Two Trump legal lifelines are tilting Election 2024 in Donald's favor

After showing a remarkable lack of interest in the underlying facts, the U.S. Supreme Court has kept an adjudicated insurrectionist — by definition unfit to be president — on the ballot.

During oral arguments, the Supreme Court — apart from Justice Ketanji Brown Jackson — asked almost no questions about the Colorado Supreme Court’s predicate finding that Donald Trump engaged in insurrection. The Colorado court determined that on January 6, 2021, following two months of frenzied attempts to overturn his election loss, Trump summoned supporters to Washington, D.C., goaded them with false and incendiary claims that their votes had been “stolen” and then prodded the frothing mob to storm the U.S. Capitol.

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Just three weeks after oral arguments, the Supreme Court ruled that states cannot remove insurrectionists from the presidential ballot under Section 3 of the 14th Amendment.

Apart from the substance of the ruling, the partisanship of the Supreme Court’s timing is glaring: It took justices only three weeks to restore an insurrectionist to the ballot. But they apparently need months and months to rule on the question of presidential immunity — literally, a question of whether presidents are allowed to engage in wonton criminality, including the assassination of their rivals.

The Supreme Court’s orchestrated timing has now thrown Trump two major legal lifelines timed to influence the November general election in his favor.

A constitutional catastrophe

Sec. 3 of the 14th Amendment is short, does not lack clarity and is not ambiguous. It bars anyone from federal office who “engaged in insurrection” after they swore an oath to support the Constitution.

The opening words, “No person shall…” make the section barring an insurrectionist mandatory, not optional.

The U.S. Supreme Court could have reversed or limited the Colorado Supreme Court’s determination that Trump had engaged in insurrection. But it didn’t, and Colorado’s ruling remains legally intact even if Trump’s regained his Colorado ballot access.

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Avoiding the shameful details of J6, alleged originalists on the Supreme Court got creative instead. Despite agreeing that Section 3 applies to candidates for president, and apparently agreeing that Trump engaged in insurrection, the high court ruled nonetheless that states could not enforce the insurrectionist ban without a separate act of Congress, lest “chaos” ensue in federal elections.

It's hard to appreciate how years of election chaos from an insurrectionist trying to overturn an election are preferable to a state supreme court- or the U.S. Supreme Court- enforcing the plain terms of the Constitution.

Congress, Supreme Court point at each other

The Supreme Court’s 5-4 majority decided that Section 3 isn’t self-executing, meaning it has no force or effect in the absence of additional congressional action. Building an off-ramp to keep Trump on the ballot, “conservative” jurists crafted a new legislative hurdle that has never been applied to the 14th Amendment.

Although Section 5 of the same amendment states, “Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” that language does not give Congress the sole or exclusive right to act, and it does not bar state or Supreme Court enforcement of the 14th Amendment (or any other amendment). It also does not declare itself null and void, “unless and until Congress says otherwise.”

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The Supreme Court making up language to defer to Congress is even more farcical considering that GOP congressional leaders, for their part, left the question of Trump’s insurrection up to the courts.

Despite initially agreeing that Trump orchestrated the J6 capitol attack, GOP leadership voted to acquit Trump at his second impeachment trial in February 2021, claiming it should fall to the courts, not Congress, to hold him accountable.

As GOP operatives in Congress and on the Supreme Court pretend that responding to insurrection is someone else’s job, the Supreme Court has left it in the hands of Congress, fully aware that Congress won’t act.

This is how putative “originalists” effectively re-wrote the 14th Amendment to support their preferred outcome, and eviscerated Section 3, paving the way for future insurrectionists.

Federalists forget about federalism

The Supreme Court also ruled that, “States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency,” otherwise state-by-state chaos would result.

This from the same self-righteous lot that created life and death, state-by-state chaos under Dobbs, letting each state decide whether women — or zygotes — could live.

It also appears that a self-proclaimed federalist majority on the bench forgot the rules of federalism, under which states — not Congress — adopt statewide election laws. Under Article 1, Section 4, of the Constitution, states have the primary authority to set their own election rules, including the power to set the “times, places and manner of holding elections.”

Under long-established election rules, election laws, including eligibility rules and who can appear on the ballot, have always varied greatly among the states. Changing that to aid Trump, by ending states’ authority to remove an insurrectionist from their ballot, is some porous federalism at work.

Specious timing

The speed with which the Supreme Court restored Trump to the Colorado ballot — just three weeks after oral argument — delivered Trump an immediate boost the day before Super Tuesday, when voters in 15 states were headed to the polls.

While it’s comforting to be reminded that the Supreme Court can move with alacrity when it wants to, such as when it decided the 2000 election for George W. Bush in a matter of days, the quick timing on Trump’s insurrection stands in stark contrast to the presidential immunity case, on which SCOTUS deliberately dragged its feet for months.

Jack Smith, U.S. Department of Justice special counsel in charge of prosecuting Trump’s handling of classified documents and the January 6, 2021, attack on the U.S. Capitol, asked the Supreme Court to decide Trump’s immunity claims in December. The Supreme Court refused, waiting instead for the Court of Appeals for the District of Columbia to weigh in.

The D.C. Circuit weighed in with a unanimous and thorough decision rejecting Trump’s immunity claim, issued the first week in February.

The Supreme Court then waited nearly a month, and decided it would like to hear Trump’s immunity claim for itself, after all. Instead of setting the hearing quickly, it set the immunity hearing for late April.

A late April hearing on a case that has already been briefed to the hilt will likely result in a late June opinion; that opinion could again return the case to the appeals court to address any number of inquiries, which would prompt Trump to seek another interlocutory appeal — all just to push the trial date past the November 5 election.

As it stands, in rejecting Smith’s December request, and delaying the ruling until late June, likely pushing Trump’s trial start date into October, the Supreme Court gave Trump’s campaign the key gift of at least seven months of deferred justice.

Although no one expects the Supreme Court to countenance Trump’s claim that presidents can assassinate political rivals with impunity, the months-long delay is outrageous. It all but guarantees that Trump, who also faces three separate felony criminal trials this year, will not stand trial in federal court for his attempt to overturn the 2020 election during a period when it matters most to voters.

A partisan Supreme Court again shows its hand

It bears repeating that the high court moved swiftly to restore Trump to the Colorado ballot in the insurrectionist case, but on the immunity case — where they will either have to rule against Trump or admit they are in on the GOP coup — they deliberately delayed Trump’s trial until after it loses electoral relevance.

The Colorado decision keeps an adjudicated insurrectionist on the ballot, ignores federalist rules letting states set their own election laws, rewrites the 14th Amendment to require Congress to act before it can take effect and protects future insurrectionists by erasing Section 3 in the meantime.

Their other gift to Trump, their decision to slow walk the immunity ruling, is a gift of time, not substance, but it will have the same effect.

Even a Court this nakedly partisan cannot grant a president complete criminal immunity, but their careful delay all but assures that, for Trump, the question will become irrelevant.

Sabrina Haake is a 25 year litigator specializing in 1st and 14th Amendment defense. Her Substack is free.