Roger Parloff Profile picture
Dec 22, 2023 29 tweets 8 min read Read on X
Some belated thoughts on the Colorado Supreme Court’s historic ruling Tuesday that Trump is disqualified from the presidency as an insurrectionist. I’ll start with the dessert and then get to the medicine. ...
/1bit.ly/3vcCJTW
... Right after Jan. 6, when people first started talking about § 3 of the 14th Am, I assumed that when the matter finally reached SCOTUS, Justices Alito & Thomas would write separately—no matter what the rest of the court did—to say that Jan. 6 wasn’t an insurrection. ...
/2
... But today, with more knowledge about both § 3 & J6, such an opinion “won’t write,” as clerks say. You'd have to ignore every relevant judicial ruling, dictionary definition, grand jury charge, & treatise and rely, instead, on @WSJ op-eds by former Trump Adm folks. ...
/3
... As the SCOCO majority wrote, one can quibble about the outer contours of "insurrection," but “[a]ny definition ... would encompass a concerted & public effort ... to hinder ... the US govt from taking the actions necessary to accomplish a peaceful transfer of power.” /4 Image
... Claiming that Trump didn’t “engage in” the insurrection also fails. Even if a SCOTUS justice isn’t willing to disqualify, he/she won’t try to make that argument. Doing so would enshrine their disingenuousness in the US Reports forever. ...
/5
The SCOCO majority wrote (with no dissents on this): “As our detailed recitation of the evidence shows, President Trump did not merely incite the insurrection. Even when the siege on the Capitol was fully underway, he continued to support it ...
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... by repeatedly demanding that Vice President Pence refuse to perform his constitutional dutyand by calling Senators to persuade them to stop the counting of electoral votes. These actions constituted overt, voluntary, and direct participation in the insurrection.”
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SCOCO also found (with no dissents) that Trump’s Ellipse speech overcame 1st Am bars & constituted incitement : “We agree that President Trump intended that his speech would result in the use of violence or lawless action on J6 to prevent the peaceful transfer of power. ...”
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“ ... Despite his knowledge of the anger that he had instigated, his calls to arms, his awareness of the threats of violence that had been made leading up to January 6, and the obvious fact that many in the crowd were angry and armed, ... “
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... “Pres. Trump told his riled-up supporters to walk down to the Capitol and fight. He then stood back and let the fighting happen, despite having the ability and authority to stop it ..., thereby confirming that this violence was what he intended.”
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... The trial judge's escape hatch—that the presidency isn’t an “office” and the president isn’t an “officer” within the meaning of § 3—did not win a single vote at SCOCO. It will be a heavy lift at SCOTUS, where conservatives see themselves as “plain meaning” originalists.
/11
... In its landmark 2008 gun-rights ruling, SCOTUS conservatives scoffed at reading into constitutional provisions “secret or technical meanings that would not have been known to ordinary citizens” at the time of drafting. The SCOCO majority quoted that language here ...
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... in overturning the trial judge’s finding on that issue. “The drafters of Section Three were motivated by a sense of betrayal; that is, by the existence of a broken oath, not by the type of officer who broke it.” ...
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“A construction of Section Three that would nevertheless allow a former President who broke his oath, not only to participate in the government again but to run for and hold the highest office in the land, is flatly unfaithful to the Section’s purpose.”
/14 Image
... Now for the medicine. SCOTUS faces a stark choice. On the one hand, it can disqualify—something only 4 of 7 Democratic-appointed judges had the cajones to do at SCOCO. ...
/15
... A SCOTUS ruling to disqualify would likely incite violence and, doubtless, serious death threats against justices. Ideally, you'd like a 9-0 ruling to gain public acceptance, and gaining even 5 is hard to imagine. ...
/16
... But what’s the escape hatch? There aren’t many credible ones left. The §-3-doesn’t-apply-to-presidents argument always had trouble passing the laugh test, and it emerged from the appellate crucible even worse for wear. ...
/17
... How did the dissenters find their way out? Two cited state law issues. SCOTUS can’t do that, tho, both because it’s not supposed to decide state law & because that won’t give guidance for the other cases now rising up thru the court systems of other states.
/18
... That leaves the route that dissenting Justice Samour took: that § 3 isn’t “self-executing” and only Congress can devise an enforcement mechanism for it. This is the argument that Chief Justice Salmon Chase adopted in Griffin’s Case while sitting as a lower court judge ...
/19
... in Virginia in 1869. Since then, some of the nation’s best constitutional historians & scholars (including originalists) have picked gaping holes in Chase’s nonbinding reasoning. E.g., this link:
/20bit.ly/3QxDqzA
... Chase’s ruling was crudely result-oriented and anything but “originalist.” Still, justices looking for a way out may grab that one. ...
/21
Although @gtconway3d has written that the dissents in the Colorado case reinforced in his mind the strength of the majority opinion, I had a slightly different takeaway. ...
/22bit.ly/3Nxl0fZ
@gtconway3d ... I agree that none of the 3 dissenters bowled anyone over with a bullet-proof legal argument. But the emotional cri du coeurs from two of them may have a impact on some SCOTUS justices—including the liberals. ...
/23
@gtconway3d ... Chief Justice Boatright bemoaned the “breakneck pace” of the CO election-challenge procedures, which he said just weren’t “commensurate” with the “extraordinary” issues being decided. “Just because a hearing was held ... doesn’t mean ... due process was observed.”
/24 Image
@gtconway3d ... Justice Carlos Samour was the most impassioned. “I have been involved in the justice system for 33 years now,” he wrote, “& what took place here doesn’t resemble anything I’ve seen in a courtroom.” ...
/25 Image
@gtconway3d ... Samour said the “the Section Three challenge brought by the Electors was a square constitutional peg that could not be jammed into our Election Code’s round hole,” and that “what transpired in this litigation fell woefully short of what due process demands.”. ...
/26 Image
@gtconway3d ... Personally, I thought Judge Sarah Wallace presided over a very fair 5-day bench trial. (And ruled for Trump!) After all, this isn’t an Agatha Christie whodunit. Thanks to the House Select Committee, everyone subject to compulsory process has already been deposed. ...
/27
@gtconway3d ... Furthermore, Trump chose not to testify. That can and should be used against him at a civil trial (though neither the trial judge nor SCOCO justices appear to have held that against him). ...
/28
@gtconway3d Still, I can’t see SCOTUS voting to disqualify. While there isn’t a good “plain meaning” originalist basis for *not*disqualifying, five justices can turn to Griffin’s Case and say “I’m just following precedent.” That's their least implausible escape hatch.
/29-end

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More from @rparloff

Apr 22
In 35-page ruling, DColo judge grants class-wide (statewide) TRO against removing Venezuelans under Alien Enemy Act. Plaintiffs likely to win on argument that ACT DOES NOT APPLY. "Invasion," "predatory incursion," "foreign nation or govt" all absent here. storage.courtlistener.com/recap/gov.usco…Image
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She also finds that DOJ's current 24 hr notice is insufficient. Must provide at least 21 days notice.
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Notice must also tell aliens of right to seek review, right to speak to atty, and must be written in language the alien understands. ..
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Read 4 tweets
Apr 19
Some notes on this morning’s remarkable emergency stay order granted by SCOTUS, stopping Trump Adm from summarily removing Venezuelans under his Alien Enemies Act proclamation. SCOTUS acted while the NDTexas & 5th Circuit courts dragged their feet.
1/10
.@ACLU had gotten wind that Venezuelans detained at Bluebonnet facility in Anson, TX, were being herded onto buses or planes. Tho there’s a restraining order in SDTexas (El Valle facility) stopping govt from doing this, there’s none yet in NDTexas, where Bluebonnet is. ...
/2
ACLU alleges that the Venezuelans are getting only 24 hrs notice, & the notices, in English, fail to advise that they have a right to challenge removal in a habeas corpus action. The NDTexas judge (Trump appointee) was slow to act on a emergency motion ...
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Read 12 tweets
Apr 15
I'm at the US Courthouse in Greenbelt, Md, where I'm going to try to live-blog the Abrego Garcia hearing at 4pm for @lawfare . Colleague @AnnaBower will also be here, and will be live-blogging on another platform. Afterward, we'll discuss live here:
/1lawfaremedia.org/article/lawfar…
If you find these threads and our longer work informative, please consider becoming a material supporter here:

/2givebutter.com/journalism/
Some pro-return demonstrators gathering outside the courthouse right now.
/3 Image
Read 44 tweets
Apr 10
A few notes on where JGG v Noem, the original Alien Enemies Act case, stands. First, I'll just salute the @ACLU lawyers who may’ve saved 5 lives. If not for ACLU, the 5 named plaintiffs would be languishing in CECOT, where @PamBondi tried to send them without due process. ...
1/9
In fact, @USAEdMartin , you should redirect your “1512 Project” to target the DOJ attys responsible for sending 137 people to CECOT without due process. All 9 justices agreed on that (not just 6). For your convenience, I’m listing the most culpable below:
/2 Image
As for the JGG case, where does it stand? On 4/7, immediately after SCOTUS ruled, DOJ asked Judge Boasberg to dismiss the case & dissolve his orders probing whether DOJ complied with his temporary restraining orders. So far Boasberg's done neither. ...
/3 Image
Read 10 tweets
Apr 5
Prof @jacklgoldsmith got a lot of media when he asked for more transparency about how the DOJ’s “60-day rule” applied to a filing in US v Trump. Why no airtime now when he warns of the “disastrous” acts of @AGPamBondi & @USAEdMartin? Thread ...
1/4
executivefunctions.substack.com/p/the-senate-a…
Bondi, Goldsmith shows, has “aggressively” politicized her office “despite pledges to the contrary”; perpetrated “weaponization on a scale never before imagined”; & defended Trump’s “plainly lawless extortionate” attacks on law firms & other “lawless actions” ...
/2 Image
As for Martin, Goldsmith quotes Justice Jackson’s famous warnings about malicious prosecutors & says he “cannot think of any US Atty in my lifetime who embodies these worries more, & who is more likely to abuse” power. ...
/3 Image
Read 5 tweets
Apr 1
The govt’s admission, in the Abrego Garcia case in Md, that it mistakenly removed him to El Salvador despite protective status, may reverberate in the Alien Enemies Act case, where plaintiffs allege that many with open asylum cases were wrongfully removed. ...
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Plaintiffs have alleged, for instance, that Andry Hernandez Romero, a gay makeup artist was wrongfully removed. He’d fled Venezuela due to persecution & entered the US with a CBP One app appointment, his lawyer says. ...
/2 Image
He alleges that he was removed based on his tattoos. But two criminologists have filed affidavits saying Tren de Aragua doesn’t use distinctive tattoos. ...
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Read 8 tweets

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