Colorado, Maine, and the 14th Amendment’s Enforcement Problem

Happy New Year, and let’s get right into it with this week’s Collision.

The Docket

• One development since our last issue: The U.S. Supreme Court decided on December 22 not to decide (yet) on the question of presidential immunity for criminal cases. The court denied special counsel Jack Smith’s request to expedite the process ahead of Donald Trump’s trial on election interference charges. This will give the D.C. Circuit Court of Appeals the opportunity to consider the Trump team’s appeal of Judge Tanya Chutkan’s ruling that Trump is not immune from prosecution. It was a small procedural victory for the defense, which wants to slow down the momentum toward a trial.
• Get ready for another civil trial involving Trump. Earlier this week, federal judge Lewis Kaplan of New York rejected the former president’s request to delay the start of a January 16 trial stemming from a lawsuit from writer E. Jean Carroll, who in 2019 accused Trump of raping her in the 1990s. Carroll actually already won a defamation suit against Trump last year, when a jury also found him liable for sexual abuse and battery (but not rape) and awarded the plaintiff $5 million in damages. But when Trump made comments following this verdict that she considered defamatory, Carroll sought additional damages. Trump countersued, the judge made a summary judgment in Carroll’s favor, and the upcoming trial will determine how much Trump will have to pay.
• We hope you’re immune to the effects of all these excessive debates about presidential immunity, because this E. Jean Carroll lawsuit has its own drama about the subject. Here’s the skinny: Trump has argued that his comments about Carroll were made during his presidency and therefore he’s immune from civil liability. Judge Kaplan didn’t buy that argument and ruled against him. Trump appealed the ruling, a panel on the 2nd Circuit Court of Appeals ruled against him, so Trump sought an en banc ruling from the entire 2nd Circuit. On Wednesday, the court denied this request, meaning the next step would be for Trump’s team to appeal to the U.S. Supreme Court. If he does, and the Supreme Court takes it, this year will be a feast for legal scholars of presidential immunity.
• Mark Meadows, Trump’s former chief of staff who was among those indicted alongside Trump in Georgia last year for election interference, is trying once again to move his case out of Fulton County and into federal court. Last month, a panel on the 11th Circuit Court of Appeals rejected Meadows’ request, but the onetime North Carolina congressman is asking in a new filing for the court to reconsider. Meadows has argued his case deserves removal to federal court because the charges stem from his actions when he was a White House employee, but so far that’s been unpersuasive.

Maine Ups the Ante on Trump’s Ballot Question

Let’s make this quick. 

We are still waiting on the Supreme Court. Last week, the Colorado Republican Party officially appealed the Colorado Supreme Court’s decision to remove Trump from the state’s presidential primary ballot. The Colorado court had stayed its decision until January 4—the date the ballots need to go to the printer. Guess what today is. So it seems very likely that we will know something by midnight, but nothing yet. 

In the meantime, two other notes on this topic are worth mentioning. 

First, in case you missed it just before the new year: In late December, Maine’s secretary of state also decided that Trump would be kept off the ballot there, citing the same Section 3 of the 14th Amendment. This is important because it highlights for the Supreme Court the “self enforcing” problem of this disqualification clause.

In Colorado, there was a trial with evidence, and a judge decided it was more likely than not that Trump “engaged in insurrection.” There are still problems with that, as Sarah noted last time. For example, the 14th Amendment doesn’t specify whether the standard is supposed to be more likely than not or very likely or beyond a reasonable doubt, and it would seem odd that different states could have different standards for who is allowed on their ballots. Still, a legal process is a legal process. 

The Maine secretary of state’s process was also potentially problematic. She was bound by Maine’s administrative procedures process, which means she served as the “judge” in the case and held a hearing under those state rules. You can read her entire decision here.* Although the Supreme Court will be considering only the Colorado case, Maine’s action to keep Trump off the ballot could underscore the problem with state officials trying to enforce a standardless provision of the Constitution that doesn’t specify who does—or doesn’t—get to enforce it. The court could hold that Congress was required to pass a statutory enforcement mechanism. (Arguably, Congress already did this—it is a federal crime to engage in an insurrection, and it is punishable by not being allowed to hold office, which means the standard is “beyond a reasonable doubt.” The court could point to this and hold that Colorado—and Maine—didn’t use the correct standard.) 

On the other hand, Trump has now appealed the secretary of state’s decision to a Maine superior court, which will ensure all sorts of legal process. In the meantime, the secretary of state’s decision to remove him from the ballot is on hold. And anyway, it will likely all be moot once the U.S. Supreme Court weighs in on the Colorado case. 

Second, the National Republican Senatorial Committee filed its own Supreme Court brief in the Colorado case, making an argument we haven’t talked about yet: While the text of the 14th Amendment says that a covered person can’t hold office, it doesn’t say anything about running for office. And since the amendment also says that Congress can “by a vote of two-thirds of each House, remove such disability,” who is to say what the deadline is for Congress to decide? Surely, the argument goes, lawmakers don’t need to vote on the person before that person has won a single primary. Their argument would be that the 20th Amendment, which says that “if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified,” means that it’s up to Congress—and only Congress—to decide whether someone is disqualified under the 14th Amendment after being elected but before taking the oath of office. 

This would be another offramp for the U.S. Supreme Court, which could hold that the provision of the 14th Amendment was meant to be enforceable only by Congress—after an election—and that states have no role in deciding who is eligible to be president. And if you think that sounds a little batty (“Wait? So a state has to let a 12-year-old on the ballot?”), they’ve got some answers for how that might be different.

At least a few legal eagles think this is likely the route the Supreme Court will take overturning the Colorado decision. But why guess when we can just wait!

Verbatim

Trump has been particularly vocal since the holidays began over on his proprietary social media site, Truth Social. Here’s one rant earlier this week, which makes more sense as part of a defense in the public square (and with Republican primary voters) than in a courtroom:

Why did American Disaster Liz Cheney, who suffers from TDS (Trump Derangement Syndrome), and was defeated for Congress by the largest margin for a sitting Congressman or Congresswoman in the history of our Country, ILLEGALLY DELETE & DESTROY most of the evidence, and related items, from the January 6th Committee of Political Thugs and Misfits. THIS ACT OF EXTREME SABOTAGE MAKES IT IMPOSSIBLE FOR MY LAWYERS TO PROPERLY PREPARE FOR, AND PRESENT, A PROPER DEFENSE OF THEIR CLIENT, ME. All of the information on Crazy Nancy Pelosi turning down 10,000 soldiers that I offered to to guard the Capitol Building, and beyond, is gone. The ridiculous Deranged Jack Smith case on Immunity, which the most respected legal minds in the Country say I am fully entitled to, is now completely compromised and should be thrown out and terminated, JUST LIKE THE RADICAL LEFT LUNATICS DID TO THE EVIDENCE!

Correction, January 19, 2024: This newsletter originally stated that Maine’s process for removing Donald Trump from the ballot in the state was “arbitrary,” and that Maine’s secretary of state was not clear about how and why she reached her decision. The newsletter also claimed that Trump was not allowed to defend himself before losing the right to appear on the ballot. These claims were not accurate, and we regret the errors. You can read Maine Secretary of State Shenna Bellows’ full decision here.