Indecision 2024

[Stranger Mouse]

Judge Timothy Kelly (Trump appointed) gives Tarrio 22 years which must make the Mango Mussolini a tiny bit perturbed

https://www.independent.co.uk/news/worl ... 05506.html

[lpm]

A 14th Amendment petition has been filed in a Colorado Court.

Seems like Trump can't stand, bizarre as that seems. The 14th was expressly written to *not* require a conviction for insurrection.

Seems unfair, because even Trump is innocent until proven guilty. But I guess the Constitution of the United States wasn't written to be fair?

[dyqik]

A 14th Amendment petition has been filed in a Colorado Court.

Seems like Trump can't stand, bizarre as that seems. The 14th was expressly written to *not* require a conviction for insurrection.

Seems unfair, because even Trump is innocent until proven guilty. But I guess the Constitution of the United States wasn't written to be fair?

Innocent until proven guilty applies to criminal law and criminal penalties only. US and English courts decide civil cases, including those about the "right" to seek political office, on the balance of probabilities, and many laws pass decisions about findings of facts to elected or appointed officials (e.g. border control officers, tax officials, etc.)

The 14th Amendment requires only a finding of fact, not a criminal conviction. Which is as it should be. After all, Trump can always sue to have the decision reviewed, and if he misses one election, he can get a court to allow him to run next time.

[El Pollo Diablo]

Presumably the Supreme Court will end up deciding that, actually, Trump isn't guilty, and what even is an insurrection anyway?

[dyqik]

Presumably the Supreme Court will end up deciding that, actually, Trump isn't guilty, and what even is an insurrection anyway?

Yes, there's at least two votes for that, including one from the Supreme Court Justice married to one of the plotters of the insurrection.

OTOH, the GOP might like to get rid of Trump, and let some of the others do that for them.

[lpm]

Presumably the Supreme Court will end up deciding that, actually, Trump isn't guilty, and what even is an insurrection anyway?

That's what I thought. I didn't bother to get into the 14th A stuff, because I was expecting it to be technical constitutional law with loads of ambiguity. Constitutional lawyers seem to get into who said what at each draft to determine the original meaning. Tedious. And then the Supreme Court just picks the ambiguity it wants.

But.

It's not that at all. It's really simple.

1) Did Trump swear an oath to the constitution?

Yes, I saw him do it on TV

2) Was Jan 6th an insurrection?

Yes, Congress has passed law saying it was insurrection, voted on by House, Senate and signed by the President. The House investigation determined it was insurrection. A dozen federal law courts have ruled it an insurrection. The Department of Justice under President Trump referred to it as insurrection. The Supreme Court of New Mexico ruled it an insurrection.

3) Did Trump engage in the insurrection, or give aid or comfort to the insurrection?

Yes. The insurrection would not have happened without his actions. The Select Committee concluded Trump was "the central cause". The Senate Committee described him as "the primary cause". Majorities in both the House and the Senate voted in favour of his impeachment for the incitement of insurrection. Federal judges have blamed Trump for causing the insurrection. A federal grand jury and a state of Georgia grand jury have indicted Trump for his actions.

4) Does Trump need to be convicted of insurrection first?

No. It was deliberately written to not require a conviction. There are Civil War precedents where people without convictions were deemed ineligible. It is a civil legal matter, as dyqik said, not a criminal matter.

It seems to be a straightforward ineligibility to be President. Not sure how (or why) the Supreme Court could find any differently.

[IvanV]

A 14th Amendment petition has been filed in a Colorado Court.

Seems like Trump can't stand, bizarre as that seems. The 14th was expressly written to *not* require a conviction for insurrection.

Seems unfair, because even Trump is innocent until proven guilty. But I guess the Constitution of the United States wasn't written to be fair?

For those, who, like me did not understand this, the petition is under Section 3 of the 14th Amendment, which reads:

Section 3. 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 written in Wikipedia, a number of these challenges might be expected. In fact there was already a petition in Florida, made on 24 August and rapidly dismissed on 1 Sept. It doesn't seem to have got much attention. The judge quickly dismissed it on the grounds of lack of standing of the plaintiff to bring the case. The plaintiff was a tax lawyer from Florida. Not being any kind of a lawyer, nor American, it isn't clear to me who might have standing to bring such a petition. Maybe an election organiser, who wishes the court to determine whether they should disqualify Trump from the ballot.

If the case is as open and shut as lpm's later post suggests it is, if someone with standing gets in front of the court, it could get interesting. But the fact that this has only been raised relatively recently as a possibility, when to someone familiar with the wording of the US constitution it ought to be a very obvious idea, suggests that maybe it isn't as open and shut as lpm suggests. More research needed perhaps.

[IvanV]

A 14th Amendment petition has been filed in a Colorado Court.

Seems like Trump can't stand, bizarre as that seems. The 14th was expressly written to *not* require a conviction for insurrection.

In fact there was already a petition in Florida, made on 24 August and rapidly dismissed on 1 Sept. It doesn't seem to have got much attention. The judge quickly dismissed it on the grounds of lack of standing of the plaintiff to bring the case. The plaintiff was a tax lawyer from Florida. Not being any kind of a lawyer, nor American, it isn't clear to me who might have standing to bring such a petition. Maybe an election organiser, who wishes the court to determine whether they should disqualify Trump from the ballot.

In fact, reading to the bottom of this report on the Colorado case, I read that the Secretary of State in New Hampshire, ie the election organiser in that state, has asked for a ruling. Also that a court in New Mexico already prevented someone who took part in the 6 Jan riot from taking up some local thing they were elected to. But maybe they weren't sufficiently bothered/didn't have the resources to push that to higher courts and get it properly tested.

So it's looking like this is going to be a legal battleground.

That article also explains that this amendment came about as a result of the civil war, and S3 was about preventing Confederate officers from standing for election. That's why there was no requirement for a conviction for insurrection.

[lpm]

But the fact that this has only been raised relatively recently as a possibility, when to someone familiar with the wording of the US constitution it ought to be a very obvious idea, suggests that maybe it isn't as open and shut as lpm suggests.

It was raised in Jan 2021. People immediately said Trump should be barred from running again.

I think it's more that nobody paid much attention because impeachment, congressional investigations and criminal proceedings are much more exciting.

[lpm]

Also that a court in New Mexico already prevented someone who took part in the 6 Jan riot from taking up some local thing they were elected to. But maybe they weren't sufficiently bothered/didn't have the resources to push that to higher courts and get it properly tested.

It reached all the way to the New Mexico Supreme Court, as I mentioned. It wasn't taken further to the US Supreme Court, meaning that the finding that Jan 6 was insurrection still stands.

I think a state's Supreme Court applies for all state and federal matters in that state, until it gets overruled by the US Supreme Court. Other states can refer to another state Supreme Court, but the New Mexico ruling will have no direct power.

[lpm]

In fact there was already a petition in Florida, made on 24 August and rapidly dismissed on 1 Sept. It doesn't seem to have got much attention. The judge quickly dismissed it on the grounds of lack of standing of the plaintiff to bring the case. The plaintiff was a tax lawyer from Florida. Not being any kind of a lawyer, nor American, it isn't clear to me who might have standing to bring such a petition. Maybe an election organiser, who wishes the court to determine whether they should disqualify Trump from the ballot.

If the case is as open and shut as lpm's later post suggests it is, if someone with standing gets in front of the court, it could get interesting.

In Colorado the petitioners are claiming standing as follows:

41. As “eligible electors,” Petitioners have standing under Colorado law to challenge the constitutional eligibility of candidates in the 2024 Republican presidential primary election. If an ineligible candidate appears on the ballot that Petitioners will cast in the election, Petitioners will suffer an injury in fact to a legally protected interest under Colorado law because the election would not be among eligible candidates, the Secretary of State would have violated her duties under the U.S. Constitution and Colorado law, the ineligible candidate would have affected the integrity and fairness of the election, and the party could end up with an ineligible nominee in the general election. Petitioners do not support Trump and will vote for another candidate on the ballot. If Trump is on the ballot, voters who would otherwise vote for Petitioners’ candidates of choice will instead vote for Trump, reducing the likelihood that Petitioners’ candidates of choice will win the election. And Republican voters could be deprived of the chance to vote for a qualified candidate in the general election

Hmm. Does sound a bit weak?

[IvanV]

It was raised in Jan 2021. People immediately said Trump should be barred from running again.

I think it's more that nobody paid much attention because impeachment, congressional investigations and criminal proceedings are much more exciting.

Here's a couple of recent articles suggesting that getting Trump banned from the ballot like this is not very likely, for all of the apparently simplicity of it.

Newsweek refers to another petition under 14AS3 Castro vs Trump Castro is seeking to become Republican presidential candidate. Newsweek seems to suggest he is unlikely to be found to have standing, mainly because he doesn't have much hope of becoming candidate, whether Trump is standing or not.

A liberal lawyer cites contrary precedents.

[lpm]

A liberal lawyer cites contrary precedents.

I don't think that argument - Debs wasn't deemed ineligible - has much merit.

Isn't it just "they never prosecuted Clinton for hiding emails, so you can't prosecute me for hiding secret documents"?

[monkey]

Presumably the Supreme Court will end up deciding that, actually, Trump isn't guilty, and what even is an insurrection anyway?

That's what I thought. I didn't bother to get into the 14th A stuff, because I was expecting it to be technical constitutional law with loads of ambiguity. Constitutional lawyers seem to get into who said what at each draft to determine the original meaning. Tedious. And then the Supreme Court just picks the ambiguity it wants.

But.

It's not that at all. It's really simple.

...snip...

We best hope the supreme court doesn't have political bias then, eh?

Trump's best argument against being an insurrectionist is not being impeached for it the 2nd time, I reckon. But I'm no Lawyer.

I think a state's Supreme Court applies for all state and federal matters in that state, until it gets overruled by the US Supreme Court. Other states can refer to another state Supreme Court, but the New Mexico ruling will have no direct power.

State courts do state law in that state alone, based on that state's law. Federal courts do federal. Federal law beats state law, if the constitution allows it. US Supreme Court decides whether the constitution allows it or not.

[El Pollo Diablo]

Is the choice of the candidates on the presidential ballot a state thing or a federal thing?

[lpm]

Trump's best argument against being an insurrectionist is not being impeached for it the 2nd time, I reckon. But I'm no Lawyer.

Not sure this works for him. Impeachment is different from indictment is different from eligibility.

In Impeachment 2 the House voted 232 to 197 and the Senate voted 57 to 43 in favour of "Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States". This is a pretty powerful outcome to include in the part of the lawsuit where they claim Trump did insurrectioning.

[lpm]

Is the choice of the candidates on the presidential ballot a state thing or a federal thing?

State.

[monkey]

Trump's best argument against being an insurrectionist is not being impeached for it the 2nd time, I reckon. But I'm no Lawyer.

Not sure this works for him. Impeachment is different from indictment is different from eligibility.

In Impeachment 2 the House voted 232 to 197 and the Senate voted 57 to 43 in favour of "Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States". This is a pretty powerful outcome to include in the part of the lawsuit where they claim Trump did insurrectioning.

But it is still an acquittal. It's a good argument that he has been on some sort of trial for being an insurrectionist and found not to be. The case against him was not strong enough by law.

[monkey]

Is the choice of the candidates on the presidential ballot a state thing or a federal thing?

State.

But the state rules have to be compatible with the federal rules, so it is also overseen by the feds.

It's like with the drawing of congressional districts. States are in charge and can try to gerrymander them, but the feds can go "Dude, that's a bit racist" (or whatever reason is given when the Democrats do it).

[lpm]

But it is still an acquittal. It's a good argument that he has been on some sort of trial for being an insurrectionist and found not to be. The case against him was not strong enough by law.

The Colorado filing addresses the Senate Impeachment vote.

A bipartisan majority of the House of Representatives impeached Trump for “incitement of insurrection,” and a bipartisan majority of the Senate voted to convict him, with several Senators voting against conviction solely “on the theory that the Senate lacked jurisdiction to try a former president.” (footnote 203)

Footnote 203 then leads to this article:
https://www.justsecurity.org/74725/in-t ... ent-trial/

This says 8 of the 43 votes not to impeach raised "Jurisdiction-Based Objections" and were critical of Trump. In other words, they said impeachment wasn't appropriate for a former presidents and other avenues should be used instead. For example, statements such as:

Our Constitution references that impeachment was designed to remove an officeholder from public office—not a private citizen. Given that President Trump no longer holds public office, my ‘no’ vote today is based solely on this constitutional belief… The actions and reactions of President Trump were disgraceful, and history will judge him harshly.

Former President Trump’s actions that preceded the riot were a disgraceful, disgraceful dereliction of duty…There’s no question — none — that President Trump is practically and morally responsible for provoking the events of the day.

The Republican's have been remarkably successful at keeping everything trapped in a continuous circle: "Can't indict a President, impeachment's the proper route"... "Can't impeach, it's a matter for criminal courts." Adding in "Can't 14th him because didn't impeach" adds another loop.

[monkey]

"I am not an insurrectionist, congress said so." is still an obvious defence for Trump and one that any judge can just point to, if they need an excuse to let him on the ballot.

As you said before, "And then the Supreme Court just picks the ambiguity it wants."


ETA: I know as well as you do that being found innocent or being acquitted does not mean that someone didn't do it. I think Trump did do it, and shouldn't be on the ballot. In a sane world the GOP would be rejecting him as a candidate and things wouldn't get this far, but the US is not a sane world.

[FlammableFlower]

Just seen Fani Willis' 6-page response to Jim Jordan's attempt to interfere in the case using Congress... and damn it's good: Twitter link

The bit about how he could learn a bit more about Georgia's RICO laws by buying a book...for $249 for non-bar members ... is some serious shade.

[dyqik]

"I am not an insurrectionist, congress said so." is still an obvious defence for Trump and one that any judge can just point to, if they need an excuse to let him on the ballot.

Except Congress (House and Senate) voted by a simple majority that he was an insurrectionist. But the Senate didn't vote by a large enough margin to remove him from office.

The 14th amendment places a reverse criterion on the vote to general impeachment. It requires a 2/3rd majority vote of Congress to allow a former insurrectionist to take up office.

[lpm]

Has Lindsay Graham flipped?

Wow, the Georgia grand jury recommended indicating him.

Either

1. The indictment is on the way
2. The indictment was ruled out for being too weak
3. He flipped to wriggle out

[lpm]

Has Lindsay Graham flipped?

Wow, the Georgia grand jury recommended indicating him.

Either

1. The indictment is on the way
2. The indictmentcwas ruled out for being too weak
3. He flipped to wriggle out

And Loeffler and Perdue, the Senate losers in Georgia.