“Trump’s misconduct included his refusal to accept Biden’s victory, his persistent peddling of his stolen-election fantasy, his pressure on state and federal officials to embrace that fantasy, the incendiary speech he delivered to his supporters before the riot, and his failure to intervene after a couple thousand of those supporters invaded the Capitol, interrupting the congressional ratification of the election results. All of that was more than enough to conclude that Trump had egregiously violated his oath to “faithfully execute” his office and to “preserve, protect and defend the Constitution.” It was more than enough to justify his conviction for high crimes and misdemeanors in the Senate, which would have prevented him from running for president again.”
…
“”At oral argument,” the opinion notes, “President Trump’s counsel, while not providing a specific definition, argued that an insurrection is more than a riot but less than a rebellion. We agree that an insurrection falls along a spectrum of related conduct.” But the court does not offer “a specific definition” either: “It suffices for us to conclude that any definition of ‘insurrection’ for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.”
That description suggests a level of intent and coordination that seems at odds with the chaotic reality of the Capitol riot. Some rioters were members of groups, such as the Oath Keepers and the Proud Boys, that thought the use of force was justified to keep Trump in office. But even in those cases, federal prosecutors had a hard time proving a specific conspiracy to “hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power” by interrupting the electoral vote tally on January 6. And the vast majority of rioters seem to have acted spontaneously, with no clear goal in mind other than expressing their outrage at an election outcome they believed was the product of massive fraud.
They believed that, of course, because that is what Trump told them. But to the extent that Trump bears moral and political responsibility for riling them up with his phony grievance (which he does), his culpability hinges on the assumption that the rioters acted impulsively and emotionally in the heat of the moment. That understanding is hard to reconcile with the Colorado Supreme Court’s premise that Trump’s hotheaded supporters acted in concert with the intent of forcibly preventing “a peaceful transfer of power.”
Nor is it clear that Trump “engaged in” the “insurrection” that the court perceives. After reviewing dictionary definitions and the views of Henry Stanbery, the U.S. attorney general when the 14th Amendment was debated, the majority concludes that “‘engaged in’ requires ‘an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose.'”
Trump’s pre-riot speech was reckless because it was foreseeable that at least some people in his audience would be moved to go beyond peaceful protest. Some 2,000 of the 50,000 or so supporters he addressed that day (around 4 percent) participated in the assault on the Capitol. But that does not necessarily mean Trump intended that result. In concluding that he did, the court interprets Trump’s demand that his supporters “fight like hell” to “save our democracy” literally rather than figuratively. It also notes that he repeatedly urged them to march toward the Capitol. As the court sees it, that means Trump “literally exhorted his supporters to fight at the Capitol.”
The justices eventually concede that Trump, who never explicitly called for violence, said his supporters would be “marching to the Capitol building to peacefully and patriotically make your voices heard.” But they discount that phrasing as cover for Trump’s actual intent. Given Trump’s emphasis on the necessity of “fight[ing] like hell” to avert the disaster that would result if Biden were allowed to take office, they say, the implicit message was that the use of force was justified. In support of that conclusion, the court cites Chapman University sociologist Peter Simi, who testified that “Trump’s speech took place in the context of a pattern of Trump’s knowing ‘encouragement and promotion of violence,'” which he accomplished by “develop[ing] and deploy[ing] a shared coded language with his violent supporters.”
That seems like a pretty speculative basis for concluding that Trump intentionally encouraged his supporters to attack the Capitol. Given what we know about Trump, it is perfectly plausible that, unlike any reasonably prudent person, he was heedless of the danger that his words posed in this context.”
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“The Colorado Supreme Court’s belief that Trump intentionally caused a riot also figures in its rejection of his argument that his January 6 speech was protected by the First Amendment. The relevant standard here comes from the U.S. Supreme Court’s 1969 decision in Brandenburg v. Ohio, which involved a Klansman who was convicted of promoting terrorism and criminal syndicalism. Under Brandenburg, even advocacy of illegal conduct is constitutionally protected unless it is both “directed” at inciting “imminent lawless action” and “likely” to do so.
The Colorado Supreme Court quotes the 6th Circuit’s elucidation of that test in the 2015 case Bible Believers v. Wayne County: “The Brandenburg test precludes speech from being sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action, (2) the speaker intends that his speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of his speech.”
It is hard to deny that Trump’s speech satisfies the third prong, which is why it provoked so much well-deserved criticism and rightly figured in his impeachment. But what about the other two prongs?
Applying the first prong, the court cites “the general atmosphere of political violence that President Trump created before January 6” as well as the “coded language” of his speech that day. As evidence of the “specific intent” required by the second prong, it notes that “federal agencies that President Trump oversaw identified threats of violence ahead of January 6.” It also cites what it takes to be the implicit message of Trump’s speech and his reluctance to intervene after the riot started.
“President Trump intended that his speech would result in the use of violence or lawless action on January 6 to prevent the peaceful transfer of power,” the court says. “Despite his knowledge of the anger that he had instigated, his calls to arms, his awareness of the threats of violence that had been made leading up to January 6, and the obvious fact that many in the crowd were angry and armed, President Trump told his riled-up supporters to walk down to the Capitol and fight. He then stood back and let the fighting happen, despite having the ability and authority to stop it (with his words or by calling in the military), thereby confirming that this violence was what he intended.””
“Special counsel Jack Smith’s team has uncovered previously undisclosed details about former President Donald Trump’s refusal to help stop the violent attack on the U.S. Capitol three years ago as he sat watching TV inside the White House, according to sources familiar with what Smith’s team has learned during its Jan. 6 probe.
Many of the exclusive details come from the questioning of Trump’s former deputy chief of staff, Dan Scavino”
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“Sources said Scavino told Smith’s investigators that as the violence began to escalate that day, Trump “was just not interested” in doing more to stop it.
Sources also said former Trump aide Nick Luna told federal investigators that when Trump was informed that then-Vice President Mike Pence had to be rushed to a secure location, Trump responded, “So what?” — which sources said Luna saw as an unexpected willingness by Trump to let potential harm come to a longtime loyalist.
House Democrats and other critics have openly accused Trump of failing to do enough that day, with the Democrat-led House select committee accusing Trump of committing “an utter moral failure” and “a clear dereliction of duty.” But what sources now describe to ABC News are the assessments and first-hand accounts of several of Trump’s own advisers who stood by him for years — and were among the few to directly engage with him throughout that day.”
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“According to sources, when speaking with Smith’s team, Scavino recalled telling Trump in a phone call the night of Jan. 6: “This is all your legacy here, and there’s smoke coming out of the Capitol.””
“The case turns on a previously obscure provision of the 14th Amendment, which provides that anyone who previously held a high office requiring them to swear an oath supporting the Constitution is forbidden from holding a similar office if they “have engaged in insurrection or rebellion” against that Constitution.
The Colorado Supreme Court concluded that Trump engaged in an “insurrection” because he spent months falsely claiming that the 2020 election was “rigged.” He encouraged his supporters to “fight,” suggesting that Democrats would “fight to the death” if the shoe were on the other foot. And Trump named then-Vice President Mike Pence as someone who should be targeted by the pro-Trump mob that invaded the Capitol.
But there is precious little case law laying out what this provision of the Constitution means, or defining key terms like “insurrection” or what it means to “engage in” such an attack on the United States. Since the period immediately following the Civil War, there has not been much litigation involving disloyal public officials who joined an insurrection against the very system of government they swore to defend. So courts asked to interpret the 14th Amendment’s Insurrection Clause — including the Supreme Court — must do so without the ordinary guideposts judges look to when reading the Constitution.”
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“In addition to their legal arguments, Colorado Republicans also make a political argument for keeping Trump on the ballot — removing him would deny voters “the ability to choose their Chief Executive through the electoral process.” This purely political argument has garnered sympathy from many observers, including outlets such as the New York Times.
This final argument, if taken seriously by a majority of the justices, could render the 14th Amendment’s Insurrection Clause a dead letter — because it would prevent it from operating in the one circumstance when such a constitutional provision is needed.”
…
“allowing insurrectionists with significant public support to stand for office would defeat the whole point of the Constitution’s Insurrection Clause.
Unpopular insurrectionists will never get elected to office in the first place because they are unpopular.”
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“The Colorado GOP does raise one fairly strong legal argument that supports deferring the question of whether Trump should be removed from the 2024 ballot until, at least, after he is convicted of a crime or otherwise determined to have engaged in insurrection by a federal trial court.
In Ownbey v. Morgan (1921), a case that admittedly had nothing to do with the Insurrection Clause, the Supreme Court said that “it cannot rightly be said that the Fourteenth Amendment furnishes a universal and self-executing remedy.” This means that private litigants ordinarily cannot sue to enforce this amendment, absent some state or federal statute authorizing such lawsuits.”
…
“the Colorado Supreme Court determined that a state statute permitting voters to challenge candidates’ eligibility to run for office does permit suits seeking to enforce the Insurrection Clause, and states often have the power to pass laws permitting their own courts to enforce the Constitution.”
…
“as the Colorado GOP warns the justices, the Colorado Supreme Court’s decision also means that “individual litigants, state courts, and secretaries of state in all 50 states plus the District of Columbia have authority” to determine which candidates must be removed from the ballot for violating the 14th Amendment. And, while there is no reason to believe that Colorado’s judges acted in bad faith when they removed Trump, it’s not hard to imagine what could happen in states with less responsible judges if the Colorado decision is allowed to stand.
Imagine, for example, that the Florida Supreme Court — which is made up entirely of Republican appointees, most of whom were appointed by far-right Gov. Ron DeSantis — were to invent some completely fabricated reason to accuse President Joe Biden of engaging in an insurrection, and then imagine that they invoked this pretextual reason to remove Biden from the 2024 ballot.”
…
“Trump wasn’t exactly denied a trial altogether before he was removed from Colorado’s ballot. But, as Justice Carlos Samour wrote in a dissenting opinion, the process Colorado’s courts used to determine that Trump engaged in an insurrection was unusually truncated. It lacked “basic discovery, the ability to subpoena documents and compel witnesses, [and] workable timeframes to adequately investigate and develop defenses.” And, as Justice Maria Berkenkotter wrote in her dissent, the Colorado courts relied on a process that “up until now has been limited to challenges involving relatively straightforward issues, like whether a candidate meets a residency requirement for a school board election.”
In any event, the Colorado GOP takes its argument that the 14th Amendment is not self-executing too far, suggesting that Trump cannot be disqualified unless he is convicted in a federal court specifically of violating a criminal statute that uses the magic word “insurrection.” But they raise valid points against allowing each state to have the final word on who can run for president, and against allowing Trump to be removed based on the limited process he received in the Colorado system.”
“Trump’s presidency overturned decades of a generally pro-trade Republican consensus and ushered in an era of assuming that trade is bad for American workers and consumers. He hiked tariffs on steel, aluminum, solar panels, washing machines, and a wide range of Chinese goods. For Trump and his allies, those higher tariffs—which were directly paid by American importers and consumers—were meant to reconfigure the trading relationship between America and China.
But Christie is exactly right. It failed.
The one material thing Trump’s trade war accomplished was a so-called “phase one” trade deal with China, which he signed with Chinese President Xi Jinping to much fanfare in December 2019. That deal included a promise that China would buy $200 million more American exports annually. Those increased purchases were supposed to be spread across multiple sectors of the American export economy, something Trump promised would provide much-needed relief to farmers, manufacturers, and other businesses harmed by the tariffs he’d imposed since taking office.
China didn’t do that. According to an analysis by the Peterson Institute for International Economics, American exports to China didn’t even reach pre-trade-war levels in the first year that “deal” was in place. Both countries seem to have quietly dropped any pretense of following through on the agreement.”
“White college-educated voters are becoming more Democratic as white non-college-educated voters are becoming more Republican. That’s because of the fundamental political change Ruffini says is the underlying issue for all of these shifts. Education is becoming the great divider in American politics, helping to explain Democratic improvements with well-educated white voters and their weaknesses with non-college-educated white voters — and now non-college-educated voters of color too. While class and income used to be better tools for telling differences between the political parties’ coalitions, “[t]oday, how much money you make no longer dictates how you vote,” he writes early on. “A college diploma has replaced income as the new marker of social class and the key dividing line in elections.””
“Perhaps the clearest sign came in a speech on Veterans Day where he vowed to “root out the communists, Marxists, fascists, and the radical left thugs that live like vermin within the confines of our country that lie and steal and cheat on elections.” Calling one’s opponents subhuman and vowing aggressive action against them is a hallmark of classical fascist rhetoric, so much so that the Washington Post’s headline — on a news article, not an opinion piece — described it as “echoing dictators Hitler [and] Mussolini.”
They’re not wrong: Anyone familiar with Nazi propaganda can tell you that it commonly dehumanized Jews by describing us as rats or diseases. Trump has used such language more than once: Just last month, he claimed immigrants were “poisoning the blood of our country.”
This incendiary language is backed by an incendiary policy agenda. Trump and his team have a series of proposals to crack down on dissent, including by remaking the Justice Department into a tool for jailing his enemies and sending troops to suppress protests. They aim to launch mass anti-immigrant raids and detain the people he rounds up in camps. They have extensive plans to replace as many as 50,000 career civil servants with ideologues and toadies, putting people ready and willing to undermine the rule of law in key positions to act on Trump’s dubious orders.
Given Trump’s track record, we should take these threats seriously. Let’s not forget that many thought it was unthinkable that Trump would attempt a kind of coup after the 2020 election. We now know that’s exactly what happened, up to and including inciting an actual riot on January 6.”
“What can Biden tell the electorate about Trump that they do not already know? That he’s a serial liar? That he stands indicted in a series of criminal cases? That he commits business fraud the way others inhale and exhale? That he has spent a lifetime stiffing employees, contractors, lawyers? That he paid off a porn actress? That he recklessly mishandled sensitive government documents? All of this is a matter of public record, let alone the pesky detail of his desperate efforts to retain power by essentially overthrowing his own government.
Again, if The New York Times polling is correct, a plurality of American voters have absorbed all this and prefer him to the president. They have, as the financial world says, “priced” Trump’s behavior into their choice and as of now, have not considered the behavior disqualifying.
In some sense, this has been true for eight years, certainly in the Republican Party. The fact that four of the previous five GOP presidential nominees refused to endorse him in 2016 did not make a difference — Trump received a bigger share of Republican votes than Romney did. The fact that so many of Trump’s own key appointees — secretary of Defense, secretary of State, attorney general, national security adviser — all regard him as a threat to our political system has made no difference to Trump’s commanding lead for the GOP nomination.
So when a separate New York Times poll shows that a criminal conviction would significantly damage Trump, take that with a grain or a handful of salt. For eight years, he has survived conduct that would have swept a politician into oblivion.
It is true that the public’s judgment may turn as the prospect of a second Trump administration draws closer; it may be that the stories of what Trump plans for a second term — retribution against his political opponents, the obliteration of the guardrails that restrained his worst impulses, the staffing of a government with toadies who when asked to jump, will ask, “How high, sir?” — will change enough minds to give Biden (assuming he’s on the ballot) a second term.
It’s also true, however, that the task this unpopular president faces is a whole lot tougher than what the last successful incumbent presidents faced. And if a troubled incumbent can’t define an opponent effectively? Well, just ask Jimmy Carter or Gerald Ford or George H.W. Bush what happened.”
““This is a very weighty decision. All of us have prayed for God’s discernment. I know I’ve prayed for each of you individually,” Johnson said at the meeting, according to a record of his comments obtained by POLITICO, before urging his fellow Republicans to join him in opposing the results.
A review of the chaotic weeks between Trump’s defeat at the polls on Nov. 3, 2020, and the Jan. 6 Capitol attack shows that Johnson led the way in shaping legal arguments that became gospel among GOP lawmakers who sought to derail Biden’s path to the White House — even after all but the most extreme options had elapsed.
As Trump’s legal challenges faltered, Johnson consistently spread a singular message: It’s not over yet. And when Texas filed a last-ditch lawsuit against four states on Dec. 8, 2020, seeking to invalidate their presidential election results and throw out millions of ballots, Johnson quickly revealed he would be helming an effort to support it with a brief signed by members of Congress.
Throughout that period, Johnson was routinely in touch with Trump, even more so than many of his more recognizable colleagues.
Some of Johnson’s vocal opponents at the Jan. 5, 2021, closed-door meeting were Reps. Chip Roy (R-Texas) and Don Bacon (R-Neb.), who warned Johnson’s plan would lead to a constitutional and political catastrophe.
“Let us not turn the last firewall for liberty we have remaining on its head in a bit of populist rage for political expediency,” Roy said at the time, according to the record.
Nearly three years later, on Wednesday afternoon, Roy and Bacon cast two of the unanimous House GOP votes to make Johnson the next speaker.”
…
“Johnson then ran through a litany of allegations of election law changes in key states that he said were unconstitutional — and then he lent credence to a discredited claim of election fraud: “The allegation about these voting machines, some of them being rigged with the software by Dominion — look, there’s a lot of merit to that.”
In the same interview, Johnson — who as speaker will be privy to the nation’s most sensitive intelligence secrets — returned to the Dominion matter. He embraced the false description of Dominion machines as “a software system that is used all around the country that is suspect because it came from Hugo Chavez’s Venezuela.”
When the hosts pressed Johnson on Trump’s losses in court, the Louisianan noted that there were still a dozen suits pending but it was an “uphill climb.” Later that day, House Republicans elected Johnson as the vice chair of the GOP conference.
When Johnson joined the effort to support Texas’ fight at the Supreme Court, he said Trump had been in touch with him yet again.
“President Trump called me this morning to let me know how much he appreciates the amicus brief we are filing on behalf of Members of Congress,” Johnson tweeted the next day.”
“No matter what happens in the courtroom in Manhattan in the coming days, weeks and months, no matter what is revealed, no matter the evidence or even the outcome, say longtime Trump watchers, former Trump employees, Republican strategists and operatives and experts on political rhetoric and autocratic means, his supporters at this point don’t care who he was or was not. “It’s irrelevant to who he is now and what he’s become,” Trump biographer Tim O’Brien told me.
“Trump’s rise in the American imagination rested on his appeal as an entrepreneurial guru and carnival barker. He has long since transitioned away from that role with his most loyal followers,” O’Brien wrote in his column for Bloomberg on Monday. The far more pertinent persona is the one he’s crafted since the summer of 2015. “He is an era-defining politician now, and he oversees a cult that cares little about his business foibles or setbacks …” Trump, after all, is “not an ex-president — he’s a right-wing, nativist, revolutionary leader,” as presidential historian Doug Brinkley once put it. “He has a movement that is massive with global implications …””
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“Trump could be fined $250 million. He could lose Trump Tower, the singular symbol of the image he sought from the start to convey. For most people, of course, unsavory aspects of their past can limit their prospects for the future. Not for Trump. Never have. He is, in the memorable words of an intimate, “the most present human being I ever met.” So the scenes this week are in some sense simply an extension of a time-tested Trump tactic and truth. He makes the past not matter.”
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“Last week, in a memo written by Club for Growth president David McIntosh to a Club-linked PAC called Win it Back, the takeaway was stark: Trump’s supporters do not care what he did or what he said before. They like him still. They like him now. “It is amazing,” McIntosh told me in a text. “All attempts to undermine his conservative credentials on specific issues were ineffective,” the memo said. “Even when you show video to Republican primary voters with complete context of President Trump saying something otherwise objectionable to primary voters, they find a way to rationalize and dismiss it.”
“What I saw there that really stood out to me was that people dismissed any negative information about Donald Trump as just another attack on Donald Trump,””