A Legal Lightning Round (02.09.24)

Trump stays on the Colorado ballot, Biden is in the clear over classified documents, and Judge Cannon in Florida commits a legal foul.

Jonathan Mitchell argues for citizen Trump. (Artist: William Hennessy)

I was going to devote today’s newsletter entirely to the Supreme Court argument held yesterday over Trump’s eligibility to appear on the Colorado primary ballot under Section 3 of the Fourteenth Amendment. The argument was long-anticipated, and no one knew how a number of the justices might come down on the question.

But as I’ll speak to below, it didn’t go well at all for the Colorado parties, and I just can’t see the High Court upholding that state’s supreme court ruling. Indeed, it could well be a 8-1 or 9-0 ruling, with the justices setting forth different reasons in concurring opinions as to why Trump cannot be disqualified under Section 3 in Colorado.

Today is also a legal lightning round for two other reasons, both of which are significant developments:

• a report published by Special Counsel Ben Hur that exonerates President Joe Biden on the charge of mishandling classified documents, even while taking cheap political shots at him for being a “sympathetic, well-meaning, elderly man with a poor memory,” and 

• a motion before Judge Aileen Cannon, brought by Special Counsel Jack Smith, to reconsider her ruling that would unseal witness names and the substance of their testimony. Smith is concerned that Judge Cannon’s ruling will endanger the lives of witnesses should their identities be revealed.

Let’s break these down.

A supreme mess

If there was an overarching sentiment among a majority of the justices, it was that allowing Colorado to disqualify Trump would open a big can of worms. 

Chief Justice Roberts worried that other states would then try to disqualify Joe Biden, and sadly we can’t easily discount the notion. 

“Insurrection is a broad, broad term,” Roberts observed:

And if there’s some debate about it, I suppose that will go into the decision and then eventually, what, we would be deciding whether it was an insurrection when one president did something as opposed to when somebody else does something else. And what do we do? Do we wait until near the time of counting the ballots and sort of go through which states are valid and which states aren’t?

Justice Samuel Alito leaned into this as well, returning to a theme of  “unmanageable consequences” several times during the argument and warning that “other states are going to retaliate.”

He also noted that the 14th Amendment was designed to restrict state power, not to expand it. To give one state the power to decide whether Trump can be on the ballot—and potentially tip the entire election against him—would run contrary to that intent. 

Justice Ketanji Brown Jackson appeared to concur with this. She also doubted that the authors of Section 3 would have wanted to create disuniformity, where some states find a candidate eligible and others not. This may have driven her line of inquiry over whether the drafters really intended the president to be included among the officers disqualified, as it’s the only office where different states must pass judgment on whether the same candidate may appear on the ballot. The amendment, she pointed out, was aimed at stopping rebels from winning elections in their home states and getting back into Congress, not to keep them from running for president. (Still, it’s pretty tortured in my view to claim that the president is not an officer of the United States, no matter what the intention of the drafters may have been.)

Justice Elena Kagan also pressed the point of granting too much power to one state, telling the lawyer for the Colorado voters, “I think that the question that you have to confront is why a single state should decide who gets to be president of the United States.” She added, “Why should a single state have the ability to make this determination not only for their own citizens but for the rest of the nation?”

To understand her point, it’s helpful to flip the facts around. Suppose, for example, that a state court judge or jury in Texas found that Joe Biden had “given aid or comfort to the enemies” of the Constitution by committing massive election fraud, which is the Big Lie many on the right falsely believe. Let’s then suppose—and this is no stretch— that the Texas Supreme Court, which is filled with MAGA appointees, upheld that decision. Should the U.S. Supreme Court get into the business of overturning factual findings? Justice Amy Coney Barrett warned that the Supreme Court would be “stuck” with whatever factual findings were made in the state that first raised the issue.

It seems clear to me that the justices will rule against the Colorado voters and keep Trump on the ballot, and that a significant reason will be to avoid the chaos that might ensue should they allow a single state to make that determination. They will probably root their decision in a review of the 14th Amendment, which was intended to limit and not expand state power. And they may even hold that for purposes of Section 3, the president was not included among the officers disqualified because it would run contrary to the intent of the drafters to give states that much power to affect federal elections.

Finally, it appears a number of justices agree with the idea that Section 3 is not “self-executing” and needs Congress to act by passing legislation. While this would mean it stands apart from other sections of the 14th Amendment and other Reconstruction amendments, there may be a very good reason to rely on Congress for clarifying legislation. Chief among these is the potential for disuniformity in application of the Section by the various states.

While all of this is disappointing, if you have been a long-time reader here, it shouldn’t come as a surprise. Back in December, I cautioned that the case was likely a loser:

I could see several Supreme Court justices take a look at the chaos that would result from a hodgepodge of states trying to apply their own laws to presidential disqualification and conclude, “Nope. For such a consequential decision, we need much more by way of laws, rules and process.” …

Should state district courts really have such power? Could it be abused by the other side against a Democratic candidate one day?

It sure looks like this is where we have wound up before this Supreme Court.

Hur-story

After an extraordinarily long time for what should have been a fairly simple investigation, Special Counsel Robert Hur wrote, “We conclude that no criminal charges are warranted in this matter. We would reach the same conclusion even if Department of Justice policy did not foreclose criminal charges against a sitting president.”

Period. End of case. Right? Unfortunately, Hur, who is a Trump appointee, had to make it political. While concluding that Biden cooperated fully and would be able to convince jurors that he made an innocent mistake by keeping Afghanistan documents in his garage, Hur used the report to characterize Biden as a defendant. He said that Biden sees himself as a “historic figure” who “collected papers and artifacts” so he could write about his career. Hur then goes into depth about Biden’s policy disagreements with Obama over Afghanistan.

Hello? Why are we talking about this in a decision not to prosecute?

Hur admits there is a shortage of evidence around willfulness, but he delivers political red meat for Republicans:

We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory. Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him—by then a former president well into his eighties—of a serious felony that requires a mental state of willfulness.

Hur also claimed the president “exhibited diminished faculties and faulty memory”—another hit job from someone untrained in the field of cognitive medicine that has no place in the report.

A Republican in the Justice Department abusing his position to come after a Democratic presidential candidate sounds familiar, no? Indeed, legal expert Andrew Weissman blasted Hur as “Comey 2.0”—referring to the former FBI Director James Comey, who announced a re-opening of the Hillary Clinton email server investigation just weeks before the 2016 election and tipped public opinion significantly against her.

My own opinion is that Hur took those political shots at Biden in order to cover for the fact that he had decided not to bring any charges. That decision likely would have made him a target for anger and even threats by MAGA had he just done his job and kept it professional. But political pressure, and even open hostility from Trump and his base, is now a common facet of our legal system, and it will remain so until not only Trump but his kind of weaponized, anti-democratic tactics are well in our national rearview mirror.

Cannon-ization of the case

It’s becoming increasingly apparent, for anyone keeping tabs, that Judge Aileen Cannon in Florida federal district court has her finger on the scales for the man who appointed her. Her main weapon in the Mar-a-Lago classified documents case has been to delay it from moving forward expeditiously, and now the original May 2024 trial date is very unlikely to hold.

Judge Cannon has been careful not to commit any obvious fouls in her rulings that could result in another smackdown by the 11th Circuit. Egregious legal error could result in a move to have her replaced by the appellate court as the presiding judge on the case.

That’s why it’s of note that Jack Smith is now openly challenging her latest ruling. The backdrop is this: Judge Cannon decided to unseal the names of witnesses and the substance of their testimony after Trump attached protected discovery information to court filings. Trump’s lawyers did so as a cynical way to get around the normal rules for keeping things under seal. Without going too far into the weeds, Smith is asking Judge Cannon to reconsider her ruling, arguing two things.

First, he points out that she applied the wrong legal standard for deciding whether the documents containing the witness information should remain under seal. Smith cites 11th Circuit law that basically says that the standard to seal documents is far lower for documents filed as attachments to discovery motions.

Second, he urges her to change her ruling to prevent “manifest injustice” from occurring. In this case, it’s the revelation of witness names and likely testimony. Trump is effectively trying to dox witnesses so that his base can come after and intimidate them. Smith attached a list of threats against witnesses that are already under investigation. So the danger is very real, and Judge Cannon seems to be either oblivious or plainly dismissive of it.

It will be interesting to see what Judge Cannon does next. But either way, it will be something of a strike against her. If she reconsiders her ruling and decides to keep the documents under seal, as they should be, then there at least will be a record of her playing rather fast and loose with the rules. If she digs in, however, and refuses to change her ruling, Smith could seek an appeal to the 11th Circuit, which has already smacked her down before.

It probably won’t be enough for Smith to move to replace her. But he is putting her on notice that she can’t blatantly disregard the law in favor of Trump without at least the risk of being replaced.