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The Disqualification Clause
Some thoughts on yesterday's Supreme Court oral arguments in the 14th Amendment Section 3 DQ Clause case of Anderson v. Griswold...now taken up as Trump v. Anderson.
When we last left this case, the Colorado Supreme Court had affirmed the district court's factual finding that January 6th was an insurrection and that Donald Trump had engaged sufficiently to be considered an insurrectionist under Section 3's Disqualification Clause. They had overturned the determination that Trump's oath of office did not qualify under the Disqualification Clause and that the Presidency was not an office that the clause disqualified officials from holding. As a result, the Colorado Supreme Court deemed Trump ineligible for the Colorado ballot under Colorado's election laws but stayed their order to remove him pending appeal to the U.S. Supreme Court.
I still think SCOTUS will ultimately determine that Trump stays on the ballot. The question is exactly how. No matter what they do next, new constitutional law will be created before our eyes and a long-overlooked section will become better defined.
Is the Disqualification Clause self-executing?
An interesting issue raised was that, if so, Trump would have been disqualified from serving as president from some time on January 6th through the end of his term at noon on January 20th.
During this period, Vice President Mike Pence could have stepped forward and declared himself to be the true President under the Constitution. Presumably, he would need the backing of cabinet members, executive department heads and their deputies, and the Joint Chiefs of Staff. Trump would certainly not abide by this, would call it a coup, and various government officials would be forced to choose which president's orders to follow.
I would watch this movie, but I'd definitely not want to see it play out in the real world.
There was much discussion on the unique category of disqualification represented here. Unlike a candidate disqualified for being too young, having already served two presidential terms, or not being a natural-born American citizen, the 14th Amendment provides a potential cure for a Section 3 disqualification.
Congress can swoop in and lift a Section 3 disqualification with a vote of amnesty. Not this Congress, necessarily, but a theoretical Congress at least. This could even be done after the election, just before the swearing-in ceremony, so shouldn't a political party be allowed to roll the dice and have their oath-breaking insurrectionist on the ballot in the hopes of last-minute congressional clemency?
There was much talk about Griffin's case, a 19th-Century challenge to the qualification of a judge who had previously served in the Confederacy.
Among its contemporary case law, Griffin's case is an anomaly that Trump's lawyers are hanging their hats on. The opinion is not precedent, and was later disavowed by the judge who wrote it, but was it relied upon by Congress and incorporated into subsequent statutes? That's the argument, and at least two conservative justices seemed open to that consideration.
Another issue raised is the possibility of a deep red state disqualifying Joe Biden from the ballot out of retribution for Colorado disqualifying Donald Trump, unless the definition of insurrection could be determined on a national level. The justices didn't seem keen either on providing a definition or on arbitrating every instance of alleged disqualification that would come up against all candidates in every election going forward.
Presidential Immunity
Trump's attorney in the Disqualification Clause case didn't press the evidentiary issues but briefly stated a belief, on Trump's behalf, that the January 6th riots were serious crimes that didn't rise to the level of an insurrection. He threw the rioters under the bus, saying they should be prosecuted for their participation while Donald Trump's participation should be excused under the doctrine of absolute presidential immunity.
This argument will likely come before the Supreme Court separately if they take up an appeal from the Appeals Court for the District of DC that just found against absolute presidential immunity in criminal matters, generally, and in the events of January 6th more specifically.
The Appeals Court decision was masterfully written per curiam from a three-judge panel, and it may be that the Supreme Court affirms it as is. An appeal, if there is one, has to be filed by Monday or else the mandate goes back to the district court.
This was never an argument that Trump could have won. If U.S. presidents are immune from criminal prosecution, there would have been no reason for Gerald Ford to have pardoned Richard Nixon for the Watergate break-in and coverup. The argument Trump is making is that Watergate, the largest presidential scandal in U.S. history, was perfectly fine and should have had no legal or personal consequences for Nixon.
Trump's Cash Crunch
Very soon, one of two things will happen. Either Donald Trump will post the bond necessary to file his appeal of the $83.3 million verdict against him in Carroll v. Trump I or E. Jean Carroll will be allowed to start the collection process.
Trump has assets valued in the billions, but most of his worth isn't liquid. He is also anticipating an even larger verdict in the New York civil fraud case and, because he's been implicated in business fraud, it will be tough for him to get loans from traditional sources.
On the other hand, Trump's propensity to put his name on things that he owns will make those assets easier for a successful litigant to locate for attaching a lien.
Upcoming
A verdict in the New York civil fraud case has been delayed and complicated by the revelation that Trump co-defendant and central witness Alan Weisselberg may have perjured himself during trial testimony. The ex-CFO who committed fraud on behalf of Donald Trump may have committed perjury on behalf of...well, someone who stood to benefit from suborning that false testimony. It's too early to say exactly whom that might be.
Is another criminal indictment coming from Manhattan District Attorney Alvin Bragg? Time will tell.
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