27 Comments

I hope you've passed your analysis onto those who might be able to do something with it.

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I have.

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I love you, Seth!!! I hope they listen to you!

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Do you think the Anderson litigants will do this: « The Anderson litigants should therefore file for a rehearing in the case on precisely these grounds: that their understanding of Section 3 enforcement post-Anderson now incorporates not just the Trump filings in Trump v. United States but the decision of the Supreme Court to hear those latter arguments rather than dismiss them outright. » ?

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I am working on that backchannel. I have contacts on this.

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Just read this. Wow. Mr. Seth Abramson, you have been doing your homework. You have just lowered my BP substantially (hope it lasts) Now, if I understand what all this says is that the Impeachment is going to save our Democracy? Thank you for all you do. I will be watching for some wonderful news. (Hard w/the SC we have right now). God Bless The USA. 🇺🇸

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I'm glad you have contacts. Jamie Raskin? This could be earthshaking. (and Demcracy saving). LOWERING the threshold for confirming Trump is an insurrectionist! I doubt many GOP Reps would have the ability or willingness to read and follow your argument. I hope the right people pick up on your legal-eagle finding and run with it!

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Layperson here.

Summary: Trump has a disability.

The impeachment in Feb 2021 established, by simple majority in both houses of Congress, that Trump engaged in insurrection.

Congress, therefore, already *officially* established he is ineligible to run for office.

To remedy this, Congress would need a 2/3rds majority vote to put Trump back on the ballot.

A state election official needs to ask the Supreme Court to acknowledge this and either uphold the law or throw the Constitution in the garbage.

Did I follow correctly?

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The goal of Libertarian Fascists is to chain and bind democracy into an unworkable, PRO-capitalist, obstructive mess. Hence, Nancy MacLean describes how this was done to Chile under Pinochet in her book, “Democracy in Chains.” Chile never recovered and investigators are still finding hidden caches of money stolen from its people. Pinochet was directly advised by the same, radical economist backed by Charles Koch. Trump interfaces with Libertarian agenda because BOTH aim to misinterpret, bind up the court system in order to do essentially criminal activity: They STEAL.

I’m glad you have the fortitude to weigh into the legal haggling. I’m just a Big Picture person, and I know tRump from his origins in NYC. He is a racist, a thief, a fraud. He rapes, he is a serial adulterer. He is a drug addict with long-term amphetamine use. He uses the legal system to evade justice. He is a perversion of everything he touches. A Village Voice article once quoted a NYC contractor (who wished to remain anonymous) with this revealing sentence: “Trump won’t do a deal unless there’s something extra — a kind of moral larceny — in it. He’s not satisfied with a profit. He has to take something more. Otherwise, there’s no thrill.”

That is trump in a nutshell.

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The aim of replacing the existing government insists on a constitutional crisis among the destructive conditions. An inconsistent Supreme Court ruling, then, iwon't be something that it will try to avoid, a necessary condition of Mr. Abramson's analysis to have the hoped for effect of keeping TFG off the ballot in the primaries or the general election. Nor would an unconscionable delay in hearing a case intended to reach the clarification followed by action his analysis demands.

The ploy of avoiding civil unrest as motive for putrid SC rulings for elections has been tested and found effective in Gore v. Bush. In any case, delay until Inauguration Day seems to be the ace in the hole for the bad guys. Their project has been in the works for generations. When will conditions for success be better?

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Absolutely.

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I rarely find someone more wordy than me, but good words? He's already been convicted, take him off the Ballot!

(I'm not done reading all of it yet).

Problem is we can't expect the Supreme Court to do anything properly, they're too corrupt.

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This is very clever and I follow the reasoning. But if congress has already found trump unqualified (as you say, with their majority votes in 2021) why would the court say Colorado was in error to remove him? Your parsing of their language might be logically correct but if this had been the courts intention, wouldn’t that have added “and congress has already so found” to the end of their opinion? I don’t understand how this could be actionable. The court will just swat it down again.

Do they contradict themselves? Then they contradict themselves. You have to look no further than bush v gore to see that the court is perfectly capable of that.

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Great question, Sam! And the answer is one that will sound coy but is really not: SCOTUS established this new legal framework *via Anderson*, so it could not have been raised by anyone prior to just a few days ago. In other words, the Anderson litigants did not (and could not) have raised it in their filings, as they did not know SCOTUS would respond to those filings, as it did a few days ago, by establishing a new legal framework that can only work if Trump was already disqualified from federal office as of February 2021.

This also explains why SCOTUS did not address it: it was way, way outside anything in the *filings* in Anderson. While SCOTUS did of course go beyond the question those filings established—the "single question" the Court acknowledged was before it—we could not *also* say that the Court needed to argue over interpretation of a legal framework it was *at that moment establishing*. We do not require the Court to argue with itself; we expect litigants to do so in response to rulings and that is just what should happen here.

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That doesn’t make sense though. They then finished their finding by saying Colorado was “in error”. That is exactly “applying the framework that we’re in the moment establishing”. They answered the one question - and then acted on the answer.

If they’d wanted to, they could have said something like “in the matter of who can enforce (the one matter before them) we find only congress can. Since congress has already acted via the 2021 votes, we find that Colorado’s action is valid and stands, not because they had the right to decide as a state, but because congress has decided already”. But they didn’t do that. They settled the issue at hand *and* applied it to Colorado (as you might say, incorrectly but hey, what’s a little contradiction among us supremes, amiright?)

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The USSC appears not to have considered all relevant facts; to wit, they failed to grok their decision to lower threshold for disability to hold office to majority vote in Congress opened the door for the previously recorded majority votes on Trump's second impeachment proceeding in Congress for inciting an insurrection. It seems that simple.

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I’d love y’all to be right about this, believe me. It just seems highly unlikely that none of the 9 justices contemplated this during the period of review. Perhaps one or two of the liberal justices did and kept their mouths shut but it amounts to the same thing - the majority will just say “nah, didn’t mean that, move on” if someone tries to call them on it. They meant to say he gets to stay on the ballot, and they said it. It would be nice to think we could hold them accountable for all of the implications of their words but we can’t. Cf the ethics mess with Thomas.

In Bush v Gore they basically did what they wanted to (pick a president by stopping the Florida vote count on very dubious legal grounds), which was in some ways against precedent and then said “this doesn’t set any precedent outside of this one case” because they knew the reasoning was problematic. The court is perfectly capable of carving out one off “irrational” decisions and ignoring language in pursuit of a specific objective if they want to.

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Brilliant analysis. I wonder if this plays out and he is disqualified (and not relieved), prior to November, how (if) will we conduct an "election?"

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So I’m not crazy after all! I was thinking this exact same thing. Thanks for writing it out. As they say, “Reading is fundamental.”

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Seth, could you please add a summary at the beginning of each of your posts? I often get lost in the weeds and fail to understand your major points. Sometimes it is better to savor the sausage at the end than to see it made.

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If you follow Seth on Threads, he's really good about doing just that:

https://www.threads.net/@seth.abramson/post/C4M1L8tsUrF/?igshid=NTc4MTIwNjQ2YQ==

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Thanks. Still wish he'd lead with summaries for laypeople on his Substack posts. I find it tiring (and sometimes confusing) to read them.

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Is anyone concerned that the Anderson standard could lead to bad faith disqualifications of candidates? If the GOP had a majority in both houses, couldn’t it pass a law saying that Joe Biden was an insurrectionist because he gave aid and comfort to our enemy by not enforcing our border laws or some such thing?

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It required an intense and quiet setting (as a non-lawyer) to read and fully grok this analysis but.....brilliant! I now see that one more step must be taken, since the SCOTUS has only now brought forth their decision, in essence elucidating a way for Section 3 to spring into action (much like a springing durable power of attorney) but in a rather sly manner in which the liberal three apparently weren't even aware of its implications vis-a-vis majority votes already taken regarding impeachment/removal. You've developed a fully vetted persuasive argument. My only question at this point is who is the party with the greatest "standing" to bring it back to the court?

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Wow!!! Thank you for the education! Now, let us just “Get ‘er done”! Onward!!!

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I too found this to be a brilliant review of the decision. It does provide hope. However, I wonder, based on your "bewilderment," in Sotormayer's statement, could she have been addressing the closed door discussions/negotiations about the ruling? Based on the prior observation of the wile of the current SCOTUS should we have new fear that this invitation to further litigate leads to an outcome that is counter to your supposition? What is the downside risk of further litigation?

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C'

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