President Trump isn't even pretending to be lawful.
He is being decisive, bold, autocratic, lawless, and vengeful.
Trump is attacking the legal system that investigated and prosecuted his crimes. He pardoned the January 6 insurrectionists. He claims a mandate from the public to do what he will.
On Friday, Peter Patch wrote in a guest post that his career as an international business consultant brought him to the conclusion that the difference between "developed" and "undeveloped" countries is whether the country respects the rule of law. Trump is thrusting the U.S. into a new era.
Attorney Conde Cox responds to Patch's list of offenses by Trump. Cox wonders aloud if Trump's actions might give members of the U.S. Supreme Court second thoughts about their decision in the Colorado case, Trump v. Anderson. That was the decision that kept Trump on the Colorado ballot, even though the Colorado Supreme Court had determined that Trump participated in an insurrection and is thereby banned from holding office under the 14th Amendment. Conde Cox is a commercial and business disputes lawyer. He is the immediate past president of the Federal Bar Association — Oregon chapter, and a 2025 Oregon Lawyer of the Year in the field of bankruptcies and debtor/creditor rights. He has been rated for many years as a Thomson-Reuters "Super Lawyer" in the field of business bankruptcy. He is also an expert on wine.
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Guest Post by Conde Cox
By reason of the recent outrageous actions by our new president, as outlined in Peter Patch's guest post on Friday, I am wondering aloud how many of the justices on the U.S. Supreme Court now regret their decision in Trump v. Anderson. That was the case to disqualify Trump under the insurrection clause from appearing on the Colorado ballot as a presidential candidate. Surely at this point, with Trump’s blanket pardons and expressed intent to "go after" those who prosecuted and jailed the January 6th attackers, could there be any doubt that this man is exactly the kind of person that our forefathers intended be disqualified from holding public office?
Readers may recall that I was able to attend in person, as a long-time member of the Bar of the U.S. Supreme Court, the oral argument in the Trump v Anderson case one year ago, and that I correctly predicted at that time (on your blog via a guest post) that the justices would vote nine-zero to reinstate Trump to the Colorado ballot by reversing the decision of the Colorado Supreme Court. The basis for their unanimous decision was that only a federal court proceeding could result in such a ballot disqualification, and that the Colorado case, which arose from a case filed in Colorado state court, could not provide a proper basis for such a ballot disqualification. The basis for my prediction was the complete exasperation and audible sighs that I heard emanating from the more liberal justices on the bench.
I believed at the time and continue to believe today that the conservative justices managed to convince the liberal ones to join them in the nine-zero decision, and not to interfere with Trump’s appearance on the ballot, as such a removal would likely be viewed by many citizens around the country as an improper and overly-technical interference with their right to vote.
But immediately upon taking office, Trump pardoned everyone who carried out the illegal insurrection by breaking into the Capitol. These were people who were intent on intimidating -- possibly killing -- VP Mike Pence unless he agreed to fraudulently declare Trump the winner of the 2020 election. They threatened to physically accost Speaker Nancy Pelosi and other congressional representatives, and were prevented from doing so only because the Capitol police drew their guns and physically blocked entrances to the House and Senate chambers by hiding behind large pieces of furniture.
How many of our justices would like to change their vote in the Anderson case now that Trump has pardoned all of the January 6th attackers and plans to prosecute all of the FBI and DOJ civil servants who sent the attackers to jail? How many of our justices would change their vote if and when Trump starts going after the federal trial court judges who oversaw the criminal cases for the January 6th attackers? Will the justices protect their federal court brethren on the federal trial court bench? With 20-20 hindsight it is obvious that Trump is exactly the kind of man that the Colorado Supreme Court labelled him to be.Not only did the U.S. Supreme Court's decision in Anderson set a horrible precedent and allowed election of a man manifestly unqualified to be president, but the court reached the wrong decision, as a legal matter. The court did not give proper credence to their right to review and “to correct” every decision on federal law questions in cases handled by state courts, including this one. Reinstatement of Trump to the ballot solely because it was a state court that determined Trump to be an insurrectionist ignores that the U.S. Supreme Court itself has the right (under 28 USC §1257(a)) to review all state court decisions that are based on federal law. Indeed, it is the height of irony for the U.S. Supreme Court to reverse the Colorado State Supreme Court on the ground that there is insufficient federal court involvement and control over state courts in ballot disqualification cases. Excuse me --- the court concluded that the Colorado court must be reversed in the Anderson case because the U.S. Supreme Court has insufficient oversight and control in exactly this kind of case they were now exercising oversight and control.
How many of the justices who voted a year ago to reverse the Colorado Supreme Court would today vote differently? We will never know.
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13 comments:
Trump is seeking vengeance against anyone who had anything to do with holding him and his co-conspirators accountable for their crimes. He’s turned hardworking farmworkers into criminals and made heroes of the knuckle-dragging thugs who attacked our Capitol and hospitalized its police. He’s taken a wrecking ball, in the form of “Sieg Heil” Musk, to the system of checks and balances that our republic depends on. He is despicable, as are the justices who declared him above the law and the voters who made him president. If it weren’t for them, he would be in jail where he belongs instead of inflicting misery on his betters.
The maddening problem is more people cheered than booed when Trump was announced at the superbowl. A CBS poll showed an approval margin over 50 % (barely). I guess this lawlessness is what the American people want. I worked in corrections for 30 years telling inmates breaking the law was a loser way of life. I still think that, but it’s getting harder to sell that way of thinking. I can hear the inmates now justifying their illegal behavior. Ugg.
Subject to correction by Mr. Cox and others in his field, I thought I understood from Jack Smith's recently released report that "insurrection" was not accurate for Trump or his 1/6 rioters because the term applies to lawless attacks on a duly-constituted government, not to a lawless attempt to extend one. Maybe that was just tactical prioritizing.
All told, though, it would appear that Trump has only two reliable fans on the Court, Thomas and Alito.
Where in Smith's report did such a definition for "insurrection" appear? Please cite by page number. A lawless attempt to overturn a refusal to re-elect is not in my view an exception to the definition of "insurrection" for 14th Amendment purposes. I have never heard or read anyone who asserted this position until your post here today.
Further, the US Supreme Court never addressed the definition as part of its decision in the Anderson case, even though the Colorado Supreme Court did so address the issue, concluding that Trump was an "insurrectionist." Nor did any of the lawyers presenting their case to the Court on February 8, 2024 (the date of the 2 hour+ long oral argument before the Court in the Anderson case) ever suggest at all that Trump was not engaged in an insurrection. It is obvious now that he has pardoned all the attackers, thereby releasing them from jail, and is now threatening (with Kash Patel) to prosecute the FBI and DOJ employees who criminally prosecuted the Jan 6th attackers, that Trump has at a minimum ratified the illegal actions of the attackers, if not admitted that he was involved in some manner from the beginning. Even Bill O'Reilly recently admitted during a recent TV interview that if he thought that Trump was behind the Jan 6th attacks, that O'Reilly would withdraw his support for Trump; O'Reilly went on to say that Trump merely took too long on Jan 6th to come out publicly to ask that the rioters stop their attack. My point is that Trump's pardons of ALL attackers, even those who physically broke into the building and physically assaulted the police, many of whom were forced to draw their guns inside the Senate Chamber while hiding behind the desks that they had moved to block the doors (!!!), is at a minimum a ratification of the attackers' insurrection and perhaps an admission of support by Trump of the attackers from the beginning, especially when put together with his comments at the time about Pence's refusal to act unconstitutionally and about his prior knowledge (admitted by him during his speech at the Ellipse) of "marching up to the Capitol").
We can quibble over definitions and split legal hairs, but the 1/6 Capitol attackers launched an organized, armed, violent attack against civil authority. There’s no excuse for it, or for the criminal who incited it. They all belong in jail.
Corrections appreciated! I am not conversant with the Smith report (much less the legal issues), but I recalled reading some reporting on it. For instance, FWIW, after a search:
Quoting from ABC News article, January 13, 2025. "Jack Smith, in final report, says voters saved Trump from being convicted in January 6 case", Katherine Faulders, et al.
"While prosecutors considered charging Trump with violating the Insurrection Act, Smith wrote that he opted against the approach because of the 'litigation risk that would be presented by employing this long-dormant statute'. According to the report, prosecutors worried that Trump's actions did not amount to an insurrection because he was already in power--rather than challenging a sitting government--when the riot took place."
Trump won with 312 electoral votes to Harris’ 226. Colorado had 10 electoral votes. If the Supreme Court had decided the other way, Trump still would have won, 302 to 236.
Woulda, coulda, shoulda. If we had some ham, we could have some ham and eggs, if we had some eggs.
Trump won. Deal with it; either incompetently by indulging in useless speculation, or competently by being alert to actual political opportunities, like if Trump‘s “policies” start to hurt significant numbers of his voters.
MT misses the point of Cox's post and subsequent comment. It isn't a would' should' a whine or complain about the election. It was a comment about evolving evidence. The mass pardon, in Cox's opinion was strong evidence of something not established a year ago when the case was decided. The pardon deepens the connection to the people in fact charged with insurrection including people found guilty of violent acts in furtherance of intimidating Pence. That is the point.
What is “the point” of “deepening the connection “? What can you do with that deepened connection that you could not do already?
I am definitely missing that point.
Sorry, Peter, but as I've learned at the gym, there are a lot of guys who just don't care about Trump's violations of the Constitution and rule of law.
Cox's subject was not about Colorado's vote, nor whether it was a tipping point. It wasn't about the election and it was whining. It was about. U.S. Supreme Court decision on whether Colorado, one its own authority, ould declare Trump ineligible to serve, having previously supported an insurrection.j Colorado had an evidentiary hearing and concluded that he met the definition of supporting an insurrection. Many people thought that was incorrect. Now, a year later, in light of Trump having pardoned them -- new evidence -- there would be a stronger argument that Colorado was not an outlier, and indeed other states might make a similar decision. Others would not. The court conservatives convinced the three liberals that the state was extreme and that they should rule on the issue of the this being a federal issue. Cox said that maybe had the pardon been part of the record, the insurrection issue might have been considered differently. Then the key question would have been Trump's eligibility, not his popularity.
It appears that a lot of Trump's Executive Actions are going to hurt a lot of people. I hope some of those people voted for him. They get what they deserve. And I laugh at them.
No matter how the Rs try to spin it, be they lawyers, judges, politicians or others, there's something seriously sick and wrong with any indicted and/or convicted felon being president, for all the reasons we're in the process of finding out.
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