Dec 4, 2023·edited Dec 4, 2023Liked by James J. Heaney
De facto executive repeal of pro-life laws has been in full swing at the federal level (with a brief interruption during the Trump administration), simply by reinterpreting longstanding laws that never were intended to have the new meaning. The Obama administration so narrowly interpreted the Hyde-Weldon amendment on the conscience rights of pro-life health care providers and health plans as to make it useless in protecting the latter. (It first claimed that the protection applies only to those with "moral or religious" objections, which is plainly untrue, then said that the state law in question only requires the health insurance companies to insert abortion in their plans, and the companies themselves have no pro-life moral convictions -- the Catholic and other enrollees can hold onto their convictions but there is no benefits plan in the state it is legal for them to purchase.) The Biden administration has far outdone this record, by injecting abortion into laws that never were seen as having anything to do with it before -- VA health coverage, the Emergency Medical Treatment and Active Labor Act, etc. And the longstanding federal law against shipping abortion drugs by U.S. Postal Service was reinterpreted to apply only if you can show that abortion is the only use for the drug and the abortion itself is illegal, none of which is in the text of the law. The job of being the abortion "nullification machine" that Supreme Court justices said their own court had become has now passed to the executive branch. Sometimes it is possible to bring a law suit against such verbal gerrymandering, but that faces the hurdle of having to show that the new executive interpretation is not a POSSIBLE reading of the law -- and showing standing is a problem, as the chief injured party is, well, not a person under federal law.
I would write a whole article about the way the Biden Administration has abused and nullified the Comstock Act, but the article would just be a long string of cusses.
Dec 4, 2023·edited Dec 4, 2023Liked by James J. Heaney
My ignorance is showing here… but this series of events confuses me when comparing them to everything that happened in the Trump Disqualification case. In THAT case, interested parties joined in the defense to make sure the defense was ‘of quality’ and essentially joined in on getting sued. I was confused by why someone would do that and you had assured me that it might sound odd but that it does serve a purpose in certain instances. Jump cut to THIS case and it seems like that exact same thing was happening but they weren’t allowed to join in on the defense?
In your detailed breakdown of the MOMS group at the end it kind of seems like they didn’t try to join until after the case was already decided (which does make me feel like that specific group is correct to be declined the ability to join a contest that has already concluded) but you also reference other groups who tried to join but weren’t allowed to for <other reasons>?
So what’s the deal? Presumably the same underlying political currents that wanted this law to be nullified also wanted Trump disqualified formally from presidential eligibility.
In Minnesota law, there are four elements controlling whether you have the right to intervene in a case:
(1) Is your intervention timely? That is, did you act to protect your interests quickly once you had good reason to know about the threat to your interests?
(2) Do you have an direct, meaningful interest in the subject of the action?
(3) Would it be impossible for you to protect that interest adequately if you were excluded from the case?
(4) Is your interest not already adequately represented by the other parties?
(Minnesota Rules of Civil Procedure, Rule 24.01.)
If the answer to all four is "yes," then you have a right to enter the case. Judges may also, at their (limited) discretion, admit others to enter a case if their claim shares a common question of law or fact with the main action, as long as doing so would not unduly prejudice or delay the adjudication of the original parties.
In the Trump case, the anti-Trump plaintiffs made no real effort to deny Team Trump some degree of intervention (although they successfully and somewhat hilariously nitpicked Trump's first attempt to intervene to death). The named defendants (the Secretary of State's office) didn't oppose intervention at all. Team Trump entered the case successfully, having met all four criteria.
In the MOMS case, both the plaintiff and the defendant agreed (or, I suggest, colluded) to fight intensely against anyone who tried entering the case, and, the fact is, various rules that were put in place to limit the size and scope of lawsuits gave them lots of weapons with which to do so. They successfully blocked all other parties from entering the case.
As for MOMS attempted intervention, I have to disagree: they timely filed before the period for appeal had expired. The question is not "did they file when it would have been most convenient for all the parties?" (because obviously it would have been much more convenient for MOMS to file four years ago). The question is, "did they file promptly once they received reasonable evidence that their rights were threatened?" I think that they did: the first reasonable notice they received that their rights were threatened was when Judge Gilligan struck down the parental notification law.
I can understand why one might disagree. Intuitively, it feels like there's something "wrong" about filing to intervene in a case after a judgment has been entered. However, if you feel that way, the question I have is, when SHOULD the moms have realized that their rights were threatened? It surely can't seriously be the case that every Minnesota parent must constantly watch every case in the entire state of Minnesota to find out what rights are at stake and whether state officials are doing an adequate job, right? So when SHOULD they have realized the threat to their rights and filed?
To answer your probably-rhetorical questions at the end. I’d say it isn’t the job of every parent in the state to check in on everything everybody is doing in legislature/law but at the same time just because it’s not everyone’s responsibility to monitor everything all the time doesn’t mean they get to just rebuke and try to overturn completed processes. Are they allowed to join a case only to bring it to appeals?
MN just went through a whole submission effort for a new flag right? I didn’t know there was a submission window at all until after the submission window had ended and everyone with a website started posting their favorites out of the designs that were made public. In addition to that there was some ‘selection committee’ that narrowed however-many-original-designs down to the top 6 (or so, I’m not very invested in this effort other than supporting any reasonable change). Eventually one flag will be chosen and I assume implemented as our new state flag. If this was all a legal proceeding instead of a public forum when should my cutoff date be as an oblivious party? Is it that I didn’t know submissions were open? Dratz! I didn’t know that! Doesn’t seem fair! Here’s my SuperAwesomeFlagDesign_v6.pdf #ForYourConsideration… is it after the selection committee landed on the final 6 options? Dratz! I didn’t know there was a committee I could have joined to help decide this! I would have been wonderful at this! I’ve watched that CGP Grey flag video sooooo many times though… is it once the final design has been communicated? Dratz! I wish I would have known this flag was one of the front runners! The ratio of baby-aqua-blue to black is the exact ratio of whites to non-whites when MN was the absolute worst. That level of careless design is what makes this flag the MOST dangerous of the grouping and it shouldn’t have ever gotten past the first cull.
It sure feels like there needs to be very explicit rules or precedents in place that would allow an interested party to join a case after it has been decided only to bring that case along to appeals.
The flag competition, and all relevant elements, was very well-advertised! There was regular newspaper coverage, public advertising, and general attempts to get the word out -- and it wasn't even a lawsuit! As you probably know from being accidentally involved in several class-action lawsuit settlements over the course of your life, courts will actually order plaintiffs to contact *every* member of a class to give them a chance to opt out of a settlement before entering final judgment. If you miss every reasonable attempt at contacting you, too bad; here's your settlement, and you can't re-open the case. (At least, I don't think you can.)
So there *is* a threshold at which the courts will simply assume that you knew about something and say, "sorry, no dice."
But the particular issues in this case are the threat to parental rights and the inadequacy of Attorney General Ellison's representation. The threat to parental rights was not well-advertised. It was not well-covered by the papers (much less so than the flag contest, really). No attempt was ever made to contact Minnesota parents about the impending threat to their rights (in part because the law normally assumes the Attorney General is not deliberately throwing the game). The inadequacy of Ellison's representation was actively dissembled about, by the judge, by both parties to the case, and by newspapers, and only became transparent to the public when Gilligan entered his order entering summary judgment.
And that's when the MOMS group tried to enter the case. Definitely an inconvenience, but what's the alternative? We allow third parties to extinguish rights by judicial collusion without challenge? That seems like it has much worse consequences than simply reopening this case and forcing it to go to trial. (It was decided on summary judgment, after all.)
(My question at the end of the last comment was not rhetorical, and I appreciate your answer. I admit that the questions in the paragraph just above *are* rhetorical, but feel free to answer them anyway.)
It keeps feeling like you’re making the argument “there wasn’t a realistic or better time to have done what MOMS is doing. Right now is their only/best chance.” But is being the *best* chance all that’s needed? It might very well be true that right now is the only chance parents had to learn how the sausage was being made and band together, but is that enough? The race has already been run, the case has already been decided, the toothpaste is already out of the tube. To go back to your first reply, I don’t think parents throughout MN should have been held responsible for monitoring all cases at all time but it does seem like there are enough dedicated interest groups who make it their job to track all sorts of things related to their specific interest. If those groups failed to raise the flag loud enough while the case was going on and weren’t able to get a vocal group together until after the case had already been decided then it feels like a failure of those interest groups.
Unless it’s normal to allow any ole Tom, Dick, and Harry to bring cases to appeal? Ellingson was just reelected last year, and I didn’t realize until looking it up that he only won by 20k votes. I imagine if that election went differently then both the outcome of this case as well as the willingness to allow other groups to join in the defense would have been different. Again it seems like the ferver which some are feeling now would have been better directed at an earlier date.
> "It keeps feeling like you’re making the argument “there wasn’t a realistic or better time to have done what MOMS is doing. Right now is their only/best chance.” But is being the *best* chance all that’s needed?
No, but being the *only* chance is -- generally speaking -- the *main* thing that is needed.
Take United Airlines v. McDonald, 432 U.S. 385 (1977), cited by MOMS in their brief. In that case, an intervenor attempted to enter a case five years after the start of litigation, after the district court had entered final judgment and the plaintiffs had declined to appeal, because the intervenor had "no reason to suppose" the plaintiffs would abandon the case until they, in fact, did. She then promptly acted, before the time for appeal of the judgment expired, to vindicate her rights. The Supreme Court agreed with her, 5-3.
Late intervention can be denied if it's late for a bad reason (and, the later it is, the better your reason needs to be), or if it creates prejudice to existing parties, and a case that's fully closed (this one wasn't) can't generally be reopened as far as I know (civil procedure is not my strong suit!)... but the basic principle is the same as the one I hammered in my discussion of laches in the Trump Disqualification suit: the main legal question is, once you had good reason to know that your rights are in jeopardy, did you act with all due haste? So the first question we have to ask of the MOMS group is: when did they have good reason to know that their rights were in jeopardy? And the second question is, did they act with all due haste after that date?
The alliance of Gender Justice and A.G. Ellison is making several arguments, but their *main* argument on this point is that the MOMS group had good reason to know that their rights were in jeopardy as soon as the case was announced in 2019, well before the decision not to appeal in 2023.
Interesting! Thank you for the continued replies here. You spoke so much about latches in the Trump case that it was hard to tell this one apart. It seems wild that our system works this way!
<the intervenor had "no reason to suppose" the plaintiffs would abandon the case until they, in fact, did.>
This post was a surprise--given how you've previously written about the question of whether the disqualification clause applies to the president, I was expecting your next article to be about the Colorado lawsuit.
That's very reasonable, given just how 110% I threw myself into the MN disqualification case! But the MN disqualification suit was so all-consuming that I made a commitment to myself sometime around the start of Orientation Week: the Minnesota suit was the only suit I was going to cover in detail (and, if I'm not going into detail, it's probably not worthy of posting on De Civ).
I do intend to return to the subject of disqualification as Growe v. Simon (II) approaches... and babe it sure looks like it's approachin'; see you in March! I'm going to try to write a nice long discussion of Griffin's Case (1868) and self-execution in late January or early February, so I think that's the next big thing to look out for on De Civ. (Hopefully the Colorado case will have advanced somewhat in the meantime, but I doubt SCOTUS touches the case before late January, at this point.)
Still, despite my promise to myself, I couldn't *entirely* restrain myself, so I did post a Hot Take on Facebook the day the decision came down:
> The Colorado disqualification suit's ruling is pretty interesting: the (state district) court ruled that, YES, President Trump "engaged in insurrection."
> She also ruled that there were "persuasive arguments" that Trump was an "officer of the United States" at the time and was therefore disqualified.
> However, she also held that the were persuasive arguments that he *wasn't* an officer of the United States. In the absence of conclusive proof either way, she said that the question should be left to the voters.
> But the question she is leaving to the voters is not, "Is Trump an insurrectionist?" She ruled that he is. (I have argued that she is correct.) The question left to the voters is the much more technical question, "Are insurrectionist presidents disqualified, like all other insurrectionist officials, or are (specifically) presidents exempt from the Fourteenth Amendment?"
> Of course, this will be appealed. Plaintiffs probably need to win in the Colorado Supreme Court in order to trigger review by the U.S. Supreme Court.
> [...And, of course,] "Leave it to the Colorado voters" means Trump will be on the ballot. The judge has instructed, effectively, that voters should only vote for Trump if they think the presidency is not an "officer of the United States". (Voters are, of course, very unlikely to behave this way in practice, which is one reason our system tends to reserve these sorts of technical questions to bodies other than the mass electorate. Oh well!)
To this Hot Take, I would add only today that, properly speaking, I don't really think the judge in Colorado should have reached the question of whether Trump insurrected at all, because her ruling on the "officer" question ended the case before reaching the question of insurrection. She basically inverted the correct structure of her ruling so she could stall the "officer" conclusion until after writing a loooooooong section of what really amounts to obiter dicta arguing that Trump did an insurrection. (She was right, but it still shouldn't have been reached.) If you're looking to make things as awkward for Trump on appeal as possible, without actually taking the heat for disqualifying him yourself, this is approximately how you'd do it.
I can't even really be mad at her, because, although I disagree with her conclusion on "officer of the United States", I have maintained that it's Trump's strongest argument and that people could conceivably look at the same evidence with the same methods and draw different conclusions from it. It was, in my view, a mistake of law, but not an egregious one. Hopefully the appeals court sees it differently.
For now, that's what I've got. Back to disqualification full-time in a couple months (presumably), and, in the meantime, more ordinary things, which I hope you enjoy.
De facto executive repeal of pro-life laws has been in full swing at the federal level (with a brief interruption during the Trump administration), simply by reinterpreting longstanding laws that never were intended to have the new meaning. The Obama administration so narrowly interpreted the Hyde-Weldon amendment on the conscience rights of pro-life health care providers and health plans as to make it useless in protecting the latter. (It first claimed that the protection applies only to those with "moral or religious" objections, which is plainly untrue, then said that the state law in question only requires the health insurance companies to insert abortion in their plans, and the companies themselves have no pro-life moral convictions -- the Catholic and other enrollees can hold onto their convictions but there is no benefits plan in the state it is legal for them to purchase.) The Biden administration has far outdone this record, by injecting abortion into laws that never were seen as having anything to do with it before -- VA health coverage, the Emergency Medical Treatment and Active Labor Act, etc. And the longstanding federal law against shipping abortion drugs by U.S. Postal Service was reinterpreted to apply only if you can show that abortion is the only use for the drug and the abortion itself is illegal, none of which is in the text of the law. The job of being the abortion "nullification machine" that Supreme Court justices said their own court had become has now passed to the executive branch. Sometimes it is possible to bring a law suit against such verbal gerrymandering, but that faces the hurdle of having to show that the new executive interpretation is not a POSSIBLE reading of the law -- and showing standing is a problem, as the chief injured party is, well, not a person under federal law.
I would write a whole article about the way the Biden Administration has abused and nullified the Comstock Act, but the article would just be a long string of cusses.
My ignorance is showing here… but this series of events confuses me when comparing them to everything that happened in the Trump Disqualification case. In THAT case, interested parties joined in the defense to make sure the defense was ‘of quality’ and essentially joined in on getting sued. I was confused by why someone would do that and you had assured me that it might sound odd but that it does serve a purpose in certain instances. Jump cut to THIS case and it seems like that exact same thing was happening but they weren’t allowed to join in on the defense?
In your detailed breakdown of the MOMS group at the end it kind of seems like they didn’t try to join until after the case was already decided (which does make me feel like that specific group is correct to be declined the ability to join a contest that has already concluded) but you also reference other groups who tried to join but weren’t allowed to for <other reasons>?
So what’s the deal? Presumably the same underlying political currents that wanted this law to be nullified also wanted Trump disqualified formally from presidential eligibility.
Yes, that's about right.
In Minnesota law, there are four elements controlling whether you have the right to intervene in a case:
(1) Is your intervention timely? That is, did you act to protect your interests quickly once you had good reason to know about the threat to your interests?
(2) Do you have an direct, meaningful interest in the subject of the action?
(3) Would it be impossible for you to protect that interest adequately if you were excluded from the case?
(4) Is your interest not already adequately represented by the other parties?
(Minnesota Rules of Civil Procedure, Rule 24.01.)
If the answer to all four is "yes," then you have a right to enter the case. Judges may also, at their (limited) discretion, admit others to enter a case if their claim shares a common question of law or fact with the main action, as long as doing so would not unduly prejudice or delay the adjudication of the original parties.
In the Trump case, the anti-Trump plaintiffs made no real effort to deny Team Trump some degree of intervention (although they successfully and somewhat hilariously nitpicked Trump's first attempt to intervene to death). The named defendants (the Secretary of State's office) didn't oppose intervention at all. Team Trump entered the case successfully, having met all four criteria.
In the MOMS case, both the plaintiff and the defendant agreed (or, I suggest, colluded) to fight intensely against anyone who tried entering the case, and, the fact is, various rules that were put in place to limit the size and scope of lawsuits gave them lots of weapons with which to do so. They successfully blocked all other parties from entering the case.
As for MOMS attempted intervention, I have to disagree: they timely filed before the period for appeal had expired. The question is not "did they file when it would have been most convenient for all the parties?" (because obviously it would have been much more convenient for MOMS to file four years ago). The question is, "did they file promptly once they received reasonable evidence that their rights were threatened?" I think that they did: the first reasonable notice they received that their rights were threatened was when Judge Gilligan struck down the parental notification law.
I can understand why one might disagree. Intuitively, it feels like there's something "wrong" about filing to intervene in a case after a judgment has been entered. However, if you feel that way, the question I have is, when SHOULD the moms have realized that their rights were threatened? It surely can't seriously be the case that every Minnesota parent must constantly watch every case in the entire state of Minnesota to find out what rights are at stake and whether state officials are doing an adequate job, right? So when SHOULD they have realized the threat to their rights and filed?
Interesting!
To answer your probably-rhetorical questions at the end. I’d say it isn’t the job of every parent in the state to check in on everything everybody is doing in legislature/law but at the same time just because it’s not everyone’s responsibility to monitor everything all the time doesn’t mean they get to just rebuke and try to overturn completed processes. Are they allowed to join a case only to bring it to appeals?
MN just went through a whole submission effort for a new flag right? I didn’t know there was a submission window at all until after the submission window had ended and everyone with a website started posting their favorites out of the designs that were made public. In addition to that there was some ‘selection committee’ that narrowed however-many-original-designs down to the top 6 (or so, I’m not very invested in this effort other than supporting any reasonable change). Eventually one flag will be chosen and I assume implemented as our new state flag. If this was all a legal proceeding instead of a public forum when should my cutoff date be as an oblivious party? Is it that I didn’t know submissions were open? Dratz! I didn’t know that! Doesn’t seem fair! Here’s my SuperAwesomeFlagDesign_v6.pdf #ForYourConsideration… is it after the selection committee landed on the final 6 options? Dratz! I didn’t know there was a committee I could have joined to help decide this! I would have been wonderful at this! I’ve watched that CGP Grey flag video sooooo many times though… is it once the final design has been communicated? Dratz! I wish I would have known this flag was one of the front runners! The ratio of baby-aqua-blue to black is the exact ratio of whites to non-whites when MN was the absolute worst. That level of careless design is what makes this flag the MOST dangerous of the grouping and it shouldn’t have ever gotten past the first cull.
It sure feels like there needs to be very explicit rules or precedents in place that would allow an interested party to join a case after it has been decided only to bring that case along to appeals.
The flag competition, and all relevant elements, was very well-advertised! There was regular newspaper coverage, public advertising, and general attempts to get the word out -- and it wasn't even a lawsuit! As you probably know from being accidentally involved in several class-action lawsuit settlements over the course of your life, courts will actually order plaintiffs to contact *every* member of a class to give them a chance to opt out of a settlement before entering final judgment. If you miss every reasonable attempt at contacting you, too bad; here's your settlement, and you can't re-open the case. (At least, I don't think you can.)
So there *is* a threshold at which the courts will simply assume that you knew about something and say, "sorry, no dice."
But the particular issues in this case are the threat to parental rights and the inadequacy of Attorney General Ellison's representation. The threat to parental rights was not well-advertised. It was not well-covered by the papers (much less so than the flag contest, really). No attempt was ever made to contact Minnesota parents about the impending threat to their rights (in part because the law normally assumes the Attorney General is not deliberately throwing the game). The inadequacy of Ellison's representation was actively dissembled about, by the judge, by both parties to the case, and by newspapers, and only became transparent to the public when Gilligan entered his order entering summary judgment.
And that's when the MOMS group tried to enter the case. Definitely an inconvenience, but what's the alternative? We allow third parties to extinguish rights by judicial collusion without challenge? That seems like it has much worse consequences than simply reopening this case and forcing it to go to trial. (It was decided on summary judgment, after all.)
(My question at the end of the last comment was not rhetorical, and I appreciate your answer. I admit that the questions in the paragraph just above *are* rhetorical, but feel free to answer them anyway.)
It keeps feeling like you’re making the argument “there wasn’t a realistic or better time to have done what MOMS is doing. Right now is their only/best chance.” But is being the *best* chance all that’s needed? It might very well be true that right now is the only chance parents had to learn how the sausage was being made and band together, but is that enough? The race has already been run, the case has already been decided, the toothpaste is already out of the tube. To go back to your first reply, I don’t think parents throughout MN should have been held responsible for monitoring all cases at all time but it does seem like there are enough dedicated interest groups who make it their job to track all sorts of things related to their specific interest. If those groups failed to raise the flag loud enough while the case was going on and weren’t able to get a vocal group together until after the case had already been decided then it feels like a failure of those interest groups.
Unless it’s normal to allow any ole Tom, Dick, and Harry to bring cases to appeal? Ellingson was just reelected last year, and I didn’t realize until looking it up that he only won by 20k votes. I imagine if that election went differently then both the outcome of this case as well as the willingness to allow other groups to join in the defense would have been different. Again it seems like the ferver which some are feeling now would have been better directed at an earlier date.
> "It keeps feeling like you’re making the argument “there wasn’t a realistic or better time to have done what MOMS is doing. Right now is their only/best chance.” But is being the *best* chance all that’s needed?
No, but being the *only* chance is -- generally speaking -- the *main* thing that is needed.
Take United Airlines v. McDonald, 432 U.S. 385 (1977), cited by MOMS in their brief. In that case, an intervenor attempted to enter a case five years after the start of litigation, after the district court had entered final judgment and the plaintiffs had declined to appeal, because the intervenor had "no reason to suppose" the plaintiffs would abandon the case until they, in fact, did. She then promptly acted, before the time for appeal of the judgment expired, to vindicate her rights. The Supreme Court agreed with her, 5-3.
Late intervention can be denied if it's late for a bad reason (and, the later it is, the better your reason needs to be), or if it creates prejudice to existing parties, and a case that's fully closed (this one wasn't) can't generally be reopened as far as I know (civil procedure is not my strong suit!)... but the basic principle is the same as the one I hammered in my discussion of laches in the Trump Disqualification suit: the main legal question is, once you had good reason to know that your rights are in jeopardy, did you act with all due haste? So the first question we have to ask of the MOMS group is: when did they have good reason to know that their rights were in jeopardy? And the second question is, did they act with all due haste after that date?
The alliance of Gender Justice and A.G. Ellison is making several arguments, but their *main* argument on this point is that the MOMS group had good reason to know that their rights were in jeopardy as soon as the case was announced in 2019, well before the decision not to appeal in 2023.
Interesting! Thank you for the continued replies here. You spoke so much about latches in the Trump case that it was hard to tell this one apart. It seems wild that our system works this way!
<the intervenor had "no reason to suppose" the plaintiffs would abandon the case until they, in fact, did.>
This post was a surprise--given how you've previously written about the question of whether the disqualification clause applies to the president, I was expecting your next article to be about the Colorado lawsuit.
That's very reasonable, given just how 110% I threw myself into the MN disqualification case! But the MN disqualification suit was so all-consuming that I made a commitment to myself sometime around the start of Orientation Week: the Minnesota suit was the only suit I was going to cover in detail (and, if I'm not going into detail, it's probably not worthy of posting on De Civ).
I do intend to return to the subject of disqualification as Growe v. Simon (II) approaches... and babe it sure looks like it's approachin'; see you in March! I'm going to try to write a nice long discussion of Griffin's Case (1868) and self-execution in late January or early February, so I think that's the next big thing to look out for on De Civ. (Hopefully the Colorado case will have advanced somewhat in the meantime, but I doubt SCOTUS touches the case before late January, at this point.)
Still, despite my promise to myself, I couldn't *entirely* restrain myself, so I did post a Hot Take on Facebook the day the decision came down:
> The Colorado disqualification suit's ruling is pretty interesting: the (state district) court ruled that, YES, President Trump "engaged in insurrection."
> She also ruled that there were "persuasive arguments" that Trump was an "officer of the United States" at the time and was therefore disqualified.
> However, she also held that the were persuasive arguments that he *wasn't* an officer of the United States. In the absence of conclusive proof either way, she said that the question should be left to the voters.
> But the question she is leaving to the voters is not, "Is Trump an insurrectionist?" She ruled that he is. (I have argued that she is correct.) The question left to the voters is the much more technical question, "Are insurrectionist presidents disqualified, like all other insurrectionist officials, or are (specifically) presidents exempt from the Fourteenth Amendment?"
> https://www.courts.state.co.us/userfiles/file/Court_Probation/02nd_Judicial_District/Denver_District_Court/11_17_2023%20Final%20Order.pdf
> Of course, this will be appealed. Plaintiffs probably need to win in the Colorado Supreme Court in order to trigger review by the U.S. Supreme Court.
> [...And, of course,] "Leave it to the Colorado voters" means Trump will be on the ballot. The judge has instructed, effectively, that voters should only vote for Trump if they think the presidency is not an "officer of the United States". (Voters are, of course, very unlikely to behave this way in practice, which is one reason our system tends to reserve these sorts of technical questions to bodies other than the mass electorate. Oh well!)
To this Hot Take, I would add only today that, properly speaking, I don't really think the judge in Colorado should have reached the question of whether Trump insurrected at all, because her ruling on the "officer" question ended the case before reaching the question of insurrection. She basically inverted the correct structure of her ruling so she could stall the "officer" conclusion until after writing a loooooooong section of what really amounts to obiter dicta arguing that Trump did an insurrection. (She was right, but it still shouldn't have been reached.) If you're looking to make things as awkward for Trump on appeal as possible, without actually taking the heat for disqualifying him yourself, this is approximately how you'd do it.
I can't even really be mad at her, because, although I disagree with her conclusion on "officer of the United States", I have maintained that it's Trump's strongest argument and that people could conceivably look at the same evidence with the same methods and draw different conclusions from it. It was, in my view, a mistake of law, but not an egregious one. Hopefully the appeals court sees it differently.
For now, that's what I've got. Back to disqualification full-time in a couple months (presumably), and, in the meantime, more ordinary things, which I hope you enjoy.