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.
twitchy.com/coucy/2023/12/20/jarvis-n2390996
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… t.co/Wrtiqm9Jnp
— Jarvis (@jarvis_best) December 20, 2023
“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…
— Jarvis (@jarvis_best) December 20, 2023
“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…
— Jarvis (@jarvis_best) December 20, 2023
“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.”
One more tweet about Justice Samour before we get to the law stuff — he was born and raised in El Salvador, but fled the country at the age of 13 due to the risk of civil war.
Not necessarily relevant but . . . maybe it is.
Ok, onto the law stuff.
— Jarvis (@jarvis_best) December 20, 2023
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… pic.twitter.com/L1Dw8sVxLw
— Jarvis (@jarvis_best) December 20, 2023
“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… pic.twitter.com/gdM1vMFPO3
— Jarvis (@jarvis_best) December 20, 2023
“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.”
And Congress did just that! Justice Samour points out that in 1870, Congress passed a law that allowed for both civil and criminal enforcement of Section 3 of the 14th Amendment.
This law was when repealed and replaced in 1948. pic.twitter.com/71ekKQNZ2Z
— Jarvis (@jarvis_best) December 20, 2023
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… pic.twitter.com/MPqf0jg6zn
— Jarvis (@jarvis_best) December 20, 2023
“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.”
h/t WeAreNotTheFirst