The Facts Matter, Trials Matter, The Record Matters

[Note:  This is the ninth in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first eight essays can be found here, here, here, here, here, here, here, and here.]

A question regularly raised about our interpretation and explication of Section Three is how its rules might bear on various different factual patterns, real or imagined. Does conduct of a particular description, in a specific set of circumstances, on its own unique facts, constitutes having "engaged in" "insurrection or rebellion" within the meaning of the Constitution?  What about this situation?  What about this one?

Accepting as given our account of Section Three's terms – "insurrection," "rebellion," "engaged in," "aid or comfort to" – folks frequently ask how these legal definitions and standards apply to a variety of real or hypothesized situations.  Our answer is that the facts matter.  Further, the determination of what the facts are is by and large committed to the legal process – the record amassed at trial and the ensuing judgment of the trier of fact.

As we put it in our forthcoming article, The Force and Sweep of Section Three, it "is not for us to say who all is disqualified by virtue of Section Three's constitutional rule."  (Ms. at 126).

That is the duty and responsibility of many officials, administrators, legislators, and judges throughout the country.  Where they are called on to decide eligibility to office, they are called on to enforce Section Three, applying the Constitution's legal standard to the facts before them in a given instance.

The point is worth repeating, sharpening, and emphasizing:  whether and precisely how the legal standards of Section Three apply in particular cases are matters to be determined in the usual manner that questions of how the law applies to a particular set of facts are determined.  They are decided by the usual legal processes of a civil trial in which a trier of fact – a judge or a jury, depending on the type of case and in some circumstances the choices of the parties – determines what the true facts are, when there is a genuine dispute over facts material to how the relevant legal standard applies.

In Trump v. Anderson, the Section Three case pending before the Supreme Court, it is important that there has been a full five-day trial of the facts in the Colorado courts. That trial process culminated in detailed findings of fact, made by a Colorado state court judge sitting as the trier of fact.  The Colorado Supreme Court held that the trial complied with the requirements of Colorado state law and provided due process of law.

The parties disagreed as to exactly what occurred; what the true facts were; whether Donald Trump engaged in specific intentional conduct; what his motives, signals, behavior, and intentions were; what he did or failed to do; whether Trump's statements to supporters genuinely sought to encourage "peaceful and patriotic protest and respect for law and order" (as his brief in the U.S. Supreme Court asserts (at p. 33)) or were designed to signal other messages and objectives; and many other factual matters of this type.  The trial court judge heard extensive factual testimony and argument over these matters of disputed fact, assessed the evidence, and made detailed findings of fact concerning what the evidence led her to conclude about these matters.

This, we think, provides great focus to the legal questions at issue before the Supreme Court. In light of the record before the trial court and the court's findings, it is hard to say that Trump did not engage in the conduct alleged; or that he lacked knowledge or purpose. The trial judge assessed the evidence and reached certain conclusions of fact.  Even if one might be able to imagine a different story about the facts, the evidence presented to the court, and the factfinder's conclusions about them, establish the relevant boundaries of what is fairly open to dispute as a matter of legal process.  The ultimate questions of constitutional law – whether Section Three's rule remains legally operative; whether Section Three has immediate self-executing force by virtue of its enactment as part of the Fourteenth Amendment; the meaning of the terms "insurrection or rebellion" and "engaged in" and other terms contained in Section Three; and whether the conduct that Trump engaged in (established as a matter of fact) falls within the legal meaning of "insurrection or rebellion" under Section Three – remain questions of law for the Court.  But the subsidiary, antecedent questions of fact – whether Trump did (and failed to do) what he is alleged to have done (and failed to do) – have already been determined.  They were decided by a trial.

In other words, questions of "law" are for judges to decide, and appellate courts review the legal rulings of lower courts for their legal correctness, typically without deference to the legal ruling of the lower court.  The law is the law.  But questions of "fact" are for the jury or the judge, sitting as the "trier of fact," to decide, and appellate courts are generally obliged to accept the determinations of the trier of fact on questions of fact.  This includes such matters as which side in a dispute is believed to be telling the truth; which side of a dispute the evidence better or more persuasively supports; which expert's testimony is to be credited as a more reliable assessment; what actually occurred as a matter of fact; even what the motives or purposes of a party were.  The task of the trier of fact in our legal system is to resolve factual disputes where there is uncertainty or disagreement as to what the true facts are.

To be sure, there are many cases in between these two concepts, where the characterization of a particular question as being one of "fact" versus "law" may be uncertain or arguable.  Often an issue involves a "mixed" question of law and fact.  Further, the Supreme Court has also described a special rule in some areas of constitutional law (such as First Amendment limitations on liability for defamation) where an appellate court should make an "independent examination of the whole record" to assure that the Constitution have been faithfully applied. Even in such situations, however, a reviewing court typically will not "second-guess the [trial judge] on the credibility of witnesses."  And importantly, any review remains bounded by the record amassed at trial.

* * *

Thus while many people may have their own instincts about, or interpretations of, the events leading up to and on January 6, for legal purposes it is essential to start with the trial court's extensive and detailed findings of fact.

The trial court examined at length the language and context of President Trump's speech, and found, as facts, that Trump's language calling on his supporters to "fight" were, in context, "literal calls to violence" and would be understood by his audience that way, and that his statements purporting to negate such an intention "were insincere and existed to obfuscate and create plausible deniability."  (Trial court decision at ¶¶84, 85.)  The court found that Trump engaged in an extended pattern of deliberately false statements alleging widespread vote fraud, ¶¶87-99, and that Trump "knew his claims of voter fraud were false."  ¶100.  The court found that extremist groups and individuals supporting Trump understood Trump's statements as endorsements of political violence to overturn the result of the election.  ¶¶105, 109.  The court found specifically that "on December 19, 2020, when Trump tweeted 'Statistically impossible to have lost the 2020 Election.  Big Protest in D.C. on January 6.  Be there, will be wild!' he knew he had lost the election, and he knew there was no basis for Vice President Pence to reject the States' lawfully certified electors."  ¶115.  The court found that Trump sought to focus his supporters' anger over what Trump was saying was a stolen election on the January 6, 2021 session of Congress.  "The message he sent was that to save democracy, his supporters needed to stop the January 6, 2021 joint session."  ¶116. The court found as facts that Trump continued to stoke supporters' anger over false claims of widespread election fraud between December 19 and January 6, that federal law enforcement agencies expressed grave concern that the assembled crowd would be disposed to violence, and that Trump did not advise law enforcement agencies of his intention "to instruct the crowd to march to the Capitol" and that, as a result, law enforcement was not prepared for the crowd that descended on the Capitol.  ¶¶117-125.

The court also found as fact that "prior to the January 6, 2021 rally, Trump knew his supporters were angry and prepared to use violence to 'stop the steal' including physically preventing Vice President Pence from certifying the election.  In fact, Trump did everything in his power to fuel that anger with claims he knew were false about having won the election and with claims he knew were false that Vice President Pence could hand him the election."  ¶128.  The court found that many of the attendees at Trump's speech at the Ellipse on January 6 possessed knives, pepper spray, tasers, and body armor, that some of the attendees were armed, and that Trump was aware of the risk of violence and that the crowd was angry and armed.  ¶¶129-135.  The court collected a large number of statements in Trump's speech at the Ellipse on January 6, ¶135, and found that Trump called on the crowd to march to the Capitol, and that crowd reacted with shouted statements of "storm the Capitol!", "invade the Capitol building!", and "take the Capitol!".  ¶141.  (Among many other things, the trial court also credited the expert testimony of Professor Peter Simi on political violence and extremism, and agreed with Professor Simi's analysis that Trump's relationship and communications with supporters and with extremist groups had generated a shared understanding about the violent nature of some of his otherwise potentially ambiguous statements.  (¶¶61-83, 142))

The trial court's findings included both the effects of Trump's speech on the crowd and Trump's intentions with respect to the subsequent violent assault on the Capitol: "The court finds that Trump's Ellipse speech incited imminent lawless violence."  ¶144.  Further, in the overall context of Trump's false claims of election fraud and other statements concerning the need to save democracy and his encouragement of political violence by his supporters, "The Court finds that the call to 'fight' and 'fight like hell' was intended as, and was understood by a portion of the crowd as, a call to arms.  The Court further finds, based on the testimony and documentary evidence presented, that Trump's conduct and words were the factual cause of, and a substantial contributing factor to, the January 6, 2021 attack on the Capitol."  ¶145.  The trial court made extensive findings of fact about the actions of the mob in attacking the Capitol, and the series of events that transpired. ¶¶146-160, 162-168. The court found as fact that "by sending otherwise non-violent protesters to the Capitol thereby increasing the mob's numbers through his actions and words, Trump materially aided the attack on the Capitol."  ¶161.

The trial court found that, after Trump was aware of the attack on the Capitol, of Vice President Pence's public statement that he would not refuse to count certified votes of electors, and of members of the crowd chanting "hang Mike Pence," Trump tweeted at 2:24 P.M. that "'Mike Pence did not have the courage to do what should have been done to protect our country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked previously to certify.  USA demands the truth!'" ¶170.  The trial court further held that "Trump's 2:24 p.m. tweet caused further violence at the Capitol."  ¶173. The trial court made numerous findings of fact concerning the violence that occurred in the course of the assault on the Capitol.  ¶¶174-179.

The court found that Trump sent tweets at 2:35 p.m. and 3:13 p.m. encouraging the mob to "remain peaceful" and "[s]tay peaceful" and not harm law enforcement officers, but that neither of these messages "condemned the ongoing violence or told the mob to retreat."  ¶178.  The court found that aside from these three tweets (at 2:24, 2:35, and 3:13), "Trump did nothing between being informed of the attack at 1:21 p.m. and 4:17 p.m." to intervene to stop the attack, despite pleas from others that he do so.  ¶180.  Instead, Trump called Senators and urged them to delay the vote certification, responded to concerns expressed that those involved in the attack were saying they wished to "hang Mike Pence" by saying that Pence perhaps deserved to be hanged, and responded to Republican House Leader McCarthy's pleas that Trump call on his supporters to withdraw from the Capitol by saying "'Well, Kevin, I guess these people are more upset about the election than you are.'" ¶180.

The trial court made extensive findings of fact concerning National Guard and Homeland Security resources and personnel available to President Trump that could have been deployed by Trump after learning of the attack and found that there was no evidence Trump took any steps to deploy such resources.  ¶¶ 181-184.  The court found that Trump "had the authority to call in reinforcements on January 6, 2021, but chose not to exercise it thereby recklessly endangering the lives of law enforcement, Congress, and the attackers on January 6, 2021."  ¶185.

The trial court found that at 4:17 p.m. Trump "called off the attack" in a video message.  The court quoted the message at length and found that, in the message, Trump "endorsed the actions of the mob in trying to stop the peaceful transfer of power."  ¶187.  The message "did not condemn the mob but instead sympathized with them and praised them" before instructing them to go home, "emphasizing to the mob that this was an order to be followed."  Id.  The trial court found that a later message from Trump at 6:01 p.m. "justified violence" by calling the attackers "'patriots'" and affirming "the falsehood that justified the attack in the first place," that Trump had won a landslide victory and that the election had been stolen from him.  ¶¶189-190.  The court found that this constituted "further proof of Trump's intent to disrupt the election certification on January 6, 2021."  ¶192.

With respect to Trump's motive and state of mind, the court found that the evidence further supported the conclusion that "Trump endorsed and intended the actions of the mob on January 6, 2021."  ¶193.  In the section of its opinion setting forth conclusions of law, the trial court, drawing on its factual findings, stated as follows:

The Court concludes that Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification.  Trump cultivated a culture that embraced political violence through his consistent endorsement of the same.  He responded to growing threats of violence and intimidation in the lead-up to the certification by amplifying his false claims of election fraud.  He convened a large crowd on the date of the certification in Washington, D.C., focused them on the certification process, told them their country was being stolen from them, called for strength and action, and directed them to the Capitol where the certification was about to take place.

When the violence began, he took no effective action, disregarded repeated calls to intervene, and pressured colleagues to delay the certification until roughly three hours had passed, at which point he called for dispersal, but not without praising the mob and again endorsing the use of political violence.  The evidence shows that Trump not only knew about the potential for violence, but that he actively promoted it, and, on January 6, 2021, incited it.  His inaction during the violence and his later endorsement of the violence corroborates the evidence that his intent was to incite violence on January 6, 2021 based on his conduct leading up to and on January 6, 2021.

¶¶293, 294

* * *

In light of the trial record and these findings of fact, the assertions made in Trump's brief (p.33) that Trump "called for peaceful and patriotic protest and respect for law and order" and that "nothing that President Trump did in response to the 2020 election or on January 6, 2021, even remotely qualifies as 'insurrection'" cannot be taken at face value. They are contrary to the facts found at trial based on the record amassed at trial, and it would be extraordinary for the Supreme Court to unilaterally impose its own factual conclusions at this juncture.

In our forthcoming article, The Sweep and Force of Section Three, we were careful to qualify our conclusion that Trump's conduct falls within the description of Section Three, because there had not yet been any trial and Trump had not had an opportunity to present evidence rebutting the public record and have that evidence assessed by a trier of fact.  We say in that article that "[t]he case for disqualification is strong" that there "is abundant evidence" that Trump set out to overthrow the result of the 2020 election by force or fraud, in a variety of ways  and that, "[i]f the public record is accurate" that "the case is not even close" that Trump clearly "'engaged in' 'insurrection or rebellion' and gave 'aid or comfort' to others engaging in such conduct, within the original meaning of Section Three of the Fourteenth Amendment" (Ms. at 118-121).

In light of the record presented, and the facts found, at trial, there is little need for qualification on this score.  Based on the factual record established in the Trump v. Anderson litigation and the findings of the trier of fact, the conclusion that Trump engaged in the conduct for which Section Three imposes a constitutional disqualification from office should be taken as firmly established.

Comments

[Michael P]

Evidently, the only record that matters is not only broken but smashed. And then glued back together by an incoherent partisan.

[not guilty]

Michael P, have you read the findings of fact and conclusions of law set forth Judge Sarah Wallace's final order? Yes or no?

https://www.courts.state.co.us/userfiles/file/Court_Probation/02nd_Judicial_District/Denver_District_Court/11_17_2023%20Final%20Order.pdf

There is a reason that this matter was set for a full blown bench trial.

[Michael P]

You persist in your insufferably lame shtick. That's okay, we don't expect anything more from you.

[not guilty]

You haven't answered. Have you read the findings of fact and conclusions of law set forth Judge Sarah Wallace’s final order?

[bernard11]

IOW, you haven't read it.

[Bob from Ohio]

"IOW, you haven’t read it."

Why should a random Colorado judge's findings determine who can run for president?

[BrianL.]

That's not what it determined. It determined that Trump could not run for President in Colorado.

[Bob from Ohio]

not guilty is saying it matters everywhere

[Michael P]

As a matter of principle, I call out that bad behavior rather than indulge it.

[Sarcastr0]

Seems more like you're passionate but intellectually lazy and don't like being called on it.

[Estragon]

“Evidently, the only record that matters”

Is the one in your head? Another in a proud line of huckleberries arguing about what the source materials say without even reading them. You are in fine company sir!

[Dr. Ed 2]

"This is the ninth in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution."

Having a Federal Judiciary?

This is how asinine this has all gotten.

It was a riot, not an insurrection -- and Donald Trump did not personally incite it. Maybe he didn't do enough, quickly enough, to stop it -- but failing to stop crime committed by others doesn't mean that you are committing said crime.

[Estragon]

“but failing to stop crime committed by others doesn’t mean that you are committing said act.”

Hmmm that’s not what I learned in Crim Pro on conspiracy day.

This has been another episode of “hot legal takes from the guy six labatts deep at the end of the bar in the Nashua Buffalo Wild Wings”.

[Bob from Ohio]

"Hmmm that’s not what I learned in Crim Pro on conspiracy day."

True only if Trump was involved with the "conspiracy" to invade the capitol. If he was not, what is his duty to make a public statement?

[Estragon]

a) the statement was untrue as a general matter.

b) conspiracy has been alleged as to Trump— neither proven nor disproven— at this point.

[CountmontyC]

To hold someone to account in the American system of justice it must be proven that they committed of what they are accused. They are not required to disprove the charges.

[Estragon]

That is correct

[Sarcastr0]

Facts matter.

That's why Ed's delusions must be confronted and not treated as a simple 'difference of opinion.'

[Tan]

"In light of the record presented, and the facts found, at trial, there is little need for qualification on this score."

A jury's factual determinations can overturned by appellate courts under a "no reasonable finder of fact" standard. I wish you had discussed that a bit in this essay.

[not guilty]

"A jury’s factual determinations can overturned by appellate courts under a 'no reasonable finder of fact' standard."

How is that germane to review of the factual findings in a civil bench trial? FWIW, the "no reasonable finder of fact" standard is much more deferential than even the "clearly erroneous" standard of review in a bench trial.

[Mike Hansberry]

Got it, when judges hear dog whistles, that's a fact Jack.

If we cannot hear them, we must not be good/pure/elevated/intelligent enough?

[Brett Bellmore]

It's not just a dog whistle, remember. It's a dog whistle constructed of thiotimoline, so that it can be heard before it's blown.

[SRG2]

It's an open question whether endochronicity violates the law - A1S9 prohibits Congress from passing ex post facto laws but that may not extend to other activities.

I once visited Asimov in his duplex apartment on CPW 🙂

[Brett Bellmore]

I wouldn't have minded meeting him. I've never met an SF author who wasn't interesting to talk to.

[DaveM]

Trump's language calling on his supporters to "fight" were, in context, "literal calls to violence" and would be understood by his audience that way, and that his statements purporting to negate such an intention "were insincere and existed to obfuscate and create plausible deniability." (Trial court decision at ¶¶84, 85.) The court found that Trump engaged in an extended pattern of deliberately false statements alleging widespread vote fraud, ¶¶87-99, and that Trump "knew his claims of voter fraud were false."

Remarkable ability to read minds, and not just Trump's mind, but the mind of every person who listened to him. With powers such as these, who needs proof?

[David Nieporent]

You know that people who engaged in the attack on the Capitol testified that they were in fact doing Trump's bidding, right?

[Brett Bellmore]

You know that the Son of Sam killer testified that he was doing it under orders of his neighbor’s dog, right? Did that establish that the dog was guilty of incitement?

Berkowitz later admitted that it was a lie, but of course, he had no reason to anticipate that he’d get a better plea deal if he incriminated the dog, so admitting that didn't hurt him any.

You don’t have to prove that the actually guilty people thought Trump would have wanted them to do it. You have to prove that he actually TOLD them to do it.

And the actual legal test for that sort of thing is pretty strict.

[SRG2]

If his neighbour's dog had actually been giving Son of Sam orders knowing it to be likely that SoS would follow them, and there was evidence to that effect, then, assuming the dog was a person under the Constitution, the mutt too could have been convicted.

[loki13]

I mean, if you think the best analogy to Trump is David Berkowitz, I’m not going to stop you.

[Brett Bellmore]

No, in this analogy, Trump is the dog... The Proud Boys are Berkowitz.

[Magister]

So we'll need to see all of the dog's public communications before we can judge the analogy, because there's plenty in Trump's statements to support the trial court's conclusions. The tweet about Pence that provoked the insurrectionists further clearly has no analogy with the dog. And I am sure that the dog would have taken appropriate steps if the agencies that monitored threats and reported to it had revealed the threat that Berkowitz represented, rather than telling Berkowitz to stand by.

[Brett Bellmore]

"But, the dog DID bark!"

The Proud Boys were under extensive surveillance for months before Jan. 6th. As a practical matter, if Trump had communicated with them, the feds would know it.

Look, the basic problem you've got here is that nothing Trump said in the January 6th speech was anything other than normal political rhetoric, which is why the court had to resort to "code words" to claim incitement. And nothing he said at the Mall actually matters anyway, because the break in was on the part of people who'd pre-planned it before the speech. You can't "incite" people to do what they'd already planned to do.

But if you go back to anything he said earlier, it lacks the proximity to be incitement, so you must prove that Trump actually directed them to commit the crime. Not just said things that left the opinion that he'd approve of it.

Now, as somebody mentions, under conspiracy law his inaction immediately after the break in could be relevant, but then you'd have to establish that he WAS part of a conspiracy with the people who broke in, and again the lack of communications stops you.

So you claim his plan to challenge the electors, and persuade members of Congress and Pence to voluntarily act in his favor, was a conspiracy. But political persuasion isn't illegal, that's why you need to implicate him in the break in.

Bottom line: The CO court was rejecting the Brandenburg test. And the Supreme court is likely to notice that.

[Michael Ejercito]

Essentially, all of the arguments that Trump incited tHe Insurrection®™ boil down to this.

Trump promoted Badthink®™, and because some people rioted on the basis of Badthink®™, that was an insurrection and Trump incited it.

Some may argue this applies to Patrice Cullors, Nikole Hannah-Jones, Charles M. Blow, and many others. After all, they chanted, “Hands Up, Don’t Shoot”. They claimed that the police habitually hunt down and gun down unarmed Black men. They claimed the criminal justice system is systemically racist. And some people rioted on this basis.

It would apply if this principle was enforced in an even-handed manner. But the same side that says that Trump was promoting Badthink®™ also believe that Cullors, Jones, and Blow were promoting Goodthink®™, and those who rioted based on this Goodthink®™ were not engaging in Insurrection®™, but fighting White Supremacy®™

[Brett Bellmore]

So, I'm listening to the live broadcast, and it really sounds like the 'prosecution' is leaning very hard on Trump having incited the riot that day.

And the Court seems skeptical about the notion that Section 3 is self executing, because that would imply that Trump wasn't President between January 6th and January 20th.

[Z Crazy]

It'd also mean the U.S. never had a president since the withdrawal from Afghanistan.

[Brett Bellmore]

Well, yes, they didn't specifically mention that, but the general notion was raised.

[Magister]

You realize he told the Proud Boys to stand back and stand by in a presidential debate? Lots of people saw it. Trump's incitement didn't start or end with his January 6th Eclipse speech.

[Dr. Ed 2]

Hinkley testified that he shot Reagan on behalf of Jodie Foster.
Charles Guiteau exclaimed that he shot Garfield on behalf of Chester Arthur, who did become President as a result.

You do know that the mentally ill hear voices that don't exist, don't you? You do know that because someone who is mentally ill says someone told them to do something does NOT inherently mean that the person actually did -- don't you???

[Bruce Hayden]

So what? You are still inputting state of mind to Trump.

[Sarcastr0]

The evidence, especially his lack of action after the insurrection began, supports that the violence was something he intended.

[Michael Ejercito]

There is no evidence he caused it.

[loki13]

As usual, the idea that uncontroversial concepts in the law somehow become controversial and impossible to apply ... when it comes to Trump ... rears its head.

Whether it's criminal law or tort law, contracts or statute, the concept of a court determining what someone knew or understood is hardly controversial- it is, in fact, required in all sorts of cases.

However, for some reason when it comes to the singular issue of Trump, people suddenly wonder how regular court processes and doctrines could possibly exist! I mean, we can't possibly expect courts to READ MINDS, can we? Other than the fact that this is a completely normal and common-place occurrence that happens every single day.

[DaveM]

If this sort of mind reading is "uncontroversial", then we're in a lot more trouble than I thought. I don't give a fig about Trump. He's not MY candidate. I care about what happens when a civil trial judge can conclude they literally know what someone is thinking -- and 4 out 7 State Supreme Court justices agree!

[loki13]

I am GENUNELY curious now.... how do you think that the law works?

Let's take a few basic issues.
We will start with criminal law. Every heard of mens rea? Intent?

How about basic tort law? Did someone commit an ... intentional tort? Did they (you know) INTEND to do it? What if there is a distinction between purpose, recklessness, and negligence?

I could keep going, but the idea that this is a novel concept in the law is ... ludicrous. The idea that any Supreme Court justice will rule that courts are barred from determining (as a matter of fact) issues of intent is not going to happen. Which is a point so obvious that you literally have to know absolutely nothing about the law to argue otherwise.

[Estragon]

[deleted… Loki’s comment was better]

[Artifex]

It's worth recognising the game that Loki is playing here. It's a form of strawman. His position is that if you believe that:

If this sort of mind reading is “uncontroversial”, then we’re in a lot more trouble than I thought.

Then you must believe that any intent finding by the court must be ill conceived. It's a form of the exuded middle fallacy. It is entirely possible to believe that the court as a matter of standard practice could use the diary of a mafioso to establish intent and utterly reject the soothsayer and crystal ball that Loki would seat as proof of what the defendant was thinking. The real question is fundamentally how intent is established.

In the case of establishing what Trump was really thinking, we are firmly in fortune teller territory with logic that only convinces rabid partisans.

[David Nieporent]

Then you must believe that any intent finding by the court must be ill conceived.

That is indeed what DaveM said, and it's nutty, and Loki was entirely correct to call it out.

I don't think DaveM is actually nutty, though (not in this respect, anyway); I think he's dishonest. He's just throwing bullshit at a wall to see what sticks in an attempt to defend Trump.

[Voize]

That was deft, complaining about strawmanning and in the next sentence summarizing "his position" in order to attack the summary.

I didn't react to DaveM's text you quote because I thought it was vague. What is "this sort of mind reading"?

But helpfully he clarified it:
what happens when a civil trial judge can conclude they literally know what someone is thinking
That really does happen all the time.
You can doubt whether in a particular case the court gets the right answer, or reaches the level of certainty they claim, but to maintain it is improper for them to consider the question is ... radical.

[Michael Ejercito]

The court found that Trump engaged in an extended pattern of deliberately false statements alleging widespread vote fraud, ¶¶87-99, and that Trump “knew his claims of voter fraud were false.”
Which is beside the point.

Those false statements had nothing to do with the riot.

[David Nieporent]

They incited it.

[Michael Ejercito]

Exactly how?

Exactly how does "engag[ing] in an extended pattern of deliberately false statements alleging widespread vote fraud" while "kn[owing] his claims of voter fraud were false" incite a riot.

Because others have made this claim, and yet failed to demonstrate the causal connection.

[David Nieporent]

Probably because they figured it was so blindingly obvious that the question couldn't have been in good faith. How does telling someone that a massive crime is being committed against them and everyone is corrupt and refusing to do anything about it and it's a conspiracy to steal the entire country, and they need to fight like hell to prevent it, incite them to try to stop it?

Seriously? That's your question?

If Trump were telling the truth, the attack would've been justified!

[rloquitur]

This is the dumbest post evah. So he allegedly made false statements about the election--so what? His speech was not out of the ordinary when it comes to political speeches (and certainly milder than the "reap the whirlwind" Schumer speech). And we are disqualifying someone for this?

[rloquitur]

Biden was deliberately false regarding the laptop, and that was in collusion with DOJ--Section 3?

[ObviouslyNotSpam]

And they claim they don't speak in code...

[Dilan Esper]

You know, on the one hand you guys are saying there's no basis for imposing any sort of due process requirement as to how facts are found, despite the fact that you are asking for 70-80 million voters to be disenfranchised.

But on the other hand, having said there are no such due process protections, nonetheless we are supposed to give extreme deference to very contested factual findings on a fairly limited evidentiary record?

That makes no sense as a matter of law. I admit my main concerns about this are more about the danger of a victory of your side tearing American society apart. But even just as pure law, this makes no sense. If you want lots of deference to the trial court, you need plenty of due process at the trial court.

[Stephen Lathrop]

Esper, Trump is getting due process tripled. With a generous ladle of impunity thrown in. Trump is not being burdened by the same standard of justice any other criminal defendant receives as a matter of course.

[Dilan Esper]

That comment is ignorant. We don't measure due process by talking about the specific litigant. We talk about what process is due in particular contexts.

And of course you are also ignorant about my point, which is the relationship between appellate court due process and factual findings.

Finally, my name's Dilan. Not "Esper". Being ignorant is bad enough. Being ignorant and a douchebag is no way to go through life. Learn something about manners, as well as about the law.

[Bob from Ohio]

He calls people he does not like by their last name.

Be proud, a cretin like him not liking you is an honor.

[Dilan Esper]

Thanks Bob, that made me smile. 🙂

[Stephen Lathrop]

Dilan, I grew up in a culture which avoided premature resort to first names. It was a practice judged presumptive, pushy, and embarrassingly intimate. Most of my life, I have been known conversationally to most of my better friends as, "Lathrop."

Those same friends think someone who calls you by a first name without long personal acquaintance is probably someone from California, where no one learns proper manners. Either that or a con man.

Admittedly, that culture I refer to had a distinctly Appalachian tinge, so it was stronger on a sort of cranky formality than it was on the kind of charm or refinement practiced elsewhere.

[Krayt]

These were the same people who, in an earlier initiative to remove the president, remember this is just the latest of many, wanted to remove him based largely on the testimony of a "secret witness". "Trust us!" said the highly motivated partisans.

[David Nieporent]

There's another thing that never happened.

[Estragon]

“very contested factual findings”

Do you mean in the actual proceeding, or in the court of the internet/public opinion?

[Dilan Esper]

I mean contested as a matter of what actually happened.

[Estragon]

Ok but “what actually happened” in some metaphysical sense is different than “factual findings” at least as far as the latter plays into thinking about what process is due.

I share your broader prudential concerns.

[loki13]

Dilan,

I have to disagree with you in part. Having litigated quite a few election cases, I am fully aware that they move on an expedited schedule. And, as you correctly note later, due process is not litigant-dependent; it is about the process that is due for particular contexts- here, an expedited process provided for by law in the election context.

Beyond notice and an opportunity to be heard (which was given), what procedural infirmities are you specifically looking at for an expedited election law case that rise to the level of a fundamental denial of due process? Such that the issue was not waived (as I believe it was first raised on appeal)?

There was a five-day bench trial after discovery. Also, this isn't about the general election (which is a separate issue) but about the primary.

I am not saying that the Supreme Court cannot find on this issue; after all, it might be a convenient way to duck the issue for now and punt it until it no longer matters. But given that this (under the theories proposed) is necessarily a state-level issue that wouldn't be ripe until candidates announce and have qualified for some type of ballot, it seems unclear how much more process is due.

[Dilan Esper]

Here’s the thing. I think the actual case for due process arguments is much more policy oriented– disenfranchising presidential election voters is really bad, so we want to impose some ridiculously high standard of proof before we do it.

But my point is if we DON’T do that and just have summary hearings and allow trial courts to judicially notice a lot of evidence about what happened, well I don’t think the trial court’s resulting “insurrection” finding should be reviewed for clear error or deferred to. If that’s what we are doing, there isn’t a great case for deference, because the trial court didn’t go through the sort of full fact-finding that justifies deference.

And TBC, what I think Baude and Paulsen are up to is they don't want a long, jury or beyond-reasonable-doubt, witness laden, subject-to-delay trial because then they may not get their disqualification before the election, but they also want whatever the trial court finds to be treated like it is the result of one, so SCOTUS can't overturn it.

[Michael Ejercito]

It is akin to a court ruling on whether FJB is disqualified, and then simply relying solely on the Stuart Scheller video as evidence that FJB is in fact disqualified.

https://www.youtube.com/watch?v=KnYzAvoCCCI

[loki13]

Um, I am truly confused by your response. Look, I get the overall policy argument w.r.t Sec. 3.

But this wasn't a free-floating cause of action. This was a specified process under state law! I've handled state law election issues, and they have certain requirements. Because they have to! And I am not sure why you say that the trial court didn't go through the "full fact-finding process" ... it went through the exact fact-finding process it was supposed to, and gave more process than this exact type of case normally receives.

And I honestly don't understand why you switch between due process depending on the context, and then making the argument that this case and litigant is special, so it needs special due process. That's not how it's supposed to work- which you know, and you already stated.

Again, this isn't about the correctness (or lack thereof) of Baude's overall argument. It's not about whether you or I think that the factual findings are correct. But whether or not, given the state law action, Trump received the process that he was due.

From a legal standpoint, what do you think would have changed if it had been a seven day bench trial instead of five days? There was never, AFAIK, any complaint from Trump's team at the trial level that there was a fundamental denial of due process. They received discovery. They were able to call their own witness and cross-examine the other sides'.

If your argument is simply that you don't think Trump should be disqualified as a matter of policy, that's fine, but that's not a due process argument.

Now, maybe there is an argument for a different standard of review for factual findings in this specific context ... but again, this is a state law case.

[Z Crazy]

Colorado had no business in this matter at all.

[David Nieporent]

You think Colorado shouldn't hold a primary at all? Just appoint Nikki Haley as the GOP nominee for November?

[Brett Bellmore]

I think no state should hold primaries. Primaries are how political parties, which are not actually part of the government, select their own candidates for public office.

States should have stuck to running the general elections.

But the stupid parties saw a chance to offload part of their expenses on the state governments, never realizing that this would inevitably lead to state governments trying to take over their choice of candidates.

It was a mistake. States should properly have no say at all in who can run for any office, and voters the only say in who wins.

[Dilan Esper]

I'm not arguing that the state failed to follow its own process. I am saying that when interpreting whether an "insurrection" occurred under Section 3, the US Supreme Court shouldn't be bound by state court factual findings in the absence of some really strong process for finding those facts at the state level.

Another way of putting this is because the ideological stakes of this case are so high, the chances of dishonest fact finding are also high. It's a similar point to the point Rehnquist makes about state law findings in his Bush v. Gore concurrence (even though he was wrong on the merits, he was right on that narrow point).

So I think if you want the state court's "insurrection" finding to be deferred to and not relitigated de novo, it probably needs to be made beyond a reasonable doubt with very strict evidentiary standards, not a lot of judicial notice, and maybe even by a jury. On the other hand, you can have a summary trial, but given the federal interests involved, the insurrection finding (and all factual findings) should get no deference and de novo review.

[David Nieporent]

I am saying that when interpreting whether an “insurrection” occurred under Section 3, the US Supreme Court shouldn’t be bound by state court factual findings in the absence of some really strong process for finding those facts at the state level.

I think Dilan's mostly wrong on his arguments, but I think he's right about the notion that Colorado's findings shouldn't be binding, let alone collaterally estopping Trump from challenging them in other states. That having been said, the Supreme Court isn't going to hold a trial, so I'm not sure how much the concept of de novo review helps. This isn't like state boundaries or water disputes; it can't appoint a Special Master to decide whether Trump's guilty of insurrection.

[loki13]

I 100% agree on the issue that the facts wouldn't be binding on any state proceeding outside of Colorado.

Which is really the issue. Even if this is all correct, the idea that we would have each state setting standards (and, potentially, multiple different standards and trials or procedures) for a national federal candidate does seem wrong. The presidency might be sui generis in this respect.

[Magister]

Who exactly are "you guys"? I haven't seen anyone saying "no basis for imposing any sort of due process requirement"; the argument has been whether there was due process in the Colorado trial. You go back and forth between saying it can't be litigant specific and that it has to be specific to this litigant. I don't know enough about any kind of litigation to judge your and loki13's disagreement, but it is clear that loki13 hasn't been grinding every convenient axe that comes to hand as you have: threat of violence! disenfranchising millions! due process! dogs and cats, living together!

[JohnTheRevelator]

I'll allow this is a lot more compelling than any of the other arguments in favor of keeping Trump off the ballot. I still don't see where an agreed legal standard has been established to say that these findings of facts, as disappointing and un-presidential as they are, rise to the level of "insurrection." The fact pattern certainly fits a riot, of which there have been hundreds just in the past few years.

I understand that none of the inciters of those riots are attempting to run for president in 2024, and thus this case is currently irrelevant to them, but I do hope the major parties are keeping a list and a folder of research on certain folks in case they show up as candidates for office. For example, nobody who participated in the CHAZ/CHOP, an explicitly proclaimed armed insurrection against the United States, should be able to run for federal office at any point from here on.

[Michael Ejercito]

Actual participants, possibly.

But absolutely not based on frivolous arguments that words promoting the Black Lives Matter®™ narrative somehow caused others to set up CHAZ in the first place.

[Brett Bellmore]

Or that taking several days before acting to shut CHAZ down was aid and comfort.

[JohnTheRevelator]

I meant actual participants. The CHAZ is a great example, though, because its leaders were armed and publicly declared that the territory they had seized was no longer part of the USA. This is all in the public record. There's no question that that fits the definition of an insurrection, but to my knowledge nobody involved was charged with insurrection (or with anything at all)

[Sarcastr0]

There is plenty of question, and if it is an insurrection it's against state law, and thus a state matter to make that legal determination.

[Z Crazy]

It's fucking obvious that Brandon's disqualified because he aided and comforted the Taliban.

It's also fucking obvious Colorado courts have no role in enforcing Section 3 against candidates for federal office.

[Bruce Hayden]

As well as the Chinese, with whom we have been at war with for all of almost all of our lives (the Korean War ended with a ceasefire, and not a peace treaty). It is fairly well documented by now that the Biden family took significant bribes from the Chinese. Of course, the real scandal is the millions of dollars paid the Bidens by Ukrainians, and the billions of dollars of aid that they have received in return. However, in the context of § 3, it probably isn’t actionable, since Ukraine isn’t an enemy, so those $billion$ aren’t comforting an enemy.

[David Nieporent]

Does Bruce Hayden not know what the word "bribe" means? Or does Bruce Hayden just hallucinate?

[ObviouslyNotSpam]

Apparently, in 2017 they bribed private citizen Joe Biden to run for President in 2020. Not sure that's how it works in law, though...

[Bruce Hayden]

This whole thing is an exercise in pure TDS delusion. The case is pure LawFare, designed to sway the next election.

Central to the CO case was admission into evidence was Nancy Pelosi’s J6 committee report, a committee that was run, in its entirety by the Democrats to destroy Trump, and gave the Republicans in the House no chance whatsoever to introduce witnesses, to cross examine witnesses, or ultimately even see much of the evidence, since much of it was encrypted and destroyed right before the Republicans took control of the House early last year. Their report contained highly cherry picked evidence, with no avenue to see the underlying evidence it was cherry picked from, even now, over a year after the report was published. It had none of the traditional indicia of reliability, required for Hearsay exceptions, yet was admitted into evidence as a government record, and affirmed by the CO Supreme Ct. That alone should disqualify the hearing as conforming to Due Process requirements. There was no cross examination of witnesses, nor presentation of their own evidence, by those, like Trump, who had a significant interest in the outcome.

Center to the decision was that Trump must have known that he was honestly defeated at the polls. He almost assuredly didn’t know that. He still doesn’t appear to know that. Neither do 75 million or so voters this year. The authors and many of the readers may know it, but a vast swath of the country doesn’t believe it, even today. Assuming absence of significant fraud to be true, absent in depth audits of the 6 critical swing municipal areas, is merely putting propaganda over reality, in any case, because of the way that the hearing was run, there was no chance for those, like Trump, whose interests were affected by the decision, to introduce evidence that there had, indeed been significant election fraud.

And then there was state of mind. The court determined Trump’s state of mind, as to whether he knew that he had legitimately lost the election, and wanted his supporters to violently attack Congress, through the highly political, J6 kangaroo court report, as well apparently through the testimony of a sociologist, who had never met Trump.

Why is the highly political J6 committee crucial here? Because it’s where the evidence that Trump knew that he had legitimately lost the election came from, as well as some of his state of mind. But that committee only included, in its report, cherry picked evidence supporting that Trump knew, and ignored the many witnesses that testified, or would have testified to the contrary. And, yes, we know many of their names by now, and what they did or would have testified to. Neither in the J6 committee, nor in the CO hearing, was there ever an opportunity by Trump and other stakeholders to counter this narrative.

[loki13]

Look, there’s a lot of falsehoods in your … post (that’s a nice way to put it), but this really stood out-

“Neither in the J6 committee, nor in the CO hearing, was there ever an opportunity by Trump and other stakeholders to counter this narrative.”

There was never an opportunity? Really?

Don’t forget that Trump was subpoenaed to testify for the J6 hearing, and refused to do so. He was offered the opportunity to testify, was subpoenaed to testify, and didn’t.

And “stakeholders” (aka, people defending Trump) did testify at the Colorado bench trial. Trump could have as well- but as we have repeatedly seen, Trump doesn’t do well when testifying, and probably chose the correct course of action in not testifying.

But saying that he was not given the opportunity to testify isn’t just a creative reading of the past, it’s a flat-out lie.

He chose not to testify, comfortable that he (and his proxies, such as you) would try their best to muddy the waters. Which, well, here we are!

[Bruce Hayden]

And who, exactly, was representing Trump in the hearing? Who was allowed to cross examine all of the witnesses against him? You know the answer to that – no one. Even if the witnesses called by the state of CO had been subject to effective cross examination, the witnesses called by the J6 committee were not.

I like that you, as seems to be usual here these days, call me a liar. It’s called argumentum ad hominem. Seeing it for what it is, points out the weakness in your arguments. If you disagree with my facts, prove it – and don’t just call them lies.

Also, you missunderstan the meaning of “stakeholders”. We aren’t talking witnesses in his favor testifying, but rather who gets to call witnesses and cross examine the other party’s witnesses.

[loki13]

No one? No one represented Trump at the hearing?

Well, you might want to take that up with Scott Gessler. He was Trump's lead attorney in the case. You know? The guy making objections to the entry of the J6 evidence. The guy doing the cross-examinations.

Do you honestly not know this, and are just repeating stuff you've heard, or are you deliberately lying? I can't tell- but hey, you can try informaing yourself of these facts, given that they are all public record.

Or keep on doing what you're doing. But just so you know, anyone with half a brain, or the ability to access public records, will know that you're unable to convey accurate information.

Integrity is all we have in life; I recommend not selling it cheaply.

[David Nieporent]

. It’s called argumentum ad hominem

No, actually, it isn't. You're a so-called lawyer who makes rookie Internet commenter mistakes. That's not what those words mean.

"Ad hominem" and "insult" are different things. Also, since you are a liar, it's not really an insult either; it's just calling a spade a spade.

[David Nieporent]

Central to the CO case was admission into evidence was Nancy Pelosi’s J6 committee report, a committee that was run, in its entirety by the Democrats to destroy Trump, and gave the Republicans in the House no chance whatsoever to introduce witnesses, to cross examine witnesses, or ultimately even see much of the evidence,

Republicans in the House had the chance whatsoever to introduce witnesses, to cross examine witnesses, and ultimately see all of the evidence. They simply chose not to exercise those opportunities, instead boycotting the committee.

since much of it was encrypted and destroyed right before the Republicans took control of the House early last year.

Never happened. Again: the only thing that they tossed out was the video testimony they didn't use; they kept all the transcripts of those depositions.

Their report contained highly cherry picked evidence,

I would hope so! What the fuck kind of report would just dump millions of bytes of raw data into the record with no filter for relevance or materiality?

There was no cross examination of witnesses, nor presentation of their own evidence, by those, like Trump, who had a significant interest in the outcome.

If you're referring to the J6 committee itself, that's because Trump or people friendly to Trump declined to do so. One cannot discredit a hearing simply by refusing to participate and then saying, "I didn't participate, so its findings don't count." If you're referring to the Colorado proceeding, you're simply lying; there was indeed cross examination of witnesses, and presentation of his own evidence, by Trump.

He almost assuredly didn’t know that.

Unless you're arguing that he's suffering from paranoid delusions that make him unfit under the 25th amendment, of course he did. Setting aside the utter lack of evidence for any other position, every single one of his own people who looked into it told him that. Also, his own lawyers admitted that when challenging the elections in court.

[Michael Ejercito]

The whole idea boils down to the argument that Trump's speech at the ellipse somehow, magically caused people to riot.

to merely state this is to refute it. The concept is completely absurd..

I mean, sure moving faster than c with respect to a local inertial observer is impossible, but at least the idea is intelligible.

[Brett Bellmore]

I thought they had other arguments, but in the oral argument, yeah, he went all in on that. That you could literally disqualify Trump on the basis of his speech, and nothing more.

I think Murray gave up on winning pretty early in the oral argument, and started just arguing for the op eds.

[Michael Ejercito]

That is the only "argument" they have that Trump caused an insurrection.

There were no evidence of communications between Trump and the rioters, no evidence of coded messages.

[Brett Bellmore]

No, there's also the argument you see occasionally that Trump's plan to persuade Congress to count fake electors, or not count real ones, or whatever it took, was an "insurrection".

But that's such a hard sell they have to pretend the break in was part of it.

You see that one all the time here. But the actual lawyers apparently didn't want to touch it.

[Michael Ejercito]

What is a fake elector anyway?

did they have fake ID's identifying them as the real electors?

Were they planning to kidnap the real electors and replace them?

[David Nieporent]

A fake elector is someone who wasn't appointed by a state as one of its electors pretending to be one (going so far as to sign sworn documents to that effect) and then acting as one. You know, similar to when someone is a fake police officer, wearing a uniform and badge and holding himself out as one despite the lack of any lawful authority to do so.

[Bruce Hayden]

Actually, as has become evident with the videos released by the House after the Republicans took control of it 13 months ago, the Capital Police actually triggered the riots by firing non lethal munitions into the crowd without sufficient provocation, and killing 2-3 protestors without any real danger to the Capital Police personnel involved legally justifying the killings. Plus, being incited to riot by numerous federal agents and their surrogates, plus a couple bus loads of AntiFA, mixed into the crowds. AG Garland, under oath, and knowing that he would be asked the question, refused to tell Congress how many assets (agents and their surrogates) his department (including the FBI) had at the Capital that day, claiming that he didn’t know.

[loki13]

DING DING DING!

And there we have it. Okay, we can now see that little things like "facts" aren't terribly important.

I appreciate the clarification.

[Brett Bellmore]

"and killing 2-3 protestors without any real danger to the Capital"

Look, I call BS when they dish it out, I'm going to call BS when people I generally agree with dish it out.

Aside from Babbit, everybody who died at the Capitol did so of natural causes, or at least non-violent. (There was one drug OD.)

I'm not saying they didn't injure some of the protesters. But only Babbit got "killed".

[Bruce Hayden]

Continuing

The authors gloss over some other points. There was no trial. It was an expedited hearing under the CO election laws, aimed at deciding election disputes quickly, prioritizing quick closure and finality over accuracy. Worthy goals, for a post election dispute. The CO Sup Ct accepted it as comporting with Due Process, by minimizing the stakes involved. They pointed to the interests of the yet-to-be-named Trump electors, who had de minimis stakes in the outcome, since had yet to be named, and never will be under the CO decision. Using this minimization of the interests involved, they reasoned that minimal Due Process was required, and a 5 day hearing without any other (which means any here) stakeholders being able to introduce evidence or witnesses, or cross examine opposing witnesses, etc, was sufficient. Yet, these possible future electors weren’t the real parties at interest. They were Trump and the 75 million plus voters likely to vote for him this year.

And that is the big problem here with the CO decisions, in terms of Due Process. Form was exalted over substance. Most everyone knows that the purpose here is to keep Trump off the ballot, in as many states as possible, so that he can’t win the election this coming November. Why don’t/didn’t Trump and his >75 million voters (or even his probably 1 million voters in just CO) have a stake in the outcome here? If this decision is viewed as disenfranchising all them, instead of just to-be-named Trump electors, I will suggest that the 5 day hearing, without the major stakeholders having the ability to introduce evidence and witnesses, cross examine witnesses, etc, is insufficient Due Process.

[loki13]

Again, with the falsehoods.

It was a five day bench trial. As far as due process goes, on appeal the Colorado Supreme Court noted that Trump failed to identify any single issue on which he was prejudiced- not a single offer of proof related to any evidence he would have offered, or discovery he would have conducted. Instead, he chose a litigation strategy to contest issues of law instead of fact. That was a choice, not a deprivation of due process.

In addition, you omit the fact that the trial court utilized a case management approach to ensure that the parties (INCLUDING INTERVENORS, that you omit) would be able to litigate the case fully and fairly, including pre-trial motions (with rulings) and a five-day trial that included the usual- opening and closing statements as well as direct and CROSS-EXAMINATION of the witnesses.

I honestly don't know how you can write this. It's one thing to make good-faith arguments, but what you're doing?

[Z Crazy]

Beside the point.

Colorado courts had zero authority to enforce Section 3 against federal candidates- not against Trump, not against Brandon.

The whole thing should be vacated on this basis.

[loki13]

Who runs the primaries? I didn't realize that primaries were federalized.

But hey, learn something new every day! Not about election law, more about what crazy things people think.

[Michael Ejercito]

It is federalism.

A lot of discussions about federalism is about what feds can not do. It is argued that the issues of education and health care within a state are primarily a matter of the state's concern; the feds' only role is to provide a remedy for civil rights violations arising from the state's enforcement of its policies.

The flip side is that some things are reserved exclusively to the feds. One of those things is judging the qualifications for U.S. constitutional offices. That is an exclusive fed power.

[David Nieporent]

judging the qualifications for U.S. constitutional offices. That is an exclusive fed power.

There is no textual or historical support for that claim.

[Michael Ejercito]

How could states have reserved the power to judge the qualifications of federal offices if they never had the power in the first place? That sort of turns the supremacy clause on its head.

[David Nieporent]

You'll have to take that question up with Thomas, who argued in U.S. Term Limits v. Thornton (and continues to argue) that states inherently have that power. But the rest of SCOTUS held that states derive their power from the Constitutional grant of power to the states to run elections, not that it's a reserved power.

[David Nieporent]

And it's not Trump's position. Trump's position is that A14S3 is different than other qualifications, not that states can't judge qualifications for federal office.

[Z Crazy]

Some dude just tweeted this.

https://twitter.com/JonathanTurley/status/1755630474725122511

...Justice Alito just asked Murray if military officers could have refused to take orders from a president who engaged in insurrection. Murray suggested no. But Gorsuch jumped in to say you said he was disqualified "from the moment it happens." This is a hit below the waterline for Murray and he is struggling

That makes sense. Only the feds can decide if the president (like Brandon) is disqualified, and only under authority given by the congress. The military wasn't given this authority, even though they're part of the feds.

[Michael Ejercito]

Turley tweeted this.

https://twitter.com/JonathanTurley/status/1755631124565414285

...Murray stabilized the ship a little but saying that, while they are in office, impeachment is the only remedy for removal in such a circumstance.

I would also add the Victor Berger case, where Congress exercised its constitutionally-vested power to keep Berger out of office.

Nothing in the Constitution granted the states the power to disqualify a federal official.

[Sarcastr0]

The amount of deflection here should be telling.

Some folks here are deluded and believe they have the facts. More just want to argue their side is right, and will switch to whatever thesis feels like firmer ground for them.

That is bad faith in effect, if not in intent.

[Michael Ejercito]

Here is Glenn Greenwald's take.

https://twitter.com/ggreenwald/status/1755646495594852793

Imagine how badly things went in Oral Argument for proponents of striking Trump from the ballot if even CNN is admitting it's highly likely that most - if not all -- of the Supreme Court Justices will reject Colorado's decision to ban Trump from the ballot.

[David Nieporent]

Oh, no, if opponents of Trump have lost Glenn Greenwald… they’ve probably also lost Michael Tracey and Tucker Carlson.

[MaddogEngineer]

Having listened to the oral argument this morning, all I can say is…LOL facts.

All the pompous posturing by the likes of Baude/Paulsen (NINE!), ridiculing anybody who dared disagree with them and their “facts, it’s gratifying to see their presumptions mostly shredded. It’s almost like their disdain for Trump blinded them to reality. Stop the wishcasting because you fancy yourself a clever lawyer.

Of course, the single biggest presumption is that it’s indisputable that Trump engaged in insurrection. As I believe Alito asked: according to what standard exactly? What I’ve been saying since the beginning, especially since there’s a federal criminal insurrection statute just hanging out there waiting to be utilized. Self-executing RIP

And when you even may have lost KJB on whether section 3 even applies, because it conspicuously omits P/VPOTUS… double LOL

[Brett Bellmore]

Yeah, I'd concede that. The problem is that megalomaniac levels of terrible are par for the course in politics. Your average high level politician is a monster by ordinary standards. Even a century ago, Mark Twain could write that members of Congress were this country's only native criminal class, and not raise any eyebrows.

It's only gotten worse with 'reforms' that made campaigning the only relevant skill for holding office.

I mean, do you think that Gore really thought that he'd gotten more votes than Bush in Florida? You really think that?

Of course he didn't. He just thought that enough sloppy counts, and lightning might strike, especially if the counting was done by people who preferred him.

[Dr. Ed 2]

Terrible is not illegal.

And you gotta admit that an election in which Civil War veterans voted had at least a few "problems"...

[DaveM]

[DaveM]

No, I don’t concede the “deliberately false” point in this case at all. Trump to this day says he believes there was fraud. DELIBERATE fraud could only ever be proved by a confession that it was deliberate, which he has not given.

"Facts matter", indeed.

[rloquitur]

First of all, I don't think that Schumer should, in any way, be prosecuted for that speech--what whirlwind is a judge supposed to reap. Second, fight is standard fare for any political speech. Come on. Certainly, you have more than that.

[Michael Ejercito]

One actually threatened adverse consequences.

[Brett Bellmore]

Personally, I don't plan on voting in this state's presidential primary this year. Don't see the point, there isn't going to be anybody on the ballot I actually LIKE, and my vote's not going to matter anyway.

In 2000, I kind of liked Alan Keyes. Sat out the 2004 primaries, 2008&12 Ron Paul, 2016 his son. This year DeSantis.

I have terrible luck with the GOP primaries. My liking a candidate is the kiss of death.

[Dr. Ed 2]

That's a lovely legal argument QA.

Someone is a disgusting person, therefore he is guilty.

Don't we have several thousand years of a concept of "rule of law" that is explicitly intended to NOT make such decisions.

Take the infamous case of the "Scottsboro Boys" (the age of majority was 21 back then, so OK, "boys" but I don't think that was the intent). The community said "they are niggers, therefore they are guilty." So what if you have a MD saying the (White) girls are still virgins, they were raped anyway...

And some of the folks that the Klan lynched (not all of whom were Black) might actually have been guilty of something -- that doesn't justify what the Klan did. Or are you prepared to defend Klan lynchings?

Look, Queen, you either believe in the concept of "rule of law" and are willing to extend that to Donald Trump -- or you don't really believe in it. So which is it?

[Bob from Ohio]

"vote for Trump over Haley "

Because they like's Trump's views better? And don't think your phrasing is accurate?

[Brett Bellmore]

what whirlwind is a judge supposed to reap?

No, I don't actually think Schumer was threatening assassination, he was just plotting Court packing, more likely. But if judged by the Trump standard, that's what he was obviously doing.

[Dr. Ed 2]

Brett, I met Ron Paul at CPAC in 2010 -- he was senile (or something) -- not as bad as Coma Joe, but not POTUS material either. Mortality is sad but real.

[Brett Bellmore]

Yeah, I'm not shocked, he was getting pretty old at the time.

Again, we REALLY need an age limit on holding elective office.

[Nige]

'The problem is that megalomaniac levels of terrible are par for the course in politics.'

No, that's not the, or even a problem. That's an attempt to downplay what Trump did, even though there's absolutely nothing to compare it to in recent political history.

'I mean, do you think that Gore really thought that he’d gotten more votes than Bush in Florida?'

He didn't have to think he did or he didn't, he just had to think they should be recounted to make sure. But he did absolutely nothing comparable to what Trump did. The worst you can accuse him of is that somehwere in the hidden recesses of his mind he might have thought... something. Nobody was in any doubt about what Trump was and still is saying, and that he's lying.

'He just thought that enough sloppy counts, and lightning might strike, especially if the counting was done by people who preferred him.'

Based on absolutely nothing, you claim this, yet Trump's actual words and actions and the resulting riot mean nothing. Fucking hell.

[Stephen Lathrop]

Funny thing is, a lot of Twain's writing was about going out of his way to not be taken seriously. He's famous for that.

[Nige]

'But if judged by the Trump standard,'

You have regressed to childhood.

[rloquitur]

I don't really care what Schumer meant. The punishment for his words should be at the ballot box (writ large, i.e., the Senate) and nowhere else.

[Dr. Ed 2]

Brett — it is Hosea 8:7 — in the Bible. Here it is in context — emphasis added:

1.“Set the trumpet to thy mouth. He shall come as an eagle against the house of the Lord, because they have transgressed my covenant, and trespassed against my law.
2 Israel shall cry unto me, My God, we know thee.
3 Israel hath cast off the thing that is good: the enemy shall pursue him.
4 They have set up kings, but not by me: they have made princes, and I knew it not: of their silver and their gold have they made them idols, that they may be cut off.
5 Thy calf, O Samaria, hath cast thee off; mine anger is kindled against them: how long will it be ere they attain to innocency?
6 For from Israel was it also: the workman made it; therefore it is not God: but the calf of Samaria shall be broken in pieces.
7 For they have sown the wind, and they shall reap the whirlwind: it hath no stalk; the bud shall yield no meal: if so be it yield, the strangers shall swallow it up.

The Lord is essentially threatening to destroy Israel — I kinda think that is a reference to violence…

[Dr. Ed 2]

There is a dual standard of justice in this country -- the left can do no wrong and the right can do no right.

[Bruce Hayden]

That’s just silly. The counting was cut off at about 3 A M in those 5-6 big cities across the country, Republican election judges were thrown out, the counting resumed, and all of a sudden, in each location, where Trump had been safely ahead by several hundred thousand votes, Biden picked up hundreds of thousands of votes, none under the eyes of bipartisan election judges. Meanwhile there was video of large numbers of ballots coming in the back door, and in some cases run through counting machines multiple times. Moreover, there was typically no valid audit trail for these ballots, etc.

Saying that Trump should have shared your view that no election fraud occurred election night is nonsensical. Trump saw the same evidence that the half the voting public saw, that convinced them that Biden had been fraudulently elected. And guess what? Over the last 3+ years, the evidence has grown. It continues to grow, with a case a week or two ago showing how insecure Dominion election machines were, and how quickly they could be hacked.

[Michael Ejercito]

No, that’s not the, or even a problem. That’s an attempt to downplay what Trump did, even though there’s absolutely nothing to compare it to in recent political history.

Oh, yes there is. Glenn Greenwald explains it.

https://rumble.com/v4azhqc-system-update-show-222.html

[DaveM]

Sorry, deliberate LIE, not fraud.

[David Nieporent]

See, the person above who tried to defend DaveM: there's no excluded middle. DaveM thinks that nobody can ever be convicted of lying unless they confess. Except he doesn't really believe that, because it's such a stupid argument that it makes Dr. Ed look like a scholar; he's just saying that.

[Nige]

'Saying that Trump should have shared your view that no election fraud occurred election night is nonsensical.'

I didn't say that. I called him a liar. And you're a liar too. Or pathetically stupid.

[David Nieporent]

Not one word of this post is correct. No counting was "cut off." Obviously people didn't work all through the night. No Republican election judges were thrown out. There was no counting without Republican election judges. There were no videos of any ballots coming in through back doors, and no videos of ballots being run through counting machines multiple times. Every word is a lie. Bruce Hayden should note that Rudy Giuliani is being disbarred for these sorts of lies.

[Nige]

Greenwald can go fuck a duck.

[Michael Ejercito]

Greenwald is better than you are.

So is Michael Tracey.

So is a duck.

[Nige]

The right just keeps breaking the law.

[Nige]

He should also note that Trump stiffed Giuliani 2 million, he really doesn’t care about anyone else.

[Nige]

They can have fun fucking each other.