There are many legal minds of various weight classes that populate
Twitter; when your job involves charging people by billable hours you
sometimes end up with unaccounted for down time to spend wandering
around posting random stuff. Ever since the Colorado Supreme Court
handed down its decision on Donald Trump's eligibility (or lack thereof)
for the Colorado Primary Election Ballot it's seemed like every lawyer
on Twitter (and some enthusiastic amateurs) has had something to say
about it. These have been of varying quality, but some like George Washington University Law School professor Johnathan Turley's breakdown have been extremely helpful in clarifying the nuts and bolts of the law on this issue.
Into this category of informative and helpful we can add this thread
by Twitter gadfly and licensed attorney in the state of Colorado
'Jarvis'. It's a lengthy thread but worth reading.
I
forgot I have an actual job so this will have to be fast. Thread: There
are five judicial opinions out of Colorado on this Trump ballot thing:
the trial court opinion, the Supreme Court majority opinion, and three
Supreme Court dissenting opinions. None of the opinions agree with each
other (except maybe the dissenting opinions of Chief Justice Boatright
and Justice Berkenkotter).
The most
compelling and - in my view - correct decision was the dissent from
Justice Samour. Justice Samour reached holdings that none of the other
four groups did. He examined the issues with the depth and close
examination of the case law that is most like how SCOTUS does it. I
think SCOTUS will reverse the decision of the Colorado Supreme Court,
and will largely follow the dissent of Justice Samour. I think the
SCOTUS decision will be either 9-0 or 7-2. When the SCOTUS does so, I
will remind of you this tweet and gloat. There will be no dealing with
me after that.
Before we get to Justice Samour, first some background on
the Colorado Supreme Court. It is not typically a deeply divided or
partisan Court. They are all Democrats, and they were all appointed by
Democrat governors with similar liberal/libertarian leanings. We get a
lot of unanimous opinions. Divisions when they occur are typically
respectful and intellectually honest. No vitriol. I was surprised that
this case was a 4-3 opinion, and even more surprised at how sloppy the
majority opinion was. Knowing that SCOTUS absolutely has to take this case, I figured they would write something stronger. Ah well.
This case is about Section 3 of the 14th Amendment.
Passed in the aftermath of the Civil War, Section 3 says that
insurrectionists can't hold certain offices. The trial court held that
Section 3 did not apply to the President, and the trial court might be
right. Justice Samour did not need to resolve that issue, though . . .
Because
of Section FIVE of the 14th Amendment. That section says hey -- you
know the whole insurrection thing we just talked about? How is this
supposed to work? Who gets to decide who engaged in an insurrection?
What sort of standard of proof applies? Is it a civil trial or a
criminal trial? Is it a judge or a jury or someone else who decides that
a particular person engaged in insurrection and therefore disqualified?
What if they're already appointed - do they still get paid while the
proceedings are going on? The 14th amendment doesn't answer any of
these questions. Instead, Section 5 says that Congress gets to pass
legislation to give enforcement power to carry out Section 3.
1948: Congress replaced the 1870 statute with a criminal
insurrection law, 18 U.S.C. § 2383. If convicted under that statute --
with full criminal due process afforded the defendant -- one of the
punishments is to be banned from holding office in the United States.
Trump has not been charged under this statute.
So. Congress -- and only Congress
-- gets to pass legislation enforcing Section 3 of the 14th Amendment.
Congress did so, and it chose to enact a criminal statute that bars
anyone convicted under it from holding any office in the U.S. Trump has
not been charged or convicted under that statute. Therefore, Trump can
appear on the ballot.
This analysis renders a lot of the other questions
irrelevant. Did Trump engage in an insurrection? Does Section 3 apply
to the President? Should Trump be off the ballot nationwide or just in
states like Colorado that found that he engaged in an insurrection?
None of that matters. The only thing that matters is that Congress
followed the 14th Amendment and established a procedure for barring
someone from office for engaging in an insurrection, and that procedure
was not followed here.
For all of the general
absurdity found on Jarvis's timeline, every once in a while he likes to
stretch out his legs and remind you that he isn't just a guy who goes by
a one-word name like Cher and uses as his profile picture the 1882 self-portrait of Norwegian painter Edvard Munch.
This seems like an excellent breakdown of the topic and, honestly, none
of us should be surprised if this all turns out just as he predicts.
After all, despite all apparent evidence to the contrary when it comes to the law the man knows what he's doing.
***
Editor's
Note: Do you enjoy Twitchy's conservative reporting taking on the
radical left and woke media? Support our work so that we can continue to
bring you the truth. Join Twitchy VIP and use the promo code SAVEAMERICA to get 40% off your VIP membership!
Recommended
Trending on Twitchy Videos
No comments:
Post a Comment