Adam Unikowsky: "Is the Supreme Court Seriously Going to Disqualify Trump? (Redux)"

"The chances are still low, but improving."

An interesting and detailed post, by a very knowledgeable lawyer. There are some parts that I'd likely approach differently (though I say this tentatively, not having focused on the issue myself in as much detailed as others have), but it seems much worth reading. I also hope to link in the coming days to material from others expressing other views [UPDATE: see, e.g., this post linking to two Samuel Moyn articles]. Here's an excerpt from Unikowsky's post (read the whole thing for the detailed analysis):

Now seems to be a good time to revisit my post from the long-ago era of September, in which I pegged the chances of the Supreme Court disqualifying Trump at 10%. In view of this recent development, I'll up the odds to 20%—still low, but not that low. 13-seed-beats-a-4-seed low. Totally within the realm of possibility.

Breaking that down, I'd give a 15% chance that the Supreme Court affirms the Colorado Supreme Court. I'd give an additional 5% chance that the Supreme Court vacates the judgment while leaving the door open to future Section 3 litigation, and then disqualifies Trump in a future case.

And while I'm throwing arbitrary probabilities at the wall, here's my take on the probabilities of how the Supreme Court will dispose of the Colorado case:

• 5%: The Court denies certiorari or the case otherwise goes away before the Supreme Court decides it.
• 40%: The Court reverses the Colorado Supreme Court, holding that, as a matter of law, Trump isn't disqualified under Section 3.
• 40%: The Court vacates the Colorado Supreme Court's decision in a manner that leaves the door open to future Section 3 litigation.
• 15%: The Court affirms the Supreme Court of Colorado.

My reasoning follows, as they say….

Comments

[BillyG]

How about: SCOTUS grants cert, puts on shadow docket, and then dismisses as moot as arguments are after the primary?

[not guilty]

Too clever by half. If that happened, the same or a different group of Colorado electors would likely make the same claims in a new lawsuit regarding placement of Trump on the general election ballot, (if, as likely, Trump is nominated by the Republican National Convention,) in which case the Colorado Supreme Court decision would have preclusive effect against Trump.

[Kazinski]

Well for one there won't be an actual primaty, the Colorado GOP has already moved to switch to caucuses so they can move forward with delegate selection regardless of the Colorado Supreme Court ruling.

[Eric (the OC tanker)]

A question that is not being asked. Where does "Due Process" and the 'right " to face one's accusers come into play when in relation to Trump, There has not to my knowledge and belief, a Article 3 court of proper jurisdiction has not made a finding of guilt or innocence on any charge of "insurrection".

Is an accusation just as good as conviction? Or has the presumption of innocence been chucked out the window.

[SRG2]

As 14.3 doesn't state that a conviction is required, the standard for DQ is not as stringent as it otherwise would be.

[Michael P]

So where in the text does the Fourteenth Amendment say a different threshold would apply?

The people who wrote and adopted the Reconstruction Amendments had just written and passed a federal statute defining insurrection as a criminal act. That law is still in force. There's no good-faith argument that s lower standards was intended or should apply.

[FSE]

A criminal law passed during the Reconstruction, like all criminal laws, cannot apply to events before the Reconstruction.

But there is abundant evidence that the 14th Amendment was meant to apply to Civil War insurrectionists.

[SRG2]

there is abundant evidence

Do you generally support textual readings of the Constitution? There is abundant evidence in the text itself that 14A was not restricted to the Civil War. Further, it's logical, because the drafters having experienced one insurrection, it would make sense to think that steps should be taken to prevent future insurrectionists from attaining power as well. The Civil War certainly inspired 14A but that is of course a different thing.

[FSE]

I said it applied to Civil War insurrectionists, I never said it was restricted to Civil War insurrectionists.

But if insurrection was criminalized in the Reconstruction, then Civil War insurrectionists could not be charged with insurrection ex post facto.

And since the 14th nevertheless applied to Civil War insurrectionists, it must apply to people who haven't been convicted of a crime.

[not guilty]

The insurrection statute was enacted in 1862. It could be applied to persons committing insurrection from its enactment forward. It could not be applied to punish acts of insurrection occurring before enactment (including during the early stages of the Civil War).

If disqualification under the Fourteenth Amendment, § 3 is a criminal penalty, it could not have been imposed ex post facto on any Confederates for participating in the Civil War.

[Krayt]

At the normal law level. An amendment can do whatever the hell it wants, and if it applies ex post facto, that's that. Although I would usually encourage explicit and clearly delineated override of important points to prevent weaselism.

[SRG2]

So where in the text does the Fourteenth Amendment say a different threshold would apply?

It's the absence that is significant.

14.3 makes no mention of a conviction being required.

I hope you were never taught constitutional jurisprudence. and I am sure that you never studied the Talmud.

[Brett Bellmore]

It was written a handful of years after the same Congress had enacted the Confiscation act of 1862, which made insurrection a federal crime, and imposed the penalty of disqualification from office.

But, of course, the same people who enacted that ABSOLUTELY meant the same words figuratively the next time they wrote a Section 3. You're absolutely certain they weren't referring to the crime, because they didn't come out and say so...

[FSE]

In 1862, they wrote "every person guilty of either of the offences described in this act shall be forever incapable and disqualified to hold any office".

But when writing the 14th Amendment they wrote "No person [who] shall have engaged in insurrection or rebellion".

You're absolutely certain that changing the language and omitting "guilty" was just an oversight and they still meant the exact same thing as before despite the difference in wording.

[David Nieporent]

Are you new here? Brett doesn't actually know anything about law, but he is absolutely certain of everything about law notwithstanding that.

[NOVA Lawyer]

Also, now that Brett has been pwned by his own logic, he will not return to issue a mea culpa, but will scamper off and make a similar mistake in another thread. In his defense, though, that was a pretty devastating thrashing of his argument. I'd be embarrassed if I was Brett too.

[Kazinski]

But the Federal insurrection statute does disqualify someone convicted and section 5 gives the power to Congress to decide how section 3 will be implemented.

[not guilty]

As I have said before many times, pursuant to § 5 of the Fourteenth Amendment, Congress could enact legislation specifying that criminal conviction is a prerequisite to disqualification under § 3. Congress has not done so, however.

Some federal criminal statutes (e.g., 18 U.S.C. §§ 2071(b), 2381, 2383) mandate disqualification from holding any office under the United States as a criminal penalty. That species of disqualification as a criminal penalty differs in multiple important respects from disqualification under § 3 of the Fourteenth Amendment.

These criminal statutes apply to all persons and, unlike § 3, are not limited in their application to those persons who have previously taken an oath to support the Constitution.

Disqualification under these criminal statutes applies only to holding any office under the United States. A § 3 disqualification applies as well to state offices.

Congress may by a vote of two-thirds of each House, remove a § 3 disability. Congress, however, is unable to negate a criminal penalty imposed by an Article III judge.

As the Sesame Street jingle goes, one of these things is not like the others. I can explain it to you, but I can't understand it for you.

[Michael P]

The inane left assumes that the presumption of innocence is irrelevant, as they should get their way (they believe) any time either a state election official or some minor judge finds in their favor based on a civil trial preponderance-of-evidence standard.

This reflects their disdain for democracy.

[Rev. Arthur L. Kirkland]

Pointers on disdain for democracy from insurrection-embracing, vote-suppressing culture war casualties are always a treat.

[Michael Ejercito]

What insurrection?

[not guilty]

.

A question that is not being asked. Where does “Due Process” and the ‘right ” to face one’s accusers come into play when in relation to Trump, There has not to my knowledge and belief, a Article 3 court of proper jurisdiction has not made a finding of guilt or innocence on any charge of “insurrection”.

Nothing in the Fourteenth Amendment requires a criminal conviction as prerequisite to disqualification, and Donald Trump has had ample due process as to whether he in fact engaged in insurrection. The fundamental requirement of due process is the opportunity to be heard “at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319 (1976), quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965).

Donald Trump had notice of the charges against him, the relief sought by the petitioners, and detailed specification of the underlying factual and legal basis for the petition. His lawyers litigated multiple pretrial motions in the trial court and in the Supreme Court of Colorado. AFAIK, Trump did not seek to conduct any pretrial discovery, and he made no offer of proof to the trial court as to how discovery would have assisted his defense on the merits. (The petitioners sought to take a pretrial evidentiary deposition of Trump, but the trial court denied their application to do so.) The trial court scheduled five full days for taking proof, with the time for presentation equally divided between the petitioners and the respondent/intervenors (and Trump did not take all of the time he was allotted). The Rules of Civil Procedure applied at trial. Trump had the subpoena power of the trial court to compel the attendance of witnesses on his behalf. Trump’s lawyers cross-examined witnesses called on behalf of the petitioners. Trump had the opportunity to testify at trial; he elected not to do so. While the applicable statutes specified that the petitioners had the burden of proof by a preponderance of evidence, the trial court determined that the proof met the higher standard of clear and convincing evidence, had that standard been applicable. All parties had the opportunity to submit proposed findings of fact and conclusions of law. The trial court issued a comprehensive and detailed final order.

The Supreme Court of Colorado exercised discretionary review. The parties submitted comprehensive briefing. The per curiam opinion of the Supreme Court is comprehensive and is tied closely to the evidentiary record developed before the trial court. Trump has the opportunity under 28 U.S.C. § 1257 to petition the United States Supreme Court for review by certiorari.

What additional process does anyone claim was due Donald Trump? Please be specific.

[Kazinski]

You don't even mention Section 5. But that's okay, you can be sure the Supreme Court will.

[not guilty]

What additional process do you claim is due Donald Trump under the Fourteenth Amendment, § 5, given that Congress has not addressed his situation pursuant to § 5? (He does have the opportunity to seek a two thirds vote of each House of Congress to remove any § 3 disability, an additional procedural safeguard which I failed to mention above.)

[Michael P]

Congress enacted a statute defining the threshold, process and consequences of insurrection pursuant to 14.3 and 14.5. That's the process that is required to trigger 14.3.

[not guilty]

Congress did nothing of the sort. Congress can enact criminal statutes, pursuant to which Article III courts can sentence offenders to criminal penalties. For the reasons I have explained upthread (to which you conspicuously have not responded), disqualification under the Fourteenth Amendment, § 3 is materially different from disqualification from holding office under the United States by an Article III court as part of a criminal penalty.

[Michael P]

I make a practice of not responding to every stupid comment on this blog. For example, it's vapid to argue that criminal statutes apply to all persons and that makes them different from a provision that applies to people who engaged in a specific set of conduct that makes them subject to government-imposed punishments. However, I do note that you conceded that those criminal statutes -- which cannot disqualify someone from being elected president -- are not different from the Fourteenth Amendment in that respect.

[NOVA Lawyer]

Michael P calling not guilty's comments stupid? LOL

not guilty has some of the most, if not the most, substantive and informed posts these comment boards ever see. You can disagree with him, find fault with his conclusions, etc., but I haven't seen him write a stupid comment yet. And the one to which he, and then you, referred, was clear, thorough, and logical. Your insults only make you look stupid. My low opinion of you just got lower.

[FSE]

Due process in the form of a trial applies when your property and liberty are at stake. Neither is the case when someone is disqualified from the presidency.

This is in the same category as revocation of a driver's license, put on a no-fly list, etc. A simple administrative proceeding is sufficient due process.

[not guilty]

I would not say that there is no liberty interest in running for office in a primary election. In Bullock v. Carter, 405 U.S. 134 (1972), SCOTUS ruled that a Texas statutory scheme which, without write-in or other alternative provisions, required payment of fees ranging as high as $8,900 violated equal protection. The Court there did recognize that a State has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies. Id., at 145.

That having been said, political candidacy is not a fundamental right. Clements v. Fashing, 457 U.S. 957, 963 (1982) (plurality); Lindsay v. Bowen, 750 F.3d 1061, 1063-64 (9th Cir. 2014); N.A.A.C.P., L.A. Branch v. Jones, 131 F.3d 1317, 1324 (9th Cir. 1997); Plante v. Gonzalez, 575 F.2d 1119, 1126 (5th Cir. 1978).

[Spinach Chin]

Funnily enough, revocation of a driver's license follows some other finding of guilt. Unless it's your contention that judges simply hand out license suspensions absent some form of legal finding that a driver has broken at least one motor vehicle law.

[not guilty]

Are you familiar with implied consent statutes, whereby a driver's license can be revoked administratively for refusal to submit to a breath/blood alcohol test? Without regard to whether a conviction ensued.

[FilioScotia]

For me, whether Trump did or did not incite an insurrection is important of course, but there's a much larger and scarier implication in this ruling that I think will affect all of us. Not just Trump. It's something Republicans AND Democrats really should be equally and seriously concerned about.

Think about it this way. Four unelected judges have told Colorado voters they won't be allowed to vote for the clear Republican front-runner in the upcoming state Primary in March.

If this ruling is not overturned, is there any reason to think conservative Supreme Courts in other states won't do the same thing to Democratic candidates? I believe they will. Tit for tat. The precedent will be set, and it will spread to other states and I fear it will tear this country apart.

[Noscitur a sociis]

If this ruling is not overturned, is there any reason to think conservative Supreme Courts in other states won’t do the same thing to Democratic candidates?

Yes: most conservative Supreme Court justices are principled, and no major democratic candidates have engaged in insurrection.

[FilioScotia]

I agree. Most - but not all - conservative Supreme Court justices are principled, and wouldn't do what the Colorado court did.

[Alpheus W Drinkwater]

What evidence do you have that the Colorado Supreme Court judges are not principled? Is it solely the fact that you disagree with it?

[Life of Brian]

Three dissents comprising 80-some pages explaining in excruciating detail why the majority opinion was an opportunistic needle-threading exercise, for starters.

[Michael P]

Courts across the country have declared things like California's gun-control redone to be repugnant to the US Constitution and on open mockery of the US Supreme Court's rulings. Combine that with all the summer-of-2020 riots and a lot of Democrats who were elected to Congress or appointed to federal office before supporting those things could be vulnerable to getting kicked off ballots.

[Armchair]

Under Colorado's definition of insurrection, Biden may be currently engaging in an insurrection by using threats of force against a major candidate

[not guilty]

"Under Colorado’s definition of insurrection, Biden may be currently engaging in an insurrection by using threats of force against a major candidate"

Supporting facts? Which candidate? What threats of force? When and where did President Biden do so? Please be specific.

[not guilty]

Still waiting, Armchair.

[Bruce Hayden]

For one thing, his agents are threatening to put his primary opponent in jail, as they have done so for hundreds already who showed up and walked around the Capital peacefully on 1/6. Of course, the claim was that they weren’t peaceful, but that impression was only operative as long as the Dems controlled the House, and thus the many thousands of hours of recordings that day. What was released to the public, and the courts, had been severely cherry picked. Turns out, with the release of more and more video, that the violence was initiated by the Capital Police, and the J6 “Insurrection” was 99% nonviolent on the part of the protesters.

You might argue that the Special Prosecutor Smith is independent of the WH and its political appointees. Turns out he can’t be, because he was not Senate confirmed, so, by necessity has to be a lesser officer, without the power to operate independently. He reports to the AG, and only has as much autonomy as the AG wants to give him. He is, essentially, acting as an agent of the AG, who with his choice of prosecuting Trump supporters, using in many cases, LawFare fabricated charges, and ignore much more egregious violence during official proceedings by Dem affiliated groups, has shown himself to be a highly partisan servant of the White House.

The House is demanding correspondence between the Special Counsel and the WH. The intent of that request is to determine the amount of communications between them. Which is why I expect the Special Counsel to resist responding to its fullest. We do know that there was some, because the FL case was essentially built on the WH ordering the National Archives to cooperate with the FBI, and do whatever they want. This allowed Jay Bratt, DOJ Counterintelligence and Export Branch Chief, to have Archives demand documents from Trump. They could then use their failure to respond promptly enough as legal justification, for a subpoena, which Bratt, of course, didn’t give Trump’s attorneys long enough to res pond to, providing the legal justification for his MAL raid, and from that, the FL indictments, now as Deputy Special Counsel. Same guy, all the way, from the request to Archives for the documents, through indictments, now through pushing for a spring trial (despite slow walking security clearances and document production), which he isn’t getting because of those shenanigans (having drawn the only Republican appointed or elected judge of the four trials).

[David Nieporent]

.

The House is demanding correspondence between the Special Counsel and the WH. The intent of that request is to determine the amount of communications between them. Which is why I expect the Special Counsel to resist responding to its fullest. We do know that there was some, because the FL case was essentially built on the WH ordering the National Archives to cooperate with the FBI, and do whatever they want. This allowed Jay Bratt, DOJ Counterintelligence and Export Branch Chief, to have Archives demand documents from Trump. They could then use their failure to respond promptly enough as legal justification, for a subpoena, which Bratt, of course, didn’t give Trump’s attorneys long enough to res pond to, providing the legal justification for his MAL raid, and from that, the FL indictments, now as Deputy Special Counsel. Same guy, all the way, from the request to Archives for the documents, through indictments, now through pushing for a spring trial (despite slow walking security clearances and document production), which he isn’t getting because of those shenanigans (having drawn the only Republican appointed or elected judge of the four trials).

Every word is a lie. You were called on this, and yet you did it again.

Sorry: you weren't called on the last claim before; that's a new one for you. It's also a lie. The judge overseeing the Fulton County case against Trump is Scott McAfee, who was appointed by GOP GA governor Brian Kemp.

[Social Justice is neither]

Bullshit, by these standards the entirity of the BLM riots and CHAZ, the attack on the capitol in May 2020 that you leftists laughed because they evacuated Trump all count. Sorry, but the entire DNC has declared itself the party of perpetual revolution by any means necessary.

[Sarcastr0]

This is just not true on a factual basis. It's a right-wing meme I guess, which means you get Alito's vote. And probably Thomas just outta spite.

But Jan 06 was not a riot, and it was not some block in Seattle being cordoned off from police for a week. Everyone who isn't terminally partisan sees that, and this includes our judiciary (except maybe some panels on the 5th Circuit)

[David Nieporent]

.

Four unelected judges

Whoops! Already wrong. Spouting cliches.

is there any reason to think conservative Supreme Courts in other states won’t do the same thing to Democratic candidates?

The personal integrity of the justices on those courts?

[Armchair]

"Whoops! Already wrong"

Yes....but no.

In Colorado, judges are initially appointed by the Governor (for 2 years), but then need to stand for election in the next cycle (10 year terms). It's a "yes/no" vote, rather than an actual choice between candidates. It's a particularly nice form of election for incumbants, because they almost never lose this type of "yes/no" vote.

https://ballotpedia.org/Colorado_judicial_elections,_2016

So, technically they stand for election. But it's the easiest type, and they'll almost always win.

[John F. Carr]

Also called a "retention election". One of them did California Supreme Court Justice Rose Bird in. Voters decided she was twisting the law to pursue a liberal agenda. This was when California was more conservative and "tough on crime" was a winning strategy.

[John F. Carr]

He says insurrection can be treated as a question of fact. Then different states can come to different factual conclusions. (Trump will not necessarily be a party to all cases, and offensive collateral estoppel doesn't come into play if he isn't.)

The odds are low, but for entertainment value the best outcome is Trump is disqualified in some mostly blue states, on the ballot in some mostly red states, and Trump and the replacement Republican combine to win a majority of electoral votes. To the House we go!

[destroyallpugs]

Would electors actually vote for a replacement Republican? If this were to somehow happen, wouldn't they simply vote for who everyone really knows is the real candidate even if kept off the ballot?

[John F. Carr]

Not all states allow switching votes. In Colorado, the Secretary of State can replace an elector who votes for the wrong candidate. This happened in 2016 and the Supreme Court ruled in the state's favor in 2020. The same day the court upheld Washington's authority to fine electors who vote for the wrong candidate. https://en.wikipedia.org/wiki/Chiafalo_v._Washington

[destroyallpugs]

ok, so in the speculative colorado example, if Trump-but-not-Trump wins, and the electors vote for Trump, the Colorado sect of state disqualifies those votes and sets new electors that vote for Trump-but-not-Trump (and presumably someone is willing to do that)

[Noscitur a sociis]

.

An interesting and detailed post, who is a very knowledgeable lawyer.

Thus AI is out of control!

[Rev. Arthur L. Kirkland]

.

An interesting and detailed post, who is a very knowledgeable lawyer.

More interesting: How that post obtained bar membership.

[Armchair]

It's worth considering the "interesting" definition of insurrection the Colorado court uses, and how if consistently applied, it leads to absurdities. It's both overly narrow and overly broad.

Here's the definition: "a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country."

The narrow bit here is that according to this definition, an insurrection is "only" in regards to the peaceful transfer of power. Ironically, this means the American Civil War can be defined as not an insurrection. Remember, the southern states just left. They didn't try to change the election in DC by force.

The broad part here is "threat of force."

That's interesting, because a criminal trial, implies a threat of force. The United States has an interest in maintaining fair, open elections, and by threatening a major candidate with criminal charges, it hinders those fair elections. An argument can be thus made that Joe Biden is currently engaging in insurrection by organizing the group that is criminally charging Trump, and thus Biden can be disqualified.

Is that an absurdity? Sure, but given a technical reading of the definition of insurrection, it's certainly possible.

[destroyallpugs]

The money line definition is "(1) a public use of force or threat of force (2) by a group of people (3) to hinder or prevent execution of the Constitution of the United States". The "prevent the ... peaceful transfer of power" wording applies that definition to this particular situation.

There's the line that "We agree that an insurrection falls along a spectrum of related conduct." indicating a choice of where to draw the line. Which is then applied very broad, and further claimed to be supported by "any" definition of insurrection.

Requiring an analogy to conduct in the context of the Civil War doesn't match the dictionary definition, but has the advantage of being less vague and less "I know it when I see it".

[Armchair]

Then that's even more absurdly broad.

Force or threat of force by a group of people to hinder execution of the US constitution? That covers...everything.

Literally any federal crime involving a group of people and force or threat of force can fall under "insurrection" As well as many things that aren't otherwise crimes

[Stephen Lathrop]

Remember, the southern states just left. They didn’t try to change the election in DC by force.

Gettysburg comes to mind as a counter-example, among a host of others. Basically, the entire Confederate strategy was to wear down northern political support for the war, get Lincoln out of office in 1864, and negotiate with a cowed successor, or better yet, an outright Confederate sympathizer. To hasten that outcome was the explicitly stated objective of Lee's Gettysburg campaign.

There isn't any reasonable question about that. Lincoln formulated policy with that as a premise, and on the eve of passage of the 13 Amendment believed he would not be reelected.

[Bob from Ohio]

An entire article of someone talking out of his a**. Impressive.

Calculating odds depends on analyzing information. He doesn't have any.

[Stephen Lathrop]

Some disparate points:

1. Tacit in the entire analysis is unlimited scope for the Supreme Court to do anything it decides to do. That is decapitated constitutionalism on steroids. Courts are supposed to defer to the jointly sovereign People, and what the People wrote in the Constitution is not supposed to be rewritten by the Court. Some may suppose that's what the major questions doctrine is supposed to enable. That would be foolish, and a flagrant abuse of American constitutionalism. But whether it could happen is admittedly uncertain, given that this is the Court which invented the major questions doctrine.

2. All the weighing and balancing about whether insurrection occurred is written as if the fake electors scheme counts for nothing, nor any of the other probative insurrectionary premeditations which have already been disclosed to the public.

3. There is at least a hint in the OP of respect for uncertainty about what the future might bring in the way of new evidence. But not enough respect. Mark Meadows has not been charged. Lawyers ought at least to suspect that means Meadows has cooperated with the prosecution—potentially with bombshell factual proof against Trump not yet disclosed to the public.

4. The argument from social and political consequences was offered on only one side—outraged Trump supporters numbering in the millions will do who-knows-what if their guy is not on the ballot. What consequences will follow if those millions—almost certainly a minority among all voters—get a decision from the Court which permits Trump to almost prevail in November? And then Trump goes on to try to steal yet another election? Maybe with violent assistance of the sort the Court supposedly now fears, from those supporters of Trump that it would have supported and abetted. Should the Court be worrying about that too as a possibility? Would it be wise to just ignore it? The OP seems not to have given much weight to those questions.

5. What consequences might the Court reasonably reflect upon if a subsequent coup attempt was preceded by overwhelming evidence not yet publicly available, proving Trump's active participation in insurrection on January 6. Why would a Court intending to be cautious about political consequences discount to zero a prospect of future evidence disclosures adverse to Trump? Will the Court be influenced at all by caution about a potentially mis-founded estimate about what might happen before the election?

6. Any notion seems misplaced that the Colorado decision ought to be discounted by derogating it as based on partisan evidence from the January 6 Report. That report was prepared principally under the leadership of one of the most conservative, and provably partisan, right wing Republicans in the nation. She and fellow committee members understood from the outset that accusations of partisan bias would be directed at whatever they wrote. So they took the precaution of basing both their investigations and their conclusions mostly on evidence provided by Republican insiders, many of them high-ranking participants in the Trump administration. Everyone who followed the televised reports is aware that was the method used.

It is true that the televised hearings orchestrated excerpts from testimony to the tune of television footage proving the breathtaking scope and violence of the capitol attack. It takes nothing short of clownish partisan hackery to insist that television footage flaws, instead of proves, any conclusion that insurrection happened. If the theory is that SOTUS will decide for Trump on that basis, by discounting the January 6 Report as flawed and too political, the unavoidable public reaction—and the judgment of history—will be that a right-wing SCOTUS majority is willing to take on a reputation of clownish partisan hackery. Are they really that unwise? The percentages speculated about in the OP do not seem to have given due weight to the question of what quantum of saving political wisdom may exist among SCOTUS justices needed to form a right-wing majority.

7. Also unmentioned is the possibility—admittedly a long shot—that overtly right-wing politicized justices might recognize a political advantage for right-wing politics by availing themselves of an opportunity to let other political actors, many of them Democrats, take Trump out of the race.

[DWB]

There was NO insurrection.

[Stephen Lathrop]

DWB, I already mentioned clownish partisan hackery. Thanks for coming along to supply the QED.

[Kazinski]

Well Jack Smith for one doesn't believe there was an insurrection, or he would have charged it.

Neither did any prosecutor handling the cases of the hundreds of obstructionists who were never charged with Insurrection.

[not guilty]

I wouldn't be too hasty to conclude that, Kazinski. No prosecutor is obliged to bring every charge which he believes may arguably apply to a given set of facts.

In the ordinary case, "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." United States v. Armstrong, 517 U.S. 456 , 464 (1996), quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).

Donald Trump is charged with four offenses in the District of Columbia. Two of the statutes charged carry a potential penalty of imprisonment twice as severe as insurrection. Donald Trump is 77 years old. If convicted he will likely spend the rest of his life locked up. Charging insurrection would introduce additional issues into the trial, making it longer and more complex. Why would Jack Smith and his team want to do that?

[Michael P]

They should want to do that because it would make the applicability of 14.3 crystal clear.

Or they could concede that it doesn't apply to Trump.

[not guilty]

And why is that Jack Smith's concern? He is there to prosecute crimes, not to carry water for any political figure or party. What does it matter to him whether a 77 year old defendant is subject to a potential 65 years imprisonment rather than 55 years?

[Rev. Arthur L. Kirkland]

People who claim there is a god but there was no insurrection deserve everything that is coming to them in the culture war.

Open wider, clingers.

[AtR]

These are not probabilities (what does it mean that there is a 5% chance of the court taking a particular action on a singleton event in history)...

They are simply statements of the author's confidence dressed up with numbers to make them sound objective. To be fair, the author implies as much.