The decision could upend the 2024 election.
I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”
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Quick hits.
- China's President Xi Jinping told President Biden last month that he plans to reunify with Taiwan and prefers to assume control peacefully, according to a new report. (The report)
- Former President Donald Trump asked the U.S. Supreme Court to delay considering whether he is immune from federal prosecution in the Justice Department's election interference case while an appeals court considers the question. (The request)
- The Hamas-run Gaza Health Ministry said the death toll in Gaza has now surpassed 20,000 people, while Israel says roughly 134 Israeli soldiers have been killed and 1,200 people were killed in Hamas's initial attack. (The numbers) (An explanation on how the Health Ministry calculates deaths can be found here).
- Separately, President Biden told reporters he does not expect a new hostage deal between Israel and Hamas soon but said the U.S. is pushing for one. (The hope)
- The United States released a close ally of Venezuelan President Nicolas Maduro from prison in exchange for 10 Americans in prison in Venezuela, as well as a former Navy contractor who organized a bribery scandal and was a fugitive from the U.S. government. (The exchange)
Today's topic.
Trump and the Colorado Supreme Court. On Tuesday, the Colorado Supreme Court ruled 4-3 that Donald Trump cannot appear on the 2024 presidential primary ballot because of his actions on January 6, 2021. In the first ruling of its kind in American history, the court sided with a group of voters who argued that Trump is disqualified from elected office under Section 3 of the 14th Amendment.
The clause, which was enacted in 1866 after the Civil War, says that "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" who has "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
The majority found that Trump "incited and encouraged the use of violence and lawless action to disrupt the peaceful transfer of power."
Prior to this ruling, Trump had prevailed in a number of cases where voters tried to remove him from state primary ballots under Section 3. Just last month, Minnesota's supreme court rejected a bid to remove him from the primary ballot, while a judge in Michigan ruled that the issue was a political question that could not be resolved by the courts. A Colorado state district judge had ruled last month that Trump did engage in insurrection, but stopped short of removing him from the ballot, saying that the 14th Amendment's disqualification clause did not apply to the presidency.
That ruling was appealed to Colorado's Supreme Court, which found that the 14th Amendment does apply to the presidency and agreed that Trump participated in an insurrection. While Trump lost Colorado in both 2020 and 2016, and the state isn't critical for his general election chances, the ruling could give momentum to other 14th Amendment challenges underway across the country. At least 16 other states have pending legal challenges to remove Trump from the ballot on the same grounds.
“We are mindful of the magnitude and weight of the questions now before us," the court’s majority opinion said. "We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach... President Trump did not merely incite the insurrection. Even when the siege on the Capitol was fully underway, he continued to support it. These actions constituted overt, voluntary, and direct participation in the insurrection."
The ruling applies to the Republican primary but any Supreme Court decision could also apply to the general election. Trump’s campaign promised to appeal, and the United States Supreme Court is expected to quickly intervene and resolve the argument. During the appeal, Trump will remain on the ballot in Colorado, though the state said the issue must be resolved before January 5, the day primary ballots need to be printed. The Republican primary is scheduled for March 5th.
The ruling drew immediate outrage from Trump's campaign, which called it "completely flawed." His team also began fundraising on the news with an email blast to supporters. Meanwhile, every one of Trump's remaining rivals in the Republican primary criticized the ruling, either pledging to drop out of Colorado's primary or saying the decision should be left up to the voters.
All seven justices on Colorado’s Supreme Court are Democratic appointees. The three justices who wrote in dissent argued that the state's election code is not the avenue for finding guilt of insurrection, noted that Trump has never been criminally charged for insurrection, and warned this ruling could violate his due process rights.
"Even if we are convinced that a candidate committed horrible acts in the past — dare I say, engaged in insurrection — there must be procedural due process before we can declare that individual disqualified from holding public office," Justice Carlos Samour wrote in a dissenting opinion.
Separately, the U.S. Supreme Court is already considering whether Trump is immune from prosecution for his actions on January 6 in the election interference case being brought by special counsel Jack Smith.
Today, we’re going to take a look at some opinions from the right and left on this case, then my take.
What the right is saying.
- The right is disgusted by the decision and says the Supreme Court should overturn it unanimously.
- Some say the Colorado Supreme Court’s legal reasoning is deeply flawed and ignores the intent of the 14th Amendment.
- Others suggest Democrats are becoming the threats to democracy they claim to fear.
In The New York Post, Jonathan Turley argued “SCOTUS should rule unanimously that Constitution matters more than defeating Trump at any cost.”
“January 6, 2021, was a riot. That does not excuse those who committed crimes that day — but it was not an insurrection,” Turley wrote. “The majority on the Colorado Supreme Court adopted sweeping interpretations of every element of the decision to find that Trump not only incited an insurrection, but can be disqualified under this provision. It does not matter that Trump has never been charged with even incitement or that he called for his supporters to go to the Capitol to protest ‘peacefully.’ In finding that Trump led an actual insurrection, the four justices used speeches going back to 2016 to show an effort to rebel before Trump was ever president.”
“We need clarity. Clarity of purpose and principle. The Supreme Court plays a unique role in our system at times like these. It must at times defy us in rejecting racism as [in] cases such as Brown v. Board of Education. At other times, it has protected in rejecting government overreach as in cases such as Katz v. United States, demanding warrants to overcome the reasonable expectation of privacy. This is a time where it can unify us,” Turley said. “The court could help unify this country in a way that may be unparalleled in its history. It can show that justices who hold vastly different ideological views can be unified on core principles.”
National Review’s editors wrote “Colorado forces a 14th Amendment crisis to get Trump.”
“While there are a number of subsidiary legal questions under Section 3, the biggest problem is that the Colorado court got it wrong on the merits of the case. While Section 3 was not limited to the Civil War, it was aimed to disqualify active Confederate rebels and political leaders of the Confederacy from returning to government. Those were people who made war on the United States, or materially supported armies in the field to do so. The original public meaning of Section 3, as illustrated by decisions of Congress in the late 1860s on whether to seat Southern members, barred only active participants in an ongoing rebellion,” the editors said.
“The Colorado court ignored the contemporaneous evidence of how Congress construed its own amendment… It is a serious stretch to convert Trump’s lassitude and a few tweets during the riot into active participation in the riot. More than some vague tweets ought to be required before depriving tens of millions of Americans of a candidate who may be their choice.”
In The American Spectator, Dov Fischer said the court’s decision “transcends hypocrisy.”
“Trump claims the 2020 presidential election was stolen from him. Many of us agree, although we approach the claim differently from how he does,” Fischer wrote. “So, in the face of Trump claiming that Democrats stole the 2020 election from him, how do the geniuses on the Democrat left proceed to convince all Americans, of all stripes, that Trump was not really cheated out of the presidency? Of all the lame-brained schemes imaginable, they do so by brazenly trying to cheat him out of the 2024 election by denying him the right to run.
“Frankly, it is they who repose at the foundation of the insurrection. All it took was three Democrat Colorado governors to name seven Democrat Colorado state Supreme Court justices. And even then, three of those jurists held their noses while the bare majority of four voted to deny Trump — and his 75 million or more voters — a fair and free election in Colorado. Sure, the United States Supreme Court will overthrow this one before they allow that kangaroo court to overthrow America, but it demonstrates how close we are to the end of our democracy as we know it.”
What the left is saying.
- The left is split on the validity of the court's reasoning, though many worry about the precedent the ruling would set if upheld by the Supreme Court.
- Some praise the court for using conservative text-based legal theories to justify its decision.
- Others say the court’s interpretation of the 14th Amendment is wrong and call on the Supreme Court to overturn its ruling.
The Washington Post editorial board said “not so fast” to disqualifying Trump from the ballot.
“Obvious as this analysis might seem to citizens appalled at the then-commander in chief’s conduct on Jan. 6, 2021, the law is not so clear. The court had to answer ‘yes’ to a vexing series of questions: Does Section 3 apply to the presidency? The answer here is probably ‘yes,’” the board wrote. “Yet these puzzles are relatively mundane compared with the case’s most consequential conundrum: whether Mr. Trump really did engage in insurrection.”
“What’s missing from the majority’s analysis is due process of law. Not only has Mr. Trump not been convicted of insurrection either by a jury of his peers or from the bench by a judge; he hasn’t even been charged with it,” the board added. “Disqualifying a candidate based on an accusation, albeit one blessed by a state court judge as in the Colorado case — but not an actual conviction — is dangerous… the potential for abuse is ample.”
In The Nation, Elie Mystal called the court’s ruling “sharp as hell.”
“The Colorado Supreme Court has gone and used the conservatives’ own obsession with states’ rights against them. Literally. The court quoted Justice Neil Gorsuch in an election law opinion from when he was a judge on the 10th Circuit Court of Appeals, which oversees Colorado,” Mystal said. “Despite the fact that the text of the law, conservative ideology, and some of the justices’ own words are on the side of Colorado in this case, I fully expect the Republicans on the Supreme Court to ignore all that and restore Trump to the Colorado ballot.
“You see, the problem with beating conservatives at their own game is that they don’t care about their own rules,” Mystal wrote. “I’m still guilty of believing there is a chance the Supreme Court sides with Colorado. There’s a chance that Gorsuch listens to himself. There’s a chance that Roberts’s political preferences are such that he understands the grave threat a second Trump presidency poses to the country and the Supreme Court’s own power.”
In Slate, Lawrence Lessig wrote “the Supreme Court must unanimously strike down Trump’s ballot removal.”
“What is not ambiguous is whether it would be ‘absurd’ to exclude the president from the reach of Section 3: because it is plainly not absurd. Indeed, excluding the president and vice president from the scope of the clause makes perfect sense,” Lessig said. “There is an obvious reason why the only two nationally elected officers would be excluded from its reach. It took mere moments after the Colorado Supreme Court’s ruling to see why, as Texas Lt. Gov. Dan Patrick threatened to remove President Joe Biden from the Texas ballot as retribution.”
“All this will be enough for the Supreme Court to see why there is no argument from absurdity that justifies stretching the words of the 14th Amendment to cover this extreme case,” Lessig added. “Again, electing Trump would be the worst political decision of the nation since the Civil War. But excluding him, wrongfully, by a close vote of the Supreme Court could well trigger the next Civil War. We must defeat him politically — not through clever lawyer interpretations of ambiguous constitutional texts.”
My take.
Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.
- I think it is the wrong decision legally and incredibly dangerous politically.
- This court doesn’t get to determine if Trump is guilty of insurrection, and after reading the arguments I actually do not believe Section 3 applies to the president or vice president.
- Trump’s may very well may end up a felon, so we should let his criminal cases play out without removing him from any ballot.
I think this is the wrong decision legally, incredibly dangerous politically, and it will rightfully have close to zero chance of standing up to Supreme Court scrutiny.
First, the legal decision: Every court's job is to act with no — or very, very minimal — consideration for politics or public reaction. So any conversation about this decision should focus on the legal questions first.
The most important determination to me — the one that ends this case where it starts — is that Trump is not guilty of insurrection. He has not even been charged with insurrection. He has not been found guilty of any federal crime as we sit here today on December 21st, 2023; nor has he been convicted by any political body of any crime (he was impeached, twice, and the Senate acquitted him, twice). The idea that four justices in Colorado have the authority to declare him an insurrectionist and then remove him from the ballot isn't just anti-democratic — it is, in a legal sense, absurd.
Please consider again the words of one of the three dissenting justices, who advanced this argument in such simple terms that I am unsure how the four in the majority got around it: "Even if we are convinced that a candidate committed horrible acts in the past — dare I say, engaged in insurrection — there must be procedural due process before we can declare that individual disqualified from holding public office." This wasn't just the position of the dissenting justice, but the position of several courts and judges that have already ruled on similar challenges.
Fundamentally, I don't know how a court can determine someone is ineligible for office due to a crime that no court or jury or political body has said they are guilty of. Again, it is worth emphasizing the Justice Department has charged Trump for his actions on January 6. His charges are:
- Conspiracy to defraud the United States
- Conspiracy to obstruct an official government proceeding (tallying the Electoral College vote)
- Conspiracy against the rights of voters to have their votes properly counted
- Obstructing and attempting to obstruct an official proceeding
First, those are all charges, not convictions. Second, none of those charges is insurrection. At the absolute worst for Trump, they leave open the possibility of him being accused of insurrection and rebellion. At which point, as former Republican Rep. Peter Meijer (MI), who voted to impeach Trump, argued, there is enough ambiguity in the law for the courts to leave this question to the political process to resolve — that is, to let the voters decide.
The second legal question is whether Section 3 of the 14th Amendment even applies to Trump. When Trump's team argued this case before the lower state court, and I read that they were arguing that Section 3 didn't apply to him, I scoffed. My initial reaction was that this was a silly legal strategy — of course it applies to the president, I thought. Instead, his legal team should argue he isn't and has never been found guilty of insurrection, and win the case there. But the lower court ultimately agreed that Section 3 didn't apply to him, which piqued my interest and made me read more about the arguments; and the more I read, the more I was convinced that the court was right.
The most obvious point is that the plain text of Section 3 makes no mention of the president. As Harvard Professor Lawrence Lessig wrote, this was not a sloppy omission. Lessig painstakingly explained how we know the 14th Amendment's authors intentionally excluded the offices of the president or vice president. The decision was in part to prevent the chaos of individual states (like, say, Colorado) trying to throw a presidential race. Rather than being a mistake, it was a brilliant piece of foresight. And it isn’t hard to see why: Shortly after the Colorado Supreme Court ruling, Texas Lt. Gov. Dan Patrick vowed to remove Biden from the Texas state ballot. How is that for a sign of things to come?
Politically, the decision is even worse. Everything about it is going to aid Trump in telling his supporters that the establishment will do anything to stop him. His opponents in the Republican primary — even Chris Christie — are now all stuck criticizing the Colorado Supreme Court and insisting this should be left to voters. The Republican Party is up in arms. Scores of sensible left-of-center politicians and writers, even those who are ardent Trump critics (like Lessig), are making the obvious points about this being a weak legal case and a political powder keg.
And, on top of all that, the Supreme Court is all but guaranteed to come in and overturn the ruling anyway. In fact, I'll take this moment to do one of my rare bits of political prognostication and wager that the high court rules 9-0 in Trump's favor.
All told, this is terrible for our country. Colorado’s decision legitimizes a new mechanism for state actors to try to impede federal elections. It adds “state supreme courts” to the list of institutions in whom public trust is crumbling. It will throw gas on the fire of paranoia that burns through homes all across America. And it will, ultimately, do absolutely nothing to slow down or stop the person who is supposed to be the threat to democracy. If anything, it will galvanize his campaign.
I've said before and I will say again: January 6 was a disgrace. It was the first and only non-peaceful transfer of power in United States history, and constitutes one of the worst stains on our nation. We should take every legal measure possible to prevent it from happening again, because it could be even worse a second time. Passing reforms to the Electoral Count Act, as Congress recently did, is the right way to address what happened, and I support more legislation like it that clarifies Congress’s role in certifying elections.
Former President Donald Trump is, by my best guess, guilty in the classified documents case, and he faces serious legal threats in Georgia’s and the Justice Department's election interference cases. His actions have already thrust us into unchartered legal territory and he may very well be a convicted felon by inauguration day in 2025. He, of course, bears responsibility for his decisions.
That all makes this decision not just faulty, but superfluous. Not for nothing, but nearly a quarter of Trump voters say he shouldn't be nominated if he gets convicted of a crime. The justice system is working right now, with the federal cases largely playing out in court how they should — with this obvious exception. Hopefully, the Supreme Court ends this 14th Amendment charade, rules that Trump is not immune from prosecution, and lets the other legal challenges move forward. Then, the rest will be left up to voters. As it should be.
Your questions, answered.
Q: In light of how the media is reporting the war in Gaza and how your Instagram post was taken down just because it had a certain narrative, would you consider doing a Friday piece on media and social media bias toward this war?
— D.A.K. from Rhode Island
Tangle: I said most of what I wanted to say about the ills of social media censorship in yesterday's reader question, but if you are interested in reading more you can check out some of my past posts on misinformation and censorship that I’ve published here in Tangle.
That being said, I did just finish recording a fresh YouTube video about all the misinformation about the war in Gaza that is spreading like wildfire on social media. In my opinion, it is one of the most important videos that we've recorded since we launched our YouTube channel. It should be coming out in early January while we're on break. l’ll send an email to everyone about it when it goes live, but in the meantime I encourage you to go subscribe to our YouTube channel, and check out our latest video with Kyla Scanlon while we’re putting the finishing touches on our new video.
Of course, I’m sure there will be lots more to come on all of this.
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Under the radar.
House Republicans who hated House Speaker Kevin McCarthy's debt deal over the summer are now using it as leverage in their budget showdown with President Biden. Six months after the agreement was struck, the GOP hardliners, who led the way in removing McCarthy as Speaker for striking the deal, recognize that terms have become favorable for them. The McCarthy deal mandates across-the-board cuts or caps to spending if lawmakers can't reach an agreement to fund the government for the fiscal year that ends in October. Initially, that agreement was going to result in deeper cuts to defense spending than non-defense spending, a reality conservatives disliked. But non-budget scorekeepers readjusted their calculations, which now show non-defense funding would get slashed more deeply than defense spending if Congress continues to implement temporary continuing resolution spending fixes, which gives Republicans newfound leverage in negotiating. Rep. Thomas Massie (R-KY) called it an "ace" being dealt to House Speaker Mike Johnson. Politico has the story.
Numbers.
- +4.6. Donald Trump’s net increase in GOP primary polls one week after he was indicted in New York City on charges of falsifying business records in March.
- -0.9. Trump’s net decrease in GOP primary polls one week after he was indicted on federal charges related to his handling of classified government documents in June.
- +0.1. Trump’s net increase in GOP primary polls one week after he was indicted on federal charges related to the certification of the 2020 presidential election in August.
- -0.2. Trump’s net decrease in GOP primary polls one week after he was indicted on charges related to interference in the 2020 presidential election results in Georgia in August.
- +15.8. Trump’s net increase in GOP primary polls since his first indictment (through December 20, 2023).
- 62%. The percentage of Republican primary voters who say that if Trump wins the primary he should remain their nominee even if he is subsequently convicted of a federal crime.
- 47%. The percentage of all voters who say Trump should be found guilty if his 2020 election interference case goes to trial.
The extras.
- One year ago today we published an end-of-year note, thanking our 54,000 subscribers (N.B.: Thank you to our 87,000 current subscribers!).
- The most clicked link in yesterday's newsletter was the Christmas tree map.
- Don't mess with Texas: 731 Tangle readers responded to our poll asking about Texas's new immigration legislation with 49% saying it is appropriate. 20% said it is too strict, 19% said it is far too strict, 5% said it is too lenient, and 2% said it is far too lenient. 6% were unsure or had no opinion. "You can't blame Texas for taking this into their own hands. As they say, 'Don't Mess with Texas'!," one respondent said.
- Nothing to do with politics: A Brazilian prison replaces its guard dogs with guard geese.
- Take the poll. What do you think of the Colorado Supreme Court's decision? Let us know!
Have a nice day.
The Hopkinsville Police Department in Kentucky recently swore in a new officer — a pit bull named Bolo. Arriving at the station as part of a publicity program for the nearby Christian County Animal Shelter, Bolo was only meant to stay for a day and contribute his handsome face to the Department’s social media posts as a means to help him find a home. But the station couldn’t bear to let him go. “Oddly enough, everybody fell in love with him,” Police Chief Jason Newby said. “So when it came time for him to go back that day, they got him in his cage, and he kind of dropped his head and whimpered, and everybody’s heart melted, and we decided to adopt him.” Now, Bolo is Hopkinsville’s first-ever “Paw-trol Officer.” Good News Network has the story.
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