Opinion
By Jeff Childers
03-05-24
Good morning, C&C family, it’s Tuesday! Your legal-news roundup today includes: my analysis of the Supreme Court’s NINE TO ZERO decision in favor of President Trump; the key unreported, 6-3 part of the decision; Arizona upholds proof of citizenship for voting; DC court rules in favor of January 6th detainees; and another legal torpedo strikes the S.S. Fani Willis amidships.
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🔥 The Supreme Court giveth, and the Supreme Court taketh away. First, the giveth. And it was a big one. Bloomberg ran its report under the headline, “Supreme Court Buries Democrats’ Fantasy of Keeping Trump Off the Ballot.” As you have probably already heard echoing across America’s digital fields and electronic byways, the Supreme Court ruled yesterday as many of us had predicted, in a sweeping 9-0 decision in favor of President Trump.
As a result, he stays on the ballot in Colorado. And, because of a courageous 6-3 twist in the decision by the conservative justices, Trump also stays on ballots in all the other blue states drafting in Colorado’s steaming, radioactive wake. But I’ll get to that later.
The decision wasn’t complicated. I’ll quickly summarize how we got here, for people who live in Portland. Four Republican voters and two Democrats sued Colorado’s Secretary of State last year arguing Trump was an oathbreaking insurrectionist and, under the 14th Amendment of the Constitution, could not hold “an office of the United States.”
After a kangaroo show trial, and an appeal, Colorado’s Supreme Court put down their crayons and ruled 4-3 — in napalm — that the Constitution prohibits oathbreaking insurrectionists like Trump from being President. The decision electrified the chronically-unhappy anti-Trump world. Eureka! they cried. It’s so simple! they shouted, in manifest joy and delirious delight.
We must save democracy by giving courts power to keep Republicans off the ballot in the first place.
Corporate media rallied, trotting out herds of constitutional “experts” sagely opining about the Framers’ wisdom in excluding oathbreaking insurrectionists and blah blah blah. But there was a problem.
The problem was, the particular dusty, archaic Constitutional provision was part of the Fourteenth Amendment — one of the two anti-slavery amendments added after the Civil War. It was designed solely to stop pro-slavery Democrats from marching back into Reconstruction-era state governments.
No way did the drafters — having just won the bloodiest war in American history or in its future the hard way — no way did they intend to hand a heckler’s veto over future American Presidents to disgruntled Southern States still bristling with unsurrendered Klansmen and brimming with defiant Johnny Rebs burning to snatch up muskets.
The Court agreed. It uncontroversially ruled that “States may disqualify persons” from state offices, but any power over federal offices must be explicitly granted by Congress. Hinting at the decision’s originalist underpinnings, the Court quoted an 1858 commentary on the Constitution:
Because federal officers “owe their existence and functions to the united voice of the whole, not of a portion, of the people,” powers over their election and qualifications must be specifically “dele- gated to, rather than reserved by, the States.”
In other words, Colorado does not get to veto a Presidential candidate just because it didn’t wear its Hillary mask and caught Trump Derangement Syndrome.
This result may have been obvious to me and other thoughtful Constitutional scholars. And it was obvious to the United States Supreme Court — including its far-left members. But it was not obvious to Colorado’s Supreme Court or to squadrons of blabbering morons trotted out by corporate media who are now all losing their ever-loving minds to save their tattered reputations.
One of those blabbering morons was David French, who — like a defiant Johnny Reb of old — refused to admit he was wrong and promptly published a defiant op-ed in the New York Times:
The Nation’s leftist legal correspondent, Elie Mystal, was so mad he even called for the Supreme Court to be abolished:
Mystal’s deranged screed was particularly amusing in its inherent contradiction: the whole case was about giving the courts more power, but now they suddenly want to take power away from courts? It would be confusing except I’ve learned not to expect them to make sense.
NewsBusters rounded up a series of crazy liberal reactions, who generally agreed that yesterday was a dark day for ‘democracy’ (1:28).
I could go on, there is certainly a Schadenfreude-y delight to it, but time presses and you can find more for yourself if you like.
Some people just can’t admit when they are wrong, what else can I tell you? Why anyone listens to them at all is the real mystery.
🔥 I mentioned the twist, the conservative justices’ brave 6-3 ruling. The three liberal justices — Sotomayor, Sagan, and Jackson — joined the 9-0 verdict but not its reasoning. So they wrote their own separate opinion.
Specifically, the liberal Justices disagreed with the majority’s decision that no state can disqualify Trump. They would have avoided interpreting the Constitutional issue altogether, and would have ruled that only Colorado was barred from disqualifying Trump:
Although we agree that Colorado cannot enforce Section 3, we protest the majority’s effort to use this case to define the limits of federal enforcement of that provision. Because we would decide only the issue before us, we concur only in the judgment.
In other words, the majority’s ruling deleted all the other efforts to bar Trump from ballots in all the other states, not just Colorado. That may seem sensible to you, but it didn’t make sense to the liberal Justices.
🔥 Perhaps it would have been too much for the Court to hand down two controversial conservative decisions in one day. Or maybe it has nothing to do with the Colorado decision. Either way, Fox News ran the setback story headlined, “SCOTUS stays Texas law that allows police to arrest, detain illegal migrants.”
The gist is, Texas passed a new law authorizing local police to arrest and deport illegal immigrants. The Department of Justice (of course) opposed the law, sued, and the first federal judge found the law unconstitutional. Yesterday the Fifth Circuit Court of Appeals upheld the desperately-needed law and reversed the trial judge. So the DOJ filed an emergency appeal to the Supreme Court, which immediately agreed to hear the case, but temporarily stayed the law for a few days until March 13th.
The Court is moving fast. Texas must quickly respond by March 11th. Its lawyers will be busy.
The stay is vexing but not completely surprising. In the Court’s view, staying the law was just preserving the status quo. Since the law has never been in effect, maybe it’s better to keep things that way for now, rather than get everyone riled up and the police start arresting illegals and then everybody has to reverse course if the Court ultimately rules against the law.
The short duration of the stay was a good sign. It shows the Supremes know they have to rule quickly. A “temporary stay” is a different animal from an “injunction.” To issue a temporary stay, the Court need not decide any of the merits. They did not reverse the Fifth Circuit’s decision or offer an opinion of any kind.
So, as far as I can tell, the short stay means nothing in the big picture. But another Court showdown is looming.
🔥 In terrific election news, the AP ran a story late last week headlined, “Arizona’s new voting laws that require proof of citizenship are not discriminatory, a US judge rules.”
On Thursday, U.S. District Judge Susan Bolton held Arizona legislators were not discriminatory when they passed laws requiring proof of citizenship to vote, because Arizona has a legitimate interest in preventing voter fraud and limiting voting to eligible people.
Imagine that.
On the plus side, the judge wrote, “Considering the evidence as a whole, the court concludes that Arizona’s interests in preventing non-citizens from voting and promoting public confidence in Arizona’s elections outweighs the limited burden voters might encounter when required to provide (documentary proof of citizenship).”
Less helpful was the part of the judge’s ruling the form that the law requires citizens to complete was no good. It’s not clear whether that can be fixed before the election.
What’s most astounding about this story is that there was even a dispute. Still, it’s progress.
🔥 The New York Post ran a similarly surprising story late last week headlined, “Judges improperly enhanced sentences of more than 100 Jan 6 rioters, appeals court rules.”
It was mostly surprising that the all-in, left-leaning DC Circuit Court of Appeals could issue any decision favorable to the January 6th political prisoners. But there it is.
During the various trials, DOJ prosecutors routinely asked DC courts to “enhance” protestors’ sentences under a rule allowing additional jail time for “disrupting judicial proceedings,” like courtroom trials or grand jury investigations. The DOJ had argued that certification of the election was a “judicial proceeding” and many DC judges slurped that up, sentencing the persecuted protestors to more time in chokey.
But the Court of Appeals now clarified that an election certification is not a “judicial proceeding,” because it “did not interfere with the ‘administration of justice.” Now, most (if not all) of those “enhanced” sentences can be challenged.
It makes a big difference. For example, the plaintiff, a US Air Force officer (retired), got two years in federal prison — of which nine months was the “enhancement.” If the DOJ appeals, it will only be to stretch out the proceedings to make sure the prisoners don’t get out anytime soon.
The unexpected philosophical switch signals something. It’s not clear yet what it signals. But it is movement in the right direction.
🔥 Last, but not at all least, yesterday saw more developments in the Fulton County tragicomedy now called the Fani Willis case. Soon, only robotic drone submarines will be able to still see the murky outlines of Fani’s sinking ship as it drifts down into the Marianas Trench. The New York Post’s headline explained, “Fani Willis warned Nathan Wade’s lawyer to stay quiet about affair, court filing claims: ‘They are coming after us.’” Ruh-roh.
The news exploded yesterday after another new witness filed a new affidavit in the case: Cobb County prosecutor Cindi Lee Yeager. In addition to the earth-shattering claim that Fani told Bradley to keep his fat mouth shut, but it also said Ms. Yeager would swear under oath that Bradley told Yeager the Willis-Wade romance definitely began in 2019, during Willis’s DA campaign.
Yeager — a lawyer and state prosecutor — wields a weight of testimonial power heavier than non-lawyer witnesses would.
If the Court accepts the new testimony, it makes perjurers out of the entire rogue’s gallery: Fulton’s Trump-prosecuting DA Fani Willis, love-squeeze Nathan Wade, and former law partner Terrance Bradley.
Monday’s filing explained that, after she saw Terrance Bradley’s testimony on the stand, Ms. Yeager “became concerned as a result of the fact that what Mr. Bradley testified to on the witness stand was directly contrary to what Mr. Bradley had told Ms. Yeager in person.” Not too good.
Heroic Cobb County prosecutor Cindi Lee Yeager
But, once again, the cover-up is worse than the original crime. As I explained over the weekend, witness tampering is a serious crime. It is gangster-level stuff. If, as Yeager claimed, Fani Willis instructed Bradley “not to talk to them about anything,” Fani could be facing jail time of her own, as the huntress becomes the hunted.
The development raised a fascinating new possibility. Judge MaCafee need not consider this new evidence. He should, but under the rules, since the trial is over, he is not required to re-open the evidence. But it’s not going away, since the Trump defendants now have an even more compelling case to request the Judge “reconsider” a future ruling in Willis’ favor — a fact of which Judge MaCafee will be keenly aware.
But even more painfully for Fani, the devastation goes far beyond a harmful motion for reconsideration. Based on this new evidence of witness tampering, Georgia’s Ethics Commission could investigate Fani. The state Bar Association could investigate Fani. The state’s prosecutor could investigate the embattled Fulton County DA.
Fani could easily be disbarred over this, and if she is, the Trump prosecution will crumble.
Last week, Fani’s lawyers argued forcefully that the luxury vacations and the sex romps have nothing to do with the prosecution of President Trump and his co-defendants. But, if Fani is found to have committed crimes in her prosecution of the case — crimes like witness tampering — the case goes away.
A hundred percent, Fani Willis could end up in jail over this one.
I will now make a rare prediction. A week ago I wrote that, if Fani were smart, she would step back and not battle to stay on the case. She did not take my advice. And at this point, even if nothing else happens, given the oppressive stench of all her bad conduct, Fani Willis cannot possibly survive in control of the Trump case. No way. She will probably be removed as District Attorney altogether. I’d bet on it.
Have a terrific Tuesday! Tomorrow morning in the wee hours, the Childers clan leaves for Las Vegas at o’dark thirty, but come on back anyway for SOME kind of roundup. There’s just too much going on to skip a whole day. See you then.
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© 2022, Jeff Childers, all rights reserved
The views expressed in this commentary are those of the author and do not necessarily reflect the official position of Citizens Journal Florida
