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      Colorado Judge Keeps Trump on Ballot in 14th Amendment Case

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      A district court judge ruled that former President Donald J. Trump “engaged in insurrection” but said the disqualification clause of the 14th Amendment did not apply to him.A Colorado judge ruled on Friday that former President Donald J. Trump could remain on the primary ballot in the state, rejecting the argument that the 14th Amendment prevents him from holding office again — but doing so on relatively narrow grounds that lawyers for the voters seeking to disqualify him said they would appeal.With his actions before and during the Jan. 6, 2021, attack on the U.S. Capitol, Judge Sarah B. Wallace ruled, Mr. Trump engaged in insurrection against the Constitution, an offense that Section 3 of the 14th Amendment — which was ratified in 1868 to keep former Confederates out of the government — deems disqualifying for people who previously took an oath to support the Constitution.But Judge Wallace, a state district court judge in Denver, concluded that Section 3 did not include the presidential oath in that category.The clause does not explicitly name the presidency, so that question hinged on whether the president was included in the category “officer of the United States.”Because of “the absence of the president from the list of positions to which the amendment applies combined with the fact that Section 3 specifies that the disqualifying oath is one to ‘support’ the Constitution whereas the presidential oath is to ‘preserve, protect and defend’ the Constitution,” Judge Wallace wrote, “it appears to the court that for whatever reason the drafters of Section 3 did not intend to include a person who had only taken the presidential oath.”“Part of the court’s decision,” she continued, “is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section 3.”She added in a footnote that it was “not for this court to decide” whether the omission of the presidency was intentional or an oversight.Steven Cheung, a spokesman for Mr. Trump, said in a statement: “We applaud today’s ruling in Colorado, which is another nail in the coffin of the un-American ballot challenges.” He added, “These cases represent the most cynical and blatant political attempts to interfere with the upcoming presidential election by desperate Democrats who know Crooked Joe Biden is a failed president on the fast track to defeat.”Mario Nicolais, one of the lawyers representing the six Colorado voters who filed the lawsuit in September, said he was encouraged by the narrow grounds on which they had lost — not on the substance of Mr. Trump’s actions, but on the scope of the amendment’s applicability. The voters will appeal to the Colorado Supreme Court within three days, but the United States Supreme Court will most likely have the final say.“The court found that Donald Trump engaged in insurrection after a careful and thorough review of the evidence,” Mr. Nicolais said. “We are very pleased with the opinion and look forward to addressing the sole legal issue on appeal, namely whether Section 3 of the 14th Amendment applies to insurrectionist presidents. We believe that it does.”Judge Wallace is the first judge to rule on the merits of whether Section 3 applies to Mr. Trump. Similar lawsuits in Minnesota and New Hampshire have been dismissed on procedural grounds, and a judge in Michigan recently ruled that the questions were political ones that courts did not have the authority to decide. The plaintiffs in Michigan have appealed that ruling.Judge Wallace’s assessment of Mr. Trump’s behavior before and on Jan. 6 was damning, and, notably, she rejected his lawyers’ argument that the First Amendment protected him. His words and actions, she wrote, met the criteria set by the Supreme Court in Brandenburg v. Ohio for distinguishing incitement from protected speech.“Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification,” she wrote. “Trump cultivated a culture that embraced political violence through his consistent endorsement of the same.”Referring to his speech on the Ellipse on Jan. 6, in which he told his supporters that they needed to “fight like hell” and that they were justified in behaving by “very different rules,” Judge Wallace said, “Such incendiary rhetoric, issued by a speaker who routinely embraced political violence and had inflamed the anger of his supporters leading up to the certification, was likely to incite imminent lawlessness and disorder.”Jena Griswold, the Colorado secretary of state, said she would obey whatever ruling was in place on Jan. 5, 2024, the state’s deadline for certifying candidates to the primary ballot. Ms. Griswold, a Democrat, is responsible for that certification, and the effect of Judge Wallace’s ruling was to order her to include Mr. Trump.But, while emphasizing that she was not saying whether the judge was right or wrong about the scope of Section 3, she said she found the notion that the presidency was excluded “deeply problematic.”“The idea that the presidency itself is a get-out-of-jail-free card for insurrection and rebellion, I think, is striking,” she said in an interview Friday night. Referring to Judge Wallace’s conclusion that Mr. Trump had engaged in insurrection, she added: “I think that court determination in itself is incredibly powerful for the country.”The decision followed a weeklong trial in which lawyers for the plaintiffs called eight witnesses to build their case for Mr. Trump’s disqualification, relying in particular on the testimony of two professors.Peter Simi, an expert on political extremism, testified that far-right groups routinely relied on implicit, plausibly deniable calls for violence, and that Mr. Trump had communicated with them in that way — an argument presented to rebut the defense that he never explicitly told anyone to storm the Capitol. And Gerard Magliocca, an expert on Section 3 of the 14th Amendment, testified that at the time it was ratified, “engaging in insurrection” had been understood to include verbal incitement of force to prevent the execution of the law.Mr. Trump’s lawyers called one expert, Robert Delahunty, a law professor who testified that Section 3 was vague and that it should be up to Congress to define it. Their other witnesses included a former Defense Department official who said Mr. Trump had pre-emptively authorized the use of National Guard troops to prevent violence on Jan. 6 — followed by people who were at Mr. Trump’s rally on the Ellipse that day, who testified that they had not heard his words as a call to violence and that the crowd had been peaceful before part of it turned violent. More

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      Minnesota Justices Rebuff Attempt to Bar Trump From Ballot Under 14th Amendment

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      In rejecting a petition arguing that former President Donald J. Trump was ineligible, the Minnesota Supreme Court did not rule on the merits and said the claims could be filed again later.The Minnesota Supreme Court on Wednesday dismissed a petition seeking to disqualify former President Donald J. Trump from holding office again under the 14th Amendment.Election officials and the courts did not have the authority to stop the Republican Party from offering Mr. Trump as a primary candidate, the justices found. They did not rule on the merits of the petitioners’ constitutional argument: that Mr. Trump’s actions before and during the Jan. 6, 2021, attack on the Capitol amounted to “engaging in insurrection” against the Constitution after taking an oath to support it.Section 3 of the 14th Amendment, ratified in 1868 to keep former Confederates out of the government, says anyone who has done that is ineligible to hold office.Minnesota’s presidential primary, scheduled for March, is “an internal party election to serve internal party purposes, and winning the presidential nomination primary does not place the person on the general election ballot as a candidate for president of the United States,” the court wrote in an order signed by Chief Justice Natalie E. Hudson, with no noted dissents.There is no law in Minnesota prohibiting a political party from putting a constitutionally ineligible candidate’s name on the ballot, it continued, and so “there is no error to correct here as to the presidential nomination primary.”The court emphasized that the petitioners were free to file the same claims again later, challenging Mr. Trump’s inclusion on the general-election ballot if he wins the Republican nomination. For now, it did not address the constitutional questions surrounding whether the 14th Amendment applies to Mr. Trump.Though the ruling was procedural, Mr. Trump’s campaign promoted it as a substantive victory. Steven Cheung, a campaign spokesman, called it “further validation of the Trump campaign’s consistent argument that the 14th Amendment ballot challenges are nothing more than strategic, unconstitutional attempts to interfere with the election by desperate Democrats who see the writing on the wall.”Ron Fein, the legal director at Free Speech for People, the left-leaning group that filed the case on behalf of a group of Minnesota voters and is also suing in other states, said: “We are disappointed by the court’s decision. However, the Minnesota Supreme Court explicitly recognized that the question of Donald Trump’s disqualification for engaging in insurrection against the U.S. Constitution may be resolved at a later stage.”The Minnesota petition is the second case challenging Mr. Trump’s eligibility that has been dismissed on procedural grounds, after one in New Hampshire. No court has yet ruled on the merits of the 14th Amendment argument.A state district court judge in Colorado is expected to rule in a similar case in the coming weeks after a recent five-day hearing. More

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      Donald Trump’s Abortion Shell Game

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      As a candidate for president in 2016, Donald Trump promised to put “pro-life justices” on the Supreme Court. He even issued a list of potential nominees that featured some of the most conservative judges in the country.As president, Trump made good on his promise, appointing three of the six justices who voted last year to overturn the Supreme Court’s precedent in Roe v. Wade and end, after years of erosion, the constitutional right to an abortion.Each of these appointments — Neil Gorsuch in 2017, Brett Kavanaugh in 2018 and Amy Coney Barrett in 2020 — was a landmark occasion for the Trump administration and a major victory for the conservative movement. Trump used his court picks to energize Republican voters ahead of the 2020 presidential election and, later, took credit for the court’s decision in Dobbs v. Jackson Women’s Health Organization, the case that made Roe obsolete.The Dobbs decision, Trump said in a statement, was “the biggest WIN for LIFE in a generation” and was “only made possible because I delivered everything as promised, including nominating and getting three highly respected and strong Constitutionalists confirmed to the United States Supreme Court.” It was, he continued, “my great honor to do so!”As recently as last week, in remarks to the Concerned Women of America Summit, Trump bragged about the anti-abortion record of his administration. “I’m also proud to be the most pro-life president in American history,” he said. “I was the first sitting president ever to attend the March for Life rally right here in Washington, D.C.” The biggest thing, he emphasized, was his appointment of three Supreme Court justices who “ruled to end the moral and constitutional atrocity known as Roe v. Wade.”“Nobody thought that could be done,” Trump said.Whether or not Trump is personally opposed to abortion is immaterial. The truth, established by his record as president, is that he is as committed to outlawing abortion in the United States as any other conservative Republican.There is no reason, then, to take seriously his remarks on Sunday, in an interview on NBC’s “Meet the Press,” where he criticized strict abortion bans and tried to distance himself from the anti-abortion policies of his rivals for the Republican presidential nomination. “I think what he did is a terrible thing and a terrible mistake,” Trump said, taking aim at Gov. Ron DeSantis’s decision to sign a six-week ban into law in Florida in April. Trump also rejected the 15-week federal ban pushed by his former vice president, Mike Pence, and promised to negotiate a compromise with Democrats on abortion. “Both sides are going to like me,” he said. “I’m going to come together with all groups, and we’re going to have something that’s acceptable.”Trump is triangulating. He sees, correctly, that the Republican Party is now on the wrong side of the public on abortion. By rejecting a blanket ban and making a call for compromise with Democrats, Trump is trying to fashion himself as an abortion moderate, a strategy that also rests on his pre-political persona as a liberal New Yorker with a live-and-let-live attitude toward personal behavior.There is a real chance this could work. In 2016, voters did not see Trump as a conservative figure on either abortion or gay rights, despite the fact that he was the standard-bearer for the party that wanted restrictions on both. It would be a version of the trick he pulled on Social Security and Medicare, where he posed as a defender of programs that have been in the cross-hairs of conservative Republicans since they were created.But there’s an even greater chance that this gambit falls flat. There are the Democrats, who will have his record to highlight when they go on the offensive next year, assuming he’s on the ballot as the Republican nominee. There is the political press, which should highlight the fact that Trump is directly responsible for the end of Roe (so far, it mostly has). And there are his rivals, like DeSantis, who are already pressing Trump to commit to further anti-abortion policies in a second term.It’s probably no accident then that Trump went to Iowa — where the Florida governor is investing the full resources of his campaign — to remind voters of his role in ending Roe. “They couldn’t get the job done. I got the job done,” Trump said. “I got it done. With the three Supreme Court justices that I appointed, this issue has been returned to the states, where all legal scholars on both sides said it should be. Of course, now the pro-life community has tremendous negotiating power.”Trump is no longer the singular figure of 2016. He is enmeshed within the Republican Party. He has real commitments to allies and coalition partners within the conservative movement. He is the undisputed leader of the Republican Party, yes, but he can’t simply jettison the abortion issue, which remains a central concern for much of the Republican base.“We’re at a moment where we need a human rights advocate, someone who is dedicated to saving the lives of children and serving mothers in need. Every single candidate should be clear on how they plan to do that,” Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, said in a statement issued in response to Trump’s comments on “Meet the Press.”Trump will have to talk about abortion again and again, in a context that does him no political favors.There is a larger point to make here. Because we are almost certain to see a rematch between Joe Biden and Donald Trump, it is easy to think that the next election will be a replay of the previous one in much the same way that the 1956 contest between Dwight Eisenhower and Adlai Stevenson was virtually identical to the one in 1952.But conditions will be very different in 2024 from what they were in 2020. Trump will not be an incumbent and, according to my colleague Nate Cohn, he may not have the same scale of Electoral College advantage he enjoyed in his previous races. He’ll be under intense legal scrutiny and, most important, he’ll be a known quantity.The public won’t have to imagine a Trump presidency. It will already know what to expect. And judging from Trump’s attempt to get away from his own legacy, he probably knows that a majority of the voting public isn’t eager to experience another four years with him at the helm.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      How Biden’s View on Presidential War Powers Has Shifted

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      The president says he can direct limited military operations without lawmakers’ approval. Most G.O.P. presidential candidates, including Donald J. Trump, did not answer a survey on executive power.If he is elected to a second term, President Biden pledged that he will go to Congress to start any major war but said he believed he was empowered “to direct limited U.S. military operations abroad” without such approval when such strikes served critical American interests.“As president, I have taken great care to ensure that military actions carried out under my command comply with this constitutional framework and that my administration consults with Congress to the greatest extent possible,” he wrote in response to a New York Times survey of presidential candidates about executive power.“I will continue to rigorously apply this framework to any potential actions in the future,” he added.The reply stood in contrast to his answer in 2007, when he was also running for president and, as a senator, adopted a narrower view: “The Constitution is clear: Except in response to an attack or the imminent threat of attack, only Congress may authorize war and the use of force.”In the survey, The New York Times asked major presidential candidates to lay out their understanding of issues that can be critical to the outcome of policy fights but about which they are rarely asked: the scope and limits of a president’s power to act unilaterally or in defiance of statutes, particularly in war, secrecy and law enforcement.Mr. Biden’s answers showed how his view of executive power evolved over years in the White House — eight as Barack Obama’s vice president and now nearly three as president.Only a handful of candidates for the Republican nomination engaged in the survey, including former Vice President Mike Pence, former Gov. Asa Hutchinson of Arkansas and Mayor Francis Suarez of Miami before he suspended his campaign late last month.Vivek Ramaswamy, a businessman and entrepreneur, answered only about half of the 14 questions, and former President Donald J. Trump declined to participate altogether, as did Gov. Ron DeSantis of Florida and Nikki Haley, the former ambassador to the United Nations, among others.The Times has published in full the answers of participants, including Mr. Biden and two of his Democratic challengers, Robert F. Kennedy Jr. and Marianne Williamson.Notably, Mr. Biden declined to embrace the idea of curtailing emergency powers Congress enacted that presidents can activate if they declare that there are exigent circumstances, said Jack Goldsmith, a Harvard Law School professor and former senior Justice Department lawyer in the Bush administration.Mr. Trump invoked emergency powers to spend more on a border wall than lawmakers were willing to appropriate, and the Biden administration invoked the authority for a plan to forgive more than $400 million in student debt. (The Supreme Court struck down the proposal over the summer.) There are bipartisan proposals in Congress to impose new curbs, such as by ensuring that national emergencies terminate after 30 days unless lawmakers affirm a presidential declaration.Asked whether he would sign such a bill, Mr. Biden instead made a vague remark about “working with Congress on devising sensible solutions to the challenges we face as a nation.” He added that he would use every tool at his disposal to respond to emergencies.“If Biden is not open to reform — and his answer was as noncommittal as he could be without saying he was not open to it — then it is likely dead on arrival,” Professor Goldsmith said.On the topic of pardons, every candidate who answered the survey said that a president cannot pardon himself. While in office, Mr. Trump claimed he had a legal right to do so, but that is an ambiguous and untested constitutional question. It could become important if he wins the 2024 election even as he faces criminal charges in two federal cases.Former President Donald J. Trump claimed he had the legal right to pardon himself.Doug Mills/The New York TimesIndeed, while Mr. Trump did not participate in the survey, many of its questions addressed disputed assertions of executive power he made as president, and he and his allies are openly planning to expand his authority over the machinery of government if he wins in 2024. Mr. DeSantis has also pushed an expansive view of executive powers as Florida governor.The refusal by the two men and most other G.O.P. contenders to answer questions on the powers they are seeking from voters reflects a party shift that emerged in the 2016 primary, which Mr. Trump upended by becoming the front-runner ahead of establishment candidates.Other Republican presidential hopefuls in the current primary campaign who declined to answer the questions included Senator Tim Scott of South Carolina, Chris Christie, the former governor of New Jersey, Gov. Doug Burgum of North Dakota, and Will Hurd, a former representative of Texas.By contrast, most major Republican primary candidates in 2007 and 2011 were willing to answer the versions of the questions put to them those years, including the party’s eventual nominees, John McCain and Mitt Romney.Four years ago, 17 Democrats vying for their party’s nomination to challenge Mr. Trump also participated in the project. Mr. Biden was among them, making his answers this cycle the third time he has participated. (His willingness to do so as an incumbent seeking re-election also stood in contrast to Mr. Obama, who declined to participate in 2011.)In 2019, Mr. Biden had already shifted to embracing the view, adopted by the executive branch under administrations of both parties, that presidents have broader constitutional authority to carry out limited attacks on other countries without congressional authorization, so long as it falls short of full-scale war.As president, both Mr. Trump and Mr. Biden used force unilaterally, citing their claimed constitutional authority to use military force without congressional permission. In April 2017 and again in April 2018, Mr. Trump directed airstrikes against Syrian government forces, and Mr. Biden in June 2021 and in August 2022 directed airstrikes on Iranian-backed militia groups in Syria.Mr. Pence, who was vice president at the time of Mr. Trump’s strikes, said: “As commander in chief, the president has a constitutional duty to use his executive authority to protect the country from imminent threats. Whether a threat is imminent is a matter of judgment, and it is essential the president be a person of character, experience, and competence whose judgment the American people can trust.”To be sure, just because candidates commit to respecting a limit while on the campaign trail does not mean they will follow through once in office. But their legal policy statements can offer a way to analyze and bring attention to any departure from what they told voters.In 2019, for example, Mr. Biden said that if elected, he would order the Justice Department to review and potentially replace a legal policy memo that says sitting presidents are temporarily immune from indictment. He strongly criticized the department’s interpretation of the Constitution, which limited the special counsel investigating the Trump campaign’s ties to Russia and Mr. Trump’s attempts to impede that inquiry, Robert S. Mueller III.But Mr. Biden never followed through on that pledge. He is now protected himself by the Justice Department’s theory since a special counsel, Robert Hur, is investigating how several classified documents were in his possession when he left the vice presidency.In his survey answers this time, Mr. Biden sidestepped a question about that issue, instead offering a vague statement about Justice Department independence.“As president, I have fulfilled my campaign promise of restoring a strong and independent Department of Justice led by top-flight legal professionals dedicated to realizing the ideal that this nation was founded on of equal justice under the law,” he wrote. “This means no one is above the law — especially the president of the United States.” More

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      Republicans Don’t Mind the Constitution. It’s Democracy They Don’t Like.

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      “A very large portion of my party,” Senator Mitt Romney of Utah tells McKay Coppins of The Atlantic, “really doesn’t believe in the Constitution.”Romney doesn’t elaborate further in the article, and Coppins, who spoke to him in depth and at length, beginning in 2021, for a forthcoming biography, does not speculate on what exactly Romney meant with this assessment of his co-partisans.If Romney was using “the Constitution” as a rhetorical stand-in for “American democracy,” then he’s obviously right. Faced with a conflict between partisan loyalty and ideological ambition on one hand and basic principles of self-government and political equality on the other, much of the Republican Party has jettisoned any commitment to America’s democratic values in favor of narrow self-interest.The most glaring instance of this, of course, is Donald Trump’s attempt to overturn the results of the 2020 presidential election, which was backed by prominent figures in the Republican Party, humored by much of the Republican establishment and affirmed, in the wake of an insurrectionary attack on the Capitol by supporters of the former president, by a large number of House and Senate Republican lawmakers who voted to question the results.Other examples of the Republican Party’s contempt for democratic principles include the efforts of Republican-led state legislatures to write political majorities out of legislative representation with extreme partisan gerrymanders; the efforts of those same legislatures to raise new barriers to voting in order to disadvantage their political opponents; and the embrace of exotic legal claims, like the “independent state legislature theory,” meant to justify outright power grabs.In just the past few months, we’ve seen Tennessee Republicans expel rival lawmakers from the State Legislature for violating decorum by showing their support for an anti-gun protest on the chamber floor, Florida Republicans suspend a duly elected official from office because of a policy disagreement, Ohio Republicans try to limit the ability of Ohio voters to amend the State Constitution by majority vote, Wisconsin Republicans float the possibility that they might try to nullify the election of a State Supreme Court justice who disagrees with their agenda and Alabama Republicans fight for their wholly imaginary right to discriminate against Black voters in the state by denying them the opportunity to elect another representative to Congress.It is very clear that given the power and the opportunity, a large portion of Republican lawmakers would turn the state against their political opponents: to disenfranchise them, to diminish their electoral influence, to limit or even neuter the ability of their representatives to exercise their political authority.So again, to the extent that “the Constitution” stands in for “American democracy,” Romney is right to say that much of his party just doesn’t believe in it. But if Romney means the literal Constitution itself — the actual words on the page — then his assessment of his fellow Republicans isn’t as straightforward as it seems.At times, Republicans seem fixated on the Constitution. When pushed to defend America’s democratic institutions, they respond that the Constitution established “a republic, not a democracy.” When pushed to defend the claim that state legislatures have plenary authority over the structure of federal congressional elections and the selection of presidential electors, Republicans jump to a literal reading of the relevant parts of Article I and Article II to try to disarm critics. When asked to consider gun regulation, Republicans home in on specific words in the Second Amendment — “the right of the people to keep and bear Arms, shall not be infringed” — to dismiss calls for reform.Trump tried to subvert American democracy, yes, but his attempt rested on the mechanisms of the Electoral College, which is to say, relied on a fairly literal reading of the Constitution. Both he and his allies took seriously the fact that our Constitution doesn’t require anything like a majority of the people to choose a president. Attacks on representation and personal freedom — the hyper-gerrymandering of legislatures to preserve and perpetuate minority rule and the attempts to limit or restrict the bodily autonomy of women and other Americans — have operated within the lines drawn by the Constitution, unimpeded or even facilitated by its rules for structuring our political system.Republicans, in other words, do seem to believe in the Constitution, but only insofar as it can be wielded as a weapon against American democracy — that is, the larger set of ideas, intuitions, expectations and values that shape and define political life in the United States as much as particular rules and institutions.Because it splits sovereignty between national and subnational units, because it guarantees some political rights and not others, because it was designed in a moment of some reaction against burgeoning democratic forces, the Constitution is a surprisingly malleable document, when it comes to the shaping of American political life. At different points in time, political systems of various levels of participation and popular legitimacy (or lack thereof) have existed, comfortably, under its roof.Part of the long fight to expand the scope of American democracy has been an ideological struggle to align the Constitution with values that the constitutional system doesn’t necessarily need to function. To give one example among many, when a Black American like George T. Downing insisted to President Andrew Johnson that “the fathers of the Revolution intended freedom for every American, that they should be protected in their rights as citizens, and be equal before the law,” he was engaged in this struggle.Americans like to imagine that the story of the United States is the story of ever greater alignment between our Constitution and our democratic values — the “more perfect union” of the Constitution’s preamble. But the unfortunate truth, as we’re beginning to see with the authoritarian turn in the Republican Party, is that our constitutional system doesn’t necessarily need democracy, as we understand it, to actually work.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      What Fani Willis Got Wrong in Her Trump Indictment

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      By assembling a sprawling, 19-defendant RICO indictment with 41 counts, District Attorney Fani Willis of Fulton County has brought the sort of charging instrument that has typically led to monthslong trials, complicated appeals and exhaustion for the participating attorneys. Now, as some co-defendants seek federal removal while others demand speedy trials in state court, we are starting to see the costs of complexity.In federal and state cases, Donald Trump’s legal game plan has always been the same: delay often and everywhere with the goal of winning the 2024 election and hoping the charges go away. Special Counsel Jack Smith’s election interference indictment — just four counts brought solely against Mr. Trump — makes that difficult. On Monday, the judge set the trial for March 4, 2024.By contrast, the Georgia indictment is a sprawling account of a conspiracy among the former president, his closest advisers and state and local Republican officials to change the outcome of the 2020 Georgia election through an escalating series of falsehoods. For many, it is a satisfying political document. But as a legal instrument, its ambitious scope will provide the co-defendants with many opportunities for delay, appeals, and constitutional challenges.And even though Fulton might very will win in the end, a simpler, more direct approach would likely lead to a better result, faster, here’s why.Much of the Georgia indictment is about how Mr. Trump and others tried to get public officials to do implausible things to hand him the election — things like asking state senators to appoint an alternate slate of electors, calling a special session of the General Assembly or asking the secretary of state to “find” the votes Mr. Trump needed to win.The state chose to charge this conduct in two ways. One of them is strong and simple: Team Trump lied to elected officials and tried to forge documents.The other — that they were aware of the officials’ oaths of office and were hoping specifically to get them to violate it — is unusual and hard to prove.Solicitation requires you to ask someone else to commit a felony intentionally. In this case, the oath of office the defendants were being asked to violate was a promise to follow the Constitution and do what’s best for their constituents. It is indeed a crime in Georgia for a public officer to “willfully and intentionally” violate the terms of his oath.Here’s the problem: It’s hard enough to prove that Mr. Trump’s request violates the Constitution, since the Constitution allows states to figure out how to select electors. But then the state must also prove that Mr. Trump knew this would violate the electors’ oath of office.It seems possible that Mr. Trump had no idea what these officials’ oath of office was, maybe even no idea that they swore an oath at all. Under Georgia’s “mistake of fact” affirmative defense, if Mr. Trump has some evidence that he was operating under a “misapprehension of fact” that would justify his actions, the state must disprove it beyond a reasonable doubt.There are a few reasons this could be a strong defense. First, Mr. Trump surrounded himself with individuals who told him what he was doing was legal. Georgia does not normally have an “advice of counsel” defense, but in this context it seems relevant that people he apparently trusted were not telling him this would violate any oath of office.And to put it gently, Mr. Trump is plausibly ignorant on a variety of subjects, ranging from how hurricanes are formed to whether it’s a good idea to use or inject disinfectants as a possible Covid cure. Even if prosecutors can meet the burden of showing that what he requested was unconstitutional — not necessarily an easy thing to establish with a jury of non-lawyers — it may be difficult to prove that Donald Trump knew, or cared, what the Constitution had to say on the subject.Then there’s the Hawaii precedent. Mr. Trump’s advisers were relying on an incident from the 1960 presidential election, when Richard Nixon looked as though he had won the state of Hawaii by a few dozen votes. But the results were so uncertain that three Democrats submitted their Electoral College votes just in case, and when, after a recount, it looked like John F. Kennedy was the actual winner, the Senate (headed by Nixon) unanimously agreed to the alternate slate.Even though no court ever blessed this procedure, or even held that it wasn’t criminal, Mr. Trump’s team could argue with a straight face that they believed their request was legally possible.There’s also the possibility of a First Amendment defense. Typically, people are allowed to petition the government to do things, even unconstitutional things. That a court might, down the line, find those things to be unconstitutional seems like a dangerous basis to criminalize that petitioning.I’d understand bringing these charges to get at some obviously bad and immoral conduct by the president if there were nothing else available. But there are other, much stronger charges in the same indictment without the same constitutional concerns. Take the false statement counts: The very best case that Mr. Trump and his team could cite is United States v. Alvarez, where the Supreme Court held that there is a First Amendment right to lie about having received the Medal of Honor. But the Supreme Court also specifically said that this protection vanishes when lying for material gain, or to the government.Rudy Giuliani told state legislators that election workers were passing around flash drives like “vials of heroin” and that thousands of dead and felonious voters participated, but he can’t claim those statements have constitutional protection. All Mr. Giuliani can do is show the court what evidence supported those statements. There is none. And what’s more, Mr. Giuliani recently admitted in a civil filing that his claims against two Fulton County election workers had been false. Despite claiming that it was for “this litigation only,” that’s an admission.Similarly, the forgery charges simply need to establish a conspiracy to create fake elector votes that could potentially be counted on Jan. 6. It’s irrelevant whether the parties thought it was legal to do this, so long as they knew they were not, in fact, the duly appointed electors.So it is an odd legal choice to drag a jury through weak, disputed counts in a monthslong trial when you could just focus on the counts that are hard to challenge and easy to explain, saving weeks in the process. The RICO count will already require dozens of witnesses and some complicated instructions, so tossing in these oath of office charges seems like a recipe for confusion and delay.And it’s not just the charges that complicate things, but the sheer number of defendants. A judge granted one co-defendant, Ken Chesebro, a speedy trial, which will require Fulton County to bring this case to trial by Nov. 3 or acquit him as a matter of law. (Sidney Powell has also requested a speedy trial.)Ms. Willis reacted by requesting an October date for the entire case, but at least for the moment, a judge has declined her request. This puts the prosecutors in a bind. Mr. Chesebro’s trial would give Mr. Trump a useful preview of the entire case, from voir dire to closing arguments, which could weaken the effectiveness of Ms. Willis’s prosecution of Mr. Trump and the other defendants. It would allow Mr. Trump’s lawyers to dig into witness testimony and perhaps encourage Georgia Republicans to step in.Additionally, it might be very difficult for Fulton County to actually grant these parties the speedy trial they’ve requested. There is some Georgia authority to suggest that a trial does not “begin” under the statutory speedy trial act until a jury is empaneled and sworn. What happens if Fulton County needs a month, or two months, to actually select the jury that will be sworn?And for all the talk of potentially flipping co-defendants, many of the people in this case don’t have all that much criminal exposure. With no mandatory minimums for prison time and no criminal history, many of the participants could reasonably expect probation, and maybe even a first-offender sentence that would not count as a felony. A simpler case, with fewer co-defendants, would go more swiftly, with less legal uncertainty.As a general, George Washington was known for unworkable battle plans. Where an ordinary commander might send all his troops to one location at one time, Washington would split them into three columns, expecting them to arrive all at one spot with precision timing. It rarely worked out. Despite those mistakes, he’s now best known for winning.For all the potential problems with this indictment, I would still expect Ms. Willis to secure a conviction against Mr. Trump on one or more counts if this case goes to trial as it intends.But there are a dozen ways that things can go sideways, and it is very possible that history will remember the two years that Fulton County took to bring these charges as a wasted opportunity to make a simpler case.Andrew Fleischman is an attorney at Sessions & Fleischman in Atlanta.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Raising a Hand for Donald Trump, the Man in the Mug Shot

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      One by one, some with a little hesitation, six hands went up on the debate stage Wednesday night when the eight Republican candidates answered whether they would support Donald Trump for president if he were a convicted criminal. Hand-raising is a juvenile and reductive exercise in any political debate, but it’s worth unpacking this moment, which provides clarity into the damage that Mr. Trump has inflicted on his own party.Six people who themselves want to lead their country think it would be fine to have a convicted felon as the nation’s chief executive. Six candidates apparently would not be bothered to see Mr. Trump stand on the Capitol steps in 2025 and swear an oath to uphold the Constitution, no matter if he had been convicted by a jury of violating that same Constitution by (take your choice) conspiracy to obstruct justice, lying to the U.S. government, racketeering and conspiracy to commit forgery, or conspiracy to defraud the United States. (The Fox News hosts, trying to race through the evening’s brief Trump section so they could move on to more important questions about invading Mexico, didn’t dwell on which charges qualified for a hand-raise. So any of them would do.)There was never any question that Vivek Ramaswamy’s hand would shoot up first. But even Nikki Haley, though she generally tried to position herself as a reasonable alternative to Mr. Ramaswamy’s earsplitting drivel, raised her hand. So did Ron DeSantis, after peeking around to see what the other kids were doing. And Mike Pence’s decision to join this group, while proudly boasting of his constitutional bona fides for simply doing his job on Jan. 6, 2021, demonstrated the cognitive dissonance at the heart of his candidacy.Only Chris Christie and Asa Hutchinson demonstrated some respect for the rule of law by opposing the election of a criminal. Mr. Hutchinson said Mr. Trump was “morally disqualified” from being president because of what happened on Jan. 6, and made the interesting argument that he may also be legally disqualified under the 14th Amendment for inciting an insurrection. Mr. Christie said the country had to stop “normalizing” Mr. Trump’s conduct, which he said was beneath the office of president. Though he was accused by Mr. Ramaswamy of the base crime of trying to become an MSNBC contributor, Mr. Christie managed to say something that sounded somewhat forthright: “I am not going to bow to anyone when we have a president of the United States who disrespects the Constitution.” For this Mr. Christie and Mr. Hutchinson were both roundly booed.It’s important to understand the implications of what those six candidates were saying, particularly after watching Mr. Trump turn himself in on Thursday at the Fulton County Jail to be booked on the racketeering charge and 12 other counts of breaking Georgia law. Only Mr. Ramaswamy was willing to utter the words, amid his talk about shutting down the F.B.I. and instantly pardoning Mr. Trump, saying Mr. Trump was charged with “politicized indictments” and calling the justice system “corrupt.”“We cannot set a precedent where the party in power uses police force to indict its political opponents,” he said. “It is wrong. We have to end the weaponization of justice in this country.”This is the argument that Mr. Trump has been making for months, of course, but when more than three-fourths of the main players in the Republican field supports it, it essentially means that a major political party has given up on the nation’s criminal justice system. The party thinks indictments are weapons and prosecutors are purely political agents. The rule of law hardly has a perfect record in this country and its inequities are many, but when a political party says that the criminal justice system has become politicized, and that the indictments of three prosecutors in separate jurisdictions are meaningless, it begins to dissolve the country’s bedrock.Mr. Pence said he wished that issues surrounding the 2020 election had not risen to criminal proceedings, but they did, because two prosecutors chose to do their jobs faithfully, just as the former vice president did on Jan. 6. He piously told the audience that his oath of office in 2017 was made not just to the American people, but “to my heavenly father.” But any religious moralizing about that oath was debased when he said he was willing to support as president a man whose mug shot was taken Thursday at a squalid jail in Atlanta, who was fingerprinted and had his body dimensions listed and released on bond like one of the shoplifters and car burglars who were also processed in the jail the same day.Apparently Thursday’s proceedings were a meaningless farce to Mr. Pence, Ms. Haley and the other four. But most Americans still have enough respect for the legal system that they don’t consider being booked a particularly frivolous or rebellious act. The charges against Mr. Trump are not for civil disobedience or crimes of conscience; they accuse him of grave felonies committed entirely for the corrupt purpose of holding onto power.Being booked and mug-shotted for these kinds of crimes represents degradation to most people, despite the presumption of innocence that still applies at the trial level. How does a parent explain to a child why a man in a mug shot might be the nation’s next leader? That should be a very difficult conversation, unless you happen to be a Republican candidate for president.Source photographs by Erik S Lesser/EPA, via Shutterstock and Fulton County Sheriff’s Office, via Associated Press.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      When the Law Is Not a Trump Card

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      The multiplying indictments of Donald Trump, I argued a couple of weeks ago, are putting an end to all attempts to simply practice normal politics in 2024. For both his Republican primary opponents and eventually President Biden, the ongoing efforts to put a former president in prison will shape and warp and shadow every effort to make more prosaic political arguments against a Trump restoration.But there is a corollary to this point, brought home by the conjunction of this week’s Georgia indictment and an argument from two conservative legal scholars that the 14th Amendment’s third article, aimed at excluding Confederates who had betrayed oaths to the Union from political office, should apply to Trump after the events of Jan 6. If the legal challenges against Trump have the power to shape the democratic politics of 2024, the shaping power also works the other way. As extraordinary judicial proceedings alter democratic politics, the legal arena is inevitably politicized as well, undermining its claim to standing some distance outside and above democratic realities.This isn’t a judgment on the legal merits of any of the Trump indictments. It doesn’t matter how scrupulous the prosecutor, how fair-minded the judge; to try a man, four times over, whom a sizable minority of Americans believe should be the next president, is an inherently political act. And it is an especially political act when the crimes themselves are intimately connected to the political process, as they are in the two most recent indictments.The prosecutions seek to demonstrate that not even a president is above the law. But if Trump is indeed the Republican nominee, the proceedings against him will potentially end by subjecting the judicial to the political, the law to raw politics, because millions of Americans can effectively veto the findings of the juries by simply putting Trump in the White House once again. And even if they do not make that choice (I think they probably won’t), even if the polls currently overestimate Trump’s strength (I think they probably do), the entire election will still be an object lesson in the supremacy of the political, because everyone will see that the court rulings aren’t actually final, that political combat is stronger than mere law.You can see all that and still support Trump’s prosecutions as a calculated but necessary risk — in the hopes that having him lose twice, in the courts and at the ballot box, will re-establish a political taboo against his kind of postelection behavior and on the theory that this outcome is worth the risk that the whole strategy will fail completely if he wins.If you see things that way, good; you see clearly, you are acting reasonably. My concern is that not enough people do clearly see what’s risked in these kinds of proceedings, that many of Trump’s opponents still regard some form of legal action as a trump card — that with the right mix of statutory interpretation and moral righteousness, you can simply bend political reality to your will.Certainly that’s my feeling reading the argument that the 14th Amendment already disqualifies Trump from the presidency and that indeed no further legal proceedings — no trial for rebellion or treason, no finding of guilt — are necessary for state officials to simply exclude him from their ballots.The authors of this notable argument, William Baude and Michael Stokes Paulsen, are serious conservative legal scholars of the originalist persuasion, and their claims are couched in close attention to the text of the amendment and its history. Since I am not a legal scholar, the fact that I do not find these arguments remotely plausible can be partially discounted, so I would direct you first to two different critiques: one from a conservative scholar and friend of the authors, Stanford’s Michael McConnell, and one from a critic of originalism, Georgia State’s Eric Segall.McConnell suggests that to avoid giving the 14th Amendment’s provisions a dangerously anti-democratic breadth, such that all manner of normal democratic dissent and rabble-rousing could be deemed disqualifying, we should assume that they refer to a large-scale insurrection, military rebellion or explicit civil war. Applying them to a political protest-turned-riot, even a riot that disrupted the transfer of presidential power, risks a serious abuse of power — “depriving voters of the ability to elect candidates of their choice” — without adequate limitations on its use.Meanwhile, Segall questions the authors’ claim that the amendment’s provisions are “self-executing,” that they can be applied to Trump or any other supposed insurrectionist immediately. He points out that this interpretation was already rejected in 1869 by Salmon Chase, then the chief justice of the United States, one year after the amendment’s ratification in the only ruling we have on this question. This is acknowledged by Baude and Paulsen, to be sure, who argue at length that Chase was wrong. But they are still in the dubious position of claiming that theirs is the true “original” reading of the amendment, seeking some way to deal with the problem of Donald Trump a century and a half later, rather than the reading offered at the time of ratification that has stood unchallenged since.Then here is the point that I, a non-scholar, want to make (though I should note that Segall makes it as well): Even if Baude and Paulsen were deemed correct on some pure empyrean level of constitutional debate, and Salmon Chase or anyone else deemed completely wrong, their correctness would be unavailing in reality, and their prescription as a political matter would be so disastrous and toxic and self-defeating that no responsible jurist or official should consider it.The idea that the best way to deal with a demagogic populist whose entire appeal is already based on disillusionment with the established order is for state officials — in practice, state officials of the opposing political party — to begin unilaterally excluding him from their ballots on the basis of their own private judgment of crimes that he has not been successfully prosecuted for … I’m sorry, the mind reels. It should not happen, it would not work if it did happen, John Roberts and four more justices would not uphold it, and it would license political chaos to no good purpose whatsoever. And if the legal theorist’s response is that this isn’t the “best” way to deal with Trump, it’s just the way that the Constitution requires, then so much the worse for their theory of the Constitution.There is an irony here, which is that a similar kind of legal mentality influenced Trump’s campaign to overturn the results of the 2020 election. John Eastman’s argument that Mike Pence could interpose himself between the official results of the election and Joe Biden’s inauguration was a much more fanciful constitutional argument than the one that Baude and Paulsen make. But it was similar in imagining a particular interpretation of the Constitution as something that can just be deemed correct and then imposed by a particular actor — the vice president in the Eastman case, state election officials in theirs — without regard to anything that would naturally follow in the realm of the political.What would have probably followed from the Pence maneuver, as his own lawyer advised him, would have been either a swift smackdown from the courts or the vice president standing alone against both houses of the legislative branch. (This seems like one reason Eastman’s crackbrained proposal was not a rebellion under 14th Amendment definitions; if Confederate secession could have been defeated through a quick appeal to the Supreme Court, it would not have been much of a rebellion either.)But imagine, if you will, a world where Eastman had uncovered, days before Jan. 6, some piece of historical evidence that raised his theory’s status from “desperate Trumpist motivated reasoning” to “an idea that merits some academic debate.” Suppose even that a few liberal legal scholars had been forced to concede a little ground to his position. Would this in any way have changed the total political folly of the Pence maneuver, the impossibility of levering a presidential outcome from the vice president’s supervisory position, the purposeless destabilization that such a gambit would entail?I say that it would not, that where legal theory touches politics in this way it must necessarily deal with political considerations, that appeals to law and legal text alone are not enough to settle matters if political realities are against you. That is the cold knowledge that all of us watching Trump’s extraordinary indictments converge with his extraordinary campaign need to carry into 2024.BreviaryNic Rowan on Bill WattersonJustin E.H. Smith sings a ballad of Generation XJohn Duggan on Sally Rooney and CatholicismAlex Tabarrok on the acts of Saint ThomasNotes for a Susannah Black Roberts essay on the post-Christian right More