All My Trials

 

From Trump's petitioner brief to the Supreme Court re Trump's Colorado disqualification; I think it's pretty much the same as what the Minnesota Supreme Court decided in their version of the case, and it's what I've been saying since August—Section 3 doesn't say insurrectionists should be kicked off the ballot, it says they can't hold the office.

That's what the text plainly says, and it's how the provision has historically been applied, most notably the only time it was applied between Reconstruction and Trump, in the Red Scare expulsion of Victor L. Berger (Socialist-WI), who was convicted of espionage in 1919 over his opposition to World War I, subject of numerous editorials in his newspaper, the Milwaukee Leader, and given a 20-year sentence:

Even though Berger was under indictment, the voters of Milwaukee once again elected him to the House of Representatives in 1918. When he arrived in Washington [after his trial and conviction in February 1919] to claim his seat, Congress formed a special committee to determine whether a convicted felon and war opponent should be seated as a member of Congress. On November 10, 1919, they concluded that he should not, and they declared the seat vacant,^[27] disqualifying him pursuant to Section 3 of the Fourteenth Amendment to the United States Constitution.^[28]

He then ran again in the special election called to replace him, in December, and won that one as well, upon which the House refused to seat him and declared the seat vacant again.

Meanwhile he'd appealed his conviction, which was eventually overturned (in January 1921, sadly not on freedom of speech grounds—it was a bad time for the First Amendment—but because the judge, the famous Kenesaw Mountain Landis, should have been disqualified owing to his irrepressible prejudice against Germans and persons of German descent, including Berger, who was 18 when he came to the US with his parents from the Austrian empire in 1878, and spoke English with a strong accent).

But the main point is that he was not scratched from the ballot as an insurrectionist, in spite of his conviction, in two separate elections, including one after his official disqualification by Congress. The same goes, by the way, for Socialist presidential candidate Eugene V. Debs, who was actually in prison for the same crime when he won 3.4% of the vote in the 1920 presidential election. Nobody ever thought of it until this past year.

Debs, incidentally, gave Berger the credit for converting him from a simple labor agitator to all-out socialist, when Berger came to visit him in his cell after he was jailed for participating in the 1894 Pullman strike:

Books and pamphlets and letters from socialists came by every mail and I began to read and think and dissect the anatomy of the system in which workingmen, however organized, could be shattered and battered and splintered on a single stroke [...] It was at this time, when the first glimmerings of socialism were beginning to penetrate, that Victor L. Berger — and I have loved him ever since — came to Woodstock [prison], as if a providential instrument, and delivered the first impassioned message of socialism I had ever heard — the very first to set the wires humming in my system. As a souvenir of that visit there is in my library a volume of Capital by Karl Marx, inscribed with the compliments of Victor L. Berger, which I cherish as a token of priceless value.^[14]

The first 21st-century use of Section 3 also took it as involving holding an office, not running for it, when Cowboy For Trump Couy Griffin was kicked out of his position as a county commissioner in New Mexico for participating in the January 6 insurrection. As Trump certainly should be, if he gets reelected president (of course if he gets reelected Republicans in Congress will surely be able to stop him from getting kicked out).

But I'm betting he will be on the Colorado Republican primary ballot. For what it's worth. Not just that the fix is in with the Supreme Court—I'm not sure that it is, with Trump—but I think their interest above all is just to not be the ones who decide whether Trump was in an insurrection or not, as the authorities in Colorado and Maine found that he was. The easiest thing for them will be to say that Section 3 doesn't authorize state governments to make the decision, and the Supremes don't have to answer it; and I think that's what they'll do.

By the same token, I think they also won't want to be the ones who decide whether or not Trump has immunity in the January 6 charges, obvious thought it may be to you and me that he doesn't. I'm convinced after the DC circuit court officially finds that he doesn't, as they are bound to do (it's ridiculous to imagine any other outcome, and the opinion won't address any controversial issues, because we've known the answer since 1974.) the Supreme Court will let it go through the shadow docket, decline to hear it at all or issue an opinion or even tally the votes, and let the circuit court's decision stand. And the trial will be starting very close to the designated March 4 date. And we really can hope to see a conviction before the November polls.

Also incidentally, Berger was a great congressman, a democratic socialist and gradualist, though his ideas were too wild for the time, including getting rid of the presidential veto, abolishing the Senate, and the first ever bill in American history proposing a pension system for the aged. And nationalizing the radio broadcast spectrum, inspired by the Titanic sinking.