Thread by @jentaub

Here we go.



1/ mncourts.gov/SupremeCourt/O…

Counsel for MN voters, @ronfein: is a case of extraordinary importance." Trump engaged in insurrection and rebellion against the Constitution of the United States

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@ronfein 1. Section 3 of 14th Amendment is self-executing. Court has duty to interpret & enforce Constitution

2. MN law requires this Court to regulate ballot excess and exclude ineligible candidates

3. President is officer of US and took oath that is equiv. to "support"

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@ronfein Chief Justice Hudson of MN Supreme Court says, assuming you are correct, "should" we make this determination. Possibility for chaos with many states

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@ronfein Ron Fein says in respond, the court has the obligation to do so, it's a must, not a should.

Also, if Trump loses here, he could appeal to SCOTUS, so there won't be 51 different decisions. (He says 51 because DC gets to vote for President).

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@ronfein The chief judge asked about a variety of cases that she said related to political question. Ron explained why those were not applicable here.

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@ronfein Another justice asked about professor's amicus brief that there are not similar set of facts under the section 3 of the 14th where there is a factual dispute here whether there was an insurrection or rebelllion (as opposed to cases like age or citizenship).

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@ronfein But Fein points out that with Obama there were factual disputes which the state could resolve. Even though it was frivilous

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@ronfein Another justice asked why the president was not mentioned in section 3. Is this because we vote for the electoral college. Is the presidency not an office?

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@ronfein Fein explains that if section 3 had only mentioned officer of the united states, there could have been an ambiguity as to whether senators and reps could be included. Needed to be added as these legislators would not have been thought included

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@ronfein Ron Fein is doing brilliantly here. This is the argument of a life time. Bravo @FSFP!

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@ronfein @FSFP Fein said Trump did not reference any law dictionaries of that day.

Now, that same judge says the Trump argument is that it's Congress that decides or assess qualifications. Why is that argument not right?

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@ronfein @FSFP Ron Fein says Section 3 ONLY allows Congress to remove the ineligibility (the disability), not to decide the qualifications.

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@ronfein @FSFP Another justice (maybe the chief), she asks about the interplay with other Constitutional provisions like the impeachment process under the 12th amendment suggesting there's a fundamental role for Congress to play.

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@ronfein @FSFP She said this might be a national matter for Congress to decide given the interplay.

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@ronfein @FSFP Fein responds to both of them by pointing first to Section 2.

He said neither the 12th or 20th amendment give Congress the power to establish elegibility.

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@ronfein @FSFP Fein's hypothetical. MN would not be able to list Barack Obama on the ballot now given that he is ineligible having served 2 terms.

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@ronfein @FSFP Furthermore, Fein said the vote to acquit in the Senate is not "res judicata" meaning it does not settle the issue nor bar this case. The impeachment power does not control. Also because 2/3 needed to "convict."

These are not exclusive powers

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@ronfein @FSFP A justice asked is there a different between holding office and putting his name on the ballot.

Fein says section 3 of US Constitution prohibits holding office, but the Minnesota statute says you cannot be on the ballot if you are not eligible to serve.

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@ronfein @FSFP Fein says law applies to any candidate on any official ballot.

Is the word "eligible" the judge asks at time of placing on the ballot or of the time of taking office

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@ronfein @FSFP Fein says Trump has not even asked for amnesty under that 2/3 vote in section 3, so he is ineligible unless and until Congress removes the disqualification

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@ronfein @FSFP The Chief asks him to deal with the Griffin case. She says it is not precedent or binding on tem, yet it is squarely on point. "What do we do with that in terms of its value to us." That case said Section 3 was not self-executing.

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@ronfein @FSFP Fein said that Griffin involved an issue in an un-reconstructed state, so perhaps at best it would apply to a territory today, but not a state.

Fein said Worthy v. Barrett shows that states courts were adjudicating cases involving keeping insurrectionist off ballot

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@ronfein @FSFP Fein closed with asking for a prompt evidentiary hearing. He has reserved time

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@ronfein @FSFP We know have the attorney for the MN Secretary of State. He said the election systems are "the envy of the nation." The officials need this resolved no later than January 5th to prep for March.

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@ronfein @FSFP Said Secretary of State is not taking an issue on the merits. He does believe it is ripe for adjudication

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@ronfein @FSFP He also argued that even if they don't think it's ripe they should still hear it under a narrow doctrine that would allow this to be heard. He was done and wanted to cede his time, however court has questions for him

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A justice asked attorney about what the word "filed" means. He said "my guess is that the reality" that some candidates end up on ballot that did not file in that way did not occur to them at the time. That said, MN Sec'y likes this provision 204B.44 is important provision

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This attorney for the MN Secretary of state rejected Trump hyper literal interpretation of the word filed. Also the concept of "error."

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BIG. The attorney for the MN Secretary of State said it has to be the time that the balloting is taking place is that is what the court has at hand." He said he thought the way Fein on behalf of the petitioners were correct.

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YET, he does not agree that the Secretary of State has the authority to decide whether Trump is eligible under the Oines decision.

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Now attorney for Donald Trump and for the Trump 2024 campaign is speaking. He begins with saying this is a political question and the court does not have authority.

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He refers to the Oines decision. I am hoping that Fein gets the chance to rebut.

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A justice asked Trump's lawyer how to deal with Oines in that the Justice says why doesn't it actually only talk about what the Secretary of State can do as oppose to what the MN Supreme Court can do?

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A justice asked is this uncharted as Professor Muller's brief said.

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A justice says the Hasan case says states can and should block an ineligible candidate in order to protect the integrity of the ballot.

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He said if "known to be ineligible" not a political question. Says with a 27 year old, everyone agrees.

But a justice says that seems like circular argument. What about a natural born citizen? Is that a political question?

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The justice said what is the rationale for that? Is it only because a question of natural-born citizen involves the court in fact-finding? But not meeting the age 35 requirement is not fact-finding?

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One of the justices said that Trump's "political question" doctrine is a major problem for petitioners.

But what about the major role Constitution gives to the states on elections

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A justice is now talking about Chief Justice Chase opinion in Griffin from 1869 saying the Section 2 is self-executing... but she as well as Trump's lawyers say Griffin is not binding.

Shouldn't we acknowledge what plain meaning is

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This part of the discussion is very important. The chief justice says they clearly thought it was self-executing otherwise, she asked Trump's lawyer why was Congress passing the amnesty bills for the confederates?

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Trump's lawyer says the states were told by Congress that they had to do this. He's speaking now of the quo warranto act.

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When asked by a justice what is an insurrection against the United States Constitution.

He said Trump says it has to be overthrow of US government. NOTE: Trump's lawyer dropped the key word "Constitution" which is what Section 3

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Trump lawyer said what happened on Jan. 6 was a crime, but "did not reach the scale of scope of what would be regarded as an insurrection."

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Now one of the justices says to Trump's lawyer, doesn't this mean there needs to be a hearing?

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One of the justices says do you reject the Republican National Committee amicus brief examples: They mentioned riots in 2020, immigration issues.

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Trump's lawyer says it's better if those levels of disturbances don't rise to level of insurrection.

Another justices says I think they were raising that as a political question

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Trump's lawyer says petitioners want this to be a one-off, but people like to sue so there will be many cases.

My comment: But SCOTUS could resolve this if Trump loses here and he appeals

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Now they are saying Congress has power to enforce the provisions of 14th amendment. But this is not exclusive, but Trump's lawyer is saying that's what it meant.

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Trump's lawyer says the 20th amendment implicates the political question issue.

He says dismiss for lack of jurisdiction or on the merits.

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The next attorney has five minutes. Reed Lebow (sp?) is here on behalf of the MN Republican Party.

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Immediately a justice began asking questions.

Lawyer states have a lower interest in Presidential elections. But he said the function of a primary is different as it's about each party to choose their standard bearer and this puts too much of a burden on the first amendment

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A justice asked does the Republican party take position they could be someone under 35 on the ballot?

He said no

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The attorney for the Republican Party said petitioners are confusing ineligibility with disability

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A justice asks why does it have to be in dispute for this argument.

Lawyer said with article II disability you don't need a fact-finding to meet criteria.

But Section 3 of 14th amendment is more difficult to establish.

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THIS! The justice says maybe that's why we should have an evidentiary hearing as petitioner said.

RNC lawyer said the problem is there would be 50 different states and ballots

But justice says, no, that's why we have a US Supreme Court where this probably should be dedided

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Now Republican party lawyer is talking about Article II eligibility vs. disability under sec. 3 of 14th amendment.

Justice says, we know what age means, and we know what natural born citizen means, but we don't really know what the words "insurrection or rebellion" mean

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This lawyer said neither Congress or the states have establishing any controlling authority about what those words mean

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Fein now has rebuttal for 10 minutes.

He said Section 5 was misquoted. It says Congress "shall have power."

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Fein says it's not true that Article II does not provide the ONLY qualifications. The 20th amendment allows for only 2 terms for president. That is a qualification. Barack Obama could not be on ballot again.

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Griffin can be distinguished, because their was the fear that the past decisions would be voided.

Under the subsequent de factor officer doctrine, there would be no problem decisions made by Donald Trump from January 6, 2021 through the 20th.

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A justice asked, and Fein answered, there were amnesties from states like TN, from all over the south for amnesty, not just the 6 states where Congress said needed to act

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Now we have I think the Chief Justice says it does seem like it's a lot of power in one person, the Secretary of State can make this disqualification without any due process for the candidate to challenge it.

"Am I reading your position correctly?"

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"Insurrection might be in the eye of the beholder" said the chief justice.

Fein said there is a mechanism. There is due process. A candidate can file a position under the same statute to challenge the Secretary of State.

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This court has authority to correct errors under the statute even if the filing officer did not have the authority.

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Fein gives an example of several cases where the MN Supreme Court removed a candidate who didn't really live where he said he did on the filing to be on ballot. In that case the filing officer did not have the authority to investigate where the candidate actually lived.

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Once again, Fein is hitting this out of the park. Seriously a brilliant argument.

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Rebellion happened even before the Civil War. The Succession by the confederate states was such a rebellion.

The language in section 3 is about the insurrection or rebellion "against the Constitution."

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Brilliant. Succession is to the Civil War as the actions Trump took re electoral college fact votes etc are to the riots on January 6.

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Fein says courts have to make factual findings.

Also, Fein says something that is a "political question" under Baker v. Carr is the OPPOSITE of what the lawyers on the other side side. What he is asking for here is factual determination

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Oines is dictum building on dictum building on dictum which has been superceded. (9th Circuit overruled in Lindsey v Owen)

That cases was dismissed mostly because laches (which has to do with sitting on your rights).

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Done! Case submitted.

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