Why kicking Trump off the ballot fails due process
The basic right of due process was ignored in the name of protecting democracy by booting Trump off the ballot.
Summary: The Colorado Supreme Court ruling against putting Donald Trump on the ballot is yet another sign of deterioration of institutions because due process that should have been afforded as part of the process was absent.
Due process is a fundamental aspect of the American ideal and a hallmark of Western civilization, but increasingly no longer in vogue as institutions have crumbled. Civil libertarians on the left used to champion the value of due process, but that has fallen to the wayside as the left has metamorphosed into its current state. After all, the trend of cancel culture and the "Me Too" movement at their core eschew the idea the accused should be given their say in a process determining their guilt.
The Colorado Supreme Court decision this week was a clear example of this decline. The determination Donald Trump engaged in insurrection against the United States, a widely held view to be sure, was based on the findings of a lower court judge who may well have had Democratic leanings. Her conclusion was reached after a five-day evidentiary hearing, which is not the time frame for the lengthy trial expected to find an individual engaged in insurrection. Such a process would have consisted of essential elements like discovery, a plethora of witnesses and a jury determination.
Instead, the lower court judge reached the conclusion Trump engaged in insurrection without that thorough process based on evidence that included the findings of the Jan. 6 commission and testimony from Rep. Eric Swalwell (D-Calif.). As I've written before, the Jan. 6 commission had its own problems with due process and ultimately was unable to find any smoking gun linking Trump to the planning of the attack on the Capitol that day. We're basically seeing the same thing play out here.
You can't really blame the Colorado Supreme Court for relying on the lower court judge's findings in this regard. The Colorado Supreme Court is more or less compelled to adjudicate based on that fact-finding upon appeal and instead compelled to focus on broader legal principles.
But even aspects of the way the Colorado Supreme Court handled the appeal presents problems with due process. Remember, the lower court judge ultimately ruled in favor of Trump out of a determination the Fourteenth Amendment and its clauses against insurrectionists running for office didn't apply to the presidency.
Not so with the Colorado Supreme Court. Even though the presidency isn't enumerated or among the offices that insurrectionists are unable to obtain under the Fourteenth Amendment, the Colorado Supreme Court determined Trump couldn't run for president because the presidency is "so evidently" an office. Apparently, the justices think senators, representatives and state offices were included the language because they aren't so evident.
The decision makes the case the presidency is different from those positions because they’re "members" and not people who hold "office.” I'm not buying that because the drafters of the Fourteenth Amendment still saw fit to include them. I think they would be afforded the same distinction to the presidency.
The Colorado Supreme Court had similar disdain for legally binding precedent from the U.S. Supreme Court in Griffin's Case, an 1868 decision that determined congressional action is needed to define what an insurrection is under the Fourteenth Amendment. A prospective office holder will be barred from seeking office under that statute.
The Colorado Supreme Court just didn't want to address it: "Because that case is not binding on us, the fact it has not been reversed is of no particular significance." I really question the justices commitment to legal jurisprudence when they don't think U.S. Supreme Court precedent is at all legally binding or make effort to explain why they can get around it.
I came across good analysis pointing out Congress enacted in 1870 a law defining insurrection under the Fourteenth Amendment and then replaced it law with another in 1948. Keep in mind of the two lawsuits against Trump over events related to Jan. 6, neither charge him with insurrection under this law, no even with incitement of insurrection. No court has found Trump guilty of anything related to that. So the Colorado Supreme Court is willing to go places Jack Smith and Fani Willis won’t go.
Trump has already appealed the decision to the U.S. Supreme Court. Many observers are predicting the U.S. Supreme Court will reverse the decision with as high as a margin as 7-2 if not 9-0, especially if some kind of technicality is found. These observers are probably right. The unfortunate thing is the U.S. Supreme Court will be seen as the culprit in the eyes of many as opposed to the Colorado judiciary, despite the shoddy reasoning in the case. That's thanks to the campaign the left has mounted to depict the conservative majority on the court as corrupt.
Democrats are largely crowing about the decision because it eliminates their obstacle to win in 2024. So much legal analysis on the left credits the Colorado Supreme Court with making the right decision in the case. These people see it as a way to short-circuit the process to rid the nation of Trump. But they should be cautious, and not just because the elimination of the primary challenger to President Biden fundamentally undermines basic concepts of democracy.
That's because when the system is perceived as going after Trump, the primary effect has been for it to rally his supporters. Already, Republicans in state legislators are drafting legislation that would prevent Biden from showing up on the basis that he has fallen short in his constitutional duty by refusing to contain the border crisis, according to a report in Breitbart News. So instead of eliminating Trump by taking him out in a state he likely wouldn't have won anyway, the ruling will ultimately propel him further ahead in the polls and perhaps into the White House.
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