There’s a fair chance SCOTUS will grant cert this (Fri) afternoon in the Colo case barring Trump from ballot under § 3 of 14th Am as an "insurrectionist." If it does, look for two things: (1) timing; (2) which issues does SCOTUS want briefed? ...
1/12
The Colo Republican Party (CRSCC) wants SCOTUS to address 3 issues, while Trump wants it to address 5, only one of which overlaps. Most interesting will be whether SCOTUS addresses whether Trump “engaged in insurrection”—an issue Trump raises.
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The party wants an expedited schedule, reaching resolution by 3/5/24 (Super Tuesday). Voter-challengers, rep’d by @CREWcrew , want even faster schedule (below), reaching resolution by 2/11/24, when in-state voters start receiving ballots. They seek 1/19/24 oral arg. ...
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@CREWcrew ... The state Republican Party wants 3 issues addressed, but only the 1st two seem certworthy to me: 1. Does § 3 reach presidents? 2. Is § 3 self-executing? (I.e., must Congress enact an enforcement mechanism first?) ...
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@CREWcrew ... Trump wants 5 issues addressed: 1. Is this a nonjusticiable political question (i.e., one courts can’t address because it’s up to Congress—though no one knows exactly how Congress could address it.) 2. Does § 3 reach presidents? 3. Did Trump “engage in insurrection”? ...
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@CREWcrew ... 4. Did Colo Supreme Court violate the Electors Clause (Art II, Sec 1, cl 2) by misreading its own election laws? 5. Because § 3 bars insurrectionists from office, not from running for office, did Colo unconstitutionally add a new hurdle for running for President?
...
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@CREWcrew SCOTUS might not specify which issues it wants briefed, in which case all would be in play. I don’t see point of addressing Trump’s 4th issue, about CO law, since it addresses only CO. Similarly, 5th just kicks constitutional crisis further down the road. ...
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@CREWcrew Meanwhile, the Maine case is fast approaching. Trump has appealed SecState Bellows’ administrative ruling disqualifying him to superior court, which must rule by 1/17/24. Loser then appeals to Maine Supreme Judicial Court, which rules by 1/31/24. ....
/8 bit.ly/48nFnoj
@CREWcrew ... Finally, as an overview, there have been “more than 60” administrative or court challenges to Trump under § 3, per Trump’s cert petition. Trump Campaign declines to share his list with me, but that probably includes ≥ 14 withdrawn lawsuits ...
/9
@CREWcrew ... Thanks to @hyeminjhan and Caleb Benjamin, who run @lawfare 's Disqualification Tracker, we're aware of 40 lawsuits in 36 states, of which 14 have been withdrawn. ≥19 still pending, at least on appeal, including the ME & CO disqualifications. ...
/10 bit.ly/3vbrNWy
@CREWcrew @hyeminjhan @lawfare Adm challenges in IL and MA brought yesterday by @FSFP. (Not reflected on our map, which shows litigations.) Also, MN and Mich have each dismissed challenges on grounds relevant only to primaries, leaving open challenges to general election ballots.
/11 bit.ly/3vbrNWy
@CREWcrew @hyeminjhan @lawfare @FSFP ... As someone pointed out—sorry, I can’t find his post to give credit—it seems that SCOTUS can resolve all § 3 litigation *only* with a pro-Trump ruling (e.g., § 3 doesn’t apply to presidents). Affirming COLO's disqualification wouldn't seem to bind other states. ...
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Please allow me one more thread on the immunity ruling. The substantial wrench SCOTUS has thrown in the NY case against Trump comes solely from one passage in the decision, section III-C, and it relies on a weird, inexplicable detour in CJ Roberts’ reasoning. ...
1/17
... Until III-C, the ruling is based on separation of powers arguments & its policy goal is to ensure that presidents can act “without undue caution” & “free from undue pressures & distortions.” But in III-C, Roberts suddenly veers off course into a discussion of jury bias ...
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... Until then, remember, his ruling only erects limits on prosecutions for *official* acts.” If he’d stopped there, the ruling would have had had no impact on Trump’s NY convictions, which are for purely unofficial acts. ...
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Many conservatives now accept with bored acquiescence the near certainty that Trump, if elected, will dismiss both federal indictments against himself. Yet it would be an abuse far greater than the Saturday Night Massacre that once shocked the nation...
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In Oct 1973, Nixon fired AG Elliot Richardson & then Dep AG Wm Ruckelshaus for refusing to fire Special Prosecutor Archibald Cox, who was subpoenaing Nixon’s White House tapes. The firings galvanized bipartisan support for impeachment proceedings ...
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... which began 10 days later. Quaint though it may now seem, US District Judge Gerhard Gesell even ruled, later on, that the Cox’s dismissal had been illegal. ...
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I’m puzzling over the chief justice’s crucial but impenetrable fn 3 in the immunity ruling. It discusses when evidence of official acts can be admissible to prove crimes involving unofficial acts. I invite guidance/correction from lawyers, professors, & others ...
1/11
... Roberts is rebutting here the views of “concurring” Justice Barrett. (And I don’t get why Barrett says she’s only concurring when she’s clearly also dissenting to a crucial part of the ruling.) Explicitly agreeing with the dissent, Barrett writes ...
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... “The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable.” Then Barrett talks about proving a bribe, which is an official act performed for unofficial & criminal reasons. ...
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Govt's reply last night, asking Judge Cannon to stop Trump from claiming that FBI wanted to kill Trump & his family, gives details about Ricky Shiffer’s 2022 attack on an FBI hdqtrs & a more recent threat to an agent working on the Hunter Biden case... 1/9 bit.ly/45Dz9A4
... On 8/11/22, three days after the Mar-a-Lago search, Shiffer attacked an Ohio FBI office with an AR-15 & a nail gun. When FBI pursued him, he fired on agents & then engaged in a 6-hr standoff, per search warrant application appended to the reply.
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... Addressing Trump’s claim that Shiffer’s attack can't be linked to Trump, govt cites 8/8/22 Truth Social post, calling the search “political persecution,” & Shiffer’s Truth Social posts later same day, saying “this is it,” “I am proposing war,” & “Kill the FBI on sight.”
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My ambitious goal here is to give an overview of the arguments for & against Trump’s motion to dismiss due to the alleged unconstitutionality of the appointment of special counsel Jack Smith. Judge Cannon is weighing the motion very seriously & will hold a hearing 6/21. ...
1/30
The motion is supported by 2 amici, who take different tacks. A 3d amicus supports the govt.
The 1st pro-Trump amicus includes former AG Ed Meese & FedSoc co-founder Steve Calabresi. Their atty is Gene Schaerr.
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The 2d pro-Trump amicus is @SethBTillman. His atty is Josh Blackman. Tillman’s brief devotes much attention—63 references—to an 1879 SCOTUS ruling, US v Germaine, about an extortion prosecution of a surgeon who’d done piecemeal work for the govt for $2 per exam....
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Trump apologists now argue that Trump’s 34 crimes were wrongly upped to felonies—as if 34 misdemeanors are A-OK, on top of civil judgments for persistent fraud on lenders, charity fraud, sex abuse, 3 defamations, his company’s 17 felony convictions for tax fraud, etc. ...
1/15
... But what of the simple scumminess of this candidate, as evinced by the NY trial evidence? Let’s look at a few examples. E.g., remember that one component of the Trump-Cohen-Pecker deal was to smear Trump’s primary opponents. ...
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... According to AMI CEO David Pecker’s testimony, Cohen would say “we would like a negative article on, let’s say, Ted Cruz” or Ben Carson or Marco Rubio. After a primary debate, Cohen would direct the National Enquirer on “which direction we should go,” Pecker testified ...
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