Today, the United States Supreme Court obliterated the Fourteenth Amendment, section 3, in Trump v. Anderson. The language of this section appears simple enough:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The Court held that: "the Constitution makes Congress, rather than the States, responsible for enforcing Section 3." More specifically, the Court held that only Congress may enforce the disqualification of section 3 and that states could only enforce the provision against state candidates for office and state officeholders. Otherwise the nation would face a risk of a patchwork of state outcomes. This, despite the fact that in 1868, shortly after the provision became law, the Governor of the State of Georgia disqualified a federal candidate for office. (See fn 3).

Further, if "only" Congress holds power to enforce section 3 then why did the drafters of the Amendment just insert an "only" in the section granting Congress power. The Court needs that "only" and it simply does not exist. Rather than apply the plain meaning the Court instead pretends there is an only when there is no such word. Section 5 plainly states: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." The Court did violence to the statute to protect Donald Trump.

Former Fourth Circuit Judge J. Michael Luttig, a prominent conservative jurist explains:

The Supreme Court did leave one last avenue for accountability under law that the Biden Administration or DOJ Special Counsel Jack Smith could use to disqualify Trump. 18 U.S.C. section 2383 provides:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

The Court cited this section with approval. It would provide a uniform federal solution. And, it arises from an exercise of Congressional power. Even this Court (which works overtime to protect Trump) would uphold such an action. 

Why did Jack Smith (or Attorney General Merrick Garland before him) fail to use this section against the obvious insurrectionist Donald Trump? Or, alternatively, why not bring such an action tomorrow morning? Colorado would provide a form indictment and a trial map, complete with comprehensive evidence?

So, the Court today shifted the spotlight to DOJ with today's SCOTUS ruling. Agreement or disagreement with the Court's opinion no longer matters. Many excellent arguments support the use of section 3 in precisely the manner of Colorado. All moot.

Why did DOJ fail (and continue to fail) to seek disqualification through a criminal action a criminal action? 

The most disturbing and vivid reality of all of this: law failed to hold Trump to account as an oath breaking insurrectionist despite many available pathways.

 

 

 I just published a new law review article with the Seattle University Law Review entitled: Students for Fair Admissions: Affirming Affirmative Action and Shapeshifting Towards Cognitive Diversity? The article can be downloaded here: https://digitalcommons.law.seattleu.edu/sulr/vol47/iss4/7/. Here is the abstract:

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater institutional efficacy, including possible race-neutral alternatives. The programs also failed to break down stereotypes through the introduction of a critical mass to empower diverse voices. The programs thereby resembled prohibited quotas or racial balancing. As such, the programs at issue violated Grutter, which still governs race-based affirmative action in college admissions. More importantly, the Roberts court paved the way for more expansive diversity-based admissions programs by permitting institutions to value individual racial experiences, which authentically further an institution’s mission and interests. After SFFA, the use of race as a factor could well face time limits. Contrastingly, individualized racial experiences may benefit college applicants at institutions that embrace diversity in an authentic way without facing any time limitation. Further, institutions with distinct missions may value diversity in a race-conscious way but without any racial preference. In sum, the Roberts Court guides the use of race in college admissions toward a race-neutral, diversity-based paradigm such that institutions may still unlock the empirically proven benefits of cultural diversity with only de minimus interference from the courts. This approach rests upon a powerful policy basis that leads to superior innovation, macroeconomic outcomes, social cohesion and, therefore, superior national security for the United States. This approach thus could support a powerful interest convergence.

The article shows that Supreme Court did not overrule its prior affirmative action precedents, and in fact paved the way for universities to embrace cultural and cognitive diversity to enrich their educational missions. This is important because the case has been widely misconstrued.

My next article will extend the Court's holding to corporate DEI efforts and demonstrate that such efforts are not only remain lawful but also essential to rational human resources management.

Currently, the nation and perhaps the world struggles with the recent jury verdict against Donald Trump finding him guilty of 34 felony counts. Trump claims that the verdict proves Joe Biden uses the criminal justice system as a political tool intended to defeat his political opponents, in this case him. On the other hand, many take the position that the case demonstrates the triumph of the rule of law because it proves that even the most privileged and powerful of citizens must ultimately reckon with legal accountability. I opt for the conclusion that the case exemplifies a healthy rule of law operating to impose reasonable and predictable accountability and consequences for even the most powerful governing elites in American today for the following six reasons.

First, and foremost, the guilty verdict reflects the unanimous conclusion of 12 jurors, after careful deliberation and judicial instruction, empaneled pursuant to pre-announced New York Law. Donald Trump, like all criminal defendants, held the power to refuse a limited number of jurors without cause and to move to strike jurors for cause. The jurors hailed from Trump's former home state and the headquarters of the Trump Organization—New York. It is noteworthy that not a single juror dissented from the verdict and that they reached the verdict without any judicial cajoling through, for example, an Allen charge. The jury questioned the evidence and the instructions to assure they acted properly. They deliberated about 12 hours after spending five weeks listening to witness testimony and reviewing other evidence including extensive documents. Trump's high-powered legal team exercised their right to cross-examine witnesses, explain away evidence and submit their own exculpatory evidence. Despite these rights, the best legal team money could buy failed to raise any reasonable doubt with even one juror, on even one count, regarding Trump’s guilt.

Second, Manhattan District Attorney Alvin Bragg holds a well-earned reputation as a professional prosecutor who gets the job done and gets it done professionally. Recall that Bragg endured severe criticism for declining to prosecute Trump for tax fraud in 2022, prompting two prosecutors to resign. Bragg apparently found the case against Trump too risky to warrant pursuit. Instead, he meticulously built this case which proved bullet-proof. Bragg won his office through an election of local voters and does not work for Joe Biden or even the federal government. The man holds total legal independence from the Biden Administration and proved himself as a non-partisan prosecutor by letting Trump walk on other fraud charges in 2022. The fact that he sought a Grand Jury indictment against Trump on this case suggests that there was probable cause that Trump committed the crimes—a fact that the jury's verdict fully vindicates.

Third, Justice Juan Merchan presided over the entire Trump matter with appropriate judicial restraint. Given Trump’s contemptuous misconduct and constant threats of violence against the judge, his family, his staff and the jury, Merchan certainly held the power to imprison Trump for contempt. He held his fire and allowed the jury to do its job. Despite Fox “News” reports to the contrary, the evidence suggests the Judge ruled on objections and other procedural matters with judicious wisdom. He righteously rejected Trump’s efforts to dismiss the charges, as proven by the unanimous jury verdict on all counts. Again, Merchan, a New York state judge, holds total legal independence from the Biden Administration and, Trump and his team produced zero evidence that Biden even attempted to influence Merchan.

Fourth, Trump himself knew he faced an uphill battle once he decided not to testify and take the stand to declare his innocence. Due to Trump’s decision the jury never heard Trump deny the charges, claim innocence or explain the mountain of evidence against him in the form of witnesses, key documents, or the tape-recording directing Cohen to pay Daniels by check. In fact, there was no defense theory of the case. Trump would not exude credibility as a witness due to his history of fraud, and he would risk a finding of perjury if he claimed innocence under oath or if he simply made-up stories on the stand. In any event, many defendants face challenges testifying on their own behalf, but Trump made that call, not Joe Biden.

Fifth, after reviewing the jury instructions, I saw no error, in that the instructions fairly reflect governing law in New York. While some complain reasonably that the jury was not required to identify the precise crime that transforms misdemeanor falsification of records into a felony, there is Supreme Court authority in support of this. Juries typically do not need to identify with particularity (nor even agree upon a particular predicate crime) a predicate crime to a felony charge; here the crime Trump intended to further with false business records. The US Supreme Court might well make up some means of saving Donald Trump (see Trump v. United States and Trump v. Anderson). Justice Merchan, however, cannot read the minds of the conservative Court majority and it is not his job to predict ways the Supreme Court can throw lifelines to former President Trump. Merchan’s instructions reflect the law today and that is the goal of jury instructions, not to craft new innovations to save Trump.

Sixth, all the cries of conspiracy theory and a rigged justice system from Trump and his minions lack any evidentiary foundation. They produced zero evidence that Joe Biden masterminded this entire prosecution. The claim is facially absurd. Biden did not set up Trumps illicit and adulterous liaisons, Trump did. Biden did not meet with David Pecker to set up a scheme to hide Trump’s prior bad acts in the run-up to election 2016. Trump signed the checks reimbursing Cohen the hush money paid to Trump’s co-adulterers. Trump can only blame Trump for his 34 felony convictions.

In light of the above, I conclude that Donald Trump enjoyed all the due process the US Constitution accords criminal defendants. Of course, with his billions, Trump can afford the very best lawyers which most defendants cannot. As former President, Trump enjoys the right to argue before many justices he appointed which most defendants do not. From a rule of law perspective the case proves that even the richest and most politically powerful must answer for their crimes.

This tutorial demonstrates how to use the FREE winLAME audio encoder to quickly and simply encode audio podcasts into MP3 format.

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