Kayleigh McEnany, a former White House press secretary in the Trump administration, tore into the Colorado Supreme Court over its recent decision. [….] McEnany, who was guest hosting “The Ingraham Angle,” spoke with former Deputy Independent Counsel Sol Wisenberg about the left’s shameless attempt to delegitimize the Supreme Court.
Mr. Wisenberg is no fan of “The Don,” however, his analysis is a recent addition to the Colorado Upper Court’s ruling. This is from CONSERVATIVE BRIEF and the transcript can be found on their site.
Solomon Louis Wisenberg (born June 8, 1954) is an American lawyer, legal analyst, and former Chief of the Financial Institution Fraud Unit in the U.S. Attorney’s Office for the Western District of Texas. From 1997 to 1999, he served as Associate and Deputy Independent Counsel under Kenneth W. Starr during the Whitewater Investigation & Clinton-Lewinsky Investigations. Wisenberg was a frequent commentator on legal issues related to the investigation of Donald Trump’s presidential campaign by Special Counsel Robert Mueller that resulted in a finding of insufficient evidence of a criminal conspiracy.
NATIONAL REVIEW discusses the options in front of the courts… but remember, another way (split the horns Plato) is available. One site says “CHECKMATE” regarding this option. More below.
Chris Christie is no fan of Trump, yet, he can see the main issue at hand:
The Colorado Supreme Court has handed down the most anti-democratic opinion in decades. Yet, these justices barred voters from [voting] for their preferred candidate in the name of democracy. It is like burning down a house in the name of fire safety.
[….]
The Colorado Supreme Court has issued an unsigned opinion disqualifying Trump from the ballot: “The sum of these parts is this: President Trump is disqualified from holding the office of President under Section Three; because he is disqualified.” …
…This ends a string of losses for advocates of this dangerous novel theory. They finally found a court that would embrace what the court admits is a case of “first impression.” My first impression remains that same. The court is dead wrong in my view…
…It is striking that the court relies on Schenck v. U.S., where the Court upheld the denial of core free speech rights of a socialist opposing a war. The opinion of the Colorado Supreme Court is so sweeping that it would allow for tit-for-tat removals of candidates from ballots….
…The opinion is remarkable in how the four justices adopted the most sweeping interpretations to get over each barrier. The result is lack of a limiting principle. I view the opinion as strikingly anti-democratic in what it now allows states to do in blue and red states alike.
[….]
James Freeman Clarke once said “a politician thinks of the next election; a statesman thinks of the next generation.” It is time for President Joe Biden to show that he can think of the next generation and oppose this insidious ruling.
[….]
Much can be said about this decision, but restraint is not one of them. The four Colorado justices had to adopt the most sweeping interpretation on every key element. The only narrow part of the opinion came with the interpretation of the First Amendment.
In a very truncated clip from a longer video via Bannon’s War Room, Alan Dershowitz says the following:
Dershowitz
TRANSCRIPT:
Even people like me, who would welcome the loss – on political grounds, wouldn’t accept it on Constitutional grounds, because this is about the most dangerous, worst, and…
um, unconstitutional decision I’ve read in my 60 years of teaching and practicing criminal law.
This is a power grab.
In violation of the specific words of the 14th amendment, you couldn’t be clearer when the 14th amendment allocates the power to enforce this provision.
“expressly and singularly to Congress, Congress shall have the power to enforce, by appropriate legislation”
Having the States do this? On an individual basis is (a) absurd under contemporary law. And as well, the idea that the framers of the 14th amendment, radical Reconstructionists, would allocate to Mississippi and Alabama… ahh… the right to decide who’s on the ballot, ah, just defies any kind of historical understanding.
POWERLINEhas a decent update to their article expanding where the case may weave it way to:
UPDATE: A number of readers have wondered why I said the Supreme Court is unlikely to intervene. On reflection, that was an offhand comment that was not thoroughly thought through. There were two reasons for it:
First, the Republican majority on the Court is highly reluctant to wade into waters that are seen as political. Ruling in Trump’s favor would use up a large share of the Court’s diminished political capital, and Trump is hardly the person on whom the justices want to expend that precious commodity. On the other hand, the application of Section 3 of the 14th Amendment is a federal question that is squarely presented by this case and may not be easy to duck.
Second, the Court would need to act fast, as the primary season is nearly upon us. Normally, litigating any case in the Supreme Court takes time. I assume the Court would want to hear from a number of parties and would want extensive briefing. On a normal calendar, I don’t think there is enough time for that to happen. On the other hand, the Court can act more quickly if it wants to, and if it is willing to expend, in this case, the necessary political capital. So it could be possible.
A friend who is a very good lawyer writes:
I suspect that in fact the Supreme Court will immediately grant an emergency appeal and will rule 9-0, or 8-1 if Justice Jackson wants to be her usual moronic self, to overturn the Colorado decision. I imagine that every justice on the Supreme Court understands the implications of the decision, which would mean that any partisan state court could take the other party’s candidate off the ballot. So I will be shocked if they don’t feel the urgency to settle this once and for all. In fact, there has to be a lot of concern about the partisan turn of the courts in general.
I hope my friend is correct. I would only note that in the minds of many voters, the “partisan turn” of the courts is in our direction under the current Court–something to which the justices are acutely sensitive. And for the Democratic justices to renounce partisanship by voting in a way that is good for America but bad for the Democrats, in a high-profile, politically-charged case, is theoretically possible, but I am not sure there is any precedent for it.
Colorado judges don’t get to declare that there was a federal insurrection.
[….]
For the “insurrection clause” to apply, there has to be an insurrection. That means there has to be a declaration of insurrection.
Congress and the Lincoln administration both defined and declared an insurrection. There’s been no declaration now which means, legally speaking, there’s no insurrection and therefore no insurrection clause applies.
The 14th is still a legal minefield in this regard and the ability of a president to claim insurrection is in theory an open-ended nightmare. Biden could, for example, hypothetically declare that an insurrection is underway, but he hasn’t so the point is null.
Colorado judges, random uninvolved state legislatures and Uncle Bob do not get to define an insurrection against federal authority. Only federal authorities get to declare an insurrection. Neither Trump nor Biden declared one of those.
New York, for example, could not unilaterally decide that Confederate states were in a state of insurrection. But that is what Colorado is trying to do here. States ought to usurp federal authority more often, but this is a blatantly illegal usurpation.
And the factual forest should not be lost for the legalistic trees.
Other States To Use Colorado Ruling
Of course, as other states try ta do this using the Colorado “ruling,” …. which RED STATE notes:
California’s Lieutenant Governor, Eleni Kounalakis, has sent a memo to the California Secretary of State, Shirley Weber, seeking to have Donald Trump removed from California’s primary ballot.
[….]
The memo states in part:
Specifically, the Colorado Supreme Court held in Anderson v. Griswold (2023 CO 63) that Trump’s insurrection disqualifies him under section three of the Fourteenth Amendment to stand for presidential re-election. Because the candidate is ineligible, the court ruled, it would be a “wrongful act” for the Colorado Secretary of State to list him as a candidate on that state’s presidential primary ballot.
That’s wrong. It’s so wrong it’s not even in the same time zone as right. The entire argument here is based on nothing more than raw assertion: “Donald Trump is guilty of insurrection because of course he is.”….
routing the courts by caucusing trump
Of course, if this ruling is allowed to stand and the real SUPES don’t fix it, there are other ways to vote for voters to express their God-Given ability for freedom (RED STATE):
…As I predicted to my oldest son when the decision dropped Tuesday night, there’s one remedy the Republican Party can use to avoid all of this expensive and time-consuming lawfare completely. To its credit, the Colorado Republican Party almost immediately said that they would invoke it.
That remedy: Switch to a caucus to determine the party’s nominee….
