Thread by @rparloff

Some thoughts prompted by some SCOTUS briefs filed so far on whether Trump is disqualified from presidency under § 3 of 14th Am. The Voter-Challengers filed theirs Friday (below) & amici in support have until this evening to file. ...
1/24bit.ly/3OnHQr8

Some who wish § 3 didn’t exist—including some liberals—have argued that no one knows anymore what “insurrection” meant in 1868 or whether J6 met that definition. But they can say that only if they haven’t researched the matter. ...
/2

... All the usual lawyers’ tools—caselaw, legal dictionaries, jury instructions—point to the same conclusion: J6 was an insurrection. As voter-challengers, rep’d by @CREWcrew, point out: Trump *does not dispute* at SCOTUS that J6 was an insurrection ...
/3

@CREWcrew ... Trump *does* still contest that he “engaged in” insurrection, but even that claim is, as @CREWcrew observes, “perfunctory.” (He contests it so that campaign opponents’ can’t accuse him of *not* having contested it.) ...
/4

@CREWcrew ... Virtually Trump’s whole answer to the trial judge's 150 ¶s of largely uncontested fact findings are Trump’s single utterance of the word “peacefully” during his hr-long Ellipse speech & 2 misleading tweets urging rioters to “remain” peaceful but not asking them to leave.
/5

@CREWcrew ... The voter-challengers also observe that SCOTUS—if it follows the law—can only overturn factual findings for “clear error” and almost never does so when an appellate court has already upheld those facts, as the CO supreme court did here. ...
/6

@CREWcrew ... The most crushing facts are probably the following four. (1) Trump’s 12/19 “will-be-wild” tweet, which came, as a brief by @judgeluttig et al importantly reminds, the day after Trump learned that courts in all swing states had extinguished his last hopes in the courts. ...
/7

@CREWcrew @judgeluttig ... (2) At 2:24pm on J6, more than an hour after Trump learned that violence had broken out, he posted his “Mike Pence didn’t have the courage” tweet, famously pouring gasoline on the fire. ...
/8

@CREWcrew @judgeluttig ... Tho space is limited in SCOTUS briefs, @CREWcrew expend some to show photos of how Trump’s 2:24pm tweet galvanized the crowd:
/9

... (3) Another crusher: after @GabrielSterling pleads with Trump to stop the election lies because “someone’s going to get killed,” Trump quote-tweets his plea with more election lies. 7 later die from J6 if you include Ofc Sicknick (J7) & 2 ofcrs who suicided (J8 & J15).
/10

@GabrielSterling ... (4) One last one @CREWcrew mentions is the contemporaneous assessment of Trump’s Ellipse speech by Trump’s former campaign manager, Brad Parscale, in a text to Katrina Pierson: “a sitting president asking for a civil war.” ...
/11

@GabrielSterling @CREWcrew ... As if that weren’t enough, the @Judgeluttig brief observes, “this case has a virtual confession.” In late 2022 Trump posted that his election-fraud claims “allows for the termination of all rules, regulations, and articles, even those found in the Constitution.” ...
/12

@GabrielSterling @CREWcrew @judgeluttig ... That was exactly what he’d told the armed, angry crowd at the Ellipse: “When you catch somebody in a fraud, you’re allowed to go by very different rules.” ...
/13

@GabrielSterling @CREWcrew @judgeluttig ... With facts like these, for SCOTUS to overturn CO supreme court for “clear error” seems unthinkable. That leaves 2 legal arguments: § 3 isn’t “self-executing” or § 3 doesn’t apply to presidents. The first argument is incomplete, tho, for those who wish § 3 didn’t exist...
/14

@GabrielSterling @CREWcrew @judgeluttig ... Yes, it would end litigation but it won't stop members of Congress from objecting to Trump electoral votes on 1/6/25. Even proponents of the §3-isn't-self-executing argument beg SCOTUS to adopt the §3-doesn’t-reach-presidents one as only way to “resolve” the issue....
/15

@GabrielSterling @CREWcrew @judgeluttig Nevertheless, the §3-doesn’t-apply-to-presidents argument just got harder to make, because people are noticing the 2014 concurrence & letter in which Justice Scalia himself rejected the foundations of that argument, referenced below. ...
/16bit.ly/427m4xv

@GabrielSterling @CREWcrew @judgeluttig ... The @CREWcrew lawyers likewise summarize that argument here. ...
/17

@GabrielSterling @CREWcrew @judgeluttig ... Finally, many on this platform argue that Trump must 1st be convicted of criminal insurrection, 18 USC 2383, before § 3 can apply. But many Confederates were removed from office under § 3 & virtually none of them were convicted of *anything* first ...
/18

@GabrielSterling @CREWcrew @judgeluttig .... 18 USC 2383 was enacted in 1862—6 yrs *before* § 3. It’s not enabling legislation. @CREWcrew observes that, since Pres. Andrew Johnson had pardoned almost all Confederates before § 3 was passed, § 3 was conceived & designed *not* to require prior conviction. ...
/19

@GabrielSterling @CREWcrew @judgeluttig ... This case is about whether SCOTUS has the guts to enforce § 3 in the face of the blowback. Trump’s brief boldly predicts (threatens?) “chaos and bedlam” if SCOTUS affirms.
/20

@GabrielSterling @CREWcrew @judgeluttig ... The voter-challengers protest that Trump has that backwards. Trump unleashed bedlam “when he was *on* the ballot and lost. § 3 ... is designed ... to avoid giving [such people] the power to unleash such mayhem again.” ...
/21

@GabrielSterling @CREWcrew @judgeluttig ... Much of the @judgeluttig et al brief is devoted to trying to steel the backbone of the justices to follow their *own* oaths. It cites back to SCOTUS its own recent Dobbs’ ruling: “we cannot allow our decisions to be affected by extraneous influences” ...
/22

@GabrielSterling @CREWcrew @judgeluttig ... Finally, the @judgeluttig et al brief observes that Trump’s popularity does not warrant an exception to § 3. The whole point of § 3 was to exclude popular rebel politicians who were trying to return to power after the Civil War as if nothing had happened. ...
/23

@GabrielSterling @CREWcrew @judgeluttig ... “§ 3 would be a dead letter if the Court refused to apply it because an insurrectionist had popularity with large numbers of voters,” the @judgeluttig brief writes. “[I]t Is not the role of this Court to render Section 3 extinct.”
That’s the crux of the whole thing.
/24-end