There are many legal minds of various weight classes that populate Twitter; when your job involves charging people by billable hours you sometimes end up with unaccounted for down time to spend wandering around posting random stuff. Ever since the Colorado Supreme Court handed down its decision on Donald Trump's eligibility (or lack thereof) for the Colorado Primary Election Ballot it's seemed like every lawyer on Twitter (and some enthusiastic amateurs) has had something to say about it. These have been of varying quality, but some like George Washington University Law School professor Johnathan Turley's breakdown have been extremely helpful in clarifying the nuts and bolts of the law on this issue.
Into this category of informative and helpful we can add this thread by Twitter gadfly and licensed attorney in the state of Colorado 'Jarvis'. It's a lengthy thread but worth reading.
I forgot I have an actual job so this will have to be fast. Thread:
— Jarvis (@jarvis_best) December 20, 2023
There are five judicial opinions out of Colorado on this Trump ballot thing: the trial court opinion, the Supreme Court majority opinion, and three Supreme Court dissenting opinions.
None of the opinions… https://t.co/Wrtiqm9Jnp
I forgot I have an actual job so this will have to be fast. Thread: There are five judicial opinions out of Colorado on this Trump ballot thing: the trial court opinion, the Supreme Court majority opinion, and three Supreme Court dissenting opinions. None of the opinions agree with each other (except maybe the dissenting opinions of Chief Justice Boatright and Justice Berkenkotter).
The most compelling and - in my view - correct decision was the dissent from Justice Samour.
— Jarvis (@jarvis_best) December 20, 2023
Justice Samour reached holdings that none of the other four groups did.
He examined the issues with the depth and close examination of the case law that is most like how SCOTUS does…
The most compelling and - in my view - correct decision was the dissent from Justice Samour. Justice Samour reached holdings that none of the other four groups did. He examined the issues with the depth and close examination of the case law that is most like how SCOTUS does it. I think SCOTUS will reverse the decision of the Colorado Supreme Court, and will largely follow the dissent of Justice Samour. I think the SCOTUS decision will be either 9-0 or 7-2. When the SCOTUS does so, I will remind of you this tweet and gloat. There will be no dealing with me after that.
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Before we get to Justice Samour, first some background on the Colorado Supreme Court. It is not typically a deeply divided or partisan Court. They are all Democrats, and they were all appointed by Democrat governors with similar liberal/libertarian leanings.
— Jarvis (@jarvis_best) December 20, 2023
We get a lot of…
Before we get to Justice Samour, first some background on the Colorado Supreme Court. It is not typically a deeply divided or partisan Court. They are all Democrats, and they were all appointed by Democrat governors with similar liberal/libertarian leanings. We get a lot of unanimous opinions. Divisions when they occur are typically respectful and intellectually honest. No vitriol. I was surprised that this case was a 4-3 opinion, and even more surprised at how sloppy the majority opinion was. Knowing that SCOTUS absolutely has to take this case, I figured they would write something stronger. Ah well.
One more tweet about Justice Samour before we get to the law stuff -- he was born and raised in El Salvador, but fled the country at the age of 13 due to the risk of civil war.
— Jarvis (@jarvis_best) December 20, 2023
Not necessarily relevant but . . . maybe it is.
Ok, onto the law stuff.
This case is about Section 3 of the 14th Amendment. Passed in the aftermath of the Civil War, Section 3 says that insurrectionists can't hold certain offices.
— Jarvis (@jarvis_best) December 20, 2023
The trial court held that Section 3 did not apply to the President, and the trial court might be right. Justice Samour… pic.twitter.com/L1Dw8sVxLw
This case is about Section 3 of the 14th Amendment. Passed in the aftermath of the Civil War, Section 3 says that insurrectionists can't hold certain offices. The trial court held that Section 3 did not apply to the President, and the trial court might be right. Justice Samour did not need to resolve that issue, though . . .
Because of Section FIVE of the 14th Amendment. That section says hey -- you know the whole insurrection thing we just talked about?
— Jarvis (@jarvis_best) December 20, 2023
How is this supposed to work? Who gets to decide who engaged in an insurrection? What sort of standard of proof applies? Is it a civil trial or… pic.twitter.com/gdM1vMFPO3
Because of Section FIVE of the 14th Amendment. That section says hey -- you know the whole insurrection thing we just talked about? How is this supposed to work? Who gets to decide who engaged in an insurrection? What sort of standard of proof applies? Is it a civil trial or a criminal trial? Is it a judge or a jury or someone else who decides that a particular person engaged in insurrection and therefore disqualified? What if they're already appointed - do they still get paid while the proceedings are going on? The 14th amendment doesn't answer any of these questions. Instead, Section 5 says that Congress gets to pass legislation to give enforcement power to carry out Section 3.
And Congress did just that! Justice Samour points out that in 1870, Congress passed a law that allowed for both civil and criminal enforcement of Section 3 of the 14th Amendment.
— Jarvis (@jarvis_best) December 20, 2023
This law was when repealed and replaced in 1948. pic.twitter.com/71ekKQNZ2Z
1948: Congress replaced the 1870 statute with a criminal insurrection law, 18 U.S.C. § 2383.
— Jarvis (@jarvis_best) December 20, 2023
If convicted under that statute -- with full criminal due process afforded the defendant -- one of the punishments is to be banned from holding office in the United States.
Trump has… pic.twitter.com/MPqf0jg6zn
1948: Congress replaced the 1870 statute with a criminal insurrection law, 18 U.S.C. § 2383. If convicted under that statute -- with full criminal due process afforded the defendant -- one of the punishments is to be banned from holding office in the United States. Trump has not been charged under this statute.
So. Congress -- and only Congress -- gets to pass legislation enforcing Section 3 of the 14th Amendment.
— Jarvis (@jarvis_best) December 20, 2023
Congress did so, and it chose to enact a criminal statute that bars anyone convicted under it from holding any office in the U.S.
Trump has not been charged or convicted…
So. Congress -- and only Congress -- gets to pass legislation enforcing Section 3 of the 14th Amendment. Congress did so, and it chose to enact a criminal statute that bars anyone convicted under it from holding any office in the U.S. Trump has not been charged or convicted under that statute. Therefore, Trump can appear on the ballot.
That's pretty much it.
— Jarvis (@jarvis_best) December 20, 2023
There is case law backing up all of this analysis. Justice Samour engaged in a lengthy discussion of Griffin's Case, but I'll let you read that for yourself. I predict that SCOTUS will heavily cite Griffin's Case in its decision reversing Colorado. pic.twitter.com/9lTbsc5ICY
This analysis renders a lot of the other questions irrelevant. Did Trump engage in an insurrection? Does Section 3 apply to the President? Should Trump be off the ballot nationwide or just in states like Colorado that found that he engaged in an insurrection?
— Jarvis (@jarvis_best) December 20, 2023
None of that…
This analysis renders a lot of the other questions irrelevant. Did Trump engage in an insurrection? Does Section 3 apply to the President? Should Trump be off the ballot nationwide or just in states like Colorado that found that he engaged in an insurrection? None of that matters. The only thing that matters is that Congress followed the 14th Amendment and established a procedure for barring someone from office for engaging in an insurrection, and that procedure was not followed here.
For all of the general absurdity found on Jarvis's timeline, every once in a while he likes to stretch out his legs and remind you that he isn't just a guy who goes by a one-word name like Cher and uses as his profile picture the 1882 self-portrait of Norwegian painter Edvard Munch. This seems like an excellent breakdown of the topic and, honestly, none of us should be surprised if this all turns out just as he predicts.
After all, despite all apparent evidence to the contrary when it comes to the law the man knows what he's doing.
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