Is there any version of collateral estoppel or something similar that would short-circuit the new trials and fact finding? Professor Stephen Sachs mentioned it on twitter, if only to ask about Colorado law on that
How interesting! So many questions that I’m excited to learn answers to over the next few weeks
1. Why would this ruling be stayed until Jan 4th? Doesn’t a stayed ruling mean the ruling isn’t in effect until the end of the stay? As a theoretical employee of the state does that mean I should or should not start designing ballots with Trump’s name on them in preparation to send out for printing?
2. You say “Barrett Court” up above? Is she the shadow leader behind CJR?
3. Has Trump already appealed? In the top half of this article you say he has until the 4th but then later on you say Trump’s lawyers haven’t appealed the ‘preponderance of evidence’ matter?
4. Why would this be referred to the ‘Joint Session to Count the Electors in 2028’? Was that just a 2am typo and it should have been 2024? Or is there some other reason why it would be called 2028?
5. Who is professor K? And is he also reading THIS right now?!?
Good questions! I made some edits to the article thanks to them.
1. While the stay is in place, Colorado law is status quo: officials must print Trump's name on any ballots prepared until and unless the stay expires. As for why such a long and flexible stay, the Colorado Supreme Court is rather transparently saying to the U.S. Supreme Court, "Look, you have to deal with this case, but go ahead and take your time with it. We're in no rush. If our primary ballots get screwed up we'll deal with that, you focus on the issues. Also please for the love of God don't make us responsible for this."
2. By calling it the Barrett Court (which, you're right, is non-standard), I'm continuing a convention I started in my article The Most Dangerous Time To Be A Supreme Court Precedent. The Court changed pretty significantly when Barrett took office, both because Barrett arguably became the new median justice and, most crucially, because she made John Roberts' vote unnecessary to conservatives. For the first time since the early 1930s, conservatives have a majority of the Supreme Court without relying on a swing justice, which strikes me as monumental enough to mark a break with the prior court.
3. No, Trump has not already appealed to the U.S. Supreme Court. On the standard-of-evidence issue, Trump should have briefed the issue in his appeal to the *Colorado* Supreme Court. Because he failed to do so, the issue was abandoned. I've clarified the body of the article.
4. Woof, pure brain fart. It's technically neither 2028 nor 2024: it's 2025, the January following a November election. Thanks for catching that!
5. Prof. K is the guy whose work I criticized almost exactly a year ago in "There's No 13th Amendment Right to an Abortion." He privately sent me a reply in October, at the height of the Minnesota Disqualification Suit, and, because it was the height of the suit, I had to apologize and not reply to him. Since then, I've been trying to catch up on all the balls I dropped in October, and I'm allllllmost there... but now this is happening and I'm likely to drop some more balls going into January! I doubt he read this, but, if he did, he's seen my apology. (He's certainly on my conlaw list.)
Ha!! Thanks for the answers. Is a 2 week stay considered ‘long’ in these worlds? I would be pissed if someone else assigned me work (especially of this magnitude!) on Dec 19th and told me I had to have it sorted by Jan 4th! Don’t the Justices have to talk things out and weigh the ultimate decision back and forth ‘12 Angry Men’-style?
They don't need to get this all sorted out by then -- all that has to happen is Trump *files* the request for an appeal by Jan 4 and then the stay remains in place for as long as the case is pending at SCOTUS.
So SCOTUS doesn't have to even lift a literal finger to freeze the stay in place indefinitely. Trump just has to file an appeal.
Thank you for the quick reaction to this breaking story, James.
Contrary to your view that SCOTUS will take cert, my guess is that they will find a reason not to take cert. I do not share your view that other states will automatically take that as a tacit approval.
But who knows? One thing about Trump is not only does he break all the rules, others around him do so as well.
I have a question about the self-executing aspect of this, that I haven't been able to find a clear answer for in your articles (if I have just overlooked it I apologize)... But even though section three is self-executing in that you don't need a Congressional cause of action to bring a disqualification suit against an insurrectionist, you still need a legal determination, in the form of a criminal conviction, that proves the actions that the person engaged in constitute an insurrection.
I think the general argument is that you don't, any form of fact-finding will suffice. Plus, you don't need any special form of fact-finding for the other qualifications. People say those are easier (I've seen "objective") thrown around, but the existence of the birther conspiracy kinda disproves that.
Short version is: no. Not a single one of the former Confederates formally disqualified under Section Three was *criminally* convicted of anything, much less of insurrection.
Is there any version of collateral estoppel or something similar that would short-circuit the new trials and fact finding? Professor Stephen Sachs mentioned it on twitter, if only to ask about Colorado law on that
I do not know. My civil procedure is weak and it probably shows near the end of this post.
How interesting! So many questions that I’m excited to learn answers to over the next few weeks
1. Why would this ruling be stayed until Jan 4th? Doesn’t a stayed ruling mean the ruling isn’t in effect until the end of the stay? As a theoretical employee of the state does that mean I should or should not start designing ballots with Trump’s name on them in preparation to send out for printing?
2. You say “Barrett Court” up above? Is she the shadow leader behind CJR?
3. Has Trump already appealed? In the top half of this article you say he has until the 4th but then later on you say Trump’s lawyers haven’t appealed the ‘preponderance of evidence’ matter?
4. Why would this be referred to the ‘Joint Session to Count the Electors in 2028’? Was that just a 2am typo and it should have been 2024? Or is there some other reason why it would be called 2028?
5. Who is professor K? And is he also reading THIS right now?!?
Good questions! I made some edits to the article thanks to them.
1. While the stay is in place, Colorado law is status quo: officials must print Trump's name on any ballots prepared until and unless the stay expires. As for why such a long and flexible stay, the Colorado Supreme Court is rather transparently saying to the U.S. Supreme Court, "Look, you have to deal with this case, but go ahead and take your time with it. We're in no rush. If our primary ballots get screwed up we'll deal with that, you focus on the issues. Also please for the love of God don't make us responsible for this."
2. By calling it the Barrett Court (which, you're right, is non-standard), I'm continuing a convention I started in my article The Most Dangerous Time To Be A Supreme Court Precedent. The Court changed pretty significantly when Barrett took office, both because Barrett arguably became the new median justice and, most crucially, because she made John Roberts' vote unnecessary to conservatives. For the first time since the early 1930s, conservatives have a majority of the Supreme Court without relying on a swing justice, which strikes me as monumental enough to mark a break with the prior court.
3. No, Trump has not already appealed to the U.S. Supreme Court. On the standard-of-evidence issue, Trump should have briefed the issue in his appeal to the *Colorado* Supreme Court. Because he failed to do so, the issue was abandoned. I've clarified the body of the article.
4. Woof, pure brain fart. It's technically neither 2028 nor 2024: it's 2025, the January following a November election. Thanks for catching that!
5. Prof. K is the guy whose work I criticized almost exactly a year ago in "There's No 13th Amendment Right to an Abortion." He privately sent me a reply in October, at the height of the Minnesota Disqualification Suit, and, because it was the height of the suit, I had to apologize and not reply to him. Since then, I've been trying to catch up on all the balls I dropped in October, and I'm allllllmost there... but now this is happening and I'm likely to drop some more balls going into January! I doubt he read this, but, if he did, he's seen my apology. (He's certainly on my conlaw list.)
Ha!! Thanks for the answers. Is a 2 week stay considered ‘long’ in these worlds? I would be pissed if someone else assigned me work (especially of this magnitude!) on Dec 19th and told me I had to have it sorted by Jan 4th! Don’t the Justices have to talk things out and weigh the ultimate decision back and forth ‘12 Angry Men’-style?
They don't need to get this all sorted out by then -- all that has to happen is Trump *files* the request for an appeal by Jan 4 and then the stay remains in place for as long as the case is pending at SCOTUS.
So SCOTUS doesn't have to even lift a literal finger to freeze the stay in place indefinitely. Trump just has to file an appeal.
Thank you for the quick reaction to this breaking story, James.
Contrary to your view that SCOTUS will take cert, my guess is that they will find a reason not to take cert. I do not share your view that other states will automatically take that as a tacit approval.
But who knows? One thing about Trump is not only does he break all the rules, others around him do so as well.
I have a question about the self-executing aspect of this, that I haven't been able to find a clear answer for in your articles (if I have just overlooked it I apologize)... But even though section three is self-executing in that you don't need a Congressional cause of action to bring a disqualification suit against an insurrectionist, you still need a legal determination, in the form of a criminal conviction, that proves the actions that the person engaged in constitute an insurrection.
Is that not correct?
I think the general argument is that you don't, any form of fact-finding will suffice. Plus, you don't need any special form of fact-finding for the other qualifications. People say those are easier (I've seen "objective") thrown around, but the existence of the birther conspiracy kinda disproves that.
Sorry it took me so long to respond! I was busy with the various things I mentioned in this post (some Christmas, some other matters).
You weren't the only person to ask me this question in the three days between Dec 19 and Dec 22, so I made answering this question sort of the centerpiece of my latest article: https://decivitate.substack.com/p/q-and-a-18-doubts-about-disqualification
Short version is: no. Not a single one of the former Confederates formally disqualified under Section Three was *criminally* convicted of anything, much less of insurrection.