Trump Likely Not Going Anywhere

The Supreme Court hears oral arguments in Colorado’s case to remove Donald Trump from the ballot.

By , and
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Happy Friday, again! As one of our editors mused this morning, it says something about our country that there was a Supreme Court hearing Thursday to determine whether a man who tried to overturn the results of a presidential election should be allowed to run for president again—and that a writeup of that hearing was bumped from TMD for space!

We didn’t want to overwhelm you with a 4,500-word newsletter this morning, but we also don’t want to sit on this reporting until Monday, either. So please enjoy the very first … TAD.

Have a great weekend, and enjoy the Super Bowl! We’ll see you on Monday.

In Other 2024 News

Demonstrators call for Donald Trump to be kept off of the presidential primary ballot outside the U.S. Supreme Court on February 8, 2024, in Washington, D.C. (Photo by Jahi Chikwendiu/The Washington Post via Getty Images)

The U.S. Supreme Court heard oral arguments Thursday in Trump v. Anderson—the case in which the Colorado Supreme Court ruled in favor of removing former President Donald Trump from the state’s GOP presidential primary ballot. The case centers around Section 3 of the 14th Amendment, a relatively arcane constitutional provision designed to prevent elected officials who had violated their oaths of office by joining forces with the Confederacy in the Civil War from holding public office again. The Supreme Court has never heard a case that hinged on Section 3, and it’s believed to have only been cited in a case once in the 20th century. 

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  1. New reader

    First, courts must address jurisdiction first. Amdt XIV s3 penalizes acts that violate an oath of office to support the Constitution. Since we're not at war the section's Enemies clause is not relevant. That leaves the definition of "insurrection or rebellion against the oath of office to support the Constitution" as "violating any textual mandate of that office."
    It can be argued that since the acts in question were acts of a candidate for future office, not of the office (presidents are not required to run for re-election) the section doesn't even apply; but in my opinion the candidate's use of his presidential powers, staff, counsel, and facilities for unlawful acts of his candidacy were criminal abuses of those powers, staff, counsel, and facilities.
    The federal courts have jurisdiction over the conduct of a national office. A state can have a separate criminal jurisdiction when an alleged offense that violated the oath took place in that state, or when the defendant lives in that state. A conviction in any of the criminal cases in Georgia, Michigan, Nevada, or Florida can be used to disqualify but Colorado has no jurisdiction.
    And Article II s1 leaves to the electors how they will choose. States have no jurisdiction over the way the electors choose.
    Second, uniformity among state ballots is needless. States' presidential candidates do vary, and for good reason. The presidential and vice presidential elections are designed, as constitutional amendment is, to exercise both state and national powers. While tallied nationally the presidential election is voted in federation.
    The fact that either the presidential or vice presidential candidate must reside in a state other than the electors' own

    Too much attention is paid to "officer" (an office is a group of small, linked tasks that serve a single purpose; it need not be, and today seldom is, the entirety of a position) and not enough to "oath." The oath to support the Constitution

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    1. New reader

      ack! replied before I finished editing!
      The fact that either the presidential or vice presidential candidate voted for must be from a state other than the elector's own expresses that the state does not prepare a ballot for the electors. They must have blank ballots and choose from among all candidates in every state.
      States' ballots only apply to the popular election, and Article II s1 limits voting for presidents and vice presidents to electors. No popular ballot for these offices is lawful, so no presidential or vice presidential candidate may be on it in the first place.

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  2. Erik Borncamp

    Thank you for the clear, unbiased presentation of the facts

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  3. Robert Rhudy

    I'm curious. Why is so much attention being given to the idea of an officer when the following is part of Section 3:

    "...or hold any office, civil or military, under the United States, or under any State .."

    I mean, is the President of the United States NOT an office that is held by a person?

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  4. Bubba

    Seems to me that POTUS is an officer but not an appointed officer.

    Which gives you room to say he is disqualified, or you can conversely say he’s different because he’s elected.

    Does section 3 apply to Congress? Yes. So why WOULDN'T it apply? Do we seriously think that Congress and the states intended to exempt the President and only the President?

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  5. Richard Vanek

    One of your editors, quite obviously, is brain dead. Please cancel my subscription. Please produce a hard copy, roll it up and put it where the sun should never shine.

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      Magpie

      Any chance you could explain what you don't like about the article?

      Editing to add: Never mind, I just saw your comment below. What's a MAGA like you doing in a place like this?

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        DougCLE

        Good riddance. If he can’t keep a civil tongue in his head, we don’t need him here.

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  6. Richard Vanek

    The 2020 election was stolen. You and everyone else knows this. Why don’t you comment on how Biden has in several separate ways NOT upheld the Constitution. Everyone knows this also. We also know that you libtards will try to steal the 24 election. This explains your confidence in spite of your knowledge that everyone is against what you say and do.

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      DougCLE

      You paid $100 just to say that?

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    2. Bubba

      lol. Is that what Trump told you?

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    3. Lowedj

      Really? Oh brother! “Everyone else knows” that the2020 election was stolen? Who is “everyone”?

      Certainly not Bill Barr who was Mr Trump’s Attorney General at the time.

      After extensive investigation by the DOJ and FBI into the stolen election claims, Mr Barr told Mr Trump that these allegations were, “bullsh-t,” “completely bullsh-t,” “absolute rubbish,” “idiotic,” “bogus,” “stupid,” “crazy,” “crazy stuff,” “complete nonsense,” and “a great, great disservice to the country.” 

      And I know that no amount of logic, reason and evidence will change your mind. I suppose that reality can be a difficult thing to accept.

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    Brian

    I wonder if any SC Justices ask themselves if this is really what they signed up for. It seems that far too many of the cases they’re asked to consider now are at least as political as legal, given the current habit of Congress not legislating and instead punting to the SC. They’re now under constant political scrutiny with accusations that they’re “illegitimate” by people who should know better. All our dysfunction is ending up on their docket. I don’t think it was supposed to be this way. Are any of them having second thoughts about their career aspirations?

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  8. David_S

    What a lot of people seem to be missing is the basics of "what constitutes an insurrection"? When the 14th amendment was ratified, I think it was pretty easy and clear: If you were part of the confederacy, you were included. However, we have not had a civil war since. What happened on Jan. 6th was not a civil war. So now we have to get into the messy details of how exactly we define an insurrection, as opposed to say a riot. And what is so frustrating is that there are a lot of people (David French among them) who seem to scoff at the very notion that someone could come up with a different definition of insurrection that doesn't match there's and doesn't include Jan. 6th. And when we get to the point as a society where people can't even listen to and understand an argument that is counter to their own, we're in deep trouble.

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    DougCLE

    “But several justices seemed concerned with potentially opening the floodgates on state abuse surrounding what constitutes an insurrection.”

    What floodgates? Exactly how many other presidential candidates - in all of U.S. history - have engaged in behavior that could be in any way construed as fomenting an insurrection?

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    1. David_S

      "that could be in any way construed as fomenting an insurrection?"

      If you allow completely partisan officials in many states to decide how to define "insurrection", then potentially every presidential candidate of the party they don't like.

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        DougCLE

        I mean, if we’re talking about completely ludicrous definitions, such as “insurrection = wearing white after Labor Day,” then sure. However, if you limit the definitions to “things that could maybe, possibly look like an actual insurrection if you close one eye and squint,” then only Trump’s actions in the 2020 election come close.

        I suppose I could see some red state officials making up BS accusations of insurrection to target Biden in 2024, purely as retaliatory attacks for Trump. For those few cases, I am with Murray - let the courts decide whether the accusations have merit. I do not see it happening again once Trump and Biden are history, especially after those 2024 cases get laughed out of court.

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    NormStephens

    Obviously, the editors at The Dispatch do not support the former president. Nevertheless, it is pure spin to say he was trying to overturn the election. Actually, he believed there were election problems in several states, as was surely the case, and he wanted to delay the final certification until the issues could be further investigated. Agree with that or not, but don’t misinform your readers. If you recall, there were similar disagreements about election results in the past, even the recent past. Was Mrs. Clinton or her supporters trying to overturn the 2016 election? Or Mr. Gore in 2000? In each case they felt aggrieved by the process and wanted to be heard. In each year, the election result was eventually final, and the new president was inaugurated. In any election, it ain’t over ‘til it’s over.

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    1. Robert Rhudy

      Participating in an effort to send fake electoral votes to Congress and the National Archives is absolutely attempting to overturn an election.

      That is the charge -- we'll see if he's convicted.

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        NormStephens

        The history of alternate electors is long, complicated, and surprisingly common. I’m somewhat aware of their significance in the 1876, 1960, 2000, 2016, and 2020 elections. In this most recent 2020 election the corporate media, the Democrat party, Fani Willis, and everyone suffering with TDS gave them a new name calling them “Fake Electors”. The slates of electors certified in each state are the official electors whose votes are eventually counted. Other slates (alternates) exist in case a close election result changes after the certification is concluded. In 1960, JFK eventually won Hawaii with an alternate slate. In 1876 there were alternate slates in several states including Vermont and South Carolina. I believe Mrs. Clinton had alternates waiting in the wings in 2016 in case the Russian electors supporting Trump were thrown out, but I’ve repressed all that, and the folks rewriting history are leaving it out.

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        1. Skip

          You neglect to mention, there are material differences between those examples you give and Mr. Trump.

          In none of those cases you refer to were the votes actually transmitted as slates of electors, pretending that they were official, without being certified by the State.

          You may refuse to recognize the difference, but the courts will not.

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            NormStephens

            I’ll mention it now, there are certainly “material differences” in each circumstance over the past two centuries when alternate slates of electors were created. Only those electors certified by state legislatures are considered by Congress for tallying the vote of the electoral college. I don’t believe “pretending” to be an elector is illegal, just as pretending to be Alice in Wonderland isn’t illegal. Only the official electors are or were counted. Now, there have been cases in the past where signatures were forged on electoral certifications. I believe that happened in 1876, but I’m not positive. There were a bunch of problems with that election, but no one was charged with “pretending to be an elector.”

            As to whether the court in Georgia will find that someone “pretended to be an elector”. We will see, but don’t stay up late tonight waiting for that answer.

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      2. GettawayGal

        Actually, neither he nor any participant in the January 6 riot has been charged with insurrection in any federal proceeding, including as part of the Jack Smith indictment (spoiler alert: because every federal prosecutor that examined the issue came to the same conclusion, it was not provable). Personally, I think Trump‘s actions in connection with the January 6 riot are disqualifying - and Congress could have precluded him from running again as part of the second impeachment- but I think it is ludicrous to argue that individual state officials should, on their own, make individual determinations that the relevant actions amounted to an insurrection. There is a political solution to this and, if we want to preserve the Republic, we should let that play out.

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          NormStephens

          Correct! Insurrection is a federal crime specifically defined in the law. That’ s another reason the Colorado ballot issue is completely bogus. No state court or state Supreme Court has the jurisdiction to adjudicate a federal crime such as insurrection.

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    2. InklingJD

      It is not “surely the case” that “several states” had “election problems,” as Trump surmised. The former president had his day in court. He and his lawyers were unable to produce evidence anywhere near sufficient to overturn the results of the 2020 presidential election. His continued brazen insistence on undermining the legitimacy of the election is disgraceful and dangerous.

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        NormStephens

        I guess we will just have to agree to disagree on this.

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      DougCLE

      - Eastman memo
      - Raffensperger call
      - Fake slates of electors
      - Dozens of spurious lawsuits alleging outright fraud
      And of course…
      - Incitement to riot at the Capitol

      Remind me, please, how many of these did Clinton or Gore engage in?

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        NormStephens

        The problem is that millions of people see this differently than you apparently do. Removing their preferred candidate from the ballot in Colorado, or other blue states, solves nothing and could make matters much worse. The only way to defeat a candidate you don’t like is to vote for someone else and make your opinions known so others can consider your position. Taking away their voting preference seems rather contrary to our democratic values. The best way to move on from the former president is defeat him in a fair election.

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          DougCLE

          Then why write the 14th Amendment at all? Why have age or citizenship requirements? Why have impeachments?

          If “the people must be heard” and pure democracy is all that matters, then why have a Constitution?

          I am actually 50/50 on Colorado’s position. I won’t be particularly upset whichever way SCOTUS decides. But if I were sure - if it were clear that one or the other position were the right one - then the fact that millions of people disagreed with me would not be a reason to back down. Millions of people disagreed with Dobbs, but that doesn’t mean it was the wrong decision. Democracy only takes you so far.

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            NormStephens

            Sections 3 and 5 of the 14th Amendment were ratified about 150 years ago to prevent a second rising of the south, figuratively speaking. Because the horse left the barn, ran on down the road, and subsequently died of old age, there is very little reason to worry about whether the barn door is open or closed.

            I’ve read legal analyses identifying at least seven different reasons why the SOTUS should overturn the Colorado decision. I’ve not seen one logical reason to let it stand. I am aware of a bunch of emotional and partisan reasons why millions of people want the Colorado decision to stand. Most of them come down to this; they don’t like Trump, they don’t approve of his behavior leading up to and including January 6th, and any way to prevent him from being president again is justified, sort of like the ends justify the means. I don’t want him to be president again either, but I prefer that outcome be realized in a manner that is strictly in accord with our elections and our Constitution.

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      Todd T

      By January 6th? Yeah it’s over.

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        NormStephens

        Yes, after Congress certified the results from each State on January 6th it was over.

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