HAPPY (LEGAL) NEW YEAR – PART III
COLORADO
In Part II, I tried to preview the oral arguments likely to be made in Trump v. Anderson, the Colorado ballot case. If like most people you haven’t read my previous post, you can access it here: https://www.geoffschoos.com/post/happy-legal-new-year-part-ii.
I spent my morning of February 8 listening to the arguments on both sides and tried to determine how close I got to how I expected the arguments would unfold. As I review my predictions, I got 6 out of seven. The one I didn’t get was a direct attack on the trial court proceedings, and even then it was briefly mentioned during the arguments.
All in all, I had high hopes for this hearing. This was an issue of first impression that I thought might be reviewed with the dignity and solemnity that this issue deserved. And the stakes couldn’t have been higher. Democracy was at stake, not just in the immediate sense of the looming November elections, but in the broader sense of our elections ensuring the peaceful transfer of power.
A guy can dream. I think it’s fair to describe the arguments in Anderson as pedestrian. Maybe that’s too generous. The Justices, almost to a person, searched for ways not to resolve this issue. And I’m sure we’ll see within a few short weeks, if not days given the urgency for a definitive judgment, that they succeeded with flying colors not to resolve the question before it.
Imagine if this Court was sitting when Brown v. Board of Education was decided. Oliver Brown’s daughter would never have been able to attend a school she could easily see from the window of her home.
Making more moves than a contortionist with the slinky disease seeking an off ramp, here’s some of what passed for legal inquiry in the oral arguments:
Trial court facts: for some reason there was about a 60 second discussion of the standard under which the facts determined by the trial court could be reviewed on appeal. It was agreed that the “clear error” standard would be applied. Thus ended the discussion of any specific fact issue.
The “Officer” issue: this question consumed an inordinate amount of time. I’ll attempt to do this question justice. This has been an issue since before the ratification of the 14th amendment. Periodically since the ratification of the Constitution, the question has arisen whether the president and vice president were officers of the American government, or …. something else. Non-officers, I guess.
Justice Joseph Story in his multi-volume 1830s work, Commentaries on the Constitution, addressed this question and determined that they were not officers of the national government. Now this creates some confusion because everyone appointed by and subordinate to the president are officers by virtue of the fact, if for no other reason, that they actually hold an office.
But has anyone seen the Oval Office? It’s so nice that a former occupant schemed to overturn a fair election so he wouldn’t have to leave it.
Add to the confusion that while legislators are not considered officers, the Speaker of the House (a legislator and second in line to succeed to the presidency) and the Senate pro Tempore (also a legislator and third in line to succeed to the presidency) are named as officers in the Constitution. So, by way of example, Mike Johnson, a relatively unknown Louisiana congressman, by fate or circumstance is elevated to the Speaker’s office (i.e., an Officer) who if things go really badly would ascend to the non-officer position of president.
Or a more absurd example, Vice President Kamala Harris (first in line to succeed to the presidency) is not an officer but Senate pro tempore Patty Murray (third in line to succeed to the presidency) is an officer. But the Vice-president, under the Constitution, is the President of the Senate. The logic or lack thereof make me want to scream.
Out of this ooze of confusion, section 3 of the 14th amendment (hereafter 14.3) reads:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
As you can see, the president and/or vice president, under the plain reading of 14.3, are not “officers,” would not be subject to this disqualification clause. However, to the degree that the intent of the framers of the amendment matters to this “originalist” court, there is evidence that a senator asked why the president/vice president were not specifically listed in the initial clause of 14.3, he was told that they were included within the broad “officer” language.
Finally, to the extent that stare decisis matters to this Court, in the case Buckley v. Valeo (1976), a campaign finance case, the Court stated that the president was an officer.
Confused? The reason this is important is that if a former president is not an officer, then the disqualification section of the 14th amendment wouldn’t apply to him. Applied to the instant Colorado case, this might be Trump’s escape pod and the Court’s first off ramp.
Self executing: at issue here is whether Congress had to enact legislation to activate the provisions of 14.3, or whether it needs no such activation. This is where Trump’s lawyer, I think, won the point.
He cited something called Griffin’s Case (1869). It was about a guy who was convicted of a crime and appealed his conviction on the ground that his trial judge was an insurrectionist, thus pursuant to 14.3 was improperly on the bench. The Federal Circuit judge (at an age when Supreme Court justices actually rode circuit) was Chief Justice Salmon Chase. Chase held that Griffin was correct because Congress failed to enact the necessary legislation to execute the provisions of 14.3. Griffin walked.
What Chase either didn’t know or ignored was the fact that after the the 14th amendment was ratified, legislation was filed in the House to execute the provisions of 14.3. The House leadership killed the legislation by stating that issues arising under 14.3 should be resolved by the civil courts. Thus, it was determined that no executing legislation was deemed necessary.
And since Griffin’s Case never reached the Supreme Court, it had no precedential value. While this question is unsettled, the Court seemed to accept the outcome in Griffin’s.
Insurrection: remember, this was always about an insurrection and whether or not the events on January 6, 2021, were in fact an insurrection. A trial was conducted in Colorado, where each side was permitted to introduce evidence to advance their case and the opportunity to challenge the other party’s evidence. After a five-day hearing, the trial court found that Donald Trump engaged in an insurrection against the United States. The Colorado Supreme Court affirmed.
Within 15 minutes of the SCOTUS hearing, Trump’s attorney uttered a comment that was basically dispositive of Anderson; it was a “riot,” not an insurrection. And of course, Mr. Trump had no hand in the actions of the riot. Point to Trump.
In my office, if something came from an opposing party that was so obviously a self-serving false position, we’d call bull…pucky. Clearly this is the abridged version.
When it came time for the respondents’ (Anderson’s) attorney to respond to what should have been the central issue in this matter, nobody on the bench really cared about his response or point he made. Anderson’s attorney was like a fireman called to prevent a building from being consumed by a raging fire but was prevented from dousing the fire until the building was completely destroyed. Too little, too late.
Calling what happened on January 6, 2021, a riot is analogous to calling Trump a biblical scholar. It just ain’t true. The publicly disclosed facts show that there were multiple prongs to prevent the peaceful transfer of power in order that the incumbent could keep an office that he lost in a free and fair election. The invasion of the Capitol building was just one prong of that effort.
Put more simply, in a riot, nobody brings the lumber necessary to build a gallows to “hang Mike Pence.” This was planned, and in the totality of the events leading to that day this was an act of insurrection involving numerous individuals both inside and outside the White House and Capitol building.
History: one of the main functions of the Court is to interpret and apply the Constitution to matters brought before it. To do that one might expect a discussion of the intent of the authors of the Constitution’s body and amendments. There are a lot of ways this function could be performed. The current Court purports to be comprised of “originalists” and “textualists.”
This was the colloquy I was waiting for. I’m still waiting. The closest we came to this was when Justice Jackson stated that she’d like to discuss the history of the 14th amendment but ran out of time and would visit the issue on her second round of questioning. Her turn came and she asked a couple of questions, the second being related to the 14th. It was narrow question, but she at least said the word “history.”
To me, this is the Rosetta Stone to understand what happened at this hearing. The Court had little interest to plumb the intent and meaning of the 14th amendment. It was left to the most junior member of the Court to try and that was pretty much shut down. God forbid any illumination of the central question that should have been before the Court.
To be fair, I think it was the Chief Justice who basically asked the Anderson attorney why this hadn’t been litigated in over 150 years of its ratification. As if that expanse of dormancy mattered. Anderson’s attorney pointed out that this was an issue of first impression. The underlying premise by the time that question was asked was that the events at the Capitol constituted a mere “riot.” So, we’ll need to wait another 150 years before we get another crack at this issue?
Politics and Federalism: from the Constitution’s ratification, we have a federal form of government. Some powers are reserved to the national government, some reserved to the states, and others shared. Think of a basic Venn Diagram. The administration of elections is left to to the states. And save for specific mandated qualifications, states are left to determine whether the qualifications of those appearing on the ballot are met.
There are qualifications for anyone to appear on the ballot. In the case of a presidential candidate, the qualifications are basic: a natural born citizen who is at least 35 years old, and who has lived in the United States for at least 14 years. Whether these are 14 consecutive years or in total is a question yet to be answered. A nation waits with bated breath….
Colorado noticed that those involved in an insurrection are barred from holding an office of public trust. But the 14thamendment did not say that such candidates could not appear on a ballot for an office they couldn’t hold.
Some Justices wondered whether Colorado established an additional qualification for those seeking the presidency. There was even a comment that if someone who engaged in an insurrection was actually elected, then the Congress could remove this disqualification by a 2/3 majority!
Really, they were serious.
You may now be thinking “why allow a candidate to appear on a ballot to be elected to an office they’re disqualified from holding?” Why indeed. I’m still waiting for the Court to answer that question.
Instead, the Court jumped headfirst down the rabbit hole wondering that if it permitted Colorado’s determination to stand then other states might make opposite determinations and allow Trump to appear on their ballots. This line of argument was tantamount to it saying, “there’s a disturbance in the Force.”
Then, and this is without qualification my favorite line of questioning, why should Colorado be permitted to decide the 2024 presidential election? WT actual F? As Colorado goes, so goes the nation? As Joe Biden might say, “C’mon man.”
But out of these lines of inquiry came a determination that millions of voters might be disenfranchised, litigation would be rampant throughout the land, and our politics would be poisoned by the discordant results emanating from a holding issued by the Court.
If only the Court had the same concerns when deciding Dobbs. If it had, maybe millions of women wouldn’t feel like they’re living in the real-life manifestation of Gilead.
Holding: I don’t normally make predictions but here I feel like how Michael Jordan must’ve have felt while driving down a clear lane to jam the ball through the hoop. Eyes wide open, tongue out, SLAM!
Colorado is going down. How epic their loss remains to be seen, but Colorado will lose.
If the Court accepts the narrative that January 6, 2021, was a “mere” riot, then there is no reason to craft a rule that will apply to all states. Indeed, as a practical matter, there’s no reason to ever consider the application of 14.3.
Look for Alito to babble on about Federalism and make up some history to support his unsupportable position.
I think, because it doesn’t impact the definition and application of the 14th amendment, the decision will be authored by Alito or Thomas. Hilarity will ensue.
I don’t see Chief Justice Roberts writing the Court’s opinion. He may be saving himself to write Trump’s immunity opinion. Obviously, Trump will appeal his loss at the D.C. Circuit Court by February 12.
Donald Trump will once more escape accountability for his actions, not because they were vetted and found deficient to impose some accountability, but because those with the ability to hold Trump accountable just don’t give a rip.