Saturday, January 06, 2024

🪨

Until I read this note, I just thought Trump was talking about the little refrigerator style magnet about the size and shape of two stacked nickels. Just what I’m familiar with, and the kind of thing you might drop a glass of water on and break. Maybe. It didn’t make Trump make sense, but it made some sense. Sort of.

He is stupider than I thought. I learned he was discussing “magnetic elevators,” which I think were proposed for use on aircraft carriers (for the jets), which I also recall Trump vetoing early on in his term. Now we know why.

Cognitive decline? Maybe. I think of him as dumb as a box of rocks. 🪨  Obviously a long-term condition.
Might as well tack this on:
“Yes, no freelancing on these decisions," [Colorado SOS Jena] Griswold replied. She noted that "a case was filed in Colorado on September 6th of last year," and that "it led to a five-day trial." 
"Donald Trump was able to call every single witness he wanted. He was able to present evidence. The judge bent over backwards to make sure that he could present evidence," she said, slamming the notion that "there wasn't enough due process." 
"There was enough due process, this was a real trial, and Donald Trump did everything he could to evade showing up. He refused to show up, he refused to take depositions, and now he wants to argue to the United States Supreme Court, well, the process was unfair."
Appellate courts review the law. The factual record before them is inviolate. It can’t be added to, or subtracted from. If Trump didn’t show up for the trial, his only recourse now is to complain about the law. He can’t complain about any lack of due process. In fact, his grounds for appeal are vanishingly narrow. All he can do now is point to the Colorado Supreme Court decision.

I still expect the Supremes to issue a highly technical decision if they don’t just end up affirming the Colorado ruling. Any sweeping change of the lower decision would carve out the 14th from the other Constitutional qualifications, and effectively render the 14th a “lesser” portion of the Constitution; or a portion rendered moot by history (by limiting the third clause to only the immediate post-Civil War). Which would be the first time the Court amended the Constitution without an Amendment (for example, the 13th and 14th, which eliminated the “3/5’s” provision for apportionment for representatives. Most amendments add to the Constitution; those two added in part by subtraction. The only other example I have is Prohibition, which was repealed by Amendment.). Would the Court do that?

Then what does it do? Rip a hole in the system of state authority over ballots? And give who the authority to apply the 14th? On what basis? Does the court simply affirm the Colorado opinion? A highly technical due process issue? But if Trump refused to attend the trial, where’s the fault? Rewrite it, with the same outcome as stands now? Court opinions can’t be advisory; they have to maintain the status quo, or change it. And I don’t see how they change it without altering the system itself in ways damaging and grotesque.*

There’s undoubtedly an option I’m not considering.

*Yes, they could return to the case to Colorado, but with what directions? Will they allow the plain language of the Amendment to apply to Trump? Aye, there’s the rub.
That seems oddly relevant to our discussion. Yup. Gonna be a real interesting opinion. Which gets more interesting with this analysis:
Section 3 of the 14th Amendment prohibits a former oath-taking "officer of the U.S." who "engaged in insurrection" from "holding any office, civil or military, under the U.S." But it says nothing about running for office or appearing on a ballot. 
Francisco argues that the provision also explicitly gives Congress a chance to vote to override a candidate's alleged disqualification – a power that would only be meaningful if he or she were allowed to run and actually won office. 
The Colorado Supreme Court "effectively usurped Congress's sole authority to decide when, if at all, to remove any section 3 disqualification," Francisco argues. "This error is a clear, indisputable, and sufficient basis to reverse the judgment below."
So the 14th, in cl. 3, amends Art. II, sec. 4, by adding a new ground for impeachment that isn’t a high crime or misdemeanor? Otherwise, how does it work, since it’s settled law impeachment is the only way to remove a duly elected President before the term ends? That’s a…unique analysis but not, I think, a strong one. The second one, usurpation, is even weaker. Maybe that could be thrown against courts which have declined to apply the 14th to Trump, but that’s as ridiculous an argument as this.

Alternatively, the article argues the Court wants to avoid another Bush v Gore. I’ve surmised as much myself. However… I promise I’ll stop, but Professor Vladeck sort of affirms my analysis of what the court can/will do:
At the risk of sticking my neck out, I think there’s one possible approach here: For a majority of the Court to conclude that President Trump did engage in insurrection, but that there is some impediment (self-execution; Section 3 not applying to the presidency; etc.) that prevents the courts from providing a remedy for his misconduct. Indeed, this is exactly how the trial court had ruled in the Colorado case. (Folks might also recognize the parallel to how Chief Justice Marshall navigated the sticky political wicket in Marbury.) 
The point is not that this is the most persuasive legal position (I don’t find the arguments about Section 3 exempting the presidency or not being self-executing especially persuasive as a textual or structural matter); it’s that it’s the closest thing for the Court to a win-win.
Basically, the Court’s out is to say the 14th doesn’t say what it says. How is the President not an “officer,” and what would enabling legislation start to look like? As I said: would it be some requirement of due process? Isn’t that what cl. 1 of the 14th provides? He notes the unanimous opinions (esp. U.S. v Nixon) that weren’t really well explained/reasoned, but passed public scrutiny mostly because they were unanimous. I don’t think that’s gonna work here.
Antifa. Clearly. No comment. Plus ce change, plus ce la meme chose.

Bonus: why Mitt Romney is still a putz.
“Corporations are people, my friend!”

Campaign advice from the former President. Oh, wait….

But before you go: Trump won’t stop talking.
No, I don’t either. Before, or after, he gets Mexico to pay for the border wall? (And no, shoplifting is not a federal crime.)
at

No comments:

Post a Comment