Trump on Trial - Episode 6 |OT| The One with the One Weird Trick (UP: only Congress can enforce 14th amendment v federal officers)

[phisheep]

Section IV of Trump's reply brief is quite extraordinary.

He claims that he cannot be disqualified at all, by anybody, ever, because of the possibility that Congress might remove the disqualification by the required 2/3 majority sometime before 20 Jan 2029.

That is an outrageous claim, and Judge Luttig is up in arms about it. (Full unrolled thread here.)


View: https://twitter.com/judgeluttig/status/1754630553247089108

(It's not quite the concluding argument: there is a section V as well, but that is very short and easily missed.)

 

[wollywinka]

How long before the SC decides?

 

[Volimar]

How long before the SC decides?

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Literally whenever they feel like it.

 

[wollywinka]

Literally whenever they feel like it.

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With any luck, it won't take too long. I can't shake the feeling that the SC is not going to rule against his ballot removal. Just imagine the firework show over on Truth Social.

 

[phisheep]

How long before the SC decides?

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They'll likely decide very quickly, within days of oral argument. What takes the time is getting the opinion(s) written up and agreed and published, which could be any time between March and July.

 

[wollywinka]

They'll likely decide very quickly, within days of oral argument. What takes the time is getting the opinion(s) written up and agreed and published, which could be any time between March and July.

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Thanks. Maybe it's not too much to hope that they make the right decision.

 

[Order of Out]

They'll likely decide very quickly, within days of oral argument. What takes the time is getting the opinion(s) written up and agreed and published, which could be any time between March and July.

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We already had one leak… wonder if they have all the holes plugged or if this one gets out early, too.

 

[wollywinka]

I'm curious about something. I am not from the US. Should Trump be disqualified, how would this diminish him within the GOP? Would he remain a king/queen maker within the party?

 

[Contramann]

I'm curious about something. I am not from the US. Should Trump be disqualified, how would this diminish him within the GOP? Would he remain a king/queen maker within the party?

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The President or the Candidate for the Office of President is usually regarded as the head of their party. If Trump doesn't have that power because he can no longer be President that really means the only people who care about him are those who are the true believers and people he blackmailed/strongarmed/paid/etc. into following him.

So he loses that status most likely. Especially since most of the candidates he backs lose their elections.

 

[phisheep]

I'm curious about something. I am not from the US. Should Trump be disqualified, how would this diminish him within the GOP? Would he remain a king/queen maker within the party?

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So far as I can tell, it is a bit of an unknown.

Undoubtedly he would try to retain massive influence in the party, but there's plenty of relatively sane republicans despise him. On the other hand the MAGA infestation is quite pervasive, at least in Congress and in the redder states. It might depend, given his previous behaviour, on how much dirt he has on whom and what he chooses to do with it.

 

[julian]

I'm afraid to ask if speaker of the house is considered an officer or not.

 

[tuffy]

I'm afraid to ask if speaker of the house is considered an officer or not.

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The House Speaker doesn't necessarily have to be a member of the House, so it depends. But a Speaker that's not qualified for the Presidency would be skipped over in the line of succession if it came to that.

 

[phisheep]

I'm afraid to ask if speaker of the house is considered an officer or not.

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Now that is a bloody good question.

Normally the question would not arise, as members of Congress are listed separately in Section Three so they do not need to come under the 'officer' bit.

But in the unlikely event that the House elects as Speaker someone who is not a Member we would yet again be in uncharted constitutional waters.

 

[DrForester]

I'm curious about something. I am not from the US. Should Trump be disqualified, how would this diminish him within the GOP? Would he remain a king/queen maker within the party?

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Not at all. He would be seen as a Martyr by republican voters and he controls the Republican voters.

 

[wollywinka]

The President or the Candidate for the Office of President is usually regarded as the head of their party. If Trump doesn't have that power because he can no longer be President that really means the only people who care about him are those who are the true believers and people he blackmailed/strongarmed/paid/etc. into following him.

So he loses that status most likely. Especially since most of the candidates he backs lose their elections.

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Yes, it seems like he rules through fear. I don't imagine his tactics would engender much loyalty in GOP lawmakers were it not for the fact he could be President again. If he is disqualified, I want a front row seat for the Truth Social meltdown. It will be the stuff of legend.

Undoubtedly he would try to retain massive influence in the party, but there's plenty of relatively sane republicans despise him. On the other hand the MAGA infestation is quite pervasive, at least in Congress and in the redder states. It might depend, given his previous behaviour, on how much dirt he has on whom and what he chooses to do with it.

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I agree. I'm sure most of them despise him. If it weren't for his base, I suspect it would be a feeding frenzy once blood was in the water. I guess he could create mischief from the sidelines, but that's difficult to do from a cell. Lol.

Not at all. He would be seen as a Martyr by republican voters and he controls the Republican voters.

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Without power, relevance, one would hope that many would drift away, until the rise of another hateful demagogue, at least.

 

[Blergmeister]

Now that is a bloody good question.

Normally the question would not arise, as members of Congress are listed separately in Section Three so they do not need to come under the 'officer' bit.

But in the unlikely event that the House elects as Speaker someone who is not a Member we would yet again be in uncharted constitutional waters.

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What happens today if someone not eligible to be president ends up in the line of succession? That list eventually gets down to the various department secretaries and has to have had someone not eligible in it yet, right?

 

[phisheep]

What happens today if someone not eligible to be president ends up in the line of succession? That list eventually gets down to the various department secretaries and has to have had someone not eligible in it yet, right?

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Yep. The Presidential Succession Act (3 USC 19) restricts the succession to those qualified: "shall apply only to such officers as are eligible to the office of President under the Constitution".

 

[Doorman]

The question of how much his relevance would diminish seems a little bit misguided to me; there's no amount of sway over the Republican voting base that he could lose that he wouldn't essentially maintain filibuster power over the party. If Trump wins, he's king. If Trump runs for office and loses again then he'll do everything he possibly can to overturn the results, including another call for violent overthrow. If he loses the arguments of this case and ends up barred from holding the office anymore, he's not going to just recede or endorse some other person for the position he both covets and needs to keep himself out of jail, he will rather accuse the GOP of backstabbing or not fighting for his sake hard enough, and pull away enough of his base to guarantee GOP losses across the ticket. They've had ample opportunities to divorce from Trump and take their lumps for it at a more convenient time than now, at this point it's too late for a backup plan, and both conservative tents know it.

 

[julian]

The House Speaker doesn't necessarily have to be a member of the House, so it depends. But a Speaker that's not qualified for the Presidency would be skipped over in the line of succession if it came to that.

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Yep. The Presidential Succession Act (3 USC 19) restricts the succession to those qualified: "shall apply only to such officers as are eligible to the office of President under the Constitution".

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Ok, so somebody might be able to talk him into it but sounds like a dead end to get around disqualification. Still kinda crazy that he could be speaker after being deemed ineligible to be president.

 

[Mandos]

Sorry but if Trump gets barred from the ballot a mix of these things happen
He goes nuclear on the R party for betraying him
Tells his voters to write him in
Flees the country knowing his one avenue of victory has been completely erased.

Dude doesn't trust the gop at all and it's the power of president that's he after and the only thing that could allow him to escape his troubles. Not even a pardon works. He hates the current alternatives guts. And the SC betraying him would make him paranoid

 

[Volimar]

I wonder if he really would run. He's a massive narcissist and narcissists can't really cope with losing. It might not be real for him before it's too late. But man imagine a former president being a fugitive in another country.

 

[ErnieMcCracken]

I wonder if he really would run. He's a massive narcissist and narcissists can't really cope with losing. It might not be real for him before it's too late. But man imagine a former president being a fugitive in another country.

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I'm sure Putin would let him open Trump Moscow (for a hefty fee that his base would pay for).

 

[Mandos]

I wonder if he really would run. He's a massive narcissist and narcissists can't really cope with losing. It might not be real for him before it's too late. But man imagine a former president being a fugitive in another country.

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You see he'd be establishing the true presidency in exile

 

[Sheepinator]

I remember a hilarious Klepper vid with some Trumpers. Some guy was claiming that Trump is still President in secret. Klepper asked him if Trump is responsible for whatever current issue. Dude paused for a few seconds, you could see him struggling to process this. Then he said, "No."

 

[Erpy]

I'm sure Putin would let him open Trump Moscow (for a hefty fee that his base would pay for).

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Of course he would. Nothing would help Putin more than Trump being given a permanent unsilencable global soapbox from which he could continue controlling 40% of the US population and 25% of the US legislature.

 

[phisheep]

Oral arguments today in SCOTUS starting 10am Eastern.

Seems like pretty well everyone is carrying the live audio feed. I will be listening on C-SPAN here, as they're apparently good at identifying who is speaking.

Later in the day there will be a transcript on the SCOTUS site here.

Links to key briefs:
17 Jan 2024 - Colorado Republican State Central Committee brief (not an officer, not self-executing, holding office not seeking it, 1st amendment)
18 Jan 2024 - Donald J Trump brief (I was not an officer and I didn't do it, honest)
26 Jan 2024 + Anderson respondents brief (Trump engaged in insurrection, applies to Presidents, courts may adjudicate)
31 Jan 2024 + Jena Griswold brief (Co SoS: Colorado's rights and duties and law)
5 Feb 2024 - CRSCC reply
5 Feb 2024 - Trump reply

Interesting amicus briefs:
18 Jan 2024 * Akril & Vikram Amar amicus brief (fascinating historical replay from 1860!)
18 Jan 2024 * Foley, Ginsburg, Hansen amicus brief (states may resolve this, perilous situation that SCOTUS must resolve on merits)
18 Jan 2024 * NAACP amicus brief (SCOTUS, do your duty and do not mess up again like you did before)
26 Jan 2024 + Profs Orville Burton et al amicus brief (historical perspective, covers the President, no Congressional action needed)
29 Jan 2024 + American Historians amicus brief (historical perspective inc. Jefferson Davis)
29 Jan 2024 + Judge Luttig et al amicus brief (powerful and densely argued, well worth reading)
30 Jan 2024 + Prof Kermit Roosevelt amicus brief (policy concerns don't justify setting aside the constitution, anti Griffin's case)
31 Jan 2024 + Experts in Democracy amicus brief (fascinating and chilling international comparisons)

 

[rjinaz]

Seems likely a Trump win on this one no? I just hope people do not start dooming about all the trials because one went his way.

 

[mclem]

A weird side question - why'd they use so little of the page width?

 

[phisheep]

Seems likely a Trump win on this one no? I just hope people do not start dooming about all the trials because one went his way.

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It is almost completely unexplored constitutional territory, and we have no idea how it will go. Really.

A weird side question - why'd they use so little of the page width?

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Back in the olden days when we used actual paper, it leaves room for annotations.

 

[Culex]

Seems likely a Trump win on this one no? I just hope people do not start dooming about all the trials because one went his way.

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It's never been ruled on or really disseminated on in 150 years, right? Either way, we need this decided.

If the amendment is neutered, it means you can be a menace to the constitution, and willfully attempt overthrows without repercussions.

 

[ZeroMaverick]

Any ideas when we will know the ruling for this? What even are the implications? I haven't kept up with this one. If he "wins" what happens? If he "loses" what happens?

 

[Casa]

Does the court ruling in Trump's favor mean that he didn't officially incite and participate in an insurrection in their eyes?

 

[NihonTiger]

Does the court ruling in Trump's favor mean that he didn't officially incite and participate in an insurrection in their eyes?

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Yes, and that presidents are not officers who have to defend the same Constitution they derive their powers from.

Which has interesting and awful potential implications for the impeachment process.

 

[Casa]

Yes, and that presidents are not officers who have to defend the same Constitution they derive their powers from.

Which has interesting and awful potential implications for the impeachment process.

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Lovely. 🤦‍♂️

I have just assumed from the moment they took up this one that it would be a nailed on ruling in his favor.

 

[Hollywood Duo]

Any ideas when we will know the ruling for this? What even are the implications? I haven't kept up with this one. If he "wins" what happens? If he "loses" what happens?

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Depends entirely on the scope of the ruling, no one knows really

 

[Slim Action]

Zero chance this SCOTUS blocks Trump from office. They'll come up with some justification with a narrow scope.

 

[Hollywood Duo]

Zero chance this SCOTUS blocks Trump from office. They'll come up with some justification with a narrow scope.

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I wouldn't be so sure. Getting Trump out of their hair is very beneficial to all the conservative justices. Additionally if Trump wins the election there is going to be huge pressure for the older justices to step down which I highly doubt any of them are interested in.

 

[CreepingFear]

I have no faith in the Supreme Court.

 

[MikeProtagonist]

I have no faith in the Supreme Court.

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Even the evilest, most cynical judge should understand that if Trump wins again, in the upcoming purge anyone who ever dissented on anything will be tagged as disloyal and forever be afraid of windows, unless they want to see their lifetime position abruptly ended and replaced by Alina Habba.

 

[CreepingFear]

Even the evilest, most cynical judge should understand that if Trump wins again, in the upcoming purge anyone who ever dissented on anything will be tagged as disloyal and forever be afraid of windows, unless they want to see their lifetime position abruptly ended and replaced by Alina Habba.

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I think they are in denial of that happening.

 

[phisheep]

Does the court ruling in Trump's favor mean that he didn't officially incite and participate in an insurrection in their eyes?

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Not necessarily. It depends what they rule. They could, for example, find that he engaged in insurrection but is not disqualified because the president is not an ' officer of the United States' and therefore is not covered by Section Three.

 

[julian]

I was listening to Prosecuting Donald Trump and they went through all his arguments, mostly mockingly, but there was one that I found quite convincing. One question is whether he's eligible to be president, but another is whether he's eligible to be on the ballot. I believe Colorado says you can't be on the ballot if you're ineligible to take the office, however, unlike all other disqualifications to be president, the insurrection one can be "remedied" by a 2/3 vote in congress. So technically, he could be eligible even if found guilty of insurrection. Similar to how a 34 year old can run for president as long as their birthday falls before they'd take office. They are not eligible at the time they're on the ballot but will be after.

It's a way to kick this down the road and make this election even more of a mess than previously imaginable.

Not necessarily. It depends what they rule. They could, for example, find that he engaged in insurrection but is not disqualified because the president is not an ' officer of the United States' and therefore is not covered by Section Three.

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I don't care how much this has been repeated, it's too dumb even for this court….at least, it should be.

 

[BLEEN]

Not necessarily. It depends what they rule. They could, for example, find that he engaged in insurrection but is not disqualified because the president is not an ' officer of the United States' and therefore is not covered by Section Three.

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I think there's zero chance of that happening as it's outright mentioned multiple times in the Constitution. Besides that, it's just braindead obvious he is an officer lol

I'm optimistic they rule against him... somehow I am.

 

[phisheep]

I was listening to Prosecuting Donald Trump and they went through all his arguments, mostly mockingly, but there was one that I found quite convincing. One question is whether he's eligible to be president, but another is whether he's eligible to be on the ballot. I believe Colorado says you can't be on the ballot if you're ineligible to take the office, however, unlike all other disqualifications to be president, the insurrection one can be "remedied" by a 2/3 vote in congress. So technically, he could be eligible even if found guilty of insurrection. Similar to how a 34 year old can run for president as long as their birthday falls before they'd take office. They are not eligible at the time they're on the ballot but will be after.

It's a way to kick this down the road and make this election even more of a mess than previously imaginable.

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That is probably Trump's strongest argument.

 

[Vgorilla3774]

That is probably Trump's strongest argument.

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Possibly, but the implication of that ruling would be that corrupting or threatening Congress to strong-arm your way into the presidency/dictatorship is essentially legitimized in our system of government

 

[Fnor]

I wish I had your faith in rational action, phisheep. The current court has made up entirely new and baseless "doctrines" to do what they want, I don't see them having any compunction about doing something similar here to help their side.

 

[Anoregon]

I've just been assuming this whole time that the court will rule in his favor and reason that he has not actually been convicted of any insurrection-related crime (yet), therefore it is not in the purview of any state to use the 14th amendment in this fashion.

 

[phisheep]

I've just been assuming this whole time that the court will rule in his favor and reason that he has not actually been convicted of any insurrection-related crime (yet), therefore it is not in the purview of any state to use the 14th amendment in this fashion.

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Neither had any of the first six people been who were removed from office by this amendment after the Civil War.

 

[Hollywood Duo]

I wish I had your faith in rational action, phisheep. The current court has made up entirely new and baseless "doctrines" to do what they want, I don't see them having any compunction about doing something similar here to help their side.

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While that is true, how many of these made up things did they do in subservience to Trump vs aligning with their own beliefs. You can't tell me a strict constitutionalist believes the president isn't an officer and can do whatever they want like a king.

 

[Volimar]

If I was in charge of this simulation, I'd have SCOTUS rule against Trump but only have it pertain to states that choose to remove him, thus creating a massive shitshow of him still staying in the race even if it makes it impossible for him to win.

For added fuckery a few Republican states remove Biden from the ballot because his "failures at the border" get tortuously called an insurrection by a right wing judge.

Then we're off to the races.