Donald Trump may have boasted at a weekend rally about a judge’s ruling against a bid to ban him from Colorado’s primary ballot in the 2024 election.
But Obama-era acting Solicitor General Neal Katyal and former Watergate prosecutor Jill Wine-Banks have suggested how the decision could actually be seriously bad news for the former president.
Colorado state District Judge Sarah B. Wallace on Friday ruled Trump engaged in insurrection during the Jan. 6, 2021, attack on the U.S. Capitol. But she ruled against an effort to nix Trump’s name from the state’s ballot, citing a lack of clarity over whether the constitutional amendment that stops insurrectionists from holding public office actually applies to the highest office of the land, the presidency.
“If I were to put the headline on Friday night, as an appeals lawyer, it would be: This is the very worst decision Donald Trump could get from the trial court,” the former Department of Justice official told MSNBC’s Jen Psaki on Sunday. “Because it’s going to go on appeal to the Colorado Supreme Court, perhaps the U.S. Supreme Court, and there, Trump is going to face extreme headwinds.”
Katyal noted the difference between the “factual finding” that Wallace said Trump committed insurrection and the “legal part” of her ruling that it doesn’t apply to the presidency.
On appeal, “the factual findings get massive deference by the appeals court” as “it’s almost impossible to overturn a trial judge’s factual finding,” he said. The legal findings can be overturned, Katyal explained, because “that’s basically a fresh look at the legal thing.”
But in this case, Wallace “factually made devastating findings against Trump and then looked at this legal technicality, which is the 14th Amendment doesn’t apply to the office of the president, which is so weak, even the judge themselves admitted that this would be preposterous.”
During a different interview on MSNBC, former Watergate prosecutor Jill Wine-Banks made a similar argument.
The judge’s decision is “wrong on the law,” she said.
“Of course, on the facts she is right, and she made a factual finding that he is insurrectionist,” Wine-Banks added. “And that would bar him if he were an officer. And I believe that any higher court will find that it was the intent to bar such a person from holding the office of president and that he will be barred.”
I405CA on November 20th, 2023 at 13:14 UTC »
The 14th amendment argument is ultimately a loser, as the US Supreme Court would find some reason to give Trump a pass.
What the judge did was to provide a pathway for the DOJ to charge Trump with insurrection. The US Code is a lot more straightforward than is the 14th amendment:
Even a right-wing Supreme Court would have a difficult time overturning a conviction based upon that statute.
Unlike the 14th amendment, it applies to everyone in the US who violated the law, without regard for what their next day job happens to be.
At some point, Trump opponents should start calling out the Justice Department for not charging Trump with insurrection when a court has explained in detail why it should.
browster on November 20th, 2023 at 12:21 UTC »
The factual finding that Trump engaged in an insurrection is extremely unlikely to be overturned, as factual findings are given great deference by appeals courts. But the legal finding that the 14th Amendment then wouldn't bar him from the Presidency is flimsy, and could be easily overruled. He would then be barred from becoming President ever again.
The headline from the ruling is that Trump has been found by a court of law to in fact be an insurrectionist.
NinJesterV on November 20th, 2023 at 12:20 UTC »
It's sad that our courts have now just become a pipeline to the Supreme Court because appeals are just standard now.
That said, seems like the judge is making good use of that fact to send this decision high enough up the pipeline that the ruling won't be overturned. Even our conservative-leaning Supreme Court would have a hard time saying that the President is free to engage in insurrection, which is what a ruling in Trump's favor would mean.