Friday, February 9, 2024

Court and Snark


Photo by Julia Nikhinson/Getty Images, via CNBC.

It's looking pretty clear from this morning's oral arguments in the Supreme Court, and falling out pretty much as I expected: Trump's appeal against his disqualification in the Colorado primary election will succeed, and I'm predicting that the appeal he's supposed to submit Monday against the DC ruling on his presidential immunity will be denied, without arguments, by May 12, for trial to begin no later than June 1 (per the flow chart created by Just Security). 

In fact the fix appears to be a little bit in, not exactly in a bad way, not on Trump's behalf but on those of the nine Justices, united as we've never seen them in their desire to avoid deciding whether Trump had "engaged in" an insurrection or not. Roberts practically wailed: "Counselor, you're saying that somebody, presumably us, would have to develop rules for what constitutes an insurrection?"

Oh noes, not more work!

One of the most remarked features of the arguments was how little interest anybody, attorneys on both sides or Justices, showed in talking about that. They were openly avoiding talking about it in favor of just about anything else, mostly the technicalities the Constitution doesn't mention at all, of how Amendment 14 Section 3 is supposed to be administered.

I think a lot of people are missing how this is a problem for the three "liberal" Justices as well. To keep it short, they have a likely choice between  a 6-3 decision suggesting Amendment 14 Section 3 really doesn't mean anything at all and a 9-0 decision leaving the question open—where I think they're going, which is to lay the burden on the Amendment's neglected Section 5,

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article

the origin of all our civil rights legislation. Congress also originated most of the actions under Section 3 in the 19th and early 20th centuries, and now they are going to have to come up with some guidelines as to who determines what an insurrection is and who has engaged in one, or else we all have to assume the thing is as dead as the 3rd Amendment. It's a really bad time to ask SCOTUS to do it, in the middle of a presidential campaign, and especially shortly before the opening of a major trial which one of the candidate stands accused of doing something very like that, though the special prosecutor has elected not to call it "insurrection or rebellion against the Constitution" though what the charges do call it, participating in a sometimes extremely violent conspiracy to block the certification of the 2020 election in an effort to keep the incumbent president unconstitutionally in power, certainly sounds hostile, and directed against the Constitution. 

The finding in Judge Chutkan's court on the January 6 case will either contradict the Colorado finding, if Trump is found not guilty, or nationalize it, if he is convicted, and in this way considerably raise the stakes (Colorado wasn't going to give Trump any electoral votes anyway). If he is guilty, we instantly face the question of whether he should be struck from the ballot in all 50 states, and SCOTUS will be delighted to be on the record as having said only Congress can do that, knowing there's not a chance Congress will. (Encouraging this outcome could be a reason for the energy Leonard Leo is said to have been putting into defeating the Colorado court.)

And the January 6 case is the other end of the stick here: the decision on the Colorado case is the ostensibly pro-Trump decision that will balance out the anti-Trump decision when the Court denies cert to Trump's stupid immunity petition, allowing the Justices to rid themselves of that case too without putting anything in writing, and permitting the trial to go forward at a reasonable date and finish well before the presidential election.

(quoted material there from Richard L. Hasen/Slate)

Because they really have to deny Trump's appeal, one way or another: the one where he claims as president he could have a Seal team assassinate his enemies and couldn't be charged with a crime (unless after he was impeached and convicted in the Senate for the same crime). It's just too dumb. And the unanimous opinion from the DC Circuit rejecting it, which came out a couple of days ago, is too good. Calling it into question in oral arguments would be humiliating for them. So the conservatives have exacted this rejection of the Colorado disqualification to make themselves feel better.

Thus, it really looks good for a verdict in the case, which could have a seriously damping effect on Trump's electability (that's what the polls are saying, anyway). No chance of seeing Trump in prison, of course—he'll appeal—but damping nevertheless. I'm also excited with the hope we'll soon learn the money damages in the New York fraud case, which will be up to $370 million in addition to the nearly $90 million he owes E. Jean Carroll, and require him to dismantle his business interest in the state, though I don't know how that will affect his standing with the public at all (they seem to have been largely indifferent to the news that he's a court-certified rapist). But if he has to sell the triplex where's he going to stay when he comes to New York?

I'm sure there are other tricks up his, and the Supreme Court's, sleeves that might rescue him. One I actually know about is an appeal from one lower-level January 6 defendant, a Pennsylvania ex-cop called Joseph Fischer, who was convicted of assaulting a police officer and disorderly conduct in the Capitol, and obstruction of a congressional proceeding. His attorneys claim that the law on the last count is meant only to apply to evidence tampering, not to efforts to stop election certification. A finding in his favor, which we should hear about before June, could definitely affect the case against Trump along with dozens or hundreds of other criminals.

But on balance I still think the tone of yesterday's arguments is generally better news than you might think.

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