Last Thursday one more of Donald Trump’s legal problems ended up before the Supreme Count and I listened to some of the oral arguments. It is clear that the question of whether or not Donald Trump is an insurrectionist will certainly be postponed, again, as the justices are not ready to admit (nor accuse) him of being one. Liberal and conservative justices alike are unwilling to litigate that question, though I expect they will have to at some point. Conservatives clearly want to use their federal power to quash Colorado’s decision, upheld on public appeal to Colorado’s courts, that Trump is an insurrectionist, but they cannot do so directly. They are loath to conduct an evidentiary hearing, on the grounds that Colorado’s evidentiary process may be flawed. Conservative analysis of the 14th amendment is that it was meant to restrict state rights, not embolden them as Colorado has done and many other states are ready to do. Cavanaugh and others feign fear over the political and legal wars they envision should they let Colorado’s decision stand. Justice Alito et.al. insisted that since adoption of the 14th amendment there has never been a candidate kept off the ballot for federal office due to insurrection, it follows that the amendment cannot be construed to have allowed it in federal elections.
Evidently there are no convicted insurrectionists in the United States today; we don’t charge people with insurrection to begin with. We charge them with conspiring to obstruct an official proceeding because crimes like that are easier to prosecute and carry sufficiently high sentences as to meet the need for harsh punishment. But nobody today is in jail because they were found guilty of insurrection. And yet you and I know they are either insurrectionists or some kind of private militia fighting on behalf of their leader for greater glory. To my mind, they used their strength (without many armaments) to pursue their target, identified to them by Trump as Vice President Pence, in order to overturn the results of the election. That is an insurrection against the Constitution whether or not you believe that is a good thing or a bad thing. Donald Trump was the leader of an insurrection; he had his armed militia at the ready. I do not believe that a man like Trump, surrounded by the likes of Roger Stone, Steve Bannon and Kash Patel, did not also have field generals and a battle plan. Were it not for the Secret Service, Trump would have been at the Capitol demanding Pence’s fealty, not at gunpoint, but surrounded by his militia.
Donald Trump is an insurrectionist as surely as any other January 6 defendant, but will never be convicted of it. Yet the State of Colorado applied that conclusion after a thorough judicial review and specifically cited the 14th amendment’s prohibitions, however they might be applied, in managing access to the primary ballot. Trump was represented by counsel in a five day judicial hearing and offered no rebuttal to the underlying claim of insurrection. The Colorado Secretary of State then won on appeal to Colorado’s highest court. In Colorado it is legally correct to call Donald Trump an insurrectionist. Given that the Supreme Count will not take up a review of Colorado’s legal evidence, it can only limit itself to the question of whether or not he can be on the ballot. The fact that Donald Trump is an insurrectionist in Colorado is not in dispute before the justices. The Colorado Attorney General encouraged the court to review all of the evidence, but they won’t, yet. It may be that when it comes to insurrection the Justices are like frogs in a pot of water being heated, slowly. It is most assuredly very discomforting.
This conservative court is faced with the ironic invocation of federal law over state’s rights and insist, with a straight face, that no state can be allowed to challenge federal supremacy lest many other states undertake their own objections using their own processes and rules of evidence; such an outcome would be so very unsettling. Welcome to our world, Honorable Justices of the Supreme Court. As unsettling as it may be, we already have an overwhelming number of such cases and this is just one more. This Supreme Court is willing to support state's rights in other realms such as abortion and public funding of religious education. Do they only accept division on some issues and not others? It might even be true that the justices fear the specter of violence always present around Trump.
It has always been true over any reasonably long period of time that these battles are a normal part of human affairs. I have faith that our political and judicial processes will adequately protect us if other states want to exclude candidates for any reason or for no reason at all. Which is to say I accept that each state is allowed to determine the manner of selection of their electors to the Electoral College. It was always thus whether I think it is a good idea or not.
While the justices might see a ghastly fauvist battle of states against one another, perhaps it can also be seen as a cubist’s tension-filled body pushing the rock uphill, unarmed, to depose of one more autocrat for whom “L’État, c’est moi.”. If this cannot be done before the Supreme Court very soon then the justices will have failed to do their part to advance the rock and we will roll, again, back downhill into the implied and explicit threats of violence and bedlam, for having opposed Donald Trump.
No comments:
Post a Comment