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Jan. 6 should’ve disqualified Trump. The Supreme Court disagreed.

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Jan. 6 should’ve disqualified Trump. The Supreme Court disagreed.

This article is the second in a five-part series called “Protecting the Election.” As former President Donald Trump and many of his allies refuse to concede his defeat in the 2020 election, this BLN Daily series brings election law and policy experts to explore the many threats to certifying election results at both the state and national levels.

With former President Donald Trump on the precipice of possibly becoming president again, let’s recall that he’s on the 2024 ballot thanks partly to the Supreme Court

I’m not talking about the ruling granting him broad criminal immunity. Though the Roberts Court’s handling of that appeal helped Trump push off a trial in the federal election interference case — possibly forever, if he wins the election and deploys his reacquired presidential power to crush it.

I’m talking about another Jan. 6-related appeal from the last Supreme Court term, one that more directly positioned the Republican to take office again: Trump v. Anderson.

It was there that the justices reversed the Colorado Supreme Court’s decision to keep the former president from the ballot. The case was technically about one state during the primary process, but the U.S. Supreme Court’s ruling effectively scrapped nationwide efforts to enforce the constitutional provision barring oath-breaking insurrectionists from office.

As a reminder, here’s what that post-Civil War provision, Section 3 of the 14th Amendment, says

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.

In a lengthy December decision, a majority of Colorado’s top court cited that language in agreeing that Trump “engaged in” the Jan. 6 insurrection after having sworn to support the Constitution as president. 

“We are mindful of the magnitude and weight of the questions now before us,” the state court said Dec. 19, adding: “We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.” The public reaction included threats against the Colorado judges.

Maine’s secretary of state reached the same conclusion later that month (and was likewise threatened), raising the stakes for the high court’s inevitable intervention. 

The justices seemingly saw a Trump-friendly ruling as inevitable, too. During the Feb. 8 hearing in Washington, Chief Justice John Roberts worried about the “plain consequences” of permitting states like Colorado to disqualify insurrectionist candidates. He mused:

In very quick order, I would expect … 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,’ and it will come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence.

That could be an understandable reaction from a random person not versed in the law or the facts. But this is the chief justice of the United States. For one thing, casual observers know that a handful of states basically do decide elections in our skewed Electoral College system. And more to the point, if any Democratic insurrectionists are blocked from the ballot, too, then that’s their problem. Even if Roberts’ stated concern was well-founded, it didn’t grapple with the law.

But the consequentialist view would prevail. It was just a matter of the court figuring out how to legally accomplish the practical goal of keeping Trump on the ballot. The decision came just ahead of the Super Tuesday primary voting day in March. It was an unsigned “per curiam” ruling, though it was actually authored by Roberts, according to a New York Times report that wasn’t confirmed by NBC News or BLN.

While the justices were unanimous on the bottom line that states couldn’t disqualify presidential candidates, the Times reported on the internal machinations:

four of the conservatives were pushing to go beyond that and rule that the Constitution’s prohibition would require congressional action to take effect. Such a decision would provide greater protection for Mr. Trump: To prevent him from taking office if he won re-election, Congress would have to vote to enforce the insurrectionist ban.

Roberts joined those four Republican appointees in the opinion that sparked two separate ones, both of which highlighted the lack of unanimity on the court. One of them came from the three Democratic appointees. Though styled a concurrence “in the judgment” (meaning on the bottom line), it reads at points more like a straight-up dissent, accusing the majority of needlessly resolving “novel constitutional questions to insulate this Court and petitioner [Trump] from future controversy.”

The other separate opinion came from Trump appointee Amy Coney Barrett. Adding her own bizarre thoughts to the affair, she agreed with the Democratic appointees that the majority went too far but nonetheless chided the trio for “stridency” in how it expressed disagreement.

Getting back to the substance of the matter, consider the view of conservative law professor William Baude. He previously clerked for Roberts and co-authored key scholarship before the ruling explaining why Trump is disqualified and, intriguingly, maintained in a post-ruling piece that Trump is still disqualified. He wrote in an op-ed after the decision that the Supreme Court:

swiftly overruled the [Colorado] decision without even confronting the question of whether Mr. Trump had engaged in an insurrection or was therefore disqualified from office. Instead it concocted an argument, not raised by any of the parties, that states specifically lack the power to consider this part of the Constitution in making ballot access decisions.

Trump v. Anderson’s holding lacked any real basis in text and history and also is at odds with the basic structure of the Electoral College, in which states have primary authority to decide how their slates of electors are chosen. The ruling’s real function was to let the court reverse the Colorado Supreme Court and avoid the political firestorm that might have ensued, without requiring the court to take sides on what happened on Jan. 6.

Indeed, the available evidence — the hearing, the decision, the investigative reporting — suggests the court started from the conclusion that Trump just had to stay on the ballot and then attempted to reason backward from there.

And no doubt, it’s probably an understatement that a “political firestorm” would’ve ensued had the court held Trump to the Constitution. Look no further than the threats against judges and election officials who dared to rule against him on this issue and others. Look no further than the Trump-backed violence of Jan. 6. 

So, what about the “plain consequences,” to use the chief justice’s concerned phrase, of an oath-breaking insurrectionist potentially running the country again, this time knowing he’d have broad criminal immunity heading into a second term? That consequence apparently was not “daunting” enough to move this court. 

Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.

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‘Uniting anger’: Democrats fume over Schumer’s handling of funding fight

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Chuck Schumer is facing one of the most perilous moments of his Senate leadership career.

The Senate minority leader came under heavy fire for the second straight day from Democrats enraged at him for backing a Republican bill to avoid a government shutdown, and fallout appears likely to last well past Friday’s vote.

A handful of House lawmakers, including some in battleground districts, are floating supporting a primary challenge against him. Activists are organizing efforts to punish him financially. Schumer is facing questions within his own caucus about whether he made strategic errors in handling the high-stakes moment and failed to outline a clear plan about how to deal with the complex politics of a shutdown, according to interviews with six lawmakers or their aides. Some Democratic senators are even privately questioning whether he should stay on as their leader.

“He’s done a great deal of damage to the party,” said Ezra Levin, co-founder of the liberal group Indivisible, which has scheduled an emergency call Saturday with its New York chapter and other local leaders to “seriously consider if the current [Democratic] leadership is equipped to handle the moment we’re in.”

In a remarkable sign of how deep the intraparty frustration with Schumer runs, House Minority Leader Hakeem Jeffries refused to throw his fellow New Yorker a life raft. Asked by reporters on Friday if there should be new leadership in the Senate, he said, “Next question.”

Schumer’s one-time partner, former House Speaker Nancy Pelosi (D-Calif.), went so far as to urge senators to vote against his position, saying that “this false choice that some are buying instead of fighting is unacceptable.” And dozens of House Democrats sent a sharply worded letter to Schumer Friday, which expressed “strong opposition” to his standpoint, arguing that the “American people sent Democrats to Congress to fight against Republican dysfunction and chaos” and that the party should not be “capitulating to their obstruction.”

Though several senators said they supported his leadership, some Senate Democrats avoided questions when asked directly Friday about whether they continued to support him in the role.

“We still have more to play out on this,” said Sen. Tim Kaine (D-Va.). “So I’m not really thinking about the big-picture politics.”

Sen. Tammy Baldwin (D-Wis.) also dodged, saying: “The leader I don’t have confidence in is Donald Trump.” And Sen. Ruben Gallego (D-Ariz.) responded to a query on whether he still supports Schumer by calling for a “good post-mortem” on Senate Democrats’ approach to the government funding fight.

“Anytime you have a failure — and this is a failure altogether — we as a caucus owe it to Democrats across the country and our constituents to look back and see: How do we get ourselves into this situation?” he said.

One Democratic senator granted anonymity to share private discussions said conversations are starting about whether Schumer should be their leader going forward.

“There’s a lot of concern about the failure to have a plan and execute on it,” the senator said. “It’s not like you couldn’t figure out that this is what was going to happen.”

The frustration toward Schumer reflects a boiling anger among Democrats over what they view as their party’s lack of a strategy for taking on Trump in his second term. Though few in Democratic circles think Schumer’s job as minority leader is at risk — and he isn’t up for reelection until 2028 — the frustration toward him spans the party’s spectrum, from moderates to progressives, both in and outside of Congress.

Schumer has defended his vote to keep the government running as the best of two bad choices aimed at not ceding Trump and billionaire adviser Elon Musk even more power to slash the government. Nine Democratic senators and an independent who caucuses with Democrats joined him to advance the bill, enough to prevent a government shutdown.

“A government shutdown gives Donald Trump, Elon Musk and DOGE almost complete power as to what to close down, because they can decide what is an essential service,” Schumer said in a BLN interview. “My job as leader is to lead the party, and if there’s going to be danger in the near future, to protect the party. And I’m proud I did it. I knew I did the right thing, and I knew there’d be some disagreements. That’s how it always is.”

He added that he is not concerned with his leadership position: “I have the overwhelming support of my caucus. And so many of the members thanked me and said, ‘You did what you thought was courageous, and we respect it.’”

But behind closed doors, even some longtime Schumer allies are raising the specter that his time has passed.

“Biden is gone. Pelosi is in the background. Schumer is the last one left from that older generation,” said one New York-based donor who is a longtime supporter of the leader. “I do worry that the older generation thinks 2024 was just about inflation, but no, the game has changed. It’s not left wing or moderate, it’s everyone now saying — the game is different now. But he was set up to battle in 2006, and we’re a long way from 2006.”

Adam Green, co-founder of the Progressive Change Campaign Committee, said “active conversations” are taking place among liberal groups about how to make Schumer pay. He said Schumer will likely face protests over his support for the GOP bill at his tour stops next week for his new book “Antisemitism In America: A Warning.” But he said the effort to hold him “accountable” will not end there.

“He has to be made an example of to enforce Democratic backbone going forward,” he said.

And it’s far from just progressives.

“I have not seen such uniting anger across the party in a long, long time,” said Charlotte Clymer, a Democratic operative associated with the moderate wing of the party who launched a petition to boycott donations to Senate Democrats until they force Schumer out as minority leader. “Sen. Schumer has managed to unite us far more than Trump has in recent months.”

After the GOP bill advanced Friday, Congressional Progressive Caucus chair Greg Casar said in a statement that “we need more leaders from the stand and fight wing of the Democratic Party.” MoveOn warned that the liberal group’s “members will be demanding answers from their elected officials” about the vote. The progressive organization Justice Democrats sent a text to supporters reading “F*ck Chuck Schumer.”

Also on Friday, dozens of protesters organized by the Sunrise Movement descended on Schumer’s office in the Hart Senate building holding signs that read: “Schumer: step up or step aside,” demanding he reverse course on supporting the bill. The group said 11 people were arrested.

“We have to reckon with the fact that young people, working-class people, people of color — the backbone of the Democratic Party — are moving away from the party,” said Stevie O’Hanlon, the organization’s political director. “Chuck Schumer is part of that reason.”

Still, some Democratic senators publicly stood by Schumer on Friday.

Asked if people are urging her to run for Schumer’s job, Sen. Patty Murray (D-Wash.), said, “No, no,” adding, “I’m doing my job today.”

Sen. Gary Peters (D-Mich.), who is retiring after this term, called Schumer “a good leader.” Sen. John Hickenlooper (D-Colo.) told reporters he still has confidence in Schumer in the top role.

Others acknowledged the difficult position Schumer found himself in as he attempted to steer his caucus through a lesser-of-two-evils situation without the same simple-majority cover that Jeffries had in the House.

“It’s tough to be the leader,” said Sen. Jack Reed (D-R.I.).

With reporting by Emily Ngo and Hailey Fuchs.

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Trump lauds Schumer’s ‘guts’ in backing bill to avoid shutdown

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President Donald Trump on Friday congratulated Senate Minority Leader Chuck Schumer for “doing the right thing” by backing the Republican-led bill to avert a government shutdown, a choice that’s put the New York Democrat at odds with many in his party. “A non pass would be a Country destroyer…
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Dems ask Trump admin to explain Khalil’s arrest, calling it ‘playbook of authoritarians’

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More than 100 House Democrats sent the letter to Homeland Security Secretary Kristi Noem and Secretary of State Marco Rubio…
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