Despite media punditry, the facts, the law, lightning-fast scheduling and an insulated Judiciary may not bode well for the former President...
By Ernest A. Canning on 1/15/2024, 11:35am PT  

As a poll-obsessed media focuses on what many see as a seemingly inevitable contest next November between the former and current Presidents, it has become easy to look past the distinct possibility that the U.S. Supreme Court might bring about a swift end to the 2024 Presidential campaign of Donald J. Trump.

By way of a Jan. 5 decision, in Trump v. Anderson, SCOTUS agreed to hear the former President's Jan. 3 legal challenge to the Colorado Supreme Court's ruling, in Anderson v. Griswold. In that case, the high court in CO ruled that, by reason of §3 of the 14th Amendment, Trump is an insurrectionist and, therefore, disqualified from running for the Office of President of the United States. The CO ruling has been stayed pending a final decision from the U.S. Supreme Court.

There are multiple reasons why the SCOTUS decision to hear this landmark case may not bode well for the former President, even if the many pundits are inclined to believe that a majority of Justices on the High Court will concoct some extra-Constitutional reason to allow him off the hook. Neither the facts, the law, nor published opinions advanced by conservative constitutional scholars support a decision to overturn the CO Supremes' landmark ruling.

While widely overlooked by most in the media, the identity of the parties could also be critically important. The Anderson Respondents --- 4 Republicans and 2 independents eligible to vote in the Colorado Republican Primary --- essentially represent the dwindling number of honest conservatives, who make up what might be described as the Liz Cheney Wing of the GOP.

Unlike Congressional Republican cowards, who know better, yet shamelessly embrace the dangerous Orwellian lies of a would-be dictator, GOP-appointed, life-tenured members of the federal judiciary need not fear being removed from the bench during a primary election by the MAGA base. While Trump sycophants in the U.S. House have demonstrated a willingness to initiate baseless, partisan impeachment inquiries, the prospect of impeachment of any Justice who voted to uphold Colorado's §3 disqualification decision, followed by a 2/3 vote to convict in the Senate, are so remote as to not even be worthy of consideration.

The lightning fast scheduling set forth in the Court's order to hear the CO matter reflects a recognition that, if it upholds the state trial court's factual finding that Trump "engaged" in an "insurrection" and the Colorado Supreme Court's legal determination that Trump is therefore disqualified by reason of §3 of the 14th Amendment, SCOTUS can both prevent the former President from running for office and afford voters --- especially Republican primary voters --- the opportunity to make an informed choice between qualified candidates.

The facts of the case --- if not necessarily the media punditry or courage of our Republican-appointed Supremes --- reflect that reality...

Rocket docket

The decision to hear the case was handed down just one day after the Anderson Respondents filed a Response to Trump's Petition for a Writ of Certiorari, a request to hear the matter at SCOTUS.

Incorporating their earlier Response to a separate CO GOP cert petition, the Anderson Respondents not only joined Trump's request that SCOTUS hear the case, but also moved for an extraordinarily fast schedule, with an eye towards the issuance of a decision by Feb. 11, 2024 "so that voters in Colorado and elsewhere will know whether Trump is disqualified before they cast their ballots" for the state's March 5th, Super Tuesday primary.

Oral arguments in Trump v Anderson will take place on Feb. 8. Whether SCOTUS can issue a decision by Feb. 11 --- the day before Vote-by-Mail ballots are mailed out in CO --- remains to be seen. Perhaps a more realistic deadline would be a definitive decision in advance of Super Tuesday.

Importance of trial court's factual findings

The Colorado Supreme Court's 133-page majority decision is replete with references to basic principles of jurisprudence. It is not the province of an appellate court --- state or federal --- to reweigh evidence or determine the credibility of witnesses in the lower courts. Absent an abuse of discretion, a trial court's factual findings will be upheld so long as there is substantial admissible evidence in the record to support them.

Here, the CO district court conducted a five-day trial in which it heard directly from both lay and expert witnesses, viewed contemporaneous videos, and the House January 6 Committee Report. "The great bulk of that evidence", the CO Supremes observed in their ruling, was "undisputed".

The district court expressly found that an "insurrection" occurred on January 6, 2021 and that the former President "engaged" in that "insurrection". The district court also found --- along with a bipartisan majority of U.S. Senators at the end of his second impeachment trial --- that Trump "incited" the insurrection.


While SCOTUS will not reweigh the evidence, it can, but likely will not, take issue with the legal definitions that both Colorado courts applied to the words "engaged" and "insurrection" as those words appear in §3 of the 14th Amendment.

The real thorny question, especially for constitutional law nerds, like the author, can be found in the Colorado courts' rejection of Trump's argument that his Jan. 6 Ellipse Speech was shielded by the First Amendment.

Under a landmark 1969 U.S. Supreme Court decision, Brandenburg v. Ohio, the 1st Amendment protects mere advocacy, unless it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." (Emphasis added).

The CO Supremes applied a two-pronged test:

Whether (1) the speech explicitly or implicitly encouraged the use of violence or lawless action; (2) the speaker intended that the speech would result in the use of violence, or lawless action was the likely result of the speech.

Here, both the district and Colorado Supreme Court rejected Trump's assertion that the judiciary can only look at the words Trump uttered at the Ellipse on Jan. 6 in order to arrive at an "incitement" conclusion under the Brandenburg criteria.

Per the CO Supremes, the district court appropriately considered Trump's "history of courting extremists and endorsing political violence as legitimate and proper, as well as his efforts to undermine the legitimacy of the 2020 election results and hinder the certification" as it relates to whether Trump intended those present to engage in the violent, but failed insurrection that was then carried out at the Capitol.

Context appears to be a vital aspect of the Colorado courts' analysis. If someone speaks to a friend about a woman the friend just met, and says, "you should take her out", those words are rather innocuous. If a mob boss tells a hit man, "take her out", he's using coded language to conceal a directive to commit murder.

Relying upon expert testimony, as well as a vast public record, the district court found that Trump, via words, like "will be wild" and "we have to fight like hell", knowingly conveyed a call to arms to his violent extremist supporters, like the Oath Keepers and the Proud Boys. Many of those same extremists have since pleaded guilty or have been found guilty by juries of seditious conspiracy in relation to their actions on January 6.

The chants from the crowd during the Ellipse speech --- "Storm the Capitol" and "Invade the Capitol" --- provided a damning context for Trump's instruction for the armed and angry mob to "march to the Capitol", the Colorado courts concluded. Trump's subsequent 187 minute failure and refusal to call off the mob coupled with the incendiary 'Pence betrayed us' Tweet, issued long after the former President began watching the violent assault on television, reinforced the trial courts' conclusions that Trump incited an insurrection in order to prevent the lawful transfer of power.

Insulated Judiciary

In her recently published book, Oath and Honor, former Rep. Liz Cheney (R-WY) calls out numerous Congressional Republicans who squarely, but privately, blamed Donald Trump for the January 6 insurrection, only to later embrace the former President's lies. In her view, the sharp reversals, and outright betrayals of the solemn oaths of office by many of her fellow House Republicans, who knew better, were the product of a "plague of cowardice". Fearing they'd be driven out of office by the MAGA base in subsequent primary elections, they opted, instead, to replace loyalty to the Constitution with personal loyalty to Donald J. Trump.

Fortunately, thanks to lifetime appointments, Republican-appointed members of the federal Judiciary do not have to worry about being thrown out of office by the misinformed MAGA Cult should they, as judges, join Cheney's principled stand for the solemnity of oaths of office that mandate that members of all three branches of the federal government take to support the U.S. Constitution.

This is not to suggest that ideology plays no role in the right-wing SCOTUS majority's election law decisions --- a point underscored by its controversial decision to halt the recount in Florida in Bush v. Gore (2000); its unleashing of a tidal wave of dark money in its "infamous" 2010 Citizens United decision; and its decision to gut the Voting Rights Act of 1965 in Shelby County v. Holder (2013).

But there's a significant distinction between election law decisions favoring right-wing billionaire-supported Republicans and surrendering the reins of power to a Hitler-admiring demagogue, who suggested "terminating" provisions of the U.S. Constitution.

By Constitutional design, the Judiciary is supposed to act as an independent, co-equal branch of the U.S. government. A second Trump presidency could pose a threat not only to the survival of constitutional democracy but also to the survival of an independent judiciary. That was the path taken by Germany in 1934 when it discarded its oath to the Weimar Constitution in favor of an oath of personal loyalty to one man --- Adolf Hitler --- who then dictated to an all-Nazi judiciary what it could or could not decide.

Significantly, 38 Republican-appointed judges joined their Democratic-appointed colleagues in handing Trump and his allies defeats in 61 of 62 election law cases following the 2020 election. This included SCOTUS' summary rejection of a desperate effort by Texas to prevent Georgia, Michigan, Pennsylvania and Wisconsin from casting their electoral votes. By an 8 - 1 margin (Justice Thomas dissenting), SCOTUS rejected Trump's effort to prevent the House J6 Committee from obtaining White House records. This was followed by the Court's 6-3 rejection of the radical Independent State Legislature theory that had been advanced by the disgraced and now under indictment Law Prof. John Eastman.

Conservative Constitutional scholars and a prior Gorsuch opinion

In a law review article titled "The Sweep and Force of Section Three", Professors William Baude and Michael Stokes, two well respected conservative Constitutional scholars analyzed §3 in the same manner and arrived at the same conclusions that were adopted by the Colorado Supreme Court.

This was followed by an article in The Atlantic --- "The Constitution Prohibits Trump From Ever Being President Again" --- authored by former federal appellate court judge J. Michael Luttig, a George H.W. Bush appointee, and by liberal Harvard Law Professor Laurence Tribe.

In their filings, Trump's attorneys argued that, even if he were disqualified by reason of §3, that doesn't mean a state can remove him from the ballot.

In its decision, the Colorado Supreme Court cited Hassan v Colorado (10th Cir. 2012) --- a decision that had been authored by then Judge, now Justice, Neil M. Gorsuch:

It is "a state's legitimate interest in protecting the integrity and practical functioning of the political process" that "permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office."

Text, history, contemporaneous dictionaries and the opinions of the four law professors support the CO Supremes' interpretation of "engaged" and "insurrection" as those words appear in §3 of the 14th Amendment. They also support the CO Supreme Court's determinations that (1) §3 is "self executing" --- that neither an Act of Congress nor a criminal conviction for "engaging" in "insurrection" are required in order for States to remove disqualified Presidential candidates from the ballot --- and (2) the fact that, according to the same Amendment, a 2/3 majority vote in both Houses of Congress can overturn a §3 disqualification does not diminish a State's right to determine whether a candidate is disqualified pursuant to §3 in the first place.

Nationwide removal

Although, in a narrow sense, the case before SCOTUS entails an order, stayed for the moment, removing the name Donald J. Trump from a Republican primary ballot in only one state, if the Court upholds the factual determination that Trump "engaged" in "insurrection" and the legal determination that he is disqualified by reason of §3 of the 14th Amendment, those findings would be binding upon the courts and Secretaries of State (or whoever the chief election official may be) in all 50 states.

While the decision will come too late for a few States, like New Hampshire, where the Presidential Primary is scheduled for Jan. 23, 2024, it is difficult to imagine a valid reason for a Secretary of State or state judiciary to refuse to remove the name Donald J. Trump for subsequent primaries and, especially, general election ballots.

On the other hand, if SCOTUS overturned the Colorado Supreme Court decision, the U.S. Electorate would still be in a position to prevent Trump from returning to the Oval Office.

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Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing

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