Timothy Snyder on the 14th Amendment

[mister_coffee]

Look up Victor L. Berger

I think that will be important down the road.

[Rideback]

Here is an explainer Ken, along with a link to the 20 page ruling
https://slate.com/news-and-politics/202 ... aster.html

[Rideback]

For the third time, the 14th does not specify that a candidate be charged or found guilty of insurrection. Nor was that question before the SCOTUS. They didn't rule on it. The lower courts have ruled on it multiple times when it was appropriate to the cases before them. It qualified as an insurrection as well as a rebellion, which is also mentioned in the 14th.

The basis for this ruling was not on whether or not this was an insurrection, the SCOTUS carved that out of the decision.

[dorankj]

Trump has never been charged with or found guilty of insurrection in a court of law. The basis for these eliminations is insurrection! Willful cognitive dissonance is very tiresome.

[Rideback]

Insurrection has been ruled on by the lower courts and the 9-0 ruling from SCOTUS did not dispute Trump's role in the insurrection. If one reads the dissent on how the decision was made it lays out how the ruling was reached because SCOTUS found fault with a state having an authority in a Fed'l election. That's how they reached this decision, they carved out the issues that Trump appealed on and didn't address the issue of insurrection at all.

[dorankj]

Probably should first charge and then maybe get a ruling of ‘insurrection’! But 9-0? It was insisted (as with every other get Trump scheme) that this would bring him down for sure, 9-0.

[mister_coffee]

Of course the Supreme Court decision leaves it wide open for Congress to decide that Trump is disqualified to hold office under the Section 3. Or for that matter any other president-elect.

[dorankj]

Maybe we should quit listening to these far-left fever dream kooks who continue to be quite wrong but are never held to account?

[PAL]

Trump will stay on the ballot in Colorado it appears, but the real question coming up for the Supreme Court is to let stand what the 3 judge panel ruled as far as Trump not having immunity.
For if Trump gets immunity as a former president, Joe Biden would also have immunity when that decision is made, to do whatever he would want to do. Immunity can't apply to just one president can it?

[dorankj]

Listening to the actual arguments, the real question is whether 9-0 decision is even in question! This fever dream delusions must come to an end.

[just-jim]

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A link to all eight of Timothy Snyders columns on the issue.
It includes link to the amicus briefs to SCOTUS and other reference material on the subject.

https://open.substack.com/pub/snyder/p/trump-v-anderson
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[Rideback]

Brennan Center legal scholars weigh in for a 1 hour discussion on you tube
https://www.youtube.com/watch?v=Bz4XXH_uSrM

[just-jim]

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Another post by Snyder on the issue, from today 2/7:

https://open.substack.com/pub/snyder/p/law-or-fear

“ The people who designed and debated Section 3 were informed by the horrors of the 1860s, but they were also thinking about us. And that should be a good feeling. Our warm sentiments about the Constitution can be limited to the provisions we like best. We don't really expect the Constitution to come bearing gifts. But that is what Section 3 is: a gift from the past to the present, a measure meant to resolve a special challenge, once which people in 1866 understood could reappear.

Section 3 is constitutional self-defense, enabling us to handle a difficult problem of the twenty-first century: what to do with people who are elected to office and then use that office to destroy the rule of law. This is strikingly timely, since this is now the normal way that democracies are brought down. Some constitutions, such as the German one, have provisions for this eventuality. So does the American one. Those provisions arose from experience.”

And

“ If we can look at 2024 from the perspective of 1866, our situation is easy to classify. We are amidst oath-breaking insurrection and facing something worse. And so we predictably experience a fear that can make that something worse more likely. Because there was an insurrection, we are afraid. If Trump's people can storm the Capitol, what else might they do? And this, of course, is the choice: law or fear. If we give in to fear again and again, law will eventually yield.

Those who use violence, as Trump did on January 6th, know that they can always threaten more violence. When that threat is internalized, when it becomes anticipatory obedience, authoritarianism is on the way. Indeed, when we choose to shy away from the law because we are afraid, we are taking part in that authoritarian transition. When we make legal arguments to cover our fears, we actively hastening that authoritarian transition.

The saying is that fear is a poor counselor; it is certainly a poor legal counselor. When we afraid, we are no longer seeking reasons to make the right decision; we are seeking excuses to do nothing. This means that standards for what constitutes a legal argument drop precipitously.

Trump's lawyers (and his supporters in amicus briefs) are banking on fear, and inciting it (Trump and his lawyers threaten “bedlam” if they lose this case). His lawyers (and supporters) depending heavily on the claim that the president of the United States is not an officer of the United States (and therefore not subject to Section 3). An argument this bad depends upon fear. Even in print, it has a wink-wink-nudge-nudge quality -- we know this is a horrible legal argument, and you know that this is a horrible argument, but we both know you are just looking for a way out. So here’s your alibi for ignoring the Constitution.”
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[Rideback]

2/12 is the next date to watch as this ruling is on a pause rather than taking immediate effect so that Trump can appeal, likely skipping the full appeals panel and going straight to the SCOTUS.

The ripple effects of this are bound to go wide; even though the ruling is directed at Fed'l criminal case(s) it will soften the ground substantially for the civil cases against Trump (the police and members of Congress who have sued Trump separately)
for his role in J6. As well, participatnts in J6 who have pointed the finger at Trump during their trials as their leader may decide to file suits.

It'll be interesting to see on what grounds Trump files his appeal to the SCOTUS.
https://www.msnbc.com/deadline-white-ho ... rcna133660

[just-jim]

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Here’s an article on the immunity case:

https://www.theguardian.com/us-news/202 ... 6-election
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[PAL]

US Appeals court rules that Trump is not immune, according to Seattle Times. I can't get the full article without subscribing. There are other news sources to investigate.

[mister_coffee]

The immunity question is a totally different case. But I do suspect that it might interact in unexpected ways with this case.

A lot of the arguments that Trump's lawyers are making in this case come down to absurd claims of his not being an "officer" of the United States and his oath of office being different. Those don't seem to be serious arguments but I suspect at least some of the Supreme Court Justices are looking for an easy way out of this.

[PAL]

Where does presidential immunity come into play? Or is that a totally different case? Or I guess it could be stated, does the 14th Amendment apply when he(Orange) was president?

[Rideback]

A rundown of Thursday's agenda and arguments

https://www.lawdork.com/p/faq-trump-14t ... ue&r=2be3h

[just-jim]

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Further from Snyder, today. There are several links inside to papers by legal/constitutional scholars.

https://open.substack.com/pub/snyder/p/ ... -civil-war

“….. suggest in their brief that the oathbreaking of sitting federal officers in late 1860 and early 1861 informed the definition of those to be targeted by Section 3: not all oath-breakers, not all insurrectionists, but precisely oath-breaking insurrectionists.

That is Trump: an oath-breaking insurrectionist. And in the most extreme sense, since he broke his oath while still in office in a way that undid the purpose of his office, which is the most important office in the land.

Hence the logic of Section 3: it enables the Constitution to defend itself by halting an oath-breaking insurrectionist at the right time, between the malice of the individual and the collapse of the institutions.

That, surely, was and remains the central point.”
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[just-jim]

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Heather C Richardson weighs in, today, also……

https://heathercoxrichardson.substack.c ... ary-4-2024

Excerpts;

“……Congress designed the Fourteenth Amendment to end forever the ability of state lawmakers to undermine the United States of America. The amendment declared anyone born or naturalized in the United States to be a U.S. citizen and then established the power of the federal government to stop states from discriminating against citizens. The Fourteenth Amendment establishes that states must treat everyone equally before the law, and they can’t take away someone’s rights without due process of the law.

With the Fourteenth Amendment, Congress tried to protect voting rights by establishing that states that did not permit Black men to vote would lose representation in Congress in proportion to the number of people they disfranchised. It also barred from office anyone who had previously taken an oath to support the Constitution and then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Finally, to guard against former Confederates undermining the nation by refusing to honor its debt, Congress added that “[t]he validity of the public debt of the United States, authorized by law…, shall not be questioned.”

Once again, the amendment gave Congress the “power to enforce, by appropriate legislation, the provisions of this article.”

Two years later, when it became clear that the provisions of the Fourteenth Amendment for protecting a man’s right to have a say in his government had fallen short, the nation amended the Constitution a fifteenth time. The Fifteenth Amendment established that the right of citizens to vote could not be denied or restricted either by the United States or by any state “on account of race, color, or previous condition of servitude.” Congressmen believed that so long as people could vote, they could elect lawmakers who would protect their interests.

Once again, the amendment gave Congress the “power to enforce this article by appropriate legislation.”

It seems clear that the men who wrote the Reconstruction Amendments expected men like former president Trump to be disqualified from the presidency under the Fourteenth Amendment, as 25 distinguished historians of Reconstruction outlined in their recent brief supporting Trump’s removal from the Colorado ballot.

But the Fourteenth Amendment did far more than ban insurrectionists from office. Together with the other Reconstruction Amendments, it established the power of the federal government to defend civil rights, voting, and government finances from a minority that had entrenched itself in power in the states and from that power base tried to impose its ideology on the nation.“
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[mister_coffee]

...
SCOTUS can't take into account the appeals court decision, they have to stick with the decision before them from the CO case.
...

Under normal circumstances you would no doubt be correct. However, the circumstances we find ourselves in are very much not normal. I think if the court were deciding on the merits and the law it would almost certainly find Trump disqualified. However we all suspect that there are going to be a lot of political considerations involved and the justices probably have some legitimate concern for their personal safety as well.

[Rideback]

SCOTUS will be hearing first arguments this week on the CO case. The appeals court is likely to also render its opinion this week of Trump's status regarding presidential immunity.

SCOTUS can't take into account the appeals court decision, they have to stick with the decision before them from the CO case.

As far as the judicial system is concerned they're playing the hand they're dealt, which means if the appeals court hands them a green light they'll go for it. If the appeals court renders a 3-0 decision that is much less likely to be appealed which would mean a shorter timeframe to get the DC trial back on track. It also means the SCOTUS is less likely to accept the case.

Right now there's just so many moving parts it's hard to know how to put this rubic's cube together.

[mister_coffee]

One thing I think nobody is thinking through is how this case is likely to interact with any immunity case which is also very likely to be heard by the Supreme Court in the very near future.

If one of the arguments the court uses to argue that 14 section 3 can't apply is that Trump hasn't been convicted of anything, then it makes them look ridiculous and corrupt if they then decide that Trump is 100 percent immune to prosecution.

Also, if the Court decides that Trump is disqualified that means that cases like the immunity case heading their way don't have to be decided at high speed and at high stress.

Similarly, things that Team Trump argue here in this case can screw him over in any one of his other criminal cases.

[Rideback]

The amicus briefs filed last week left no cracks wide enough for the Conservative judges to crawl through to bail Trump out. Short of re writing the Constitution and/or rewriting history they are truly boxed in.