I wrote this post four months ago. At the time, I considered the likelihood that this argument would hold up and have any practical impact on the 2024 election to be remote, for reasons detailed below. Now, however, with the Colorado supreme court ruling Trump off the ballot, the case will go to the United States Supreme Court. Ordinarily, the 6-3 conservative majority would have made short work of such an arcane contention, but, also as detailed below and as I’ve written a number of times, the Republican donor class has grown increasingly desperate to get Trump off the ballot. As such, while a Court ruling upholding the Colorado decision is still way less than a 50-50 proposition, it is no longer an impossibility.
What is interesting here is that the thesis is constitutionally valid. Section 3 contains no requirement of a conviction and the intent was clearly to make the prohibition applicable to anyone judged…although by whom is unstated…to have participated in an insurrection, even as a sympathizer. As a result, textualists, like Thomas and Alito…assuming they were honest brokers, which they are not…should have a difficult time dismissing the argument. That being said, it is something of a stretch to conclude…at this point anyway…that Trump either participated in an insurrection or even prompted it. (The DC trial might well shed some light there.)
But the larger question is just how deep this feeling runs among the Republican…let’s say intelligentsia…that Trump is leading the party to disaster. (And I do say party, not country.)
I'm hoping the money gets unstuck... If that happens, there might be some late entries - maybe someone like Rubio, who's been showing an independent streak lately.
I don't see that in the cards. Ken Langone was a big Trump supporter and has switched to Nikki Haley as have some other major donors. The Koch brothers have been long-time critics of Trump but that they are backing Haley instead for waiting some cards to fall is telling. As to the case, I mentioned in an earlier piece that Michael Luttig and Laurence Tribe co-authored an article supporting the thesis. I still don't think the Court will pull Trump from the ballot, but it does emphasize the rift in the party, which could be very significant next November.
Definitely a lonnnnng shot. What is interesting to me however, is what the back channel communication between the big time donors and "friends" of the conservative justices will be. We'll never know of course, but the Kochs, Ken Langone, and others trying to get Nikki Haley nominated are not going to simply let this opportunity pass by. One off the wall possibility is that the Court rules that this is a state-by-state decision, based on Article I.
One could only hope.
What is interesting here is that the thesis is constitutionally valid. Section 3 contains no requirement of a conviction and the intent was clearly to make the prohibition applicable to anyone judged…although by whom is unstated…to have participated in an insurrection, even as a sympathizer. As a result, textualists, like Thomas and Alito…assuming they were honest brokers, which they are not…should have a difficult time dismissing the argument. That being said, it is something of a stretch to conclude…at this point anyway…that Trump either participated in an insurrection or even prompted it. (The DC trial might well shed some light there.)
But the larger question is just how deep this feeling runs among the Republican…let’s say intelligentsia…that Trump is leading the party to disaster. (And I do say party, not country.)
I'm hoping the money gets unstuck... If that happens, there might be some late entries - maybe someone like Rubio, who's been showing an independent streak lately.
I don't see that in the cards. Ken Langone was a big Trump supporter and has switched to Nikki Haley as have some other major donors. The Koch brothers have been long-time critics of Trump but that they are backing Haley instead for waiting some cards to fall is telling. As to the case, I mentioned in an earlier piece that Michael Luttig and Laurence Tribe co-authored an article supporting the thesis. I still don't think the Court will pull Trump from the ballot, but it does emphasize the rift in the party, which could be very significant next November.
It would be a laudable result based on specious legal reasoning.
But we've had awful results based on specious legal reasoning, e.g., Dobbs.
So for this, I'll gladly suspend my two wrongs don't make a right principle.
Definitely a lonnnnng shot. What is interesting to me however, is what the back channel communication between the big time donors and "friends" of the conservative justices will be. We'll never know of course, but the Kochs, Ken Langone, and others trying to get Nikki Haley nominated are not going to simply let this opportunity pass by. One off the wall possibility is that the Court rules that this is a state-by-state decision, based on Article I.