SCOTUS Decides

Signe Wilkinson
an old cartoon but still relevant

The Supreme Court of the United States issued their judgement today regarding 45's ballot eligibility, posting on their website directly instead of from the bench. Just in the nick of time for Super Tuesday and Colorado's primary election.

The Supreme Court decision is no surprise, but it's still supremely disappointing. 

They ruled that Trump can remain on Colorado's ballot. Done.

It was unanimous, as I had predicted, and as I had also thought they would do, they issued the judgment per curium (meaning there is no primary author and no dissenting opinions). 

My thought: they turned a Constitutional question into a political issue. They showed their hand again, revealing a political body. 

Their main thrust was that it is a state issue. Because they were tasked to narrowly answer the question "Can Colorado disqualify him," they avoided the Constitutional question altogether. Their opinion was rife with that state issue. That it would be a patchwork of qualifications, that other states would retaliate and disqualify candidates from the other side, yada yada. 

The other justification was one that was totally erroneous. That Congress must be the one to decide this issue. But Section 3 says the opposite. Remember, Section 3 reads (emphasis mine):

"No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."

The language clearly says that Congress can remove the disqualification, not at all that they are bound to clarify this Constitutional edict. Section 3 is self-executing. Congress did not have to clarify any other qualifications for president, and they do not need to clarify this one.

SCOTUS also relied on the fact that a state was deciding on a federal office saying:

"We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency."

This is confusing. Aren't senator and representative federal offices? The Section clearly disqualifies senators and representatives from holding office in Congress under circumstances of insurrection. This part of their argument falls completely flat.

The opinion cited Section 5 of the same amendment as part of their reasoning. Section 5 of the Fourteenth Amendment reads simply: 

"The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

In my opinion, they simply weaseled out. they dodged the real question, and as Sister Resister Anne pointed out, they are appearing to be "fair" to the Mango Mussolini, much like the press has been doing. All of this dancing around "fairness" and "equal opportunity" is giving a path for a dictator to come to power again.

The four women on the court did have a little more to say. 

Justice Amy Coney Barrett, in her bit, agreed in theory about what the three liberal justices said (below), but  basically concluded, Hey, we ruled. Accept it and get over it.

The liberal women had a bit more to say. They concurred with the judgment, but the three of them strongly disagreed on the Court's overreach of the question. 

In a dissent of the overall opinion, not the judgement itself, Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson threw Chief Justice Roberts's words back at him. In last year's Dobbs decision, which stripped women of their reproductive rights, Roberts wrote: “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”

The three say that in this decision, the Court overreached in their opinion by not just answering the question before the court but opining on how the issue must be resolved in the future. The three write:

"They decide novel constitutional questions to insulate this Court and petitioner from future controversy.... Although only an individual State’s action is at issue here, the majority opines on which federal actors can enforce Section 3, and how they must do so. The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment. In doing so, the majority shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and difficult issues unnecessarily, and we therefore concur only in the judgment." 

They also point out:

"It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation."

They conclude, "What it does today, the Court should have left undone."

Burn. 

You know what this means, don't you? It means that we must vote vote vote. Get a blue supermajority in Congress. Pass some gol-darn laws!

I encourage you to read the entire judgement. It is not long. Though it is in legalese, it's short enough to go through a couple times to really grasp it. It's an important judgment, worthy of each of The People to read and digest it. 

Now, I go read the pundits' viewpoints. I'm sure I'll be back after I digest what the experts say.

Ann Telnaes

Justice Delayed

Developments are happening. And things are grinding to a halt. 

Nick Anderson

SCREEECH! The biggest development which has squared the wheels of justice is the Supreme Court's decision to hear the immunity case. In April. 

Benedict Donald has asserted that as a person who held the office of president, he has total immunity from prosecution for acts he committed while in office. He brought the assertion during the January 6 case brought by Special Prosecutor Jack Smith, but it has implications for the Georgia racketeering case as well as the federal classified documents case. The January 6 case has screeched to a halt while the issue is litigated. It was heard in an appeals court, as well as by the trial judge, Tanya Chutkan. There has been unanimous agreement – by four judges so far – that the president does not have absolute immunity. And yet, here we are. 

Doesn't it feel like SCOTUS is handing a gift to TRE45ON? They are giving him exactly what he wants: delays. They are set to start hearing arguments the week of April 22, and a decision isn't expected until the end of June. Even if they rule in The People's favor, the federal trial won't be able to get underway for weeks, with the attorneys needing to prepare. That will leave a very narrow window for the trial to happen before the election. If he wins in November, The Bloat of Many Colors makes it all go away.

SCOTUS will focus on only one question: “Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

It's so freaking frustrating. Special Prosecutor Jack Smith urged the high court to rule quickly on the matter after the first ruling by Judge Tanya Chutkan back on December 1, 2023. They declined, sending it to the lower appeals court. When the U.S. Court of Appeals for the D.C. Circuit unanimously found that Bleach Boy did not have absolute immunity, SCOTUS could have declined to hear the case and let Circuit Court decision stand. But they waited four more weeks to decide to hear the case. If SCOTUS felt the need to weigh in, why didn't they do it months ago? 

Pssst.... it's because they are a corrupt body. 

Ann Telnaes

Side note: the classified documents case has been stalled because of other issues, namely wrangling about who can see the classified documents at the center of the case. But the judge there, Aileen Cannon, may also pause proceedings until SCOTUS makes a decision. The Georgia case is stalled because of investigations into an improper-appearing relationship that prosecutor Fani Willis had with an attorney that she hired for the case. SCOTUS's decision on immunity will also impact that case.

All Abooooard! At least there is one justice train is heading out of the station. The first case to be filed, which was put on the back burner while the other cases did their "I think I can" chugging, will go ahead with jury selection starting on Monday, March 25. 

A jury will consider each of 34 counts of falsifying records in the scheme to pay off a porn actress in exchange for her silence regarding an affair. The Talking Yam didn't want potentially damaging revelations to come out during his 2016 campaign, so he paid her $130,000 through his attorney, Michael Cohen. He then repaid Cohen from his business funds, fraudulently calling them "legal expenses." Each check and each ledger entry is its own count in the indictment. It's doubtful that he will face prison in this case, but at least he is being held accountable.

Ka-Ching! More accountability! The New York business fraud case concluded. Judge Ergororn ordered SCROTUS to pay $354 million dollars. Plus interest, which brings the total to over $450 million. Plus accrued interest until he posts a bond. Oh my! All his play money is flitting away!

The judgement came down on February 16, and Red Don immediately moved to appeal. Before he is allowed to appeal, though, he needs to post a bond for the entire amount of the judgment. He asked if he could post part of the bond ($100 million) instead of the full amount, but the judge said no way, John Wayne. 

Interest is accruing until he does post the entire amount, which he is having difficulty raising. District Attorney Leticia James, who prosecuted him, trolled him on Twitter, posting his daily interest accrual, which is north of $114,000 a day.

And let us not forget the $88 million he owes E. Jean Carroll for her two defamation cases. Total judgments against him: over half a billion dollars!

He might have to sell a gold toilet or two!

For a guy who claims he is worth "billions" more than what the papers show, it shouldn't be a problem. Right? The state isn't too worried. They have the power to seize assets if he can't cough up the cash. Wouldn't that be delicious? Yanno, I'm beginning to really appreciate the workings of the civil court! 

Agent Orange mustn't worry either. There's a GoFundMe in progress! One of his minions, Elena Cardone, is trying mightily to raise funds to fulfill his massive judgements. So far she has been able to collect about $1.3 million. Impressive amount, but not quite enough. It's about enough for 11 days of interest. 

Trumpty Dumpty is trying the Expensive Shoes Maneuver to quickly bilk raise some funds. The gold shoes were sold at $399 per pair last week, and the run of 1000 pairs quickly sold out. If you were able to snag a pair, be aware: there are no refunds, and the shoes won't ship until July. 

Michael Tyler, Communications Director of the Biden-Harris campaign, got in a troll right away, saying, "Donald Trump showing up to hawk bootleg Off-Whites is the closest he’ll get to an Air Force Ones ever again for the rest of his life.”

Lucky for us, $399 gold "Never Surrender" sneakers make great fodder for the funny makers. (As always, I am indebted to my sister resisters for keeping me in memes!)

Rick McKee

Bill Bramhall

Pia Guerra

Clay Bennett

Amorim

Clay Jones

Kevin Kallaugher

Lalo Alcaraz

Jeff Darcy

 

Until next time, Resisters! 

The Sword of Damocles

"The Sword of Damocles is hangin' over my head. And I've gotta feelin' someone's gonna be cuttin' the thread!" - Rocky, Rocky Horror Picture Show

But is it over T****'s head or ours?

We're reaching the point in our history that courts are busting open with T**** cases left and right, and more than one of these cases could have major implications to the future of our country. Between the lawsuits themselves and motions and appeals, a lot has been happening. We've got a lot to dive into. Let's take a peek at the seven court cases that have been filing up our newsfeed. SEVEN!

Case #1. That f∩¢*(g Constitution. The Supreme Court heard arguments about eligibility based on the issue brought up by Section Three of the Fourteenth Amendment of the United States Constitution, which apparently disqualifies T**** from holding office. You remember Section Three. It reads:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Colorado and Maine have ruled that he is ineligible to appear on their ballots, and other states have the issue in limbo, pending the decision from the Supreme Court. 

Before they met to hear arguments in the Colorado case, I thought that SCOTUS may decide in T****'s favor in one of these ways:

1. Section Three prevents him from holding office not running for office. OK good, but what happens if he is elected? Do we bar the door to the White House?
2. The Section does not explicitly name "president" as an officeholder worthy of disqualification, or the holder of the office of president is not an "officer" of the United States. Sure, go ahead - he is eligible to lead the nation even though he failed to protect the very Constitution that he wants to protect him.
3. He didn't commit insurrection nor did he aid and abet those who did. There has been no legal finding that he actually committed insurrection. Even though the statute does not say he has to be convicted, SCOTUS may rule that it is necessary before he can be disqualified. A majority of both houses of the United States Congress said he did in when the House indicted him for "Incitement of Insurrection." That should count in the effort to send him packing!

Seems, though, that this wasn't how it would go. By some of the questioning, there may be other justifications to not disqualify him: one is the states' differing treatment of candidate T****, and by extension, candidate Biden.

Justice Kagan: "Why should a single state have the ability to make this determination, not only for their own citizens but for the rest of the nation? ...That seems quite extraordinary, doesn’t it?"

Chief Justice Roberts chimed in: "Surely there will be disqualification proceedings on the other side. I would expect … a goodly number of states will say, whoever the Democratic candidate is, 'You’re off the ballot.'"

 So, #4. It's not a state's place to decide the issue. Um, are you nine missing the point? Duh, you guys. YOU are to rule on the Law of the Land. The whole land. That's why this case is being brought to you. The Constitution applies to all the states, dum-dums! YOU are the ones deciding for the whole country. Isn't this your job?

Justice Alito seemed to be concerned with what will happen in the states after the decision: "There will be conflicts in decisions among the states, that different states will disqualify different candidates, but I -- I'm not getting a whole lot of help from you about how this would not be an unmanageable situation." 

Justice Alito, did you think about how different states will react to your decision to rip healthcare rights away from women? How about back in 2022 when you said, "We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work. We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision."

Or, #5 reason to not disqualify him. By Kavaw-nawwww's and Barrett's questions, SCOTUS may invoke a 1869 case which suggested that an act of Congress was needed to enforce this type of disqualification. But the Section does not say it's Congress's place. The whole point is that it is self-executing, like the other qualifiers such as being a natural-born citizen or being 35 years old. 

Or they may find some other nitpicky reason to keep him on and avoid having to be held accountable to the Constitution. By hook or by crook, they'll find a way to let him be.

It's a fascinating moment in history, but I'm supremely pessimistic that they will disqualify him. 

Indeed, the pundits agree, most indicate that the justices are leaning toward not disqualifying him. Sadly I was not able to listen to the proceedings myself, but here is the transcript, and we have lots of smart people to analyze. 

After reading some analyses, it seems like the justices only touched on the most salient aspects of the Section, but focused on the states aspect and the Congress aspect. They didn't really delve too deeply into the question of whether the president is an "officer" or that he actually committed insurrection. 

Yanno, a lightbulb went off for me: I now realize that SCOTUS can say and do anything they want to. They don't have to follow the Constitution at all. They can just make it up as they go along; after all they are the Supreme Court of the United States. Sadly, it's looking like they are just another political body.

I predict that the justices will be unanimous and will craft a carefully worded decision to present a united fraud, I mean front. A decision is expected within a few weeks.

To get takeaways from the day's arguments, read from CNN, Politico, or The Los Angeles Times.

And finally, here's a nifty piece on the 91-year-old Republican former Colorado lawmaker, a woman, who pushed the case: Norma Anderson.

Ann Telnaes

Case #2. $88 million dollars, baby! Pay up! E. Jean Carroll won a second defamation award. In May 2023 she had been awarded $5 million in her defamation suit against T**** after he disparaged her and damaged her reputation. She had written a book detailing the sexual assault he committed against her in the '90s. And he didn't like that. So he started talking shit about her. Asshole. 

After the first trial for defamation where he lost to the tune of $5 mil, he just couldn't stop his vile insults and disparagements of her character. She sued him again. This time, the jury awarded her a whopping $83 million, which included $65 million in punitive damages! So far, it has shut him up. But she is willing to sue again. It must be killing him to hold his tongue ...errr, his thumbs.

Case #3. The other civil trial: The nation has been waiting with bated breath for Judge Engoran to rule on what punitive damages he will mete out for the massive fraud that T**** and his business committed in the state of New York. Engoron decided there was ample evidence of fraud before the trial even started; the trial was simply to decide what the penalty would be. Speculation is that he will strip the business license from the T**** Organization and order $350 million in restitution. Ooooh dem millions are slipping away.

There was a bit o' drama when it was revealed that one of the witnesses may have committed purjury during testimony. And this revelation may be why Judge Engoron has not ruled yet (he had said he'd have a ruling by January 31, and here we are 10 days later). It turns out that Allen Weisselberg, the former chief financial officer of the T**** Organization, is working out a plea deal with the Manhattan district attorney's office for his perjury during the Engoran trial.... before that outcome has made itself known. What the what?!

Read more about the ins and outs of the perjury in Forbes.

 

Case #4. Immunity forever and ever? No, sir. Not in the U.S.A! T**** has claimed that presidential immunity, which shields a sitting president from having to deal with lawsuits while leading the free world, protects him from any and all crimes he committed as president (or, in the classified documents case, after he stopped being president). He is using an absolute immunity claim to hold off the federal insurrection case against him brought by Special Prosecutor Jack Smith. A three-judge appellate panel of the U.S. Court of Appeals for the District of Columbia Circuit firmly denied his immunity claim in a strongly-worded unanimous opinion. This, after the judge overseeing his case, Tanya Chutkan, denied his claim of immunity but put the trial on pause so the appeals can move forward.

T**** plans to appeal this latest decision, of course. He may take it to the full D.C. Circuit Court or leapfrog directly to the Supreme Court. 

It was clear from their questioning last month which way the trio on the appellate panel was leaning. For example, Judge Florence Y. Pan asked, "Could a president ask SEAL Team Six to assassinate a political rival? That is an official act, an order to SEAL Team Six." T****'s attorney's didn't have a very good answer, hemming and hawing about having to be convicted in an impeachment trial first. 🙄 Listen to that bit of audio here.

Based on their strongly written unanimous (written per curiam, which means no primary author; they are all in full agreement) opinion, I am hopeful that the Supreme Court will decline to hear the case. If they do the right thing and let the decision stand, the federal insurrection trial (and by extension, the Georgia trial, which is also grappling with immunity, as is the federal documents case) can go forward immediately. If SCOTUS takes up the case, there will be more delays in the start of the trials, and justice may very well be denied. ("Justice delayed...." and all that).

Case #5. Darn you, Fani Willis! Every member of every prosecution team in each one of the myriad lawsuits against T**** must be impeccable in their behavior. Fani Willis, District Attorney for Fulton County, Georgia, sadly, was not impeccable. Rumors started swirling that she was embroiled in an affair with a special prosecutor that she had appointed to assist in Georgia's case against T**** which changed him for his conspiracy to lead a criminal cabal to attempt to overturn the results of the 2020 election. 

Willis finally admitted that the affair was happening, but said it will not affect her ability to work the case, blah blah blah. Conflict of interest much? You can't do this kind of shit, Fani! Shape up! Let's hope that it hasn't damaged her case against TRUMP too much. Legal experts in Slate write that it probably won't harm the case in a great way. Still, not good optics, Fani. Be better.

Case #6. The Federal Classified Documents Case: Special Counsel Jack Smith's frustration with the defendant and with the judge is growing. Smith made an unusual filing to the court a couple weeks ago. It was a routine filing, but the 64-page document apparently reads more like an opening argument for a trial. In it, he strongly rebuts T****'s falsehoods regarding the way the classified documents case unfolded. 

Smith is also becoming frustrated with Judge Aileen "Loose" Cannon. He has filed a couple filings with her, calling out some of her decisions, not the least of which was her decision to release the names of potential witnesses. It really is outrageous to expose witnesses to the Wrath of Khan't. Real harm could come to the witnesses from nut-job MAGAts. Witnesses who are just trying to do the right thing and tell the truth. Cannon should understand this abundantly. She herself has been subject to death threats from wackos. One nutter has recently been sentenced to three years. 

You can see Joyce Vance, a political analyst, talk about Cannon's decisions and Smith's reactions on MSNBC.

7. The hush-money case in Manhattan may move forward given stalls in other cases. The trial is scheduled to begin on March 25. Though it had been put on the back burner so other cases could move forward, the slow wheels of justice have all but ground to a halt in some of those other cases, paving the way for this one to possibly go ahead.

Other newsie bits:

Drew Sheneman

The Repug Party continues to crumble. They cannot help but put their head under directly under T****'s boot. You have probably seen the news about the border deal gone ka-blooey. For ages the MAGAts have been calling for a border bill to manage the crisis at the southern border. A deal was hashed out in the Senate in a bipartisan way, and the bill passed the Senate. 

Here we had a bipartisan bill with wide support, and President Biden was warming up his pen to sign. But the Orange Menace struck again: he doesn't want there to be any cooperation with the Left, so he instructed House Speaker Mike Johnson to kill the bill. So freaking frustrating. 

Here is a Guide for the Perplexed for further reading.

That fake T**** auto workers "union" event in Michigan back in September? Turns out he paid $20,000 for the privilege of duping The People by hiring non-union folks to pretend to be union members at the bogus event. Rachel Maddow can tell you more. 

There's more evidence of T****'s neurological disorder, such as mixing up Nancy Pelosi and rival presidential candidate Nikki Haley. But that's not new news.

And Biden's failings. Robert Hur, the special prosecutor who looked at Biden's mishandling of classified documents, released his report and did not find a prosecutable case. Hur did call into question Biden's memory, though, and those comments overshadowed anything else from the report. Biden was not happy with Hur's opinions on his memory, and many prosecutors, even conservatives, agree he crossed the line. The comments are indeed potentially politically damaging.

I don't want to be agist. People of advanced age can and do fill complex roles with heavy cognitive loads. The fact is that Biden's age is a political problem, even before this. People are concerned about his age. Yes, T**** is old, too, and definitely cognitive impaired, and he's not much younger that Biden. But somehow, that stink has not stuck on him for the MAGA crowd, but it's sticking like crazy on Biden. Mini Racker in Time Magazine has actually discussed that for us, suggesting that in large part, it's all about appearances.

Let's just say Biden is forgetful. OK, but he is still a solid president. He has been getting things done (the infrastructure bill not the least of it!). The almighty American economy is booming. He's a strong leader. Even with some memory issues and his advancing age, he poses nowhere near the risk to our nation that T****'s return to the Whitewash House would dish out. There are much bigger issues. We need to reelect him.

THE MAGAt crowd is losing their shit over Taylor Swift, her boyfriend in the NFL, and what they see as a conspiracy to *gasp* influence the election by *clutching pearls* getting more than a few of her millions of fans to register to vote. Here we are, it is Super Bowl Sunday, and she'll be in the stands cheering and being her subversive self. They really hate powerful women, don't they? And they really, really hate people who vote!

Here is a peek inside Tay-Tay's daily routine, courtesy of McSweeney's (and by way of Big Sister Resister Pagrs).

Your regular reminder: Do what they hate. Do what you can to get out the vote! November will be here sooner than you know! 

Register to vote; help a new voter register; vote in your primary; send money to a charity that works for voter rights; get your postcards ready, and contact Postcards to Voters to help elect blue candidates; or find a specific candidate and volunteer to get them elected. 

You know: RESIST!

Three Years Since

On the eve of the third anniversary of the Insurrection against the United States, the Supreme Court of the United States decided to take up the issue of Colorado's ballot disqualification of T****. 

Oral arguments to SCOTUS are scheduled for February 8, less than five weeks from now. 

Colorado, as you recall, disqualified him from appearing on the presidential ballot based on Section Three of the Fourteenth Amendment, which reads:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The Section has been studied by Constitutional scholars at least since January 6, 2021 and it is the consensus of most of them that it is cut and dried. 45 is disqualified from ever holding office again.

The only way out of this is if SCOTUS proclaims that the president is not "an officer of the United States" or that he neither "engage(d) in insurrection or rebellion" nor had given aid or comfort to enemies of the United States. 

Officer of the United States

It's cruel irony that of the 46 U.S. presidents, only one had never held a public office before becoming president. If he had held any other office, this part of the disqualification would be moot. As the previous holder of any other office specifically named in Section Three (member of Congress, state legislator, executive or judicial officer of any state), then he would be barred, period. Unfortunately the 14th Amendment did not explicitly name president as one who would be disqualified. Did the framers of the 14th Amendment really mean to exempt the president from this disqualification?!

So, Little Sister Resister asks: is a president an officer of the United States? Well, other than the "Duh, Gilbert" answer, let's look. 

Hmmmm. ...What officer is in charge of the military, above the top officers called Admirals, Generals, and Commandants? Commander in Chief of course. That officer is above all the rest of the top officers.

Who was holding office in 2016? President Obama, of course, and how we miss him! Who took office on January 20, 2021? President Biden, and how glad we are of it! Who swore an oath of office that says: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States?" All 46 presidents! Who holds an office? An officer!

T**** himself even called himself "chief law enforcement officer of the United States." Yeah, he was incorrect on that point, still, even he considered himself an officer.

Let's forget LSR's none-the-legal, awkward attempts at proving officership of the president. Let's let some legal minds take up the academic legal research.

James Heilpern from Brigham Young University and Michael Worley wrote a paper entitled, "Evidence that the President is an 'Officer of the United States' for Purposes of Section 3 of the Fourteenth Amendment." (Spoiler alert: he is!) Read their paper here, or the abstract here. 

Josh Blackman, a law professor in Texas, and Seth Tillman, a law professor from Ireland (Ireland??) also took up the issue. Writing in NYU's student-edited Journal of Law & Liberty in 2021, they examine the question: "Is the President an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment?" (Spoiler: they think he is not.)

Well, LSR says the president is an officer, and if the Supreme Court says otherwise, they are bonkers.

Insurrection

The trickier question, and the one SCOTUS may land on, is did he engage in insurrection or give aid and comfort to enemies?

The short answer, again is, "duh." 

That is, if you have been following along for the past three years, and not of the mind that the murderous mob was on a "tourist" jaunt. 

I don't need to rehash the mountains of evidence of insurrection again. Though if you need more evidence of his inaction, as I edited this piece, there was more reported about his inaction on that day. He watched it unfold; he did not care that people's lives were endangered, including his most loyal Vice President; he did nothing to stop it. I hope the lawyers for Colorado make the point that doing nothing in this case is direct evidence of aiding and abetting. 

I will say that I think that this will be SCOTUS's out. Though Section Three does not make it necessary that the person be convicted of insurrection, SCOTUS may still use that as their justification. Though the House impeached him on the charge of "inciting an insurrection," he was not convicted by the Senate. If he had, he would be automatically barred from holding office again. Though the Colorado judge who initially ruled that he was still eligible decided that he incited an insurrection, and several other judges have used insurrection language, I am confident that SCOTUS will argue that there is no consensus that he engaged in insurrection and therefore will let the election proceed with him on the ballot.

I hope my prediction, like most of my predictions, is wrong.

The Politics

Nick Anderson

I've lost faith in the Supreme Court. They are no longer an apolitical body, and they will not act in an apolitical way. 

As T**** attorney Alina Habba noted, they owe him. 

Habba: I think it should be a slam dunk in the supreme court. I have faith in them. You know, people like Kavanaugh, who the president fought for, who the president went through hell to get into place. He'll step up. pic.twitter.com/gQo1h55t6N

— Acyn (@Acyn) January 5, 2024

Habba was rightly slammed for those remarks.

And yet, these justices pretend to be apolitical. Remember Justice Alito's words in writing the opinion overturning Roe v. Wade? 

"We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work. We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision."

Noble words. Will they live up to that notion in this instance? Doubtful. 

The 2020 justices also fretted about the political ramifications of their decision in Bush v. Gore, but they went ahead with their decision to stop Florida's recount. They effectively handed the presidency to Bush, promptly beginning the long degradation of our trust in the body.

As Justice Breyer wrote in his 2020 dissent, quoting David Loth in Chief Justice John Marshall and The Growth of the American Republic (1948):

"Above all, in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public’s confidence in the Court itself. That confidence is a public treasure. It has been built slowly over many years, some of which were marked by a Civil War and the tragedy of segregation. It is a vitally necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of law itself. We run no risk of returning to the days when a President (responding to this Court's efforts to protect the Cherokee Indians) might have said, ‘John Marshall has made his decision; now let him enforce it!’ But we do risk a self-inflicted wound—a wound that may harm not just the Court, but the Nation."

Yup. 

Interestingly, T**** is afraid for the political thoughts of SCOTUS in the opposite way. New York Times reporter and expert on all things T****, Maggie Haberman has said he is afraid that because he stacked the court, they will have a Laurie Partridge moment and will rule against him so as not to appear to favor him.

Sadly, the court has been stacked. If they vote they way I think they will, it will send a bad message for all forever. I have no faith that it will be decided any other way.

In my last post, I quoted former judge Michael Luttig, appointed to positions (including federal judge) by both Bush I and Bush II and who advised former V.P. Mike Pence. Luttig has been studying Section Three for a long time, and he believes that Colorado's disqualification is "masterful" and "unassailable." Here is Judge Luttig again on a cable news show. He is more optimistic than I.

Another Remedy

There is one more use of Section Three, and that is Congressional action. It is a long shot, indeed an impossible shot. In my thinking, a supermajority vote in both houses could theoretically remove him from office if he were to be elected. As I sit here typing those words, I try to imagine that scene. It would be worse than January 6. But then, a re-do of the last term would be the end of us, too. 

So....

The (ahem) Final Solution

To borrow a phrase from T****'s muse, Adolph Hitler, there is another solution. No, not that!! I'm only borrowing the phrase, not the idea! The last remedy: we must mobilize and fight from now til Election Day and make a second term for this clown impossible. There are fraught days ahead no matter what. Resisters, we must be strong and act decisively! 

Get 👏 out 👏 the 👏vote!

It's true; we have never had a disqualification like this. But we have never had a defeated candidate try to overthrow the government, either. We are at a moment in history like no other. What the Supreme Court decides next month is not just right now. It is not just us. This is a decision forever and for history. 

It is out of our hands.

After the decision, as we must, we will continue to RESIST!

Disqualified!

 

Little Sister Resister made a meme!

We have a disqualification!

I've written a lot about Section Three of the Fourteenth Amendment. You can find my initial summary here, which distills the brilliant legal analysis of a small bit of the United States Constitution. 

You'll remember that two conservative (members of the Federalist Society no less!) Constitutional scholars, William Baude and Michael Stokes Paulsen, wrote about the Section and outlined very clearly why the clause disqualifies the Apricot Pol Pot from taking office again. 

Section Three of the Fourteenth Amendment reads:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The upshot of Baude's and Pauslen's analysis is that the Section is valid and not expired; that it is self executing, meaning Congress does not need to pass any other law to enforce it; that it supersedes any previous provisions in the Constitution that disagree with it; and that the disqualifications are sweeping, and indeed include the office of president.

After a few other states declined to pursue the matter, the Colorado Supreme Court agreed to hear the case and found that indeed 45 is not eligible to become 47, based on Section Three of the Fourteen Amendment, and therefore ruled to disqualify him from the Colorado primary ballot.

What what?!

The nation is all in a kerfuffle. 

What are the talking heads saying?

Those on the right of course are saying that the decision was wrong. All the remaining presidential candidates have all said that T**** should not be beaten by a court but by the voters. 

Other skeptics agree. Some say it was a "political gift" to T****. Karl Rove, political advisor and deputy chief of staff for Dubya, wrote an editorial in the Wall Street Journal calling it "fundamentally undemocratic." You can see him on Faux News discussing his views. Interesting that he said Section Three has only been used twice (which is untrue, but that is for another day). He dismissively described one back in 1919, but he conspicuously neglects to mention that another decision was in 2022, which disqualified New Mexico's Couy Griffen from office, based on his participation in an insurrection against the United States on January 6, 2021. 

Other voices are saying it's the correct decision, including conservative voices.

George Conway, famous for being a vocal conservative voice against Donald T****, wrote a compelling piece in The Atlantic. Conway had been of the mind that the assertion that Section Three would disqualify candidate T**** was wrong, until interestingly, the dissenting opinions on the Colorado decision convinced him otherwise. 

Another conservative voice agrees with the decision, that of former judge Michael Luttig. Luttig was an assistant attorney general under Bush I, and Bush II appointed him to the United States Court of Appeals for the Fourth Circuit. More recently, Luttig was adviser to Vice President Mike Pence. Luttig agrees with Colorado's decision and had been thinking about Section Three years before the issue came to the forefront. Luttig calls the Colorado decision "masterful" and "unassailable."

Read his interview with Politico. It's a worthwhile read. 

or watch him on MSNBC:

What are The People saying?

54% of American voters approve of the decision, according to a YouGov poll. This includes 84% of Democrats, 48% of independent voters, and to my eye, a whopping 24% of Republicans. 

What is LSR saying?

Can you guess what her responses are to these cries of "not fair!"?

"He should be eliminated by the voters, not by a court!"

Well, first off, he was repudiated by voters – twice. And yes, it would be great if he were again. But then he participated in an insurrection and aided and abetted thousands of others who also participated. Secondly, he is not being disqualified by a court, he is being disqualified by the United States Constitution. If the Constitution says he's a no-go, then he's a no-go. The court doesn't disqualify him, the Constitution does. The court is there to confirm and enforce what is written.

"It's just political. A bunch of leftists are trying to change the election! It's not fair!"

Like Michael Luttig said, it's the opposite of politics. It's not a trick or a loophole or a technicality. It is our Constitution. It is the law of the land. 

"It's a gift to T****. Neener-neener-neener."

Well, which is it? Not fair to him or a gift to him? It's only a gift because he makes it a gift. And he better milk it quick. The gift lasts only while it is being litigated. And of course, a big-fat ribboned gift if SCOTUS rules the other way. And then, let him have the gift. It's true; he will eat it up and play the victim and grift his minions out of more money. Let him. It is his MO, and we expect no different. He will whine and cry witch hunt and say everyone is out to get him. He's not wrong. Voters don't want him. And we won't have him, regardless. 

"He hasn't been convicted of engaging in an insurrection!"

The Section doesn't say he has to be convicted. And it doesn't even say he has to engage in an insurrection directly. Even if he simply gave "aid and comfort" to others that did, he is disqualified. How 'bout this for aid and comfort? 

"But wait! If T**** is out, Nikki Haley will take the nomination, and she beats Biden!"

Well, that's a leap. But even if true, we have to ignore the possible consequences. Sure, it'll be a different fight if another candidate rises. But the issue is the issue. Whatever happens after, we will deal with as voters and as a nation. To think any other way, or to bend the issue to what is good for your party, is to make it political. And it is not political. It is an American legal issue. Period. 

Jack Ohman

What is next?

The order to remove him from Colorado's primary ballot was stayed by the court immediately. The decision was stayed in case the Supreme Court wants to take up the issue before ballots are printed. The stay is until January 4, 2024, the day before ballots are to be finalized. It's just a couple weeks away!

Which brings us to... The sticky wicket. The Supreme Court of the United States. I don't know about you, but I've lost some trust in SCOTUS. It's been sullied. Some justices were placed there under scurrilous circumstances, and at least one justice is on the take. Let's face it, this is not your father's SCOTUS.

If they take it up in time, the originalists will have to put up or shut up. This matter is classic originalist fodder. A majority of the court are originalists. Will they put their money where there mouth is? 

My prediction, and I hope I'm wrong: the Supreme Court will delay hearing the case until it is too late. They will call it moot and move on. They have already said they will not fast-track the immunity question. There is no reason for them to want to get their hands in this mess.

For more speculation about what SCOTUS may do, read the smart Aaron Blake's analysis in The Washington Post.

AND! There are other states with the issue before their courts. It may very well come around again, with the Colorado decision as a bolster and a roadmap.

Whatever happens, dear resisters, do not fret. We will keep up the resistance. And we will prevail!

Legal Churnings and Dictator Yearnings

News has been coming in fast and low. Hold on your hats cuz I'm gonna try to catch up quickly!

THE COURT CASES

A couple major setbacks for King Minus came on December 1:

Setback in the Federal Election Subversion case: Judge Chutkan, who is overseeing the federal January 6 case against Voldemoron, ruled that he does not have immunity, stating in her ruling that the four years of the presidency doesn't include a "lifelong 'get-out-of-jail-free' pass." He of course appealed immediately.

45's tactic is to delay, delay, delay so that the case is moot in the event that he wins the presidency (ugh I hate typing those words!). But in a brilliant chess move, Special Prosecutor Jack Smith requested that the Supreme Court of the United States put the appeal on a fast-track to be heard, skipping over lower courts and their time-consuming processes. SCOTUS has said that they will consider the request.

Trumpty Dumbty's lawyers have until this Wednesday to file briefs about what they think SCOTUS should do . 

Interestingly enough, a baby judge by the name of Brett Kavanaugh wrote a briefing 25 years ago that would shoot down any claim of immunity. See Lawrence O'Donnell from MSNBC analyze this:

Unfortunately, even still, his delay tactic is working. Judge Chutkan put the trail on pause while the immunity appeal is sorted out. Come on, SCOTUS!!

On the same day as Judge Chutkan's immunity ruling, POTATUS suffered a setback with regard to civil lawsuits from victims of the January 6 attacks. A three-judge panel ruled that he was acting as a candidate, not as president, and he is not protected by presidential immunity.

“He is acting as office-seeker, not office-holder — no less than are the persons running against him when they take precisely the same actions in their competing campaigns to attain precisely the same office,” Judge Sri Srinivasan (another brown-skinned immigrant judge!) wrote on behalf of the unanimous panel (which, by the way, includes a Donald Dump-appointed judge). 

Several civil suits aimed at SCROTUS are in the mill. There have been suits filed by police officers injured during the insurrection, one by Congressperson Eric Swallwell (D-Cal.), and one by other House Democrats.

Both of these December 1 rulings are yuge! He is getting backed into the corner. It is obvious there is no protection from him from the law. 

There was a doozy in the Mar-a-lago documents case. Attorney Jennifer Little (who was his attorney then and now) "very clearly" warned Double Agent Orange that he had to comply with the subpoena for the classified documents and that he "absolutely" understood. She is quoted as advising him that, "Once this is signed – if anything else is located – it's going to be a crime." Not that ignorance of the law is a defense, but he has chosen it as a defense. You know the rest of the story.

They are still wrangling about who can lay eyes on classified information. These wrangles may delay the trial, but as of now, it is still scheduled to start May 20.

The New York civil fraud trial continues. 45 had been slated to testify in his own defense but pulled out at the last minute. The trial will wind up after the new year with a judgment on penalty coming soon.

The gag orders are both in effect. As you recall, there was back-and-forth about gag orders in the federal January 6 case and the New York civil fraud trial. Thought they have been modified, gag orders stand in both cases. 

The hush money case in Manhattan still sits on a slow simmer. No new developments, and the trial is scheduled to start on March 25.

THE WANNABE DICTATOR 

Clay Bennett

We heard his "vermin" remarks. There is no backing down from his authoritarian stance. In fact, now he has gone further, telling Sean Hannity on Faux News that he will be a dictator "only on day one." And there it is. 

During the interview, which was a town hall meeting in Iowa, Hannity lobbed the softball toward him, asking him to reassure the American people that, "under no circumstances, you are promising America tonight, you would never abuse power as retribution against anybody?" only to have the flaming bat filled with 100% New York-grown authoritarian cork come out swinging hard. Not only did the Mango Mussolini proclaim he would be dictator on day one, but he repeated the exchange, just in case you missed it. Clownigula pointed to Hannity and said, 'We love this guy. He says, 'You’re not going to be a dictator, are you?' I said: 'No, no, no, other than day one. We’re closing the border, and we’re drilling, drilling, drilling. After that, I’m not a dictator.'"

During campaign speeches, he is leaning hard into the dictator talk. A couple days ago he approvingly quoted Putin and Hungary's Victor Orban, called January 6 defendants "hostages," and dripped his words with flavors of Hitler by continuing the dehumanization of immigrants by saying that they are "poisoning the blood of our country."

Here's a caution from Robin Abcarian writing in the LA Times. Believe them when they make their authoritarian threats against a free press.

And the editorial board of the LA Times urges us to take this all "literally and seriously." He would do very bad things if he rises to power again.

There has been speculation about what his cabinet would be like. The saving grace last time was that there were good and true people in the cabinet. Yes, they were bootlickers, too, but remember, they were replaced when they showed a modicum of loyalty to the U.S. Constitution over the Orange Menace. They next T**** cabinet (please dear Zeus let there not be a next T**** cabinet) would have loyalists installed. Loyalty would trump competence as Axios speculates, and we may end up with a cabinet filled with Steven "White Rat" Miller, J.D. Vance, Empty Gee, Steve Bannon, Fucker Carlson, and Jeffery Clark in positions of power. Be afraid. Be very afraid. 

And yet, maybe you can put your fear on the shelf for now. Here is one upbeat-ish message for those afraid of a TЯUMP dictatorship. William Cooper writes for CNN: Would Trump be a dictator in a second term? No, but he would be a disaster. Cooper believes our system of checks and balances would hold a true dictatorship at bay. But, he cautions, it would still be really bad. 

Would our democratic institutions hold? The only way to not find out is to preempt this thought experiment and make sure they are not put to such a test. Stock up now with postcards, stamps, and campaign money. Get ready to write letters to the editor, to stump for Democrat candidates, to get out the vote. It is up to each and every one of us to RESIST.

OTHER  DUFUSES

Rudolph William Louis Giuliani has been ordered to pay $128,000,000 to his victims Ruby Freeman and Shaye Moss, whom he defamed by spreading lies that they committed election fraud. What a Rufus (leaving this fun typo). Even after the judge ruled that he had defamed the women, while waiting for a ruling, Rudy was asked if he regretted his actions. Doubling down (quadrupling down? Quintzillioning down?), he said, "Of course I don't regret it, I told the truth," he said. "They were engaged in changing votes." He continued from the ol' familiar playbook: He said to "stay tuned" for the "proof." 

Ummmm, honey, the truth and the proof has been laid bare. Just shut your little yellow mouth. 

After the verdict was read and he was ordered to pay ONE HUNDRED AND TWENTY-EIGHT MILLION DOLLARS, he continued his lies, lies, lies. He said that he was not allowed to present evidence. The most audacious thing he said was that though the "comments" the women received were bad, he gets them too, and "this is a terrible part of political system. Republicans, Democrats, liberals, and conservatives all get that." 

Yeah, right. "Everyone" is subject to vile threats like the two women suffered. Get out of your gilded cage, Rufus. You chose to be in the public eye. These women were volunteering as their civic duty called. To have powerful men come after them is shameful. You, sir, lack honor. 

By the way, it's questionable if the two women will see any money. Rudy may not have much money, and certainly not 128 million dollars.  

George Anthony Devolder Santos (R-NY), liar extraordinaire, was finally expelled from Congress, only the sixth member of Congress to be expelled. He won't be fading into the background, though. He faces multiple federal charges for fraud, money laundering, and lying to Congress. And, fun stuff! he is making Cameo videos for anyone who has a few hundos to throw his way. Jimmy Kimmel tells you more:

Kenneth John Chesebro and Sidney Katherine Powell. Part of their plea deal in the Georgia racketeering case was a condition hat they each write an apology letter to the citizens of Georgia for their actions. Oh! How heartfelt their missives! 

Here they are, in their entirety.

I apologize for my actions in connection with the events in Coffee County. s/ Sydney Powell October 19, 2023

October 20, 2023 I apologize to the citizens of the state of Georgia and Fulton County for my involvement in Count 15 of the indictment. s/ Kenneth J. Chesebro

The fake electors in Nevada. 

More charges against those who would do our country harm. Six fraudsters in Nevada have been charged for their actions. The indictments follow cases filed against fake electors in Michigan and, as we know well, Georgia. Throw the book at them!

THE RUSSIA CONNECTION

An unreacted binder full of Russian intelligence went missing in the waning days of the last administration. They still don't know where it is. 

This particular binder, reportedly 10 inches thick, was fast-tracked for declassification by TЯUMP just before he left the Whitewash House. A few redacted versions are accounted for and remain in the Justice Department's possession. The intact documents? Gone.

Any guesses as to the contents of the binder? Yup, intelligence into the Russian connections to the 2016 election and information about the investigation of the same. It contains information on intelligence methods and on Russian sources. Who would love this info? His Cutie Putie would love this info.

Where could the binder be? In a bathroom at Mar-a-Lago, or maybe the Bedminster outhouse this time? Tucked into a golf bag at Doral? ....Or maybe Putin already has it. 

THE GOP IMPLOSION

It continues. 

Both Repug candidates for a house seat from Ohio have been behaving badly. One lied about military service, the other bashed the Messiah. As you know, the Repugs have a hersesy clause and one must not speak ill of the Orange Jesus. Read about Ohio's woes here. 

THE OTHER  SIDE

Remember when gas prices were sky high over the summer? You'd see stickers on the gas pumps that look like this:

And remember when inflation was surging and headlines popped up like, "Inflation is Biden's fault, and only Biden's fault" and when the stock market struggled and it was "Biden's market?" 

So, now we will hear "Three cheers for Biden! Hip-hip-hooray!" Right? Right? Cuz inflation is slowing, the stock market is sharply up – at record highs – and gas prices are down about 7% from a year ago. Do we hear cheers? No? Are you sure? We should be hearing accolades for the President's direct influence on lower prices and a surging economy, shouldn't we?

What's that noise instead? We hear, "Impeach Biden!" And more than that, we hear, "I don't know what he's done or when, but we're going to look into it and hopefully find something!" 

Here's newsman Stephen Colbert to explain:

John Darkow 

That's all for now. 

Keep up the resistance, sister and brother resisters! If we don't meet before the new year, Happy Holidays and Happy New Year to all (both?) of my devoted readers! XOXOXO