The "Oathbreaking Insurrectionist"

As we were all waiting for the preordained decision from the Supreme Court that insurrectionist Donald Trump could remain on the ballot in Colorado, we got some news we didn’t know would break today. We learned that Trump CFO Allen Weisselberg had surrendered for processing on new charges brought by the Manhattan DA. The charges had previously been rumored. We discussed them in early February when reporting surfaced about them and Judge Engoron asked the lawyers in the civil fraud case to make a report to him about what was in the works.

Today’s news is that Weisselberg will plead guilty to two of the five felony counts he is charged with in a complaint that was made public this morning. The charges stem from lies he told to investigators and in court during the New York AG’s civil fraud case about when he learned the true size of Trump's New York triplex. The government will recommend that Weisselberg spend five months in prison. Sentencing is scheduled for April 10, which could turnout to be in the middle of the Trump’s criminal case being prosecuted by the Manhattan DA.

Here’s the takeaway: It looks like Weisselberg is going to stay loyal to Trump to the end, even if it means going back to Rikers Island for a few more months. He’s been there before; he knows the drill. But if he takes the stand in Trump’s defense in the Manhattan DA’s criminal case later this month, prosecutors can show the jury that he lied previously in order to protect Trump personally. And that’s not the government’s only argument that any testimony Weisselberg might offer that is favorable to Trump isn’t credible. There’s also his earlier criminal conviction, along with the Trump Organization, over the tax fraud scheme where they gave employees including Weisselberg benefits that allowed everyone involved to avoid substantial tax consequences of compensation. While there’s always a chance of a last minute cooperation deal between prosecutors and Weisselberg, let’s not hold our breath here.

Once we processed that news, it was time for the Supreme Court to release the opinion in the 14th Amendment case. And it was as expected.

The decision was 9-0, but there are concurring opinions—Justices who agree with the result, that Trump stays on the ballot, but don’t necessarily share the reasoning of the five Justices who form the per curiam majority. (A per curiam opinion means that no one justice signed off as the author.) So, while five justices held that the only way to exclude an insurrectionist from office is for Congress to pass a law to that effect, the Justices who concur don’t necessarily believe it’s imperative to go that far.

Justice Barrett wrote for herself, concurring in the judgment but only partly with the reasoning for it—although most of her objection seemed to be to the tone of the per curiam opinion. She wrote: “In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.” Justices Sotomayor, Kagan, and Jackson issued a joint concurrence, agreeing only with the result, not the reasoning for it.

All four of the concurring Justices seemed to think that the only decision the Court needed to make was that a state cannot disqualify a presidential candidate from running for office and that there was no need to go further. All nine of the Justices agree that Colorado can’t keep Trump off the ballot.

The Court did not absolve Trump of insurrection. That feels important. But despite that, this decision feels like it’s more about practicality than partisanship; it is the Court doing exactly what the conservatives so frequently say they must not do, supplanting the intent of the Founders, or in this case, the post-Civil War drafters of the 14th Amendment, with their own judgment about what the law should be.

The Court says that to remove a federal candidate/official from running or from office, Congress has to act. This is the argument we discussed a few weeks back. Today, the Court concludes that “The relevant provision is Section 5, which enables Congress, subject of course to judicial review, to pass ‘appropriate legislation’ to ‘enforce’ the Fourteenth Amendment.”

The Court reasons from this starting point: states can’t remove an elected federal official from office. So, the Court concludes, they also can’t remove a candidate from the ballot: “The terms of the Amendment speak only to enforcement by Congress, which enjoys power to enforce the Amendment through legislation pursuant to Section 5.” The Court reasoned that absent some sort of legislation passed by Congress pursuant to Section 5 of the 14th Amendment, no dice. In this majority’s view, only Congress, not the states and not even the courts, can remove an insurrectionist from the ballot.

This is not an untenable legal argument, but there were strong responses to it, which we discussed during the appellate process, and which the per curiam opinion doesn’t process to the satisfaction of the Justices who concur. Ultimately, it’s hard to avoid the conclusion that the Court chose not to let Colorado remove Trump from the ballot because they feared what might happen if they did. This concern about acting out of fear of the insurrectionist, fear that Trump’s base would rally to his support in predictably violent ways, highlights the predicament the country is in. What do the Justices expect will happen when Trump loses the election and pulls out all of the stops to regain power? The “national temperature” is already turned up to high, and the oathbreaking insurrectionist who put it there remains eligible to stand for election.

The decision may be 9-0, but Justice Barrett’s remonstrances that the Court has brought the country together are belied by the gap between the five Justices who wrote the lead opinion and the four who concurred. As the Sotomayor/Kagan/Jackson concurrence says, “To start, nothing in Section 3’s text supports the majority’s view of how federal disqualification efforts must operate. Section 3 states simply that ‘[n]o person shall’ hold certain positions and offices if they are oathbreaking insurrectionists.” The phrase “oathbreaking insurrectionist” appears four times in the concurrence. It seems to be a synonym for Donald Trump. As in, “In this case, the Court must decide whether Colorado may keep a Presidential candidate off the ballot on the ground that he is an oathbreaking insurrectionist and thus disqualified from holding federal office under Section 3 of the Fourteenth Amendment.” The three may have joined the other Justices, but it feels like one or more of them was just a hair’s breadth away from writing a dissent.

The biggest difference in the view of the three-Justice concurrence is that they believe “Remedial legislation of any kind, however, is not required.” In other words, it’s enough to say Trump can stay on the ballot for now without setting up excessive requirements for other cases. “Today,” the concurrence concludes, “the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President.”

The bottom line continues to be, as it appeared following the Supreme Court’s decision to put off argument in the presidential immunity appeal until April 22, that the court wants to let voters decide the Trump question via election. 

One last big picture consideration on this case: Justice Thomas participated in this decision and will apparently do so in the presidential immunity appeal too, despite his wife’s involvement with the movement to keep Trump in office. If that’s not a conflict of interest, it’s hard to contemplate what would be. Yes, Justice Thomas is technically a free agent when it comes to applying the ethics rules to himself, but it’s stunning, and we should all stay outraged that neither the Chief nor any of the other Justices have found a way to apply pressure to him. Congress should complete its work on mandatory ethics rules for the Supreme Court. They’ve proven that self-governance doesn’t work where the highest court in the land is concerned. It’s outrageous.

In New York, Judge Kaplan, who oversaw the E. Jean Carroll defamation case, decided today that Trump isn’t the only one who can play at the delay game.

Trump had asked for a decision by today as to whether Judge Kaplan would stay his bond while he appeals the case. Judge Kaplan told him, not today. He said he’d make a decision as soon as “reasonably possible,” but, “it will not come today,” he told Trump. For a change, Trump will be the one waiting.

France has now become the world’s first country to enshrine abortion rights in its constitution, in significant part a response to developments in the U.S. French Justice Minister Eric Dupond-Moretti said that history was full of other examples where “fundamental rights” were believed to be safe but then taken away, “as we were recently reminded by the decision of the US Supreme Court.” “We now have irrefutable proof that no democracy, not even the largest of them all, is immune,” he said. That’s how it’s done.

I don’t know where this came from. Someone responded to one of my tweets with it, but this is the vibe (and if you do know who came up with this, please let me know so I can give them well-deserved attribution). The Supreme Court is not going to save us. As I’ve been suggesting, it’s up to us, the voters.

We’re in this together,

Joyce