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      The US supreme court could still swing the election for Trump | Lawrence Douglas

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      On Monday, the US supreme court unanimously overturned the Colorado supreme court’s decision to remove Trump from the Republican primary ballot. The highest court in the land predictably concluded that the “insurrection clause” of the 14th amendment did not authorize state enforcement “with respect to federal offices, especially the presidency”.A contrary ruling would have been a recipe for chaos, and, worse still, would have done nothing to safeguard the nation from a potential Trump victory in November. I say this because presumably the only states that might have barred Trump from their ballot would have been those of the solidly blue variety – states Trump was going to lose anyway. And given that Republicans, particularly of the Maga-stripe, are masters of the politics of retaliation and escalation, we would have witnessed red states clamoring to remove Biden from their ballots. The result would have been an election precisely to Trump’s liking – one without democratic legitimacy.But if the court acquitted itself in this case, we still have reason to fear the mischief it might play in the upcoming vote. In Monday’s ruling, the court was conspicuously silent about whether Trump actually engaged in insurrection or election interference. Those matters are still to be decided at trial – that is, if either the Fulton county court or the DC district court ever gets to try its case.At present the Georgia prosecution is beset with problems of its own making. Whether the charges against the Fulton county district attorney, Fani Willis – that she allegedly profited by hiring a special prosecutor with whom she was romantically involved – are true is almost irrelevant. The fact alone that members of the prosecution are themselves under investigation casts a pall over a proceeding that needed to look squeaky clean.The federal election interference case is another matter. The federal case – arguably the weightiest of the four criminal cases pending against Trump – was to have been the first to go before a jury, with a scheduled start date of 4 March. The court already put the kibosh on that timetable when last week it chose, after taking its sweet time, to hear Trump’s claim that he enjoys absolute immunity for all official acts committed during his presidency – a wildly overblown claim already roundly rejected by two federal courts.That immunity hearing will take place during the week of 22 April, the very last week of oral arguments in the court’s 2023-24 term. This means that even if the court were to reject Trump’s immunity claim – as it presumably must – the federal trial probably would not start until September at the earliest.The timing is crucial for two reasons. First, those of us plunged into despair by the recent polling data showing Biden trailing Trump have taken meagre comfort in reports that a criminal conviction might cause a substantial number of voters to reject Trump. Delaying the trial could work to bar the American people from this critical piece of information. Those inclined to cynicism might observe – that is the very point.The timing also permits the court to influence the federal trial and possibly the election in a second, potentially more insidious fashion. The court is poised to decide a case this spring in which Trump is not a party, but which could have major consequences on his belated federal trial. The case involves a challenge brought by a January 6 rioter who argues that his federal indictment is based on a misapplication of the federal obstruction statute. The federal case against Trump also charges the former president with violating this statute, which criminalizes the “corrupt obstruction of an official proceeding”. Indeed, the charge lies at the heart of the case against Trump. Should the court conclude that federal prosecutors have misapplied the statute, not only would numerous convictions of rioters be tossed out, but the case against Trump would be dramatically, if not fatally, weakened.What does this have to do with timing? Had the court chosen not to hear Trump’s immunity claim, leaving intact the circuit court’s pointed rejection, Trump’s federal trial might have ended and a verdict rendered before the court had decided the rioter’s case. Imagine Trump had been found guilty and the court subsequently voided the conviction – the cries of foul would have been loud and fierce and long. Now, however, the court has given itself the opportunity to rule on the obstruction charge before Trump’s trial has begun. Defanging a prosecution before it has even started would certainly arouse outrage, but nothing like the partisan scorn and unrest that would come with a post-conviction intervention.skip past newsletter promotionafter newsletter promotionToday, Trump promptly described himself as “very honored” by the court’s ruling, adding that it “will go a long way toward bringing our country together, which our country needs” – the man is nothing if not shameless. But his sudden adoration of the court might not be misplaced. Without directly affecting the outcome of an election like it did in Bush v Gore back in 2000, today’s court still could swing a Trump win.
      Lawrence Douglas is the author, most recently, of Will He Go? Trump and the Looming Election Meltdown in 2020. He is a contributing opinion writer for the Guardian US and teaches at Amherst College More

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      Trump’s apologists say it doesn’t matter if he’s guilty of insurrection. That’s not true | Mark Graber

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      Donald Trump may be the only person about whom prominent conservatives think innocence is irrelevant. Voters in many states filed lawsuits arguing that Trump was constitutionally disqualified from the presidency, under section 3 of the 14th amendment, having committed treason against the United States when resisting by force the peaceful transfer of presidential power. The Colorado supreme court agreed. Trump and his lawyers responded by waving numerous constitutional technicalities that they claimed exempted traitors from constitutional disqualification, while barely making any effort to refute charges that the former president committed treason on 6 January 2021.On Monday, all nine justices on the US supreme court agreed that Donald Trump should remain on the presidential ballot even if he is, in the words of Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, “an oathbreaking insurrectionist”. No one challenged that finding.Proponents of law and order – who, for decades, railed against judicial decisions that freed from criminal sanction suspected and convicted criminals based on due process rights that are unconnected to guilt or innocence – now celebrate the possibility that a contemporary Benedict Arnold may hold the highest office of the land. They rejoice that the supreme Court kept the former president on the ballot in all 50 states by relying on alleged constitutional rules that do not require Trump to defend himself against treason allegations.The charge is treason, that Trump is a traitor. Section 3 of the 14th amendment disqualifies past and present officeholders who engage in insurrection or rebellion against the United States. Case law and legal treatises from the American Revolution until the end of Reconstruction uniformly held that persons who engaged in insurrection levied war against the US. Levying war or engaging in an insurrection, these legal authorities agreed, did not require traditional warfare, but merely an assemblage resisting any federal law by force for a public purpose.Treason is defined in part by article 3 of the constitution as levying war against the United States. The Republicans who framed section 3 of the 14th amendment in 1866 self-consciously invoked the treason clause when considering constitutional disqualification. Representative Samuel McKee of Kentucky stated that constitutional disqualification “cuts off the traitor from all political power in the nation”. Senator Richard Yates of Illinois, who had been a close political associate of Lincoln, declared: “I am for the exclusion of traitors and rebels from exercising control and power and authority in this government.”Proponents of Trump’s disqualification presented powerful evidence to the trial court in Colorado and to the Maine secretary of state that Trump is a traitor who levied war against the US. They presented evidence that Trump knew that his tweets were instigating violence against state elected officials; that Trump was aware that the armed persons in the assemblage on January 6 were seeking his approval to resist by violence the peaceful transfer of presidential power; and that his speech and his actions after the speech were intended to incite and support the violent resistance to federal authority that occurred.Courts in Colorado and the Maine secretary of state found those evidentiary presentations compelling. Their decisions disqualifying Trump declared that the plaintiffs had met their burden when proving Trump was a traitor to the US.Had Trump been a poor, young man of color, conservatives would have insisted that Trump rebut the evidence and findings that he is a traitor. For more than a half-century, proponents of law and order have quoted the title of the judge Henry Friendly’s 1970 University of Chicago Law Review article Is Innocence Irrelevant? when persons suspected of ordinary crimes invoke constitutional rights in state or federal courts.Chanting “Is Innocence Irrelevant?” conservative judges sharply narrowed constitutional rights against police searches and self-incrimination. They drastically reduced the occasions on which persons suspected or convicted of ordinary crimes may assert what remain constitutional rights. Conservative justices have so gutted federal habeas corpus review that the underlying principle seems “better some innocent persons rot in prison than one guilty prison be freed on a constitutional technicality.” American prisons are now overpopulated by people who have had their constitutional rights violated during the process of investigating or prosecuting their crimes.Prominent conservatives make no such demands for proof of innocence when Trump is at the bar of disqualification. In the disqualification hearings, Trump’s lawyers made only perfunctory efforts to deny his culpability in the insurrection of 6 January 2021. His lawyers barely mentioned matters of guilt or innocence when filing briefs before the supreme court or in oral argument. Conservative commentators who insist that Trump remains qualified to hold the presidency do not spend their energies documenting why Trump is not a traitor. Six supreme court justices in Trump v Anderson refused to comment on whether Trump committed treason. That defense case, they implicitly recognized, cannot be made.Trump, his lawyers and his supporters respond to charges that Trump is a traitor with numerous assertions that have nothing to do with whether Trump incited and participated in the January 6 insurrection. They claim that section 3 exempts treasonous former presidents or permits traitors to be elected president of the US. They insist that traitors can be disqualified under the 14th amendment only if Congress authorizes the disqualification. They claim that section 3 disqualifies only persons who committed treason during the civil war and does not disqualify persons who lead violent secession movements now.The supreme court in turn invented a rule that congressional legislation under section 5 of the 14th amendment is necessary for federal officials to be disqualified, a rule unknown to the text of section 3 or the persons who framed section 3. Mississippi in 1868, under this rule, could not disqualify Robert E Lee or Jefferson Davis from the presidential ballot.So-called originalists are not deterred by proof that many if not all these technicalities are far-fetched and belied by the historical evidence. There is nothing in the text or history of the 14th amendment, for example, that suggests different procedures for disqualifying federal officers than those used for disqualifying state officers. The prison abolitionist movement would achieve its goals if courts showed the same creativity finding technical excuses to avoid conviction in ordinary criminal trials as Trump and the supreme court have shown when avoiding disqualification.Trump’s advocates argue that the former president’s innocence is irrelevant when responding to the numerous criminal indictments against him by federal and state prosecutors. Again, Trump barely contests the multiple felony indictments that charge him with engaging in racketeering, soliciting or impersonating a public officer, making false statements or documents engaging in conspiracies to defraud the federal government and against civil rights, obstructing justice, willfully retained national defense information, illegally withholding or altering documents, and falsified business records.To all those crimes Trump claims that he cannot be legally culpable for any criminal action he took when president of the United States. Rebutting criminal charges is for ordinary Americans, not for the Maga leader.skip past newsletter promotionafter newsletter promotionTechnicalities matter. Innocence is sometimes irrelevant. We often protect the innocent by not punishing the guilty. Refusing to permit reliable information obtained by an unconstitutional search into evidence at trial may deter police officers from unconstitutionally searching people not guilty of any crime. Government should not profit from wrongdoing. The justice Louis Brandeis in Olmstead v United States (1928) wrote, “If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”Commitment to the rule of law may provide a third reason why innocence is sometimes irrelevant. No one may be convicted of treason on the testimony of one eyewitness, no matter how weighty the incriminating evidence, because article 3 requires two witnesses to support a treason conviction. The supreme court’s conclusion that Colorado could not disqualify Trump without congressional permission, however implausible as a matter of law, does compel the justices to permit the former president to remain on the ballot no matter how strong the evidence that Trump is a traitor.Yet innocence is also sometimes relevant. The rule of law does not provide sufficient reasons for straining the constitution to find technicalities that enable traitors to run for president of the United States. The principle that clear legal mandates must be followed does not justify performing legal gymnastics to reach such an absurd result as exempting a former president from a constitutional ban on insurrectionists holding office.Innocence is always relevant when a person seeks honors or power. Constitutional commitments to the rule of law do not require giving the same respect to suspected criminals who get off on technicalities as to persons found not guilty, even as both may not suffer direct or collateral criminal sanctions. Persons seeking honors must rebut charges of culpable behavior. They cannot excuse their conduct by pointing to legal technicalities.A work of literature is not eligible for the Nobel Literature prize if the author without attribution lifted passages from another book, even if the statute of limitations no longer allows a lawsuit for plagiarism. People are properly disqualified from being on drug prevention taskforces after avoiding being convicted for drug dealing because the search that uncovered the incriminating fentanyl was unconstitutional.Trump’s innocence is relevant to his political qualifications for the presidency even as the supreme court decides his innocence is not relevant to his constitutional qualifications for the presidency. No political party should in good conscience nominate, and no voter should in good faith support, a candidate who seeks on constitutional technicalities to avoid a charge of treason.Trump’s guilt, which he and his attorneys have largely conceded, is not irrelevant to his being entrusted with the presidency. By insisting that his innocence is irrelevant to his legal qualifications to hold office, Trump is disqualifying himself from holding office politically. His failure to contest the evidence of his treason acknowledges that, the supreme court decision not to the contrary, he is a traitor who must not hold any office of trust or profit under the United States.
      Mark A Graber is a professor of law at the University of Maryland and the author, most recently, of Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform After the Civil War More

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      Trump was wrongly removed from Colorado ballot, US supreme court rules

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      Donald Trump was wrongly removed from Colorado’s primary ballot last year, the US supreme court has ruled, clearing the way for Trump to appear on the ballot in all 50 states.The court’s unanimous decision overturns a 4-3 ruling from the Colorado supreme court that said the former president could not run because he had engaged in insurrection during the January 6 attack on the US Capitol. The Colorado decision was a novel interpretation of section 3 of the 14th amendment, which bars insurrectionists from holding office.“We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency,” the court wrote in an unsigned opinion. Congress, the court said, had to enact the procedures for disqualification under Section 3.“State-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer consistent with the basic principle that the President … represent[s] all the voters in the Nation,” the court added.Colorado’s presidential primary is on Tuesday and Trump had been allowed to appear on the ballot while the case was pending. Maine and a judge in Illinois had also excluded Trump from the ballot – decisions that are now likely to be quickly reversed.All nine justices agreed with the central holding in the case: that the Colorado supreme court had wrongly barred Trump from appearing on the ballot. But agreement did not extend beyond that.The majority opinion went on to say that the only way to enforce section 3 was by specifically tailored congressional legislation to determine which individuals should be disqualified for insurrection.But Justices Amy Coney Barrett, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson all said that finding went beyond the scope of the case, with the liberal justices specifically saying the court was shielding insurrectionists from accountability.“The Court continues on to resolve questions not before us. In a case involving no federal action whatsoever, the Court opines on how federal enforcement of Section 3 must proceed,” the liberal justices wrote. ‘“These musings are as inadequately supported as they are gratuitous.”The court’s conservative majority, the liberal justices said, had made it nearly impossible to hold insurrectionists accountable. The court “forecloses judicial enforcement” of the provision, they wrote, and was “ruling out enforcement under general federal statutes requiring the government to comply with the law”.“By resolving these and other questions, the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office,” they wrote.Barrett, a conservative also appointed by Trump, also did not fully embrace the majority’s opinion. “I agree that States lack the power to enforce Section 3 against Presidential candidates. That principle is sufficient to resolve this case, and I would decide no more than that,” she wrote.But she went on to rebuke her liberal colleagues for amplifying disagreement on the court.“In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up,” she wrote.Speaking at his Mar-a-Lago club in Florida, Trump praised the supreme court’s decision. “I want to start by thanking the supreme court for its unanimous decision today. It was a very important decision, very well crafted. I think it will go a long way toward bringing our country together, which our country needs,” he said.None of the opinions addressed a central and politically charged issue in the case – whether Trump engaged in insurrection on January 6.skip past newsletter promotionafter newsletter promotion“While the supreme court allowed Donald Trump back on the ballot on technical legal grounds, this was in no way a win for Trump. The supreme court had the opportunity in this case to exonerate Trump, and they chose not to do so,” Noah Bookbinder, the president of Citizens for Ethics and Responsibility in Washington, the left-leaning group that backed the Colorado case, said in a statement. “The supreme court removed an enforcement mechanism, and in letting Trump back on the ballot, they failed to meet the moment. But it is now clear that Trump led the January 6 insurrection, and it will be up to the American people to ensure accountability.”Enacted after the civil war, section 3 of the 14th amendment says that any member of Congress or officer of the United States who engages in insurrection after taking an oath to the constitution is barred from holding office. It has never been used to bar a presidential candidate from office.During oral argument in February, nearly all of the justices signaled skepticism of Colorado’s authority to remove Trump from the ballot. They worried about the chaos it would cause if states had the unilateral authority to determine a candidate had engaged in insurrection and worried it could result in a chaotic, partisan tit-for-tat.“I would expect that a goodly number of states will say whoever the Democratic candidate is, you’re off the ballot, and others, for the Republican candidate, you’re off the ballot. It will come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence,” the chief justice, John Roberts, said during oral argument.The Colorado supreme court reached its conclusion after a Denver trial court judge held a five-day hearing and ruled that Trump had engaged in insurrection on January 6, but was not disqualified from the ballot because he was not an officer of the United States.At the end of their opinion, the three liberal justices offered a full-throated defense of why section 3 was still needed.“Section 3 serves an important, though rarely needed, role in our democracy. The American people have the power to vote for and elect candidates for national office, and that is a great and glorious thing. The men who drafted and ratified the Fourteenth Amendment, however, had witnessed an “insurrection [and] rebellion” to defend slavery. They wanted to ensure that those who had participated in that insurrection, and in possible future insurrections, could not return to prominent roles,” they wrote.“Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President.” More

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      Trump’s supreme court case hinged on the 14th amendment – what it actually means

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      A former US president could have been kicked off the ballot in his quest to return to the White House because of a rarely used provision in an amendment created in the aftermath of the civil war.A lawsuit out of Colorado that sought to oust Donald Trump in his re-election bid went before the US supreme court, which decided Trump could not be removed from seeking office there over the 14th amendment’s third clause.The clause was intended to ensure that people who participated in the civil war and other acts against the US weren’t allowed to keep or resume holding positions of power in government. In essence, it says that people could not again hold office if they had participated in insurrection or rebellion against the country while they were in office.Trump’s team argued the clause doesn’t apply to him for a handful of reasons, based on both esoteric readings of the clause itself and on larger questions like what constitutes an insurrection.The justices sided with Trump, saying states could not try to keep a federal candidate off the ballot because it was beyond their power. The case involved several issues of legal reasoning the justices had to weigh.Here are the clause’s big questions.
      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, or under any State …
      The first part of the clause essentially says that a person can’t hold office again if they were an officer of the US when they participated in an insurrection. It specifies that it applies broadly – to the presidency, Congress and “any office … under the United States”.Trump’s team argued, though, that this means he couldn’t hold office again, not that he can’t run for office again, so he can’t be disqualified from appearing on the ballot. The legal question would then be raised anew if he won and therefore “held office” again. The case is therefore premature, they said.In Colorado, the court concluded that because Trump is disqualified from holding the office of president, it would be a “wrongful act” for the secretary of state there to list him as a candidate in the presidential primary.
      … who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States …
      Trump’s arguments related to this part of the clause involve twists of plain language to conclude the president is not an “officer of the United States” and therefore the clause doesn’t apply because anything Trump did happened when he was president.His attorneys argued that because the presidency isn’t explicitly listed in the clause, it wasn’t intended to include the presidency. They’ve also said that the presidency is not “under” the United States because it is the government, and because the president is an officer of the constitution, not of the United States.These arguments go hand in hand with the earlier provision in the clause, about whether someone could hold office. Trump’s team argued that because the presidency isn’t specifically mentioned, like “member of Congress” is, it doesn’t apply to him.The Colorado supreme court essentially said the plain language of the amendment and how the presidency is viewed overall show that the presidency is an office of the US, and the president would be considered an “officer” of the US.“President Trump asks us to hold that Section Three disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land,” Colorado’s ruling says.
      … shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.
      The insurrection part of the clause involves perhaps the more political questions of the case: whether the associated events of 6 January 2021 to overturn Trump’s loss would constitute an “insurrection” and, if so, if Trump himself “engaged” in it.In Colorado, the case went before a jury for a trial, with evidence submitted that backed up the claims both that the events of 6 January 2021 were an insurrection and that Trump engaged in it. Among the evidence were many months of claims made by Trump that the election was stolen and specific callouts to his supporters to protest the results.Using definitions of what was considered an insurrection when the clause was written, the Colorado court said basically that it would entail a public use or threat of force by a group of people to hinder some execution of the constitution – in this case, the awarding of electors and the peaceful transfer of power. By that definition, the events of 6 January constituted an insurrection.Trump’s team argued both that the events of 6 January were not an insurrection and that the former president didn’t engage in it anyway. His attorneys instead described the events as a “riot” and said the president’s speech was protected by the first amendment. They also pointed to comments he made telling the mob to go home eventually on 6 January, in which he said they should “go peacefully and patriotically”.Colorado’s justices concluded that free speech rights don’t allow for incitement and that his intent was to call for his supporters to fight his loss, which they responded to.“President Trump’s direct and express efforts, over several months, exhorting his supporters to march to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this country were indisputably overt and voluntary,” the ruling said. “Moreover, the evidence amply showed that President Trump undertook all these actions to aid and further a common unlawful purpose that he himself conceived and set in motion: prevent Congress from certifying the 2020 presidential election and stop the peaceful transfer of power.”
      But Congress may by a vote of two-thirds of each House, remove such disability.
      Finally, there’s the matter of what role states play in assessing eligibility for federal offices and whether a state can decide not to put a candidate on the ballot because they haven’t met federal constitutional requirements for running, which include factors like age and citizenship as well as the broader insurrection question.Even for federal elections, states manage the electoral process of who can vote, how they vote and how results are counted.Trump argued that eligibility in this case is a political question that Congress should decide, not one for state courts – and not one for courts in general, which tend to stay away from purely political questions.His team tried to make the case that Congress would need to put the process in motion to keep him off the ballot, saying that the clause is not “self-executing”, or something that goes into effect upon its creation.The clause itself doesn’t say anything about whether Congress would initiate such a proceeding. Instead, it says Congress could remove a finding that kept an insurrectionist off the ballot with a two-thirds vote, thus allowing that person to hold office again.The Colorado court rejected the idea that the clause needs congressional action to be implemented, relying on other Reconstruction-era amendments that went into effect without congressional action. If those other amendments needed Congress to go into effect, it “would lead to absurd results”.“The result of such inaction would mean that slavery remains legal; Black citizens would be counted as less than full citizens for reapportionment; nonwhite male voters could be disenfranchised; and any individual who engaged in insurrection against the government would nonetheless be able to serve in the government, regardless of whether two-thirds of Congress had lifted the disqualification,” the court wrote. “Surely that was not the drafters’ intent.”@font-face{font-family:”Guardian Headline Full”;src:url(https://interactive.guim.co.uk/fonts/garnett/GHGuardianHeadline-Light.woff2) format(“woff2”),url(https://interactive.guim.co.uk/fonts/garnett/GHGuardianHeadline-Light.woff) format(“woff”),url(https://interactive.guim.co.uk/fonts/garnett/GHGuardianHeadline-Light.ttf) format(“truetype”);font-weight:300;font-style:normal}@font-face{font-family:”Guardian Headline 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      US supreme court to issue ruling as Trump Colorado ballot case looms

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      The US supreme court plans to issue at least one ruling on Monday, the day before Colorado holds a presidential primary election in which a lower court kicked Republican frontrunner Donald Trump off the ballot for taking part in an insurrection during the 6 January 2021 US Capitol attack.The supreme court, in an unusual Sunday update to its schedule, did not specify what ruling it would issue. But the justices on 8 February heard arguments in Trump’s appeal of the Colorado ruling and are due to issue their own decision.Colorado is one of 15 states and a US territory holding primary elections on “Super Tuesday”. Trump is the frontrunner for the Republican nomination to challenge Democratic President Joe Biden in the 5 November election.The Republican party of Colorado has asked the supreme court, whose 6-3 conservative majority include three justices appointed by Trump, to rule before Tuesday in the ballot eligibility case.During arguments, supreme court justices signaled sympathy toward Trump’s appeal of a 19 December ruling by Colorado’s top court to disqualify him from the state’s ballot under the US constitution’s 14th amendment.Section 3 of the 14th amendment bars from holding public office any “officer of the United States” who took an oath “to support the Constitution of the United States” and then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof”.Trump supporters attacked police and swarmed the Capitol in a bid to prevent Congress from certifying Biden’s 2020 election victory. Trump gave an incendiary speech to supporters beforehand, telling them to go to the Capitol and “fight like hell”. He then for hours rebuffed requests that he urge the mob to stop.Anti-Trump forces have sought to disqualify him in more than two dozen other states – a mostly unsuccessful effort – over his actions relating to the January 6 attack. Maine and Illinois also have barred Trump from their ballot, though both those decisions are on hold pending the supreme court’s Colorado ruling.During arguments in the Colorado case, supreme court justices – conservatives and liberals alike – expressed concern about states taking sweeping actions that could impact a presidential election nationwide.skip past newsletter promotionafter newsletter promotionThey pondered how states can properly enforce the section 3 disqualification language against candidates, with several wondering whether Congress must first pass legislation do enable that. More

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      What Alabama’s IVF ruling reveals about the ascendant Christian nationalist movement

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      In the Alabama state supreme court case that dubbed embryos “extrauterine children” and imperiled the future of in vitro fertilization (IVF) in the state, the first reference to the Bible arrives on page 33.“The principle itself – that human life is fundamentally distinct from other forms of life and cannot be taken intentionally without justification – has deep roots that reach back to the creation of man ‘in the image of God’,” the Alabama supreme court justice Tom Parker wrote in an opinion that concurred with the majority. Attributing the idea to the Book of Genesis, Parker’s opinion continued to cite the Bible as well as such venerable Christian theologians as John Calvin and Thomas Aquinas.For experts, Parker’s words were a stunningly open embrace of Christian nationalism, or the idea that the United States should be an explicitly Christian country and its laws should reflect that.“He framed it entirely assuming that the state of Alabama is a theocracy, and that that is a legitimate way of evaluating laws and policies,” said Julie Ingersoll, a University of North Florida professor who studies religion and culture. “It looks like he decided to just dismiss the history of first amendment religious freedom jurisprudence at the federal level, and assume that it just doesn’t apply to Alabama.”View image in fullscreenDebates over the centrality of Christianity in US life have raged since the founding of the country. But now that Roe v Wade has been overturned and Donald Trump is once again running for president, observers say Christian nationalism has gained a stronger foothold within US politics – and its supporters have grown bolder.“They’re sort of saying the quiet parts out loud,” said Paul Djupe, who studies Christian nationalism as the chair of data for political research at Denison University in Ohio, of Parker’s decision.Today, 30% of Americans support tenets of Christian nationalism, according to a study released earlier this week from the Public Religion Research Institute (PRRI). Researchers asked more than 22,000 Americans how much they agreed with statements such as: “The US government should declare America a Christian nation”; “Being Christian is an important part of being truly American”’; and “God has called Christians to exercise dominion over all areas of American society.” Ultimately, about 10% of Americans qualify as “adherents” to Christian nationalism, and another 20% are “sympathizers”.White evangelicals are particularly likely to support Christian nationalism: 66% hold Christian nationalist views.View image in fullscreenPRRI did not ask whether people self-identify as Christian nationalists, because many people who may hold those beliefs shy away from the divisive label. Yet over the last several years, conservatives at the local, state and federal level have notched major legal and political victories that have cleared the way for Christian nationalist priorities such as the overturning of Roe v Wade and the proliferation of efforts targeting sex education, LGBTQ+ rights and the separation of church and state in schools. Now, supporters are seeing further opportunity in a potential second Trump term. Whether someone openly claims the label of “Christian nationalist” is almost beside the point, Ingersoll said.“There are all kinds of people who are influenced by it in ways that they’re not even aware of,” Ingersoll said. “Most people couldn’t tell you who Thomas Aquinas was, but that doesn’t matter. They don’t have to know who that is to have been shaped by a form of Christianity that arose from his work. And I think that happens with Christian nationalism all over the place. It’s a way of shaping the public discourse.”Parker has ties to proponents of the “Seven Mountain Mandate”, a theological approach that once seemed fringe within evangelicalism but is now gaining traction. Backed by a network of nondenominational, charismatic Christians known as the New Apostolic Reformation, this mandate calls on its adherents to establish what they believe to be God’s kingdom over the seven core areas of society, including the government. On 16 February, the day the Alabama supreme court issued its ruling, a prominent proponent of the Seven Mountain Mandate released an interview with Parker.View image in fullscreen“God created government and the fact that we have let it go into the possession of others is heartbreaking,” Parker said in the interview, whose existence was first reported by the liberal media watchdog Media Matters for America. The interview took place in front of a framed copy of the Bill of Rights.A spokesperson for the Alabama state supreme court did not immediately return a request for comment from Parker.“It is clear that in the US, there have been two competing visions of the country,” said Robert P Jones, PRRI’s president and the author of The Hidden Roots of White Supremacy and the Path to a Shared American Future. “They’re mutually incompatible visions of the country, but they really have been: are we a pluralistic democracy, where everybody stands on equal footing before the law, or are we a promised land for European Christians?”‘I’m going to be your defender’Support for Christian nationalism is deeply linked to partisan politics. Residents of red states are far more likely to espouse Christian nationalist beliefs; in Alabama, 47% of people are adherents of or at least sympathetic to Christian nationalism, according to the PRRI survey. More than half of Republicans also hold Christian nationalist beliefs, compared with a quarter of independents and just 16% of Democrats.According to Jones and the PRRI survey, Christian nationalists’ top litmus tests for politicians are support for access to guns and opposition to immigration, although they are also very likely to say that they would only vote for a candidate who shares their opposition to abortion and LGBTQ+ rights.The 2015 US supreme court decision Obergefell v Hodges, which legalized same-sex marriage nationwide, sparked a huge backlash among many conservative Christians. Galvanized by the ruling, they threw their considerable electoral power behind Trump, who had announced his presidential candidacy just days before Obergefell was decided.View image in fullscreen“Conservative Christians have long had this kind of worldview that they’re embattled by the broader culture,” Djupe said. The Obergefell decision “was a huge spur and Trump played with it. He came on the scene to run for president about the exact same time saying: ‘You’re about to be persecuted. I’m going to be your defender.’”Trump went to great lengths to reward rightwing Christians for their support. According to one analysis, Trump’s judicial appointees were more than 97% Christian and a majority had some kind of affiliation with a religious group such as churches, the Christian law firm the Alliance Defending Freedom and the Catholic fraternal order the Knights of Columbus – far higher rates than judges who were appointed by Democrats or other Republicans. (The judges were no less well-credentialed.) Trump-appointed judges were also much likelier to vote in favor of Christian and Jewish plaintiffs embroiled in cases over the free exercise of religion.Trump also appointed three of the six US supreme court justices who voted to overturn Roe. The supreme court’s new conservative majority has steadily eroded the separation of church and state embedded in the US constitution.View image in fullscreenThe post-Roe skirmish over abortion rights illustrates another key element of a Christian nationalist worldview: the tendency to not only cast issues in binary terms, but to believe that the opposing side is a force of literal evil.“If you believe that babies are being murdered – which is the rhetoric that you often find in these ‘pro-life’, anti-abortion circles – if you believe that, then that is a very troubling and even diabolical activity,” said Matthew Taylor, Protestant scholar at the Institute for Islamic, Christian and Jewish Studies and author of an upcoming book about Christian extremism, The Violent Take It by Force. “There’s no dialogue with the other side … in their mind, you never compromise with demons. You exorcise demons.”Christian nationalists are roughly twice as likely as other Americans to believe that political violence is justified, according to the PRRI survey.‘They’re seeing the energy’In 2022, Marjorie Taylor Greene, a far-right Republican congresswoman from Georgia, openly embraced Christian nationalism. “We need to be the party of nationalism,” she said. “I am a Christian and I say it proudly, we should be Christian nationalists.”But Greene is something of an outlier. Powerful organizations within the Christian legal movement, such as the Alliance Defending Freedom, are not yoked to the charismatic strain of evangelical Christianity that is today more closely linked to Christian nationalism, according to Djupe – even if they often work toward similar aims.View image in fullscreenStill, Djupe believes that the energized charismatic movement is pulling other Christian groups further to the right. Mike Johnson, the speaker of the House, has ties to the New Apostolic Reformation, which has also been linked to Trump’s rise. Johnson once suggested that no-fault divorces were responsible for school shootings.“They’re seeing the energy, they’re seeing the growth among charismatics, and saying, ‘Hey, you know, there’s clearly something to that formula that’s influential,” Djupe said. I think they’re starting to adopt it.”View image in fullscreenPolitico reported last week that the Center for Renewing America, a rightwing thinktank close to the former president, is drawing up plans to infuse Christian nationalist ideas throughout a second Trump administration. The Center’s president, Russell Vought, has also advised another powerful conservative thinktank, the Heritage Foundation, on its Project 2025, a playbook of proposals for a Trump administration 2.0, according to Politico.If Trump does win in November, experts fear what may happen next.“This is a worldview that does cast political struggles into an a kind of apocalyptic struggle between good and evil,” Jones said. “We stop thinking about our fellow citizens as political opponents and we start seeing them as existential enemies. And that really, at the end of the day, is poison to the blood of democracy.” More

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      Trump again presses for delay of classified documents trial until 2025

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      Lawyers for Donald Trump have once again suggested to the federal judge overseeing his criminal case on retaining classified documents that the trial should not take place this year, even as they complied with a court order that forced them to propose a potential start date.On Thursday, the former president reluctantly proposed two trial dates, under orders from US district judge Aileen Cannon: a 12 August trial date for Trump and the Mar-a-Lago club maintenance chief Carlos De Oliveira, and a 9 September trial date for Trump’s valet Walt Nauta.But the nine-page court filing from Trump was clear in its tone and reasoning that a trial should not take place until 2025, claiming that prosecutors were seeking to rush to trial on an unprecedented schedule because they wanted an outcome before the presidential election in November.In a filing submitted at the same time on Thursday, prosecutors in the office of the special counsel Jack Smith asked Cannon to schedule the trial for 8 July for all three defendants, a date that would almost certainly ensure that a verdict get returned before the 2024 election.Trump’s request marked his latest attempt to push back the case, having taken every opportunity to ask Cannon to delay proceedings since he was indicted last year for violating the Espionage Act and obstruction of justice.In their first request to delay the trial indefinitely, Trump claimed he could not get a fair trial while he was running for office, asking the judge to also take into account the political calendar in the months before the election.That argument was repeated again in the new filing, which also claimed that Trump’s status as the presumptive GOP nominee meant prosecutors would be violating justice department rules that prohibit overt investigative steps close to an election if a trial took place this year.Whether Cannon will acquiesce to Trump’s request remains uncertain. Last year, she implicitly rejected Trump’s arguments concerning the election when she set a tentative trial date for May, finding a middle ground between the dueling schedules that Trump and prosecutors had proposed.The judge could again attempt to find a middle ground as she weighs setting a new trial date, with the pre-trial phase of the documents case running roughly four months behind schedule, according to a Guardian analysis.The documents case has been mired in delays as a result of how slowly Cannon has proceeded through the seven-step process laid out in the Classified Information Procedures Act, which governs how classified documents can be introduced at trial in Espionage Act cases.skip past newsletter promotionafter newsletter promotionTrump could have an advantage in trying to convince the judge to add further delays, after she expressed concern last year that Trump’s criminal cases in New York and Washington could “collide” with the documents case in Florida because they were scheduled to start between March and May.But Trump’s legal calendar has shifted since Cannon made those remarks in November.Trump’s first criminal case in New York, over hush-money payments made to the adult film star Stormy Daniels, will start on 25 March and is expected to last six weeks. Meanwhile, the 2020 election interference case in Washington is effectively delayed indefinitely until the US supreme court decides whether Trump has absolute immunity from prosecution.In that sense, Trump’s legal calendar is now free of conflicts from May onwards, allowing Cannon to adopt either scheduling proposal from Trump or prosecutors, or again set a tentative trial start somewhere between the two suggested dates. More

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      Liz Cheney: supreme court delay will deny voters ‘crucial evidence’ on Trump

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      A Republican member of the January 6 committee has said the supreme court’s decision to wade into Donald Trump’s immunity case will deny Americans crucial information about the former president’s efforts to overturn his 2020 election defeat.Liz Cheney, a former Wyoming congresswoman who was ousted by primary voters angry at her participation in the hearings that followed the insurrection, also demanded the justices come to a speedy decision.In a message posted to X, formerly Twitter, Cheney, a vocal Trump critic, said voters needed to have a verdict on the presumed Republican presidential nominee before they go to the polls in November.“Delaying the January 6 trial suppresses critical evidence that Americans deserve to hear,” she wrote.“Donald Trump attempted to overturn an election and seize power. Our justice system must be able to bring him to trial before the next election. SCOTUS [supreme court of the US] should decide this case promptly.”Justices on Wednesday set the week of 22 April to hear oral arguments over Trump’s assertion that he cannot be held criminally responsible for actions he took to overturn his 2020 defeat by Joe Biden.Trump, who is facing a four-count indictment including conspiracy to defraud the US and conspiracy to obstruct the congressional certification of the election results, has declared the decision a victory, mostly because it puts the trial on hold, possibly until after the election.Some Democrats, meanwhile, are also upbeat about it. The California congressman Ted Lieu, who has previously accused Trump of committing multiple election crimes, said such a delay would work to his party’s advantage at the ballot box.“My view of the SCOTUS action: if the trial is delayed until after November, we will see the largest blue wave in history,” he wrote, also on X.“If November becomes a referendum on whether Trump faces justice, then Democrats will absolutely flip the House, keep the White House and expand the Senate.”Some legal experts are warning the supreme court’s action, along with delays already affecting several of the other legal cases Trump is facing, could have consequences for democracy.While many believe the court will ultimately confirm the rejection by a Washington DC appeals court of Trump’s claim, they say the delay could prove harmful.“This case really is most important in terms of democracy, and the most compelling with the evidence. That makes it very difficult in the sense there would be no verdict on this critical issue that cuts to the heart of democracy,” said Carl Tobias, Williams professor of law at the University of Richmond and a veteran supreme court analyst.“Maybe the supreme court just couldn’t resist, as the highest court in the land, weighing in on this very weighty question of presidential immunity, though most people who are clear-eyed about this don’t believe that there’s much of an argument for immunity in this context.“The court could have been perfectly satisfied with the DC circuit opinion, which was comprehensive and clear, and just seen no reason to take it up. But this is about delay. I don’t think anybody really disputes that. Trump’s theory over his entire life in litigation is that delay is his friend, and here it really is. It’s conceivable none of these cases goes to verdict before the election.”skip past newsletter promotionafter newsletter promotionIn a post on his Truth Social platform on Wednesday, Trump claimed that “legal scholars are extremely thankful for the supreme court’s decision”, and insisted without irony that future presidents would fear “wrongful prosecution and retaliation” after they left office if he loses.Trump himself has spoken openly of seeking “retribution and revenge” over political foes if he is returned to office, and said he would appoint a special prosecutor to “go after” Biden and his family.A former lawyer and legal analyst Lisa Rubin said she was “beyond terrified for our country” because the supreme court will delay the trial and potentially affect the election.“I honestly thought there would be enough votes on the court not to take this case, for no other reason than bad facts make bad law,” she told MSNBC News. “And the facts here could not be worse. If there was a context in which you wanted to decide the bounds of presidential immunity it’s not this case.”With oral arguments set for April, a ruling might not be handed down until May at the earliest.Alternatively, in the worst-case scenario for special counsel Jack Smith, the supreme court could wait until the end of its current term in July. That could mean the start of a trial expected to take up to three months might be delayed until no earlier than late September.Trump’s legal strategy has been to stall the various cases against him, ideally until after November’s election, in the hopes that a second term of office will allow him to pardon himself or install a loyal attorney general to drop charges.
      Hugo Lowell contributed reporting More