Politics is smothering good Politicians

 The bodies weren’t even cold when the MAGA crowd started politicizing yesterday’s drone attacks by Iran-backed groups that killed three U. S. military in Jordan and wounded many others.  As expected, Trump immediately blamed Biden’s “weakness and surrender.”  Senator Tom Cotton (and Trump supporter) released the following statement almost immediately following the news of the attack:

 “Joe Biden emboldened Iran for years by tolerating attacks on our troops, bribing the ayatollahs with billions of dollars, and appeasing them to no end. He left our troops as sitting ducks and now three are dead and dozens wounded, sadly as I’ve predicted would happen for months. The only answer to these attacks must be devastating military retaliation against Iran’s terrorist forces, both in Iran and across the Middle East. Anything less will confirm Joe Biden as a coward unworthy of being commander-in-chief.

 

“On behalf of Arkansans, I extend my deepest condolence to the families of our brave fallen warriors. May God comfort them as He welcomes their loved ones into His embrace. And may God quickly and completely heal their wounded comrades.” 

Nothing wrong with the second paragraph of Cotton's statement, but notice how it comes as almost an afterthought to the political rhetoric of the first paragraph, rhetoric characteristic of many MAGA supporters yesterday.  One would think that someone with Sen. Cotton’s distinguished military service would have more sense.  But no, in the ever-growing insanity of the MAGA cult, politics (i.e. electing Trump) is everything. 

As to retaliation against Iran, there must be a U.S. response, but this is really a very complex issue.  Iran denies it ordered the attack.  We need proof that it did before we respond directly against Iran for that attack.  And whatever action we take must be carefully considered in light of the already potentially explosive nature of the Middle East following the terrorist attack on Israel, Israel’s legitimate response, the prisoners held by Hamas, and the many questions about Gaza.  Just a blind return of fire could cause far worse problems than a delay in order to respond with well thought out action.

But, this inability to think beyond political posturing, rampant on all sides, actually defines the MAGA Republicans today.  Consider the bipartisan immigration bill that was on a likely path to passage until Trump urged Republicans to vote against the bill because he needs to be able to attack his rival Biden over the border crisis. The bipartisan bill would have provided money to Israel and Ukraine in return for Democrats agreeing to several Republican demands that address the border crisis and immigration laws.  As one senator put it, “[Trump] doesn’t want us to solve the border problem because he wants to blame Biden for it.”

Oklahoma Republican Senator Lankford, who continues to negotiate with Democrats to try to save the bill stated on a Sunday TV news interview:

“It is interesting: Republicans, four months ago, would not give funding for Ukraine, for Israel and for our southern border because we demanded changes in policy. So we actually locked arms together and said: ‘We’re not going to give money for this. We want a change in[immigration] law.  And now, it’s interesting: A few months later, when we’re finally getting to the end, they’re like, ‘Oh, just kidding, I actually don’t want a change in law because of presidential election year,'” 

And what does Sen. Lankford get for his efforts at bipartisanship to solve our country’s problems?  The Oklahoma Republican Party approved a resolution censuring the Senator and attacking him for negotiating with Democrats on a potential border deal.  Just more proof that the Republican party cares little for people affected by the issues it campaigns on but rather simply uses those issues as political talking points to achieve its own power.

This is the new MAGA Republican party, and it has frightening authoritarian tendencies.  This party is led by the presumptive (but hopefully not actual) nominee Donald Trump.  While it is true that Trump’s 2016 presidency did much to improve the day to day lives of many Americans, it also had a dark side.   There is no question that Trump’s words were often acerbic and designed to get a response.  The response, beginning immediately upon his 2016 election was a series of never-ending attacks and allegations, many false and pursued out of seemingly pure hate for the man, but some with at least nuggets of truth to them.  While racial and perhaps other divisiveness became apparent during the Obama years, it increased during Trump’s presidency and continues to this day. 

Both parties have fanned the flames of this atmosphere of anger and overwhelming divisiveness since 2020.  The parties and their supporters have become true enemies of one another rather than simply political opponents and all seem ready if not eager to sue, impeach, censure, or otherwise fully attack anyone whose views or policy decisions they do not like.  This does little for the American people but seems to satisfy some political need within our current leaders. 

Since 2020, Trump and his MAGA supporters seem to be the most eager to stir up hatred and discord against any who are not 100% with them.  Since he lost the 2020 election, Trump has a track record of attacking our Constitution and our very form of government.  His claims of a fraudulent election, his actions leading up to and on Jan. 6 (which I believe disqualify him from holding office) and his unsubstantiated and continuing assertions that Joe Biden was not elected and is not our real president are now joined by his actions setting up the same claims for 2024 as he currently asserts that the only way he will lose is if the Democrats cheat.  These assertions are all attacks on our elections, our institutions, and our rule of law, core elements of our democracy and the America and Americans which these folks claim to love.

But beyond these election related tirades, Trump regularly debases, ignores, and encourages others to violate the Constitution and laws of the United States.  In his many ongoing court cases he consistently ignores the court processes, procedures, and rule of law.  He then verbally attacks the courts, attorneys, and jurors for simply doing their jobs when he does not obtain the outcome he seeks.  Moreover, he uses these serious judicial matters as opportunities for campaigning.  The disrespect (which is  encouraged by MAGA supporters who, for example, urge the Governor of Texas to disobey an order of Stay from the United States Supreme Court), if not violation, of both Constitution and Rule of Law are direct assaults on the core of our democracy.  These disregarders of the Constitution are the same folks who assert they believe in its every word – apparently that’s only when they like what it says.

The MAGA cult wants what it wants, and its political ambitions trump (excuse the pun) any concern for the American people.  Sometimes their needs or desires may benefit, but that is nothing more than coincidence. 

While Trump’s rhetoric has always been acerbic, it has taken an extremely dark and un-American turn. When he says that immigrants are “poisoning the blood of our country” (spoken at a New Hampshire rally December 2023) and then doubles down on that statement when given an opportunity to offer some less repulsive explanation, one can’t help but hear the echo of Hitler asserting Jewish blood was poisoning Aryan German blood.  And when his Christmas message is a hope that his opponents rot in hell, one can see that he is not interested in working across the aisle or finding space for all Americans in this country. (Trump’s Christmas rant included the following: “World Leaders, both good and bad, but none of which are as evil and ‘sick’ as the THUGS we have inside our Country.” The message ended with, “MAY THEY (referring to Biden and Special Prosecutor Smith) ROT IN HELL. AGAIN, MERRY CHRISTMAS!”) Such rhetoric, in my opinion, does not belong in America, and certainly not in the mouth of a presidential hopeful.

Trump’s exclusive and authoritarian tendencies are apparent as he tries to push out of the Republican Party any and all who do no swear allegiance to his MAGA regime.  He asserted that all Nikki Haley supporters are now permanently barred from the Republican party which he now refers to as the “MAGA community.”  (So much for the big tent where all are welcome!).  MAGA, in true fascist fashion, does not really care about the people, but only its power and its own ideology. 

And, lest we forget the Democrats, they too are often more likely to attack their opponents as totally evil individuals out to destroy America rather than attack the positions and policies of those with whom they disagree.  President Biden himself has given some pretty dark and angry speeches and his view of opponents as enemy is often apparent.  Expect these type of attacks to become more common as we approach the November election.  

We have a changing world fraught with many crises.  These are not the fault of one person or one party.  The problems and complex and often interconnected.   We need politicians who want to solve these problems, not just use them to blame others for their existence.

The primary political responses to the drone attack simply underscore the overwhelming and devastating role that politics itself has taken in our country.  There are good and bad and mediocre politicians, and we vote in or out those whose policies we do or do not agree with, giving those we choose the opportunity to represent us, the people.  But when it is politics itself that begins governing our country – when decisions are made based not on what is good for the American people but on what effect they will have on the enemy/other party, then we are in real trouble.   This politicization of almost everything smothers the opportunity for real dialog, debate, and solution to this country’s and the world’s problems.

We the people need to begin thinking like Americans who believe in our country and all of its people and who can work together to find solutions to our problems, and we need to demand that our politicians do the same.  We must no longer tolerate a politics that is synonymous with a blood-thirst against those holding opposing views.  And we need to elect politicians who will help us to stand united as one country rather than trying to divide us until we fall.

Why SCOTUS Should Affirm the Colorado Trump Ballot Decision

I spent a fair amount of time working out my thoughts on this case and decided I might as well share them. There is certainly more than one reasonable position and possible conclusion about this case.  This is mine.

This post explains why I believe the Colorado Decision should be upheld.  My conclusions are based on my reading of the facts and the law relevant to this case and not on my personal feelings about political personalities or stances or any political motives that may underlie this case.  Clearly, I am not a Supreme Court Justice, a sociologist, or a politician, but in my opinion the Colorado opinion should be affirmed and hopefully the Supreme Court of the United States will do so unanimously.

To keep this post to a reasonable length, I explain many of the underlying legal concepts somewhat simplistically.  I think that this case is deeply important to our country and our Representative Democracy form of government.  I am saddened that events of the past few years have brought us to this point, and I hope that the Justices will be able to be appropriately blind to public opinion as they analyze the Constitution and this case.  I also hope that the public will take time to fully understand this case, our form of government, and the Court’s role in it so that they are able to accept the Court’s decision even if not agreeing with it.

A Brief Summary of the Colorado Case

In 2023, Colorado electors filed a petition against the Colorado Secretary of State seeking to have Trump’s name removed from the primary ballot in Colorado.  The Colorado Court promptly set the matter for a five-day trial.  Following that trial which included presentation of evidence along with proposed findings of fact and conclusions of law by all the parties including former president Trump, the District Court concluded that Trump had engaged in insurrection, but that Section Three of the Fourteenth Amendment did not apply to a president.  Both the Electors and Trump appealed to the Colorado Supreme Court.

Appeals usually address not the facts themselves which have been determined by the lower court, but the law and its interpretation and application to those decided facts.  That is, was the law correctly interpreted and did or did not the facts fit the requirements of that law so as to support the decision reached by the lower court?

The Colorado Supreme Court affirmed the lower Court’s factual conclusions that Trump had engaged in insurrection, but reversed its conclusion that Section Three does not apply to presidents.  It also revisited and addressed several other relevant issues.  Ultimately the Court held that because Donald Trump is disqualified under Section Three of the !4^th Amendment, it would be a wrongful act under Colorado State’s Election Code for the Secretary of State to list him as a candidate on the presidential primary ballot. 

The U.S. Supreme Court will now hear an appeal of the Colorado decision on February 8 of this year.

A note on Courts’ Roles

Before examining the issues in this case, a note on the role of evidence in trial and on appeal is  appropriate.  At the trial level the evidence is presented and the finder of fact determines what facts that evidence supports.  The finder of fact is either a jury or, in a case where there is no jury then it is decided by the judge or other authority who presides over the case.   There are many reasons why there may or may not be a jury in a particular case; sometimes the nature of the case does not provide for a jury, sometimes a party chooses not to request a jury.

Once the findings of fact are rendered, the trial court will apply relevant law to those facts and render a decision.  Unless there is absolutely no evidence to support those facts, those facts will not be reversed by an appellate court.  Rather it is the appellate court’s responsibility to ensure that the correct law was correctly interpreted and correctly applied to those facts.  That is, there is not a factual hearing at the appellate level.  If the appellate court finds that there is a problem with the findings of fact, it will remand the case to the lower court for a further hearing.  If the law was incorrectly interpreted or incorrectly applied, the result might be a reversal, or it might be a remand to the trial court for reconsideration of the facts in light of the corrected understanding of the law.

Section Three of the Fourteenth Amendment

Section 3 states in full:

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, 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, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

There are 3 key concepts in this section that must be clarified:  First does it apply to presidents, second, what constitutes “insurrection or rebellion”, and third, what does it mean to “engage in”?

Generally, when interpreting Constitutional provisions, the Court’s goal is to effectuate the intent of the drafters.  It will begin by looking at the plain language, giving terms their ordinary and popular meanings.  If, however, there is more than one reasonable interpretation, then, due to the ambiguity, the Court may consider textural, structural, and historical evidence.

              Application of Section Three to Presidents

This section applies to anyone who is an officer of the United States who has taken an oath to support the Constitution of the United States.  It prohibits such person from holding office if they have engaged in insurrection or rebellion against the United States.

The presidency is an office within the United States government and the person who holds that office is an officer of that government.  Plain dictionary meaning as well as prior case law makes this clear.  Moreover, the Presidential Oath is an oath to support the Constitution as mandated by the Constitution itself.  This section then applies to presidents.

              What is an “Insurrection”?

After an examination of various definitions of this word both past and present (beginning with 1860) as well as examining relevant precedent, the Colorado Supreme Court stated:

Although we acknowledge that these definitions vary and some are arguably broader than others, for purposes of deciding this case, we need not adopt a single, all-encompassing definition of the word “insurrection.” Rather, it suffices for us to conclude that any definition of “insurrection” for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country. (Opinion p. 99).

This definition comports with current dictionary definitions of insurrection:  “an act or instance of revolting against civil authority or an established government” (Merriam-Webster); “an act or instance of rising in revolt, rebellion, or resistance against civil authority or an established govern” (dictionary.com); “a violent uprising against an authority or government” (Google dictionary); “an uprising against a larger force that's in power” (Vocabulary.com); “an organized and usually violent act of revolt or rebellion against an established government or governing authority of a nation-state or other political entity by a group of its citizens or subjects; also, any act of engaging in such a revolt.” (Britannica).

While the definition has not been addressed specifically in the context of Section Three, in other legal contexts courts and legal scholars generally interpret the term "insurrection" as a violent uprising or organized resistance against the government or its regulations.

The actions of January 6 were an attempt to interfere with a government action in progress, specifically the counting of electoral votes and the transfer of presidential power.  There is really no question that was the intent of the January 6 protesters.  Their intent was to stop Vice President Pence from certifying Biden as the next President of the United States.

It is this attempt to interfere with this government action that distinguishes the January 6 events from riots or general protests that become violent but are not directed at hindering a specific governmental act, especially one in progress.  Even vocal and perhaps violent protesting outside a courthouse or governing body, while it may be an attempt to persuade officials, is not an attempt to actually halt governmental action in progress. 

              “Engaged in”

Again, the Colorado Supreme Court conducts a thorough examination of relevant law and general definitions from 1860 forward.  It ultimately concludes that “engaged in” requires “an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose.” (Opinion p. 105).  The Court further clarifies, “we do not read “engaged in” so broadly as to subsume mere silence in the face of insurrection or mere acquiescence therein, at least absent an affirmative duty to act. Rather, . . . . [t]he force of the term to engage carries the idea of active rather than passive conduct, and of voluntary rather than compulsory action.” (Opinion p. 105).  

Note that per this definition, “engage in” does not necessarily require marching with the protesters.  Rather, it could consist of other acts that support or encourage those physically conducting the insurrection.

Donald Trump Engaged in Insurrection

Given the above definitions, we must look at the evidence to see if it supports the conclusion that Donald Trump engaged in insurrection.   I agree with the Colorado Supreme Court that it does.  We should note, however, that if the U.S. Supreme Court redefines the above terms, then their appropriate action would be to remand the case to Colorado for reconsideration of the facts using the revised terms.

I think it is fairly clear that the events of January 6 constituted an insurrection.  The key question then is: Did Donald Trump engage in that insurrection?

In this case, the Colorado Court thoroughly went through the evidentiary record from the Trial Court.  It noted that much of the evidence against Trump went unopposed by him.   Basically, the evidence supportive of finding that Trump engaged in insurrection falls into three piles.  First is the behavior of Trump leading up to the 2020 election in which he laid the groundwork for a claim that the election would be “rigged.”

 Second is the evidence pertaining to the time between the election and January 6 when Trump “ramped up” his claims that the election was stolen from him.  He continued to allege election fraud and propelled the “Stop the Steal” movement of cross-country rallies leading up to January 6.  A rally in November turned violent; Trump acknowledged the violence but justified it as “self-defense.”  He referred to stealing the election as an “act of war” which his supporters must fight against.  The rhetoric became more and more aggressive as January 6 approached.  The Court found that the evidence “established that President Trump’s messages were a call to his supporters to fight and that his supporters responded to that call.” (Opinion p. 109).  I would further note that this rhetoric goes beyond legal means which Trump could and did pursue in courts of law regarding challenges to election counts.

The third bundle of evidence comes from January 6 itself.  It includes Trump’s speech to his supporters at the Capital.  Trump issued a number of calls to “fight”, to “take back our country”, to not be “weak”, to “show strength” and “be strong”, to “fight like hell.” He told his supporters that without “fighting like hell” they were “not going to have a country anymore.”  When he was informed that the Capitol was under attack Trump took no action for about an hour, and then sent out a tweet, read by bullhorn to his supporters, attacking V.P. Pence.  This escalated the violence.  Sometime after that, he finally tweeted and encouraged the mob to “remain peaceful” (which at the time they were not), but he did not condemn the violence, nor did he ask the mob to disperse.  Finally, about another hour later, Trump sent a video asking the mob to “go home now” and told them he loved them and that they were “very special”.  He then repeated his claim that the election had been stolen, thus endorsing the mob’s effort to try to stop the peaceful transfer of power. 

The court concluded that the evidence (which the opinion presents in far more detail than I have summarized here) established that Trump engaged in insurrection.  It also noted that the bulk of the evidence was undisputed by Trump at trial.

I agree that this evidence is sufficient to support a finding that Trump engaged in insurrection.  It meets the requirement of “an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose” of interfering in a governmental process.  He repeatedly riled up his supporters and should have known not only that the January 6 rally could, but that it probably would, get out of hand.  His purpose was to stop the government from accomplishing a peaceful transfer of power; indeed, it was to stop any transfer of power, seemingly by any means necessary.

However, deciding that Trump engaged in insurrection is not the end of the discussion.  There are several issues that are or may be the subject of dispute in this case before it can be ultimately concluded that Trump’s name should be withheld from the ballot under Section Three of the Fourteenth Amendment.

Can a State Court decide this issue?

State legislatures create election codes and statutes governing elections in their states.  In Colorado, the state courts have the authority to assess precedential qualifications.  Hence this case was properly filed in a Colorado state court.  The State Supreme Court further noted that the trial court properly followed the procedures and requirements of the Colorado statute.

More generally as to a state’s authority to address Constitutional issues, the Constitution itself delegates to the states the authority to prescribe the “Times, Places and Manner” of holding elections.  U.S. Supreme Court precedent tells us that “States exercise these powers through comprehensive and sometimes complex election codes, regulating the registration and qualifications of voters, the selection and eligibility of candidates, and the voting process itself. . . . These powers are uncontroversial and well-explored in U.S. Supreme Court case law.” (Colorado opinion p. 30).

Under Article II of the Constitution, states are authorized to appoint presidential electors in such manner as their legislatures may direct.  The Supreme Court has stated in precedent that “So long as a state’s exercise of its appointment power does not run afoul of another constitutional constraint, that power is plenary.”   States clearly have the power to assess the qualifications of a presidential candidate.  Then Court of Appeals Judge Gorsuch recognized that it is “a state’s legitimate interest in protecting the integrity and practical functioning of the political process” that “permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.” (495 F. App’x at 948).

An example of states’ authority over elections and electors in a different but current context is seen in New Mexico where the Attorney General there has explained that unlike in other states, New Mexico’s “five Republican electors cannot be prosecuted under the current law for filing election certificates that falsely declared Donald Trump the winner of the 2020 presidential race.”  Indeed, he is now seeking modification of the state’s law to allow this in the future.  The fact that various state statutes allow this while others do not is an example of the fact that states can have and do have significant control over elections and electors in their own state.

Colorado law allows the State Court to decide the issue of whether Trump can appear on the primary ballot and that Court properly followed its state’s laws in arriving at that conclusion.

It should be noted that the dissenting opinions in the Colorado Supreme Court case seem most troubled by whether the Colorado law indeed allows the State Court to make this decision or whether the law is more limited in scope.  I am not familiar with the intricacies or detailed precedent of Colorado law, but it seems that this might be the most likely way that the Colorado decision could be attacked.  If the U.S. Supreme Court were to decide that the Colorado courts acted beyond their powers and were thus without jurisdiction to hear and decide the case, then the U.S. Supreme Court could dismiss the case entirely and avoid addressing the Constitutional issues.

Adequate Due Process

The Fourteenth Amendment’s Due Process Clause states that no State “shall deprive any person of life, liberty, or property, without due process of law.”  Due process simply requires that before a person can be deprived of certain rights, they must be given notice and an opportunity to be heard.

In this instance Trump was given notice of the case and indeed participated in it by filing various documents and other information.  He had the opportunity to present evidence during the hearing but, as the Colorado Court noted, most of the evidence about the insurrection and Trump’s participation in it went unopposed by Trump.  Rather he focused more on legal arguments attempting to prevent the Colorado court from hearing or deciding the case.

There has been no due process violation, unless, as noted above, there is some defect in the Colorado laws.  It is clear that Trump was given notice and opportunity to be heard.  However, if the Colorado court hearing the case had no jurisdiction, then there was no due process.

Section Three does not require Implementing Legislation.

There is an argument that Section Three cannot be enforced without legislation from Congress that implements that Section; that is, the argument is that Section Three cannot be “self-executing.”  This is simply ridiculous.

First, we do not need legislation to tell us we can enforce the Constitution of the United States. 

Secondly, the authors of Constitutional provisions and amendments know how to suggest such additional legislation when necessary.  The 13^th Amendment in Section One abolishes slavery.  It then, in Section Two, provides that “Congress shall have power to enforce this article by appropriate legislation.”  Note that this does not require such legislation but allows enforcement by Congress through appropriate legislation.  Even with this authorizing section, the Supreme Court in the Civil Rights Cases recognized that “legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it,” but that “[b]y its own unaided force it abolished slavery” and was “undoubtedly self-executing without any ancillary legislation.”  The Court has also explicitly confirmed that the 15^th Amendment (again a part of the Reconstruction amendments) is self-executing. There is no reason to think that this does not hold true for the 14^th Amendment as well.

Moreover, Section Three itself reveals that its authors were cognizant of what role they wanted Congress to play.  Its final sentence reads, “But Congress may by a vote of two-thirds of each House, remove such disability.”  It gave Congress this specific power, and had the authors wanted Congress to be required to create enabling legislation as well, they would have so stated.  The fact that Congress is given this power while no mention is made of enabling legislation certainly signifies that there could be decisions of disqualification without Congressional action and that such decisions were valid unless and until overturned by Congress.

Disqualification under Section Three does not require Criminal Charge or Conviction.

Federal statute 18 USC §2383 makes it a crime to assist or engage in rebellion or insurrection.  While of course conviction under this statute would also disqualify a person under Section Three, there is no requirement in either the statute or Section Three that such conviction or even a charge under the statute is a requirement for disqualification under Section Three.  In any potential criminal case there are many reasons for not pursuing criminal charges.  Because a prosecuting attorney decides not to pursue a criminal charge should not be seen as a way in which to negate the clear language of the Constitution.

The People cannot ignore Constitutional law.

The argument that instead of a court deciding ballot qualification the people should decide, that any name should be allowed and people should simply decide the issue by voting, goes blatantly against our form of government, which is a Representative Democracy.  Ours is not a Pure Democracy, which would effectively be rule by mob.   

Yes, the vote is sacred, and it is one way in which the people’s voice is heard.  It is the process by which we select those who will represent us.  And those representatives effectuate our rule of law that does not allow us to do whatever we want.  Here, the Constitution allows our representatives in our state governments to carry out decisions regarding ballot qualification. Ignoring that, simply saying we can vote for whomever, constitutionally qualified or not, is an effective way to ignore if not cancel our very Constitution, something which many of those urging reversal of Colorado’s decision claim to hold if not sacred at least in high esteem.

Moreover, simply following the Constitution will not create, as some people fear, a new political tool to use with abandon against opponents.  Our Rule of Law will always require evidence, due process, etc., which protect against such fears.  This is a fact specific case and will not open the floodgates for Constitutional abuse.

The Constitution provides qualifications and, in Section Three, has provided for disqualification.  The people cannot simply ignore or rewrite the provisions of the Constitution by their vote for someone who, under due process of law, had been found not to be qualified.

Was President Trump’s January 6 speech protected by the First Amendment?

Trump argues that his January 6 speech was protected and therefore cannot be used to justify his disqualification.  I think this argument must fail.

First, the right of free speech is always not absolute under all circumstances. Speech that incites lawless action is not protected.   In looking at context, the Colorado Court held that it was appropriate for the district court to consider President Trump’s “history of courting extremists and endorsing political violence as legitimate and proper, as well as his efforts to undermine the legitimacy of the 2020 election results and hinder the certification of the Electoral College results in Congress.” (Opinion. p. 123).  As to incitement, that was addressed above in discussing the evidence relevant to “engage in.”  The trial court identified specific incendiary language in the January 6 speech. 

Further, the speech meets the requirements that must be met for the speech to not be protected: it demonstrates intent to produce lawless or violent action and of being likely to do so.  The District Court concluded that President Trump exhibited the requisite intent here. It found that, before the January 6 rally, “[President] Trump knew that his supporters were angry and prepared to use violence to ‘stop the steal’ including physically preventing Vice President Pence from certifying the election,” and that President Trump’s response to the events following his speech “support . . . that [President] Trump endorsed and intended the actions of the mob on January 6,” (Opinion p. 129).

The Trial Court also found that President Trump’s calls for imminent lawlessness and violence during his speech were likely to incite such imminent lawlessness and violence. When President Trump told his supporters that they were “allowed to go by very different rules” and that if they did not “fight like hell,” they would not “have a country anymore,” it was "likely that his supporters would heed his encouragement and act violently.” (Opinion p. 132).

Looking at the tests for whether speech is protected (context, intent to incite and likelihood of doing so) and applying this test to the Trial Court’s findings of fact, it can reasonably be concluded that Trump’s January 6 speech was not protected by the First Amendment.

Remember, the trial judge or hearing officer is the finder of fact, not those of us who were not there to see the evidence presented and second guess what was and was not presented along with its credibility.  Also recall that Trump did not counter most of the evidence that was submitted.

A note on the Maine Case 

The Secretary of State of Maine has similarly decided that Trump’s name should be removed from the primary ballot there because he is not qualified under Section Three of the Fourteenth Amendment.  The reasoning for this decision is similar to that of the Colorado Supreme Court.

Though Maine’s election laws are different from those of Colorado, and in Maine the decision was made by the Secretary of State following an administrative hearing, this process was proper under Maine’s election laws.  Moreover, although this was an administrative hearing rather than a judicial trial, due process was satisfied:  the parties had notice and an opportunity to be heard.  Evidence was presented, though again Trump chose to offer little if any evidence countering the facts.

There is no reason that the Maine decision should not be affirmed just as the Colorado decision should be affirmed.

 Conclusion

There are several possible outcomes for this case at the U.S. Supreme Court.  They include:

• The decision is entirely affirmed.
• The Supreme Court decides that the Colorado Court exceeded its powers, it had no jurisdiction to hear or decide the case and the case is therefore dismissed.
• The Supreme Court redefines some or all of the terms of Section Three and remands the case for further consideration under those terms.
• The Court decides that for some reason due process was violated and remands or dismisses the case.
• The Court decides the January 6 speech was protected and it therefore negates or cannot be used as evidence for application of Section Three disqualification.
• Or any combination or modification of, or addition to, the above.

I believe that that the Colorado Supreme Court decision should be affirmed in its entirety.  Under reasonable and legally supportable definitions of the terms, there was an insurrection and according to the evidence presented, Trump engaged in that insurrection.  He had notice and opportunity to be heard, so due process was not violated.  The Colorado law provided jurisdiction to the Colorado court to hear and decide the case, and the Colorado Supreme Court has determined that Colorado law and procedure were properly followed.  The people’s right to vote for qualified candidates is not being infringed; the people do not have a right to ignore or overwrite the Constitution.

This is a difficult decision not because the legal issues are not clear, but because of the mood of the country and the disinclination of so many to respect any decision, no matter how well reasoned, if they do not like the result to which that reasoning leads.  Moreover, too many do not really understand our government, our Constitution, the interplay of federal and state law, and the fact that we are not a pure (i.e. mob rule) democracy but are a Representative Democracy guided by the Constitution and the Rule of Law.   I certainly do not envy the Supreme Court Justices’ current task, and I pray they will find strength to shut out the (very loud) noise of the mob and follow the Constitution wherever it leads.

Horseshoes Anyone? It Depends.

 I find that in political discussions my positions are often opposed by both Right and Left.  A current example:  I adamantly support Israel, its position on the war, on Gaza, and on its right to exist.  I also adamantly support the right to protest in favor of Palestine, Gaza, and against Jews, even though I find such views abhorrent.  I supported the Harvard president in her testimony about the Harvard student protests and oppose Rep. Stefanic and others who are keen on silencing her and other university presidents who testified.  I find Stefanic to be doing exactly what she condemns the Left for doing – trying to silence those views with which she disagrees.

This sort of hypocrisy from both Right and Left which is more and more the norm these days along with the denial from both sides that they do what they condemn the other side for doing, is more than annoying, but even worse is the fact that so few are willing to see or acknowledge it.  The extremes of both sides are dug in against one another and yet cannot see that they and their enemy are more alike than they are different.

Trying to explain this in the context of political discussions with individuals who clearly identify with Right or Left is difficult.  But recently I was reminded of the horseshoe theory of politics, and that indeed is a perfect explanation.  Moreover, it leads me to realize that if this dynamic of our politics continues we absolutely must see the development of a strong third party (perhaps as the two extremes merge into one?) if our country as we know it is to survive.

The Horseshoe Theory

The horseshoe theory holds that the political spectrum, rather than being shaped as a straight line, is in the shape of a horseshoe.  The center of the horseshoe represents the political center and as you move upward toward the end of either side you will move more and more to the Right or the Left until you reach the end of each side where reside the Far Right and Far Left. 

You will note that these ends of the horseshoe bend toward one another indicating, according to this theory, that the Far Right and Far Left, rather than being at opposite ends of a linear continuum, approach and are really quite similar to one another.

While this theory is often criticized for being too simplistic, I think that it is worth thinking about, if for no other reason than to try to objectively view one’s own viewpoint in contrast and comparison with that of one’s own political foes.

What makes the extremes similar while still appearing different?

The commonly used example of sameness is Communism (Left, strong central state, work for common good) and Fascism (Right, strong central state, work for the common good).  There are of course differences: Communist ideals include a classless society with economic equality while Fascism includes a top-down class system and rule by dictator. 

But we can certainly come up with more topical concrete examples. Consider identity politics.  The Left likes to identify people based on certain characteristics and then label these groups as victim or victimizer (e.g. white vs. black, male vs. female, rich vs. poor, etc.).  The Right complains about such identity politics and yet it also uses this approach as it condemns members of groups that advocate (usually progressive) ideas that the Right opposes (thus, enemy groups include LGBTQ, anti-traditional religion, abortion advocates, etc.). 

Again, there are differences, not only with the specifics, but Left identity groups tend to be based upon external and often immutable characteristics  while the Right’s placement of someone in an identity group more often begins with a belief that they hold that is contrary to that held by the Right.  But regardless, the end result is that both Left and Right create identity groups and then either embrace or condemn all those whom they have placed into that group.

For both Far Right and Far Left, a person’s color affects the group’s perception of them.  The Left sees white people as oppressors and racists while people of color are seen as victims of that oppression.  The Right condemns people of color for what they see as taking advantages including jobs, education, etc. from white people due to affirmative action type programs.  Both Far Right and Far Left reduce individuals to a perceived group identity.

Cancel culture and free speech are other areas in which the Far Right and Far Left are more similar than different.  The Left will gladly justify the silencing of those holding views contrary to their progressive values; for example, they will gladly shout down a pro-life or anti-transgender speaker but will assert the rights of protesters to call for the annihilation of Jews.   Meanwhile, the Right will attempt to silence those who protest or support the right to protest for Palestine and Hamas but will demand the freedom of speech for advocates against progressive ideals.  The Right condemns the Left for censorship and silencing in various areas such as vaccine debates.  Yet the Right would silence progressive views by condemning and banning books relating to gender identity.

Both sides will assert the Constitution and the First Amendment free speech right as their support for their approved speech, but they seem to forget those things when they wish to silence speech with which they don’t agree.

In deciding whether Trump should be allowed to appear on primary ballots, the Far Right suddenly ignores their previous demands that the courts and especially SCOTUS be literalists in their reading of the Constitution and not cave to or interpret the Constitution’s plain and clear language to satisfy popular demand.  Meanwhile, the Left is now looking for a simple reading of the 14^th Amendment within the 4 corners of its language.

Both sides also regularly use ad hominem attacks (directing their opposition and anger against the person rather than the position maintained by that person).  Again, while the precise form or will differ language (e.g. racist, communist, fascist, deplorable, plain stupid etc., all of which and more I have personally been called by both the Left and the Right), the bottom line is that both sides find it easier to engage in name-calling rather than to engage in a rational discussion about their differing views, a discussion in which they begin by acknowledging the other’s right to hold a view different from their own.

A horseshoe?  It depends.

Whether this horseshoe theory works depends on what you are comparing.  If you look at the specifics you can conclude that the theory fails – the sides are nothing alike.  Certainly shouting down a pro-life speaker is nothing like trying to silence someone who yells “from the River to the Sea.”  The words are different, the issue being addressed is different, the people involved are different.  And you may agree with one speech but disagree with the other.

And yet, if we go beyond the surface, they are far more alike than different.  In both cases there is an attempt to deny someone their First Amendment right to speak their opinion.  It denies others of hearing that opinion which in itself goes against one of the cornerstones of our democracy: our form of government demands a free marketplace of ideas where all will be heard and individuals will be left to make up their own minds rather than be told by government or some other majority what they can, cannot, and must believe and what they can and cannot say.

Beyond ignoring this core principle, it also violates the tolerance that is a necessary characteristic if our free society is to succeed.

Claudine Gay was attacked for saying “it depends on context” in regard to whether the pro-Palestinian protests violated her school’s code of conduct.  But that is exactly what a good American should say.  As a mentor of mine recently stated:

[S]everal decades of "critical thinking" being taught in junior and senior high schools didn't seem to deal appropriately with the meaning of "critical" in the context.   The guy who taught my [children] in the so-called "gifted" program would just review whatever he had heard on NPR on the drive to school.  

Remember my admonition to [pre-law] students - every question you are going to face should be answered, in the first instance with two words - "It Depends".   Instead each side gets its thinking orders from Fox or MSNBC and then proceeds to see everything through that lens.  All surface.

In the case of the protests and conduct codes, one would have to look at the actual activity and the language of the codes to understand whether this was within the context of speech which, though abhorrent, was within the First Amendment rights of the students to utter, or was this more, perhaps combined with actual violence or immediate threats thereof?  If we allow the silencing of speech alone, no matter how abhorrent, in essence we are advocating the end to the protections of the First Amendment for all Americans. 

It all depends. Not just determining free speech rights, but in determining most of the underlying issues of our day and of our country.   It does often depend on context.   But core rights such as free speech should not depend upon one’s view or on the speech being uttered.  Yet for too many on both the Far Right and Far Left, freedom of speech depends upon what is being spoken. 

That hypocritical ability to view the same core concepts differently depending upon what one is seeking to accomplish is the similarity that drives the two political extremes to become almost as one.  While their stated goals may be different, their means are the same and both conflict with our core democratic principles.

Think

Good Americans think.  They ask why.  The extremes of both the right and the left are too wrapped up in themselves and their mandatory causes to understand the phrase “it depends.”  They don’t think, or if they do, they don’t understand that issues can be more complex than a simple yes or no, black or white, up or down, day or night. Yet if they apply this thought process to their own views as well as those of others, they may realize that they are often doing exactly that for which they condemn their opponents.

So, if we go beyond the surface, if we look beyond the overt details to the deeper concepts directing various actions, we will likely see far more similarity than difference between the two extremes of the political spectrum.

I think it is that deeper conversation that desperately needs to be had in America today.  People need to think and ask why rather than simply accept what they are told and the soundbites they repeat from their chosen news source.  That conversation can only be had if the conversants understand the why underlying the positions they assert.  Otherwise, when their position is countered they likely feel threatened because they don’t really understand the position that they are parroting and so a simple contradiction of their position and memorized phrases becomes almost a contradiction of themselves.  It is impossible to reason and explain a position that is merely memorized but not understood. 

When the focus becomes upon only the surface dissimilarities rather than the suggestion of complexity, any hope of real understanding is likely to dissolve and become something akin to a playground dispute.   If forced to look at the deeper concepts the response is likely either to attack not the ideas of the counterargument, but rather to attack the bearer of the unmemorized, considered idea, or to simply run away.

The Parties – not for most Americans

The horseshoe theory is a somewhat simplistic way of viewing politics and political parties, but it is a good place to begin to review one’s own views as well as those of one’s opponents.

Both the Republican and the Democrat parties currently seem in large part controlled by their extremes. It would be more likely that they merge into one than that they actually distinguish themselves on underlying principles.  In the end, both sides seek power to control the rest of society – individual thoughts, beliefs, and actions would all fall under their control.   While what might be allowed or condemned would differ, both would take away individual right and responsibility to choose.  That is not American, not traditional and not progressive.

Indeed, both extremes are more than willing to dismiss the Constitution, the rule of law, and any number of core American principles to ensure that all individuals conform to what they think is proper and good.   That is not America, traditional or progressive.

I think that, divorced from their chosen Right or Left newsfeeds, most Americans would fall somewhere near the middle of the horseshoe, rising a bit to the Right on some things, to the Left on others.  But we have given those Americans (including myself) nowhere to go.  If both the current major parties are but two sides of the same extreme then Americans are almost forced to take sides against one another rather than work together for solutions to serious problems. 

We need a middle party.  A strong middle party, not just a third party stealer but a real party that represents the vast number of Americans who find themselves standing on one or the other end of the horseshoe – a place where they really don’t want to be.

2024

It is almost, but not yet, too late for the appearance of a candidate who fits more to the middle of the horseshoe.  It could come from a third party or it could come from one or both of the major parties.  Donald Trump or Joe Biden (or hopefully both) could be replaced by candidates more representative of the middle, candidates who have slid down from those horseshoe extremes to a point of moderation that allows them to represent the policy positions of their party in reasonable ways, avoiding the extremism and lack of cooperation and compromise that are the destructive stance of both parties today.

We can only hope.