The plain truth: Insurrection!
December 20, 2023
At long last, a court has spoken the plain truth: Donald Trump engaged in insurrection and is forever disqualified from holding federal office. The ruling of the Colorado Supreme Court that Trump cannot appear on the state’s presidential ballot is a vindication of our faith in the rule of law. Whatever happens next, the ruling of the Colorado Supreme Court will forever stand as a judgment of insurrection against Donald Trump.
Let’s take a deeper look.
The Colorado Supreme Court disqualifies Donald Trump from the Colorado presidential primary.
What happened. In a historic decision, the Colorado Supreme Court affirmed that Donald Trump “engaged in insurrection” by inciting the assault on the Capitol on January 6th. The Court also ruled that Section 3 of the 14th Amendment applies to the US president and, therefore, Trump is disqualified from holding federal office. Finally, the Court ruled that Trump cannot appear on the Colorado presidential primary ballot. The opinion is here: Anderson v. Griswold | 2023 CO 63
What happens next. Trump will appeal the Colorado Supreme Court ruling to the US Supreme Court. If the US Supreme Court correctly applies the law to the facts, it should rule that Trump engaged in insurrection and is disqualified from holding federal office by Section 3 of the 14th Amendment. Whether that will happen is, of course, dependent on many variables over which we have no control.
The likely outcome. While it is difficult to make predictions, it is possible that the US Supreme Court will affirm the ruling of the Colorado Supreme Court—but it is reasonable to assume that the Court’s reactionary majority will attempt to protect Trump's presidential prospects. We have witnessed the reactionary majority do violence to the text of the Constitution and overturn settled precedent without hesitation. While we should hope that the Court will follow the rule of law in this case, we should not be surprised if it again rescues Trump by ignoring the plain words of the Constitution.
A complicating factor: Justice Clarence Thomas. A key question is whether Justice Clarence Thomas will recuse himself from consideration of the Colorado ruling—and the other appeal involving Donald Trump currently on the Court’s docket (the presidential immunity defense). As I write, there is no indication that Justice Thomas will recuse himself. Read the article below about Justice Thomas’s compromised and corrupt position on the Court entitled, “Pro Publica report: The long, slow corruption of Jutice Thomas.”
Quick background. Efforts to disqualify Trump under Section 3 of the 14th Amendment began with a law review article by two leading conservative scholars who argued Trump was disqualified from holding federal office because he engaged in insurrection. Section 3 of the 14th Amendment states, in part,
No person shall hold any office, who having previously taken an oath as an officer of the United States to support the Constitution of the United States, shall have engaged in insurrection. [I removed ellipses indicating omitted material to enhance readability.]
The Center for Responsibility and Ethics in Washington (CREW) filed lawsuits in various states seeking to disqualify Trump from appearing on presidential primary ballots. After a trial in Colorado in November, a state court judge ruled (a) Trump engaged in insurrection, but (b) Section 3 did not apply to Trump because the president is not “an officer” of the United States.
The holding of the Colorado trial court was appealed to the Colorado Supreme Court.
The holding of the Colorado Supreme Court. In a careful and scholarly opinion, the Colorado Supreme Court ruled (a) that the president is an “officer” of the US, (b) Trump engaged in insurrection, (c) Section 3 of the 14th Amendment disqualifies Trump from holding federal office, and therefore, (d) Trump may not appear on any Colorado ballot for election of the US president. The ruling has been stayed until January 4, 2024, to allow the US Supreme Court to take action.
The significance of the Colorado opinion. The significance of the Colorado Supreme Court’s finding that Trump engaged in insurrection cannot be overstated. Tens of millions of Americans witnessed in real-time as Trump incited an insurrection on January 6, 2021; they have lived through three years of denial, evasion, euphemism, and revisionist history. To finally—finally—have a court speak the plain truth in a careful opinion after a fair trial is liberating.
No matter what the US Supreme does with or to the Colorado ruling, it is the latter ruling that will stand as the judgment of history: Trump engaged in insurrection against the United States. In the words of the Colorado Supreme Court (at 115-16):
“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 by repeatedly demanding that Vice President Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes. These actions constituted overt, voluntary, and direct participation in the insurrection.”
“Moreover, the record amply demonstrates that President Trump fully intended to—and did—aid or further the insurrectionists’ common unlawful purpose of preventing the peaceful transfer of power in this country. He exhorted them to fight to prevent the certification of the 2020 presidential election. He personally took action to try to stop the certification. And for many hours, he and his supporters succeeded in halting that process.” [¶¶]
“Our independent review of the record in this case brings us to the same conclusion: President Trump incited and encouraged the use of violence and lawless action to disrupt the peaceful transfer of power. The tenor of President Trump’s messages to his supporters in exhorting them to travel to Washington, D.C. on January 6 was obvious and unmistakable: the allegedly rigged election was an act of war and those victimized by it had an obligation to fight back and to fight aggressively. And President Trump’s supporters did not miss or misunderstand the message: the cavalry was coming to fight.”
There is, of course, a long way to go before the words of the Colorado Supreme Court result in the final disqualification of Trump from holding federal office. But those words are a solid stepping stone to that conclusion. And even if the US Supreme Court finds a way to overturn the holding of Colorado, the record will remain. Trump can’t erase the Colorado Court’s opinion from the history books. He is an insurrectionist unfit and unqualified to hold the office of president.
What should we do now? We should continue to do everything we have been doing—but with greater urgency and dedication. The most likely outcome is that we will need to defeat Trump at the ballot box. If the Supreme Court rules that he cannot hold federal office, we will deal with that good fortune when it materializes.
The long, slow corruption of Justice Clarence Thomas.
What happened. Pro Publica has published an investigative article that examines the long, slow corruption of Clarence Thomas by wealthy GOP donors. Many of the details about Thomas’s compromised ethics are already known: a forgiven loan on a luxury motor home; free rent for his mother; lavish vacations costing hundreds of thousands of dollars; and a spouse whose “consulting” business appears to revolve around knowing someone important on the Supreme Court.
But in an article published this week, Pro Publica identified the genesis of Thomas’s compromised position on the Court. After speaking at a conservative retreat, Thomas flew back to D.C. seated next to a GOP congressman. Thomas whined that his salary as a Supreme Court justice was not supporting the lifestyle to which he hoped to become accustomed.
After the flight and the hints by Thomas that he might resign, the member of Congress wrote a letter to Thomas that promised
“to look into a bill to raise the salaries of members of The Supreme Court. As we agreed, it is worth a lot to Americans to have the constitution properly interpreted. We must have the proper incentives here, too.”
The bill to raise salaries for Supreme Court justices did not immediately materialize, but in short order, friendly billionaires began to “treat” Thomas to the finer things in life that he could not afford on his salary as a Supreme Court Justice. See Pro Publica, A “Delicate Matter”: Clarence Thomas’ Private Complaints About Money Sparked Fears He Would Resign.
The rest, as they say, is history. We now know that Thomas accepted—and failed to disclose—lavish gifts from new billionaire “besties” who swear they never talked shop with Thomas—even though several of them had business before the Supreme Court.
Why it matters. The American public has strong reason to believe that Justice Thomas has been corrupted by conservative billionaires seeking to “buy” a conservative Supreme Court. Thomas’s financial compromise is compounded by his wife’s adjacency to the very insurrection that the Colorado Supreme Court found Trump incited on January 6. Any justice concerned about the appearance of impropriety and the legitimacy of the Court would recuse themselves from the review of the Colorado ruling.
Thomas will not recuse himself. The Supreme Court granted expedited review of Jack Smith’s petition for immediate review of Trump's presidential immunity defense. There is no indication that Thomas recused himself from the order requiring Trump to file an expedited response to Jack Smith’s petition. Thomas will (apparently) place his pride and greed above the legitimacy of the Court and the preservation of democracy.
NYTimes puts negative spin on poll showing Biden ahead nationally with likely voters.
What happened. The NYTimes published a front-page, column-one article with the headline, “Most disapprove of Biden on Gaza, survey shows.” That same survey shows that Biden is leading Trump nationally with likely voters—an equally newsworthy, accurate headline. See Simon Rosenberg’s post,
So, somehow, the @nytimes not only did not lead with Biden up being by 2 points (47%-45%) with likely voters in its write-up of its new poll, the article in the Times never even mentions it.
Seriously, WTF guys? It's clearly newsy and could have easily been the lead.
Rosenberg also cited Tom Bonier, who compared two NYTimes headlines regarding polls—one poll showing Trump was in the lead, the other discussing a poll showing Biden is leading nationally.
Here are the headlines:
When Trump is leading: “Voters in five battleground states favor Trump over Biden.”
When Biden is leading: “Most disapprove of Biden on Gaza, survey shows.”
Why it matters. Don’t freak out when the NYTimes sends you a negative headline about Biden. That is apparently the only type of headline about Biden that the Times’ headline writers are capable of (or willing to) write.
Vice President Harris appears on Lawrence O’Donnell’s “The Last Word.”
What happened. Vice President Kamala Harris appeared on Lawrence O’Donnell’s show, “The Last Word” on Tuesday evening. She addressed multiple difficult issues with clarity and passion, including abortion, the deaths of innocent Palestinians in Israel’s war on Hamas, and Trump's dictatorial rhetoric. Check out the topical segments here: VP Harris: Abortion rights 'is an issue that will be resolved next November'.
Why it matters. I regularly receive notes from readers who express hope that Joe Biden will choose a different vice president going into 2024. For anyone who feels that way, I encourage you to watch fifteen minutes of the interview. I am confident that your view of Kamala Harris will be changed—for the better!
Concluding Thoughts.
I feel your pain. After Trump had the worst day ever for a presidential candidate, one of my favorite news sources ran a story that said Biden would have to do something “unprecedented” in 2024 to overcome his poor polling numbers. Putting aside the fact that Biden is leading or tied in independent polling, the journalist is looking at the race upside down.
The 2024 presidential election is unprecedented—but not because an incumbent is experiencing the electoral drag inherent in dealing with real-world problems. It is unprecedented because one candidate is mimicking Hitler, threatening to impose martial law “on day one” of his term (if elected), and has a court judgment finding that he engaged in insurrection against the United States.
It is a waste of time wondering why political reporters are trapped inside an echo chamber where the only thing that matters is horse race polling. But it is impossible not to. On average, the journalists are bright people with good educations and enough life experience to know better. But they can’t help themselves. They are drawn to political polling like moths to a flame.
You shouldn’t make the same mistake. Listen to Kamala Harris’s interview if you need a reminder that a strong majority of all Americans—not only women—care deeply about reproductive freedom and will make a “binary” choice in 2024—freedom or servitude, liberty or religious tyranny. Those same concepts map onto binary choices between a dictator and a servant of democracy, personal dignity and bigotry, and dedication to truth and willful ignorance.
Yes, 2024 will be an unprecedented election. Which is one of the reasons Democrats have every reason to be hopeful that when Americans walk into the voting booth in November, they will vote for a vision of America governed by freedom, liberty, dignity, truth, and democracy.
The choice will be dramatic and obvious—which is good news for us. We shouldn’t be complacent, but we should darn well not be sucked into the one-dimensional world of reporters staring at the latest poll from Polls-R-Us with a deadline in fifteen minutes and twenty column inches to fill.
Talk to you tomorrow!
Some comments on your points in this good article:
Yay Colorado Supreme Court!
If the worse happens and Biden can not finish his second term, I will not lose one minute of sleep over Harris becoming President. She is smart, tough, and experienced. At this point she already has more relevant experience than Obama did when he first set foot in the Oval Office. The Biden/Harris administration is full of smart people with experience and expertise who are listened to. Harris gets a bad rap. Undeservedly. I wonder why. Could it be her two X chromosomes and the amount of pigment in her skin?
On the subject of polls. Ever since the Great Polling Debacle of 2016, I have ignored the polling results and urge everyone else to do the same. There are several technical reasons why at this point in time the polls simply are not worth the paper they are printed on. There are lies, damn lies, statistics, and then there are polls. (With apologies to Samuel Clemens).
As I have spent the evening thinking about this, I find I agree with Chris Christie. We the voters, the people from whom all legitimate governing power in our system is derived, must be the ones who decide our future.
Asking Big Daddy Court to make things all nice again does nothing to deal with the problem of Trump and the anti-democratic movement he leads, not in the long run. If this decision is affirmed, it lets us off the hook and allows us to escape reponsibility for our own future.
While he may be off the ballot, there is every likelihood that this will solidify his leadership of MAGA and turn MAGA into a truly violent, insurrectionary movement. Such a decision could in fact be the flame that lights the fuse to the powder keg that is our contemporary politics.
If we are really a self-governing country, then WE have to decide that Trump loses. Kicking the can down the road with a court decision does not solve the real problem we face. That problem is that a significant section of the population is willing to support a man who tells them if he takes power that he will destroy this constitutional democratic republic. Removing him from the ballot does not resolve that. We can have a political war and defeat him - and MAGA politically - or we can have a civil war, which is what this decision points us toward.
The situation is now more difficult than it was 24 hours ago.