votes cast in 2016, of which Trump received 62,984,828, or just a hair under 47%, losing the popular vote by roughly 3 million votes.
As the total population in America in 2016 was 323.1 million souls, Trump in fact only received the votes of 19% of Americans.
Trump’s loss in 2020 was much larger.
In addition to my original thoughts now factor in every American with a brain who is aware of the danger and chaos that is Trump; I would expect as he further publicly deteriorates that original 19% will slim downward to at least 15%.
Yes! I see a combination of mental decline and fatigue in trump’s behavior.
The stress of being half a billion short of bail money isn’t helping.
As the polling gets real, and Trump sees another defeat, he’ll pull the plug.
Why would Trump drop out? Running for president has been his main grift since 2015 and taking office again is his best way to dodge legal accountability. And he has no shame.
Trump has a history of cutting deals at the last minute. If he thinks he could lose he might try cutting a deal to stay out of prison and protect some of his assets.
Your premise ignores his inability to believe he would lose, and his inability to “cut a deaL” essentially publicly proclaiming that he knows he would lose.
and it ignores his likely Plan B that when he loses MAGA will rise up and take the presidency for him by force. He probably has enough “yes” people around him telling him that this time Jan 6 shenanigans will be successful.
And his reputation as making last minute deals is interesting: is that based on his ability to actually make deals or just says he’s the greatest dealmaker. Guess I’d like to know about any actual deals he made (besides fraudulent ones with putin, MBS or banksl etc.).
finally, would that deal be with that might win the presidency at the last second.
No, they won’t take it by force. Most of them are cowards and blowhards, and would quickly see how many real “patriots” there are in this country.
I think he refuses to admit to losing anything, not believe. And yes, he would totally make a deal as long as it saved face – made him “look good”.
Trump has a reputation for caving in at the last minute, to avoid discovery and/or an adverse ruling. But those were in suits against those Trump could dominate.
None of those suing or prosecuting him now have any incentive either to take a bent dime less than the full jury award, or not to prosecute Trump to the fullest extent of the law.
I don’t see Trump willingly pulling out on his own. Not after Jan6. If anything, he will do everything in his power to get reelected, even as his world is collapsing around him just like he did in the weeks leading up to that date.
Yeah, little in his history shows he’d pull out on his own.
Apples and oranges. I was responding to a comment about Trump’s prior conduct in litigation. You seem to be commenting about Trump’s running for president.
There is one place Trump is already losing bigly. His financial empire is on the brink of collapsing out from under him. He’s no multi-billionaire. Elon Musk put up billions of his own money to buy Twitter. Trump is trying to convince the courts to cut deals over 500 million. He won’t or can’t put up the full bond that would save him millions and millions in interest. In a little over a week we’ll learn how shaky his world is. Will he find money or will his properties go on sale. Either route means his financial standing will diminish significantly.
Most Trump voters would still vote for him if were to drop dead. Not unlikely for a 76 y/o who eats McDonalds for the majority of his meals. They would deny his death calling it an Antifa conspiracy. We would have a “Weekend at Bernies” presidency. Secret Service would carry/prop him up.
*77.75 years old
From your lips to Thor’s ears.
As much as I would love to see it, I just cannot envision a scenario in which Trump willingly drops out of the race. It goes against everything he’s stood for throughout his life. The power hungry such as him know no bounds, especially when cornered and with the walls seemingly closing in on him. He’s only going to get more dangerous as the pressure builds. And as well all know, it doesn’t matter if only a small minority wants him as their leader—all those fuckers step up and vote red down every single ballot, every single time and have an immense amount of power in doing so depending on what state they live in.
I’m very appreciative of the insightful thoughts/opinions expressed here, thanks everyone.
Since SCOTUS ruling held that states cannot enforce the 14th Amendment for Federal offices, does that mean that states CAN remove all the J6ers running for office since they don’t already hold a ‘federal’ office? I think there are five or six of them.
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It seems more likely the ruling would allow states to bar insurrectionist candidates, who have previously taken and violated their oaths of office, from state office. Leaves open what process a state must use to determine that a candidate was an insurrectionist.
How to decide who is an insurrectionist to be removed? Those who engaged? Were charged? Were convicted?
Those found guilty of insurrection, I’d guess, but IANAL.
14.3 does not require a conviction – only the behavior.
I guess it depends on which book they use to determine “engaged in insurrection”: the MAGA Originalist, the MAGA Contextualist, the MAGA Pragmatist, the MAGA Humpty Dumptyist, the bible King Trump version (soon to be available from Winning Team Publishing), etc.
“does that mean that states CAN remove all the J6ers running for office since they don’t already hold a ‘federal’ office?”
The 14th Amendment specifically says “having previously sworn an oath to support the constitution”. So I would say, no.
If your argument goes to that previous oath, I’ll note it’s likely that law enforcement, military, and attorneys have made such oaths, as well as those previously elected.
I guess then all those fake electors similarly can be removed from any offices they hold.
I don’t believe that the electors are covered by this. As far as I have been able to find, as crazy as it seems, it appears that they take no oath of office, and it is entirely up to the states, how they are selected and who can participate with one exception:
“Under the Constitution and Federal law, State legislatures have broad powers to direct the process for selecting electors, as long as that process is in place before Election Day, with one exception regarding the qualifications of electors. Article II, section 1, clause 2 of the Constitution provides that “no Senator, Representative, or Person holding an Office of Trust or Profit under the United States” may be appointed as an elector.”
https://www.archives.gov/electoral-college/roles
“Article II, section 1, clause 2 of the Constitution provides that “no Senator, Representative, or Person holding an Office of Trust or Profit under the United States” may be appointed as an elector.” ”
Thank you for clarifying that.
Coincidentally, I came across an Arizona senator, who according to Wikipedia was a member of the Arizona House of Representatives ” Anthony Kern is an American politician and a Republican member of the Arizona Senate, representing District 27 since 2023. He previously represented District 20 in the State House of Representatives from January 5, 2015, to January 11, 2021.”
Does that mean he should not have been an elector?
Does it matter that he lost re-election for his seat in 2020, but technically he was still a member of the House at the time he was an elector. Also he is now a senator. Could that be challenged under A14 S3, subsequent to being a fake elector?
What Peterr said, but for a slightly different reason. The ruling (to me) seems to obfuscate what was presumed to be a fairly clear, if rarely applied section of the Constitution. By putting the onus on Congress to legislate what previously has been held to be self-executing and assigned to the states, the Roberts Court has set in motion a Charlie Brown and Lucy scenario in which this (or a future) Court holds any law(s) passed by Congress are found unconstitutional by the Court in order to favor an individual or groups of individuals found to be insurrectionists. This may be due to my lack of faith in the good will and judgement of this Court.
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If you have a lack of faith in the goodwill and judgement of this Court, it’s for a reason. Start with Bush v. Gore. Continue with false statements made to Senators to obtain confirmation. Add in a bit of very unseemly “trips” and “vacations” as the guest of very wealthy people. And sprinkle on a marriage to a very, very partisan spouse who was deeply involved in the particular insurrection.
Oh, and there was the vituperative display of one nominee during his full Senate hearings.
That would try anybody’s faith.
My vote is with Bad Boris
Since SCOTUS ruling held that states cannot enforce the 14th Amendment for Federal offices, does that mean that states CAN remove all the J6ers running for office since they don’t already hold a ‘federal’ office? I think there are five or six of them.
[Thanks for updating your username to meet the 8 letter minimum. /~Rayne]
Not a lawyer, so a question instead:
Does the affirmation of a clear path to disqualifying Trump change the calculus of the co-conspirators? Are we likely to see a long queue of MAGA grifters lining up to speak to Jack Smith?
No. He will get no more cooperation until such time as someone else is sworn in next January.
I’m watching Donald Trump babble through an idiotic presentation about this decision. What a moron! He is spending five minutes bragging he took out “all of ISIS” and there were “no wars” during his term in office. Now he is making fun of “Fani” Willis’ name. This man is a complete demented moron. God help us if this brain-damaged buffoon gets back in the White House!
In my opinion, SCOTUS has no integrity. It has embraced a far right political agenda and fundamentalist Christianity at the expense of the rule of law. The courts are not going to save us. The only way out is to win elections and use the power of the office to change the courts.
Well, ultra MAGA Ginni Thomas was an active participant in trying to overturn the election, and the “Kraken” basically laid out how Sam Alito was supposed to intervene on J6 to stop the certification. Nancy Pelosi did us a solid, by getting everyone back in session, otherwise, their plan may have worked.
That’s 2 SCOTUS justices who are compromised, deciding on these issues.
More specifically, Seven Mountains Dominionism
“The only way out is to win elections…”
Well, no, it’s NOT the only way.
It’s just the last palatable way before things get truly ugly.
That is correct. The only non violent way out is to win elections, but that’s no guarantee either. Ian trying to be optimistic.
The lack of integrity among six justices, outside of them all being part of the Federalist society, is the silence after ConeyBarrett was nominated. Either a president can appoint a justice in his last year or not. Any justice with integrity would have denied the seat. Or Goresch would have resigned. The hypocrisy of the entire exercise is overwhelming. But they are religious fundamentalists at heart. They believe they are chosen. As such, any sin they commit is part of gods plan.
Sadly I think and fear that you are spot on.
From my side of the Pond, I think that this whole argument is a red herring. If Trump is barred from standing in the election, or is barred from taking up office should he win, then he’ll claim martyrdom until his last breath. That could fire up his supporters, and usher in a whole new era of MAGA-dom.
My hope is that he’s allowed to stand unhindered, but suffers a crushing and humiliating defeat in a free and fair election. A defeat so large that even his most ardent supporters wouldn’t be able to cry “election interference” (although many of them surely will).
It’s too late for Trump, but the USA needs urgently to enact clear and unambiguous laws for the event that a future President isn’t the pure, honest figure the founders envisaged. The assumption that top politicians would be honourable men was reasonable two centuries ago, but desperately needs re-visiting and guardrails put in place for outliers like Trump.
(Rayne, you kindly reminded me of my previous user name, I hope I’ve got everything right this time. Many thanks for your tireless moderation)
“It’s too late for Trump, but the USA needs urgently to enact clear and unambiguous laws for the event that a future President isn’t the pure, honest figure the founders envisaged.”
Have fun waiting for Congress, but I wouldn’t hold my breath if I were you.
This is where people are not supposed to have fun or hold their breath/not hold their breath.
This is where the people are supposed haul out all the stops and elect members of Congress who see the problems exposed by this SCOTUS and Trump’s insurrection.
.
Pick a couple Senate races, a couple House races, and give a hand.
Given that the original poster is presumably not an American citizen, literally none of that is possible.
He has a valid point — the founders made too many assumptions in the Constitution, that some portions would be self-executing like the prohibition on foreign-born citizens eligibility for POTUS. Cenk Uyghur demonstrated some people will either be too stupid/selfish/corrupt to eliminate themselves as candidates. Ditto for Trump who has scoffed at the Constitution in so many ways in spite of taking a vow to protect and defend it.
These errors based on assumptions that candidates would act with honor should be addressed by Congress, in a way that leaves no ambiguity in federal elections. If this problem is readily visible from across the pond we should address it — and it’s on us to do our best to get a better Congress.
I agree that it is a valid point, to a degree (but not because of the natural-born clause). It also ignores that Congress has been wildly dysfunctional regarding oversight of the Executive Branch since at least the George W. Bush administration, at a minimum.
Since the filibuster. We should revisit what Rep. John Dingell (RIP) recommended to fix Congress’s dysfunction.
https://www.theatlantic.com/ideas/archive/2018/12/john-dingell-how-restore-faith-government/577222/
Hear-hear
This too is my dream. An electoral beatdown. A crushing so immense and monumental that nobody will try that crap again until everybody who remembers it is dead.
It’s a dream though. I would love it, but I don’t know that I expect it.
18 U. S. C. §2383
“Whoever incites, sets on foot, assists, or engages in any rebellion…..”
“sets on foot” struck me as exactly what trump said (and tried to do) at the ellipse speech on Jan 6th. I would assume the “or” applies to each action listed before to the word “or.”
That’s exactly what it means and that speech on the Ellipse was provably premeditated (see my comment above).
https://www.emptywheel.net/2024/03/04/scotus-invites-jack-smith-to-supersede-trump-with-inciting-insurrection/#comment-1042762
It was both an incitement and marching orders (i.e., a “setting-on-foot” of the crowd). The link at the bottom of the above comment-link spells out the premeditated nature of the speech, on page 14 of the DOI-OIG document.
Not a lawyer, but I’m not sure SCOTUS has completely mooted the “double jeopardy” issue. Indeed, the DC Court of appeals opinion turned on the fact that Trump’s team conceded there is no such thing as absolute immunity, as they agreed a president could be tried for any criminal conduct of which they had been previously impeached for and convicted of in the Senate.
Given the parties agreed there was no “absolute immunity”, the 3 judge panel then considered the allegations in the indictment which they found not to be “official acts” and therefore, in the absence of absolute immunity, could not possibly support an immunity claim as defined by Nixon v. Fitzgerald (the “outer perimeter” test).
Again, NAL, but as far as I can tell here, SCOTUS appears to be completely ignoring the DC circuit opinion (although they may agree with parts of it) and going back to the larger question, does absolute immunity apply for crimes committed during alleged “official acts,” and if so, where do you draw the line? Is it a subset of certain acts? Is it acts that only occur outside of US soil? Are there some crimes that no matter what the circumstances are, the president could not possibly be immune from prosecution (as an obvious example, I’m thinking Constitutional treason, where the US is formally at war and the president declassifies and causes to be delivered to the enemy NDI that gives the enemy an advantage over the US forces). I would also think that open defiance of a Supreme Court order or an act of Congress would also be grounds for criminal prosecution no matter what.
And in that discussion, I imagine impeachment and conviction will rear its ugly head again. In fact, I wouldn’t be surprised if SCOTUS comes down on the “could never be immune from prosecution” acts by saying the proper remedy while in office is impeachment and conviction, and after leaving office would be prosecution, which then moots the double jeopardy argument, and also answers once and for all the question of can a sitting president be indicted?
But until such a decision is reached, there is the risk that SCOTUS goes the other way and brings back this double jeopardy argument. I doubt it would prevail, but I think it hasn’t been mooted yet.
Double jeopardy equally applying Article Impeachment and Senate trial and an Article II prosecution and trial in an Article III court is not even a thing. First off because courts cannot impeach and remove any constitutional officer, the same can be said that Article I is Constitutionally prohibited from conducting criminal trials. Double jeopardy applies to criminal prosecutions and trials, though it could be argued that double jeopardy applies to impeachment and Senate trial multiple times for the same offense. (not that any congress critter would try or even get away with that) Besides, Senate verdicts cannot be overturned by a pardon nor by court order.
No, double jeopardy does not apply to multiple impeachments for the same or similar alleged high crimes and misdemeanors. Impeachment and conviction are civil processes, as are the consequences for conviction.
Double jeopardy would be applied by the Senate. Who in the past had to send back to the House, President Johnson’s impeachment for the lack of the articles of impeachment. It would be solely up to the Senate to allow it. The courts don’t get involved since they don’t have the necessary tools or case law to look for guidance.
It would be a political decision by the Senate whether to reconsider an earlier trial and vote. It would not constitute double jeopardy in the constitutional sense.
Trump was found by the House in January 2021 to have incited an insurrection on J621, thereby being an insurrectionist. Trump simply was not removed by the Senate in January 2021. Is my understanding correct?
If the prevous is true, why can’t Jack Smith now supercede the D.C. indictments and add insurrection to the list of crimes that Trump has committed, thereby today’s Congress MUST disqualify Trump from the ballot per today’s SCOTUS decision.
Very good point. Not only was he voted by the House that he incited an insurrection, he was voted by the Senate 57 to 43 that he did indeed incite an insurrection. A majority, just not the 2/3rds required for removal. Certainly that would seem to be strong evidence in a civil suit that he did indeed incite an insurrection.
Imagine the future where Trump wins the election and Congress refuses to certify electoral votes for him as he is an obvious insurrectionist.
We may well be looking back thinking the SC should have ruled otherwise.
BTW, the argument that a single state or small group of states should not solely decide who is the president given the effect of the electoral college absurd. I truly wish my vote for president, senator or congressman actually counted.
Mark Joseph Stern notes that the five far right Justices went far beyond what they needed to to decide this case:
Stern points to an author of the 14th Amendment, to refute the majority’s insistence that only Congress can implement Section 3:
As others have pointed out, the Court chose to rely on action by the most dysfunctional branch of the federal govt, to implement Section 3. As with the Court’s failure to decide Trump’s immunity argument at the same speed it decided the ballot case, the Court is appearing to apply the rule of law with one hand, while gutting it through the way it requires that law to be implemented.
Amy Coney Barrett agreed with the minority’s concurrence, but declined to say more, because she thought the Court “should turn the national temperature down, not up.” Her reasoning is circular, because she refuses to acknowledge that it is the Court that is resolutely turning it up.
https://slate.com/news-and-politics/2024/03/supreme-court-trump-colorado-ballot-disaster.html
” the Court chose to rely on action by the most dysfunctional branch of the federal govt. to implement Section 3….”
This of course refers to congress (Article 2). However I am confused by this in the light of Marcy’s concluding statement, “Jack Smith could — today — charge Trump with inciting insurrection in response to this order.” That would be an Article 3 solution, no?
Yes, as Marcy noted, the underlying Supreme Court decision directed that it was Congress that needed to implement Section 3.
If Smith decides to sue or add additional charges, it would be the Executive, or Art. II branch seeking disqualification under existing congressional laws. Yes, the judicial branch would officiate over such a dispute.
“… at the same speed it decided the ballot case,”
The SC was up against a deadline. On Wednesday, the case becomes moot. After the primary, they would not be able to rule on who should have been on the ballot. They had to work fast, and the ruling shows it. It is sloppy, poorly thought out (it represents three opinions that are in partial agreement), and does not give the “clear line” guidance that is needed.
Stern notes that the metadata apparently inadvertently left in the Court’s opinion suggests two things: the minority’s concurring opinion was originally written by Justice Sotomayor, and that it started life as an opinion that was “concurring in part and dissenting in part.” He then speculates about why that might have changed in the final version.
https://slate.com/news-and-politics/2024/03/supreme-court-metadata-sotomayor-trump-dissent.html
Thanks for the link. Such articles are always fun reads, even with their obvious limitations. More importantly, this is actual evidence of a point that had been already presumed by now: “the six” are far from a monolith, and several of them (Roberts yes but as the article shows likely not just Roberts) still find enough value in a unified front that they’re willing to trade SOMETHING (that we’ll never know) to get it.
The best theory I’ve heard is that they want this one 9-0 for Trump and the immunity one 9-0 against Trump, and that’s what the horsetrading was about, and why the immunity thing took longer than anyone expected.
Another scary prospect. Once Trump wins the Republican nomination, the normal course is to offer him national security briefings similar to the President’s. His past handling of his country’s secrets – he’s in the midst of being prosecuted for mishandling and unlawfully retaining them – does not suggest he will treat this new flow of information any better than the last one.
https://www.salon.com/2024/03/04/likely-to-weaponize-intelligence-experts-alarmed-as-poised-to-get-security-briefings-again/
Though the Salon article seems to indicate otherwise (my reading anyway), this NBC article indicates that those briefings are not required and if given, can include or exclude any information as necessary for national security:
https://www.nbcnews.com/politics/2016-election/could-candidate-donald-trump-be-denied-national-security-briefings-n619156
This is one thing I am not really worried about – I think Biden can handle this.
The Biden administration should feed him false information and see what pops up in Moscow.
No, it shouldn’t. But given that Trump is being prosecuted for abusing his earlier right of access to govt information, it should carefully consider how full the briefings are it gives him.
The administration should give him zero national security briefings. He is under indictment for violating portions of the espionage act. Meanwhile he is going around spouting support for Putin over Nato and bragging about his love with Kim Jong-Un.
Yes, that is a real and frightening problem, and that is another reason Smith should file Insurrection charges. By filing Insurrection charges against Trump, Smith will be able to include the documents case in Florida along with the Georgia DA case in his Insurrection indictment.
Esquire has a tasty headline:
“The Supreme Court’s chickenshit ruling”
Is it an op-ed or a straight reported article? Who’s the byline? Have you learned nothing here?
It’s by Charlie “Save the Commonwealth” Pierce and their paywall has the gate down
Headlines are frequently misleading, even in reputable outlets, and a title alone is close to a naked link. It’s easier to say what you just said when giving the original link, and to summarize in a sentence or two the point of the article.
There’s a lot of chatter on here about how unlikely it is for Congress to use its power to create mechanisms enforcing the amendment. But I think what Marcy is saying (correct me if I’m wrong, MW) is that the Court’s reference to 18 USC 2383 shows that the majority concedes that Congress has *already* used this power to create just such a mechanism, and that mechanism “remains on the books” via Congress’s enactment of 18 USC 2383, a Federal criminal law that Jack Smith may choose to prosecute.
In its present form, 18 USC 2383 dates back to 1994. It’s based on an earlier statute from about 1904. The Congress in neither era was much like the present Congress.
Confiscating Act 1862
Section 1 of the Act targeted treason, Section 2 more broadly targeted insurrection and rebellion, and Section 3 disqualified anyone who commits these offenses from serving in any federal office. These provisions regarding insurrection, rebellion, and disqualification remain substantially the same in the United States Code today.
Text of the 1862 Act
https://web.archive.org/web/20080806144911/http://www.history.umd.edu/Freedmen/conact2.htm
Obviously those criminal provisions predated the 14th Amendment. 14A s3, was intended to and did something more and different to the Act, not least by virtue of being a Constitutional provision
* Confiscating Act=> Confiscation Act 1862
Yes – that is what I was trying to say back at 5:29 PM. FWIW – I haven’t yet heard a TV lawyer address this,
Interesting article in Slate today that the opinion forgot to wipe the metadata from the published opinion. Byzantine level palace intrigue tea leaf reading.
Slate – “The Supreme Court Forgot to Scrub the Metadata in Its Trump Ballot Decision. It Reveals Something Important”
Ah, I’d thought the double jeopardy issue was still in question. With that concern rejected, adding an insurrection charge shouldn be *that* tough (has already had its day in state courts) especially with new evidence that’s come up since Smith started. Bring it on.
I should note the internet “wisdom” that “if Jack could’ve, he would’ve”.
It’s hard to say what persuades MAGA, but if Smith now charges insurrection, some voters *may* take the claim much more seriously. (I hope.)
Justice Barrett’s comment “turning down the national temperature” is remarkable. She is declaring in writing, to the nation, that the majority had choices and chose to inflame. It must be really really hot in there.
BARRETT is NOT addressing “the majority” …
she IS admonishing the dissenting women on The Court to SUBMIT.
^^^ “remaining Justices” = ALL of the women.
https://twitter.com/JillFilipovic/status/1309906298834759680
1:22 PM · Sep 26, 2020
Exactly! Conform, get in line, STFU, Stepford yourself.
Disgusting.
ACB to the Dems: “The boys made a mistake. The girls should shut up about it.”
This is inculcated behavior on her part.
https://www.theguardian.com/us-news/2022/aug/26/amy-coney-barrett-faith-group-people-of-praise
OMG – tks for the correction. OMG
Well, it IS just my opinion…
[not meant to be a “correction”]
but I DO feel rather strongly about it…LOL!
As an expert at misreading documents, I can see how you came away with that POV: her memo (it’s closer to that than a judical opinion) to the other women was a strong, but implied, admission that the political tendons and musculature of our body politic are strained to the limits, and that the majority ruling was an unnecessary added strain. Thus her plea to the other women to just let the men’s diktat-flavored rule-despensing be treated like a disagreement about mere emphasis, instead of a machete-wound to the precept of judicial restraint that is was.
Her second paragraph (out of 2 total, lol) is a plea for the other women to join her in what amounts to judicial codependency, the pretext for which is the temperature-elevation that the “men-folk” contributed to by not, themselves, just keeping it simple like she’s admonishing the women to do.
Like I said elsewhere here, this is learned, dysfunctional behavior on ACB’s part, thus the unspoken, or partially spoken, messaging.
“Co-dependency” is the most apt description of that half of her memo. “The Co-dependent Concurrence” would be a good title for it, going forward.
So, let’s play out a superseding indictment. I suppose Smith could go to a grand jury and get a superseding indictment that adds an insurrection count. The case is stayed the grand jury process is not (at least that would seem to be correct).
What then? Is the superseding indictment sealed (and on what ground) or does it become public?
Because the moment the existence of the indictment becomes known all kinds of forces are unleashed. The district court is stayed but the existing indictment is no good because it has been superseded – is this a new ground for dismissal? Because the superseding indictment cannot properly be filed in the stayed case but the indictment underlying the case has been superseded. It mucks things up at a minimum and causes J. Chutkan unnecessary grief.
Trump has a field day from now to whenever that this proves the charges against him are politically motivated. What has changed beyond the Court’s opinion as a reason for charging this now, and not previously?
And the Court watches this unfold with the immunity issue before it. Barrett the scold has opened a wee bit of a window into how venomous things are up there right now, without such a bombshell.
My guess is: not gonna happen.
Agreed. I also think SC Smith would have charged that along with the rest. He only superseded in the document case because new evidence warranted the additional charges. He’s been very careful and only charging what he feels the evidence would lead to a successful conviction that would also survive the appellate process.
That’s my guess, too. If there was evidence to support an indictment, they would have done so. That’s not something you keep in your back pocket as a fall back.
And, if you did keep a hole card to “fall back” on, that would be vindictive prosecution. You make a defendant exercise his rights to defense, and then when he does, you whip out bunk that was known from the start? That is just garbage.
A couple of people have mentioned this article about metadata on the Opinion:
Supreme Court Inadvertently Reveals Confounding Late Change in Trump Ballot Ruling https://slate.com/news-and-politics/2024/03/supreme-court-metadata-sotomayor-trump-dissent.html MARK JOSEPH STERN MARCH 04, 20244:58 PM
John Roberts seems to have worked hard to make the decision look unanimous, which required eliding the apparently serious rift within the Court. Barrett implicitly acknowledged that in her tepid appeal for less heat. One of the things elided seems to have been any tie-in between a unanimous decision on the Colorado case with a rejection of Trump’s immunity appeal.
This also has the smell of Alito about it. Remember the leaked Roe v. Wade decision? While the justices themselves may not be wizards on “meta data”, their friends in high places have abilities. And the meta data can be modified easily – witness the HB laptops/drives/etc.
The ROBERTS COURTesan Majority Faction and Bush v. Gore
1991 THOMAS [GHWBush]
2000 SCOTUS: Bush v. Gore [BvG]
2005 ROBERTS [GWBush]
2006 ALITO [GWBush]
2017 GORSUCH [Trump]
2018 KAVENAUGH [Trump]
2020 BARRETT [Trump]
One more thing about THOMAS and BvG:
Supreme Court is about to have 3 Bush v. Gore alumni sitting on the bench https://www.cnn.com/2020/10/17/politics/bush-v-gore-barrett-kavanaugh-roberts-supreme-court/index.html [] Joan Biskupic October 17, 2020
Before joining the CheneyBush administration, largely to shepherd its nominees through the Senate – in preparation for his own, undeserved nomination to the DC Circuit – Brett Kavanaugh was Ken Starr’s acolyte, as he trolled through dumpsters looking for largely imaginary dirt on the Clintons.
Proof of how much the Senate has changed in regards to judicial appointments in the last decade or so: Robert Byrd voted in favor of Kavanaugh’s DC Circuit nomination, as did a handful of other Dems. I trust your judgment on how poorly he was fit for even that lower post. Did the ABA give him a terrible ranking then too?
Kavanaugh had an excellent academic record, the right clerkships, and years of FedSoc membership. But his work history – mostly political appointments with his patrons – was thin for appointment to a district court judgeship, let alone to the most important intermediate appellate court in the US. It was a topic of conversation here at the time.
It’s quite rich that Amy Coney Barrett is complaining about a lack of judicial restraint. Rather than joining Judge Roberts and simply affirming in Dobbs, she joined an incendiary opinion by Alito trashing every Supreme Court justice who had ever upheld Roe. Alito, as you may recall, said Roe was “egregiously wrong,” and “an abuse of judicial authority,” and on and on. What a hypocrite!
That being said, she was right in this case, and the minority was right too. There was no need to wade into exactly what must be done to disqualify a presidential candidate from the ballot. But it does give Jack Smith a clear roadmap about what to do.
There was no need to hold that Sec. 3 required implementing legislation. It was enough to say that for federal election purposes, only the federal govt could enforce it.
It’s even worse than that. They’ve pointlessly thrown into doubt whether the 14th Amendment, which was well-understood to be self-executing, is really self-executing.
Someday they may clarify that enabling legislation is only needed for Section 3 because of specific language in that provision (the majority opinion suggests this but didn’t say so explicitly). Unfortunately, we’re not really sure, and we’re left to wonder what they’ll do with the entire 14th Amendment.
It’s as if the Court’s radical right majority wanted there to be the appearance of a definitive answer, while withholding it in practice, ensuring that litigants will have to repeatedly ask the Court to explain itself. Good recipe to persuade prosecutors to ignore Sec. 3 as a viable rule to enforce.
Adam SERWER:
https://bsky.app/profile/adamserwer.bsky.social/post/3kmvi446bj72m
Mar 4, 2024 at 3:24 PM
Links to:
The Supreme Court Once Again Reveals the Fraud of Originalism
The justices did not want to throw Trump off the ballot, and so they didn’t.
Adam Serwer MARCH 4, 2024, 3:15 PM ET
The end of the linked article:
I love Adam dearly, but he is full of shit here. SCOTUS made the only sane decision they could have. The Colorado case was fool’s gold from the first moment. I said so immediately, only to have a bunch of dopes try to splain to me how only states control elections. What a joke.
SCOTUS most likely decided when they accepted cert, or else they would have had the decision out before the cutoff date the COSoS stated she needed to begin the primary election process. The problem with that section is vagueness on both who decides and enforcement. Let’s take Presidential Electors for example: What happens if a state doesn’t agree that one or several of the electors they choose weren’t part of an insurrection? It reaches Congress and they decide to disqualify those votes when they count the votes. Same goes for both houses in congress. This election looks to be messy enough, no reason for it to get unnecessarily messier, which would most likely benefit the challenger.
Good grief, yet another call for a superseding indictment? Seriously? Come on, will this never stop? Smith could have charged this to start with, there were plenty of facts to warrant it. But now the internet is a flame with calls to engage in yet another vindictive prosecution long after? This is getting beyond absurd.
Smith probably never went for the insurrection indictment because of how hard it would be to prove in court that Jan 6th was a planned insurrection.
This is as good an example as any of the fact that the Constitution or its Amendments are not laws. Violating the Constitution almost never violates a law. So thinking about it at all you realize that the Court and judges twisting themselves into knots is to be expected.
What the Conservatives have said and surely will till death is that at the end they day they want to leave it up to the people, and the vote. For connoisseurs of irony the possibilities here are divine.
No, there are “laws” in the Constitution, for instance treason. But, mostly, the Constitution is the framework in which laws are judged for propriety. They are not independent things.
No, your reductionist exaggeration is not correct. Your second paragraph illustrates the point. “Leave it up to the people, and the vote” is a trite slogan. If that’s what motivated so-called conservatives, the US would have universal access to abortion, contraception, health care, significantly lower costs for post-secondary education, and data privacy rules.
OT / CA:
Steve (once a Dodger, always a dodger) Garvey, welcome to the meat-grinder of CA general elections. “Toast” would be putting it kindly. LOL, former teammate Dusty Baker endorsing Barbara Lee, my esteemed Congresscritter).
I voted for Katie Porter, but I have no problem with Adam Schiff as our next Senator.
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Woops! Sorry ’bout that. Auto-fill / operator error.
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Of course: it’s the one with punaise@
It; at the top of my pull-down menu, so I must have inadvertently clicked on some other address below that may nor even be one of mine.(Somehow a few client email addresses randomly show up there. Maybe a clear cache thing?)
Yes, probably a cache issue. Check your email soon!
Isn’t the prohibition to allow a “known” insurrectionist to hold office a civil matter? Since the apparent remedy for insurrection in the case of previous office holders doesn’t involve a fine or other penalties, but only imposes a disability of holding office (which Congress can remove) why is the SC suggesting a criminal prosecution (or Congressional legislation??) is necessary to achieve the remedy? I am not a lawyer, but I do like to read…alot.
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I think that’s correct. The Court’s majority stressed how harsh it thinks the penalty of disqualification from office is, implying that it is somehow akin to a criminal penalty and that proof of insurrection must, therefore, meet the criminal, beyond a reasonable doubt standard. I think that’s false.
The argument reminds me of how white collar criminals argue that the “reputational damage” they suffer from being prosecuted for felonies is so severe, that imprisonment isn’t necessary to make them change their ways. LOL. Criming corporate executives change their ways when they face two consequences: personal imprisonment and fines that are multiples of the revenue or profits they make from criming. Some not even then.
The Supreme Court Just Delivered a Rare Self-Own for John Roberts
https://slate.com/news-and-politics/2024/03/supreme-court-john-roberts-trump-ballot-fail.html
RICHARD L. HASEN MARCH 05, 2024 4:55 PM
[link a] = What’s dividing the Justices (and other initial reactions to the Court’s decision in Trump v. Anderson https://balkin.blogspot.com/2024/03/whats-dividing-justices-and-other.html Marty Lederman []
I found this article by Lederman to be really informative.
It gets really interesting [and in the weeds] here.
The majority could have had a unanimous Opinion IF they just stuck to answering the question from the Colorado case.
WHY did they INSIST on adding that “five-paragraph Part II.A ”
which “generated tremendous controversy”?
CORRECTION: In the Hasen article excerpt,
there should be a […] between [link d] and “The whole back and forth”.
Given the makeup of the radical right majority, it would be hard for the minority to overread the damage they might intend with their nominally unanimous opinion.
I agree with that statement!
https://bsky.app/profile/melissagiragrant.com/post/3kn4cvcvtg22p
Mar 7, 2024 at 8:40 AM
Links to:
The Sham Group Behind the Biggest Anti-Abortion Case Since Dobbs The Alliance for Hippocratic Medicine claims to be an organization of doctors worried about mifepristone. https://newrepublic.com/article/179626/mifepristone-abortion-supreme-court-alliance-hippocratic-medicine Melissa Gira Grant March 7, 2024
Arguments scheduled for March 26, 2024.
Maybe I should have just kept commenting about this story on the same thread as the one about SCOTUS Anderson opinion just above.
https://www.emptywheel.net/2024/03/04/scotus-invites-jack-smith-to-supersede-trump-with-inciting-insurrection/#comment-1043341