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February 10, 2024

The big story of the day, of course, started out to be President Trump’s appeal of the Colorado Supreme Court’s ruling that because they’ve determined he’s an “insurrectionist,” they have the power, by virtue of the 14th Amendment, to take him off the state GOP primary ballot, effectively disenfranchising Trump supporters throughout the country.  Would the U.S. Supreme Court uphold this or not?  Even before arguments took place, many legal experts saw this as extremely unlikely.

(By the way, the Colorado court specified in their ruling that the Colorado Secretary of State should not even count write-in votes for Trump, creating an even more thoroughly in-your-face disenfranchisement of his supporters in that state!)

The hearing on Thursday morning was spectacular.  If you’re dismayed by the level of discourse in 2020s America --- and how could you not be? --- we encourage you to take a couple of hours, perhaps over the weekend, and listen to the entire hearing for Trump v. Anderson.  One of the few good things that came out of the COVID pandemic is that the Supreme Court started posting the audio of their hearings online.

Later in the day, this hearing was overshadowed by another story, as Special Counsel Robert Hur released his report on the President Biden classified documents case.  But the two big stories taken together send a stark message about the two-tiered justice system as currently practiced in our country.  We have an all-out legal assault on one President, on numerous fronts, with the law contorted almost beyond recognition in order to “get him” in any way possible, while reasons are found to let another President get by with an arguably much more serious case of mishandling documents.

Talk about a double standard.  Trump got an all-out early-morning FBI assault on Mar-A-Lago by 30 armed agents.  Biden got a pass.

In fact, when Hur released the report saying he wouldn’t be pursuing the classified documents case against Biden, Trump’s first reaction was to call for Special Counsel Jack Smith to immediately drop the classified documents case against HIM, the one Smith is trying to bring to trial before the November election.

The bigger story of the Hur Report, of course, is that it brought to the fore the issue of Biden’s serious cognitive decline, but Hur’s conclusion also is reminiscent of then-FBI Director James Comey’s infamous press conference of July 5, 2016, in which he outlined Hillary Clinton’s serious CRIMES of obstruction of justice and destruction of subpoenaed evidence and then went on to say “no reasonable prosecutor” would take the case.  We knew there had to be prosecutors who would line up around the block to take that case, given the amount of evidence.

The Hur Report and subsequent nuclear-disaster of a press conference held by Biden, which served to confirm in front of all the world the report’s comments about his shocking cognitive slide, are covered in detail elsewhere in the newsletter.  But I’ll just say here, that presser was so bad that one has to wonder if those around Biden might have even orchestrated it, knowing exactly what they were doing and thinking it was time to start taking him off the stage and primping another candidate for November.  There’s been buzz that this might happen around May (with Michelle Obama likely waiting in the wings), so this feels a little early, but with the report on Biden coming out, they might have had no other choice.

In an interview with Sean Hannity, legal expert Alan Dershowitz found it instructive to compare the two Thursday cases: “You know, there is a connection between today’s case [Hur] and this morning’s case in the Supreme Court...It’s so hard to remove a President under the 25th Amendment.  You need the Cabinet...the Framers made it so difficult.  And yet this morning, the State of Colorado said, ‘Want to get rid of a President?  Snap your fingers; the Secretary of State; all you need is a 4-3 decision; one state; you get rid of the President.’

“There’s such an incompatibility, an inconsistency,” he continued.  “The problem with our country today is everybody sees the law through the prism of partisan politics.  Everybody tries to weaponize the Constitution to support their political candidate, and the losers are the American people.”

Not surprisingly, Dershowitz put his finger on the problem, but it must be said that it’s the Democrats, in particular, who have increasingly relied on this strategy.  Dershowitz is still a Democrat, supporting both Clintons and Joe Biden (last time), but he made it clear he’d rethink his vote if it meant voting for someone with a degenerative brain disease.  Guess that’s the definition of “die-hard Democrat”: when the only thing precluding your vote for the Democrat is when the “D” by his name stands for DEMENTIA.

With all the above in mind, let’s focus on the Supreme Court hearing.  SCOTUS hasn’t heard a potentially more consequential election case since Bush v. Gore in 2000, which involved another portion of the 14th Amendment, Bush’s right to the equal protection clause.    

Trump’s attorney was former Texas Solicitor General Jonathan Mitchell, who clerked for the late and extremely great Supreme Court Justice Antonin Scalia.  Mitchell has argued many cases before the Court and, as THE EPOCH TIMES reports, “has been credited with the controversial enforcement mechanism in Texas’ heartbeat law, which the top court allowed to proceed after a challenge in 2021.”  He was mightily prepared for the Justices’ questions.

Colorado Secretary of State Jena Griswald was represented by Colorado Solicitor General Shannon Stevenson, and the voters were represented by Jason Murray.  Law professor Jonathan Turley was not impressed with Murray’s lack of answers.

Turley (like us) was fascinated by how many of the questions came from left-leaning Justices Ketanji Brown Jackson and Elena Kagan.  He posted on X: “The argument is now over.  The disqualification advocates may have expected a cold reception, but this was perfectly glacial.  Notably, some of the toughest and most skeptical questions came from the left of the Court.”

For example, Kagan saw the effect that one state-level secretary of state could have on a nationwide election as “quite extraordinary.”  For this reason, she thought that “whatever means there are to enforce it would suggest they have to be federal, national means.”

“Maybe put most boldly,” she said, “I think that the question you have to confront is why a single state should decide who gets to be President of the United States.”

It was Justice Jackson, a Biden appointee, who pointed out to Murray that Section 3 of the 14th Amendment does not mention the office of President.  “The thing that’s really troubling to me,” she said, “is --- I totally understand your argument --- but they were listing people who were barred, and ‘President’ is not there.”  Here’s a good write-up of that exchange.

Here’s another example of Murray being stumped, this time with a question by Clarence Thomas:

When pressed, Murray couldn’t give one example of a state ever removing anyone from a national ballot.  State ballots, sure, but nothing like what he was saying they had the authority to do.

Trump didn’t attend the hearing but did watch it, and he seemed to have liked what he saw.  As the DAILY CALLER reported, Trump addressed the press on the steps of Mar-A-Lago afterwards.  “I think it was well received, I hope it was well received,” he said.  “I hope that democracy in this country will continue because right now we have a very tough situation with all of the radical left ideas with the weaponization of politics.  They weaponize it like it’s never been weaponized before.”

He blamed whatever “insurrection” there might have been on then-House Speaker Nancy Pelosi.  And it’s true:  if she’d accepted his offer of 10,000 National Guard troops, there’d have been no riot.

More here…

William A. Jacobson, a Cornell law professor who writes at the LEGAL INSURRECTION blog, offers a good summary.  (Apology:  the language in the tweets from some other observers gets quite rough at times.)  Trump had a great attorney, and we would add that it never hurts to have the law on your side.

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Comments 1-1 of 1

  • Jim Greer

    02/10/2024 02:56 PM

    While there can be no about the Colorado attack on Trump and on democracy being politically motivated, l believe Jonathon Turley’s question of whether or not a state has the authority to prevent a candidate from being on the ballot falls short. I believe a much more important question would be not IF a state can decide on its own to remove a candidate, but how a state can decide to prohibit someone from being on the ballot for committing a crime for which they have NOT been charged much less convicted. Guilty till proven… well guilty because proving it’s just a formality?