Another January 6 Anniversary

Saturday is the solemn third anniversary of Trump’s effort to undo American democracy. Friday, the Supreme Court announced it will hear the 14th Amendment case out of Colorado, to determine whether Trump can appear on that state’s ballot or should be disqualified from holding office or running again because he engaged in insurrection. It’s a disturbing convergence of events. Disturbing because there has never been a successful effort at holding Trump accountable for his efforts to undo the will of the voters in 2020. Perhaps that moment is finally at hand.

Proving that it can move quickly when it wants to, the Supreme Court set an expedited briefing schedule for the 14th Amendment case and will hear oral argument on February 8, just over a month away.

The U.S. Supreme Court’s grant of certiorari

If Trump were to lose, that sets up an interesting dilemna in Colorado, where military ballots must be sent out for the primary by January 20 and mail in voting, which is how most of the state’s voting is handled, starts on February 12. That’s only four days after the Court hears the case. The petitioners, who sought to keep Trump off the ballot, asked for a speedy resolution.

The Petitioners asked the Supreme Court to move fast

When it comes to elections, we want everything to be clear and simple so there is confidence in the process and the outcome. This is another example of Trump’s involvement in our political system sowing toxic doubt.

I feel obligated to reiterate that we are here because Senate Republicans refused to convict Donald Trump on the article of impeachment charging him with inciting insurrection. The Supreme Court is only called upon to make that decision now because Senate Republicans failed in their duty to the country in the wake of January 6. Here we are, three full years later, with Trump still leading the Republican Party and seemingly on track to be their nominee for the presidency, despite his despicable history.

Trump was impeached for inciting insurrection in 2021. A conviction then would have kept him off the ballot.

It’s important to be clear on who Trump’s political enablers are. He could not have run again if the members of his party who condemned his conduct in private, some in public, had done what they knew to be the right thing. They did not, and here we find ourselves with the Supreme Court as the arbiters of the question Republican senators should have decided when they voted on impeachment on February 13, 2021. Now, with oral argument set for February 8, the Supreme Court could be on track to remedy that wrong precisely three years later.

But of course, we don’t know how they will decide the case. The timing may even suggest a willingness to keep Trump on the ballot, as a decision would arguably come too late to make changes to ballots that come before and on Super Tuesday, March 5. Approximately one-third of primary votes nationwide are cast on Super Tuesday, alone.

Section 3 of the 14th Amendment seems clear on its face—its language is not ambiguous. It does not require a conviction. It does not require Congress to do anything further to make it effective. It is one of those rare provisions of law that is written in plain English:

“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.”

The question is whether the conservative majority on the Supreme Court will hold true to the views that got them on the Court in the first place, their commitment to following the text of the Constitution and the Founders’ intent when it is clear. If so, the right decision would be to enforce the 14th Amendment. But if they are disinclined to take the choice about Trump out of the hands of voters, there are plenty of ways they could find the 14th Amendment doesn’t apply.

For the Colorado petitioners to prevail, they must win every argument. They will have to convince a majority of the Justices that Trump both engaged in insurrection and had previously taken a qualifying oath—the findings the Colorado court made in their favor. And they will have avoid all of the defenses that Trump has raised.

The Court didn’t specify what issues it wanted to consider on appeal, which means that everything the parties have raised is in play. Trump has offered a number of technical legal defenses to the application of Section 3. He argues this is a political question that must be resolved by Congress, not the courts. He argues the provision does not apply to the president, alone among all public officers. He argues for a different definition of engaging in insurrection than the one the Colorado courts employed. He suggests the Colorado courts misinterpreted their own state election laws, which led them to reach a decision at odds with the electors clause of the U.S. Constitution. And he argues that while he might be barred from holding office, he is not barred from running for it. Technical legal arguments all, but if Trump can convince a majority of the Justices on any one of them, he remains on the ballot.

With the same issue working its way through courts in Maine and elsewhere, the Court will also have to consider whether it’s going to make a ruling that applies across the board or whether we will have the ongoing chaos of different rules in different states as the election draws ever closer.

Traditionally in cases of extraordinary political importance, the Court has tried to issue a ruling that transcends political lines, ruling unanimously or as close to it as possible. It’s likely that will be the Chief Justice’s goal here. It’s also possible that the Justices will find themselves simultaneously looking at the issue of whether the criminal case against Trump in Washington, D.C., is due to be dismissed because of presidential immunity. That motion is being argued before the Court of Appeals next Tuesday, and if that court acts expeditiously, as the Special Counsel has requested, and refuses to stay further proceedings in the district court once they rule, Trump could be boxed into asking for certiorari by the end of the month. That raises the intriguing question of whether the court, having taken one case, might not let a ruling against Trump on immunity stand without agreeing to hear that case as well.

We’ve made the case here that the immunity motion lacks merit and is tantamount to arguing Trump is king, a ruling that cannot exist in the American system of government. Perhaps the Supreme Court will be happy to let the lower court’s ruling stand and send the case back for trial, while it decides the thorny legal issues connected to the 14th Amendment issue. Whatever their decision, it’s clear we will be Supreme Court watching, along with everything else, as the year gets underway.

We’re in this together,

Joyce