This is the next of our series of missives on our unfinished work to restore the promise of our country and its government. Each will focus on a single element of the many opportunities and challenges that lie ahead. Each will provide three steps we can all take to build upon our huge victories winning back the House in 2018 and the Presidency in 2020.
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It’s a solid bet that Supreme Court Justice Brett Kavanaugh is extremely annoyed. Trump lawyer Alina Habba just chronicled how hard the Trump White House worked to get him confirmed, saying she expects Kavanagh will “step up” in the Supreme Court’s decision-making over whether Trump’s insurrectionist behavior could keep him off ballots.
Kavanaugh has voted with the conservatives in the great majority of the cases before the Court. However, he showed some independence. In the spring of 2023, he joined John Roberts and the liberals in protecting the key remaining section of the Voting Rights Act, thus forcing several Southern states to abandon racially discriminatory redistricting maps.
In February, the Supreme Court will review the 5-4 decision by the Colorado Supreme Court to deny Trump a place on that state’s presidential ballot. The Colorado Court’s finding is that Trump’s role in the January 6, 2021 insurrection disqualifies him for the Presidency under an 1868 amendment to the Constitution.
In 2022, a New Mexico judge removed County Commissioner Cuoy Griffin from office for assaulting the Capitol on January 6. Could Trump face the same fate? Whether or not Brett Kavanaugh despises Trump or has a secret shrine to him in his closet, the answer will be no. This will be even more painful because Trump has warned the Court and nation that there will be “big trouble” if the Court rules against him. By all rights, this alone should disqualify him.
The insurrection of the Civil War involved putting a million Confederate soldiers into battle. The Supreme Court will find a problem in the Colorado case with a lack of definition of insurrection, a temporary shortage in Trump convictions, a lack of an established statutory process to consider the issue, and perhaps with an uncertain definition about whom is an “officer” of the United States under Section 3 of the 14th amendment. They will let the awful man stay on the ballot, perhaps even by more than the typical 6-3 or 5-4 vote.
Roberts and Kavanagh and the liberals will craft a way to say something more, underscoring the felony charges before Trump. Besides, as court watchers know, there is a lot more to come:
- E. Jean Carroll’s defamation case is still out there. Trump has already been found to have defamed Carroll over her charges of rape. What will be before the Court is an appellate finding that Trump did not claim on a timely basis that he had immunity from this civil charge. Once the matter is completed and Trump held liable, the Supreme Court will refuse to hear his appeal.
- By June, the Supreme Court will hear the appeal of three January 6 rioters who were convicted of “obstructing an official proceeding”. A federal district court judge dismissed charges, ruling that the law prohibiting such actions requires the obstruction of a document, record or other object, The appellate court reversed that decision in a 2-1 vote, leaving the case ripe for the Supreme Court to choose the narrower interpretation. If that’s what they do, it will eliminate one of special counsel Jack Smith’s four charges against Trump. This is relatively inconsequential, except for the tiresome Trumpian untruths and misrepresentations that would immediately follow. Three hundred of the one thousand rioters faced this as at least one of their charges.
- There are two separate cases in which Capitol police have sued Trump for civil damages related to the injuries suffered during the January 6 insurrection. These cases and Jack Smith’s felony charges reach Trump’s ultimate defense, that he has total civil and criminal immunity for any actions taken during his presidency. The big win before the Supreme Court will be when they find that no such total immunity exists, nor has the court ever implied that it does. Instead, the courts will determine that a President is criminally and civilly liable for actions taken outside of his official duties.
- Jack Smith is counting on this in the most important case of all, now before US District Court Judge Tanya Chutkan in DC in which Trump is charged with plotting to overturn the election. Smith’s actions are shrewd. The reason he wants the ruling on immunity before the trial is that it helps him organize his prosecution. It establishes that a few important former Trump staff members, including Mark Meadows, will testify that they knew, and he knew that he was acting outside of the Presidency.
As this missive is being distributed, a three-judge panel in DC will be hearing Jack Smith’s expedited appeal on presidential immunity. Donald Trump plans to attend. It’s possible the three-judge panel will immediately reject the spurious claim and remand the case back to the federal district court which had sought to begin the long-awaited Trump trial on March 6. It is not out of the question that the Supreme Court will refuse to hear any subsequent appeal on the immunity claim.
What a time it is, no? Why not do some things on our own, rather than just watching the news.
| 1) Celebrate Ron DeSantis’ Demise |
 | Perhaps at one point Ron DeSantis met with a campaign aide who counseled him: “Ron, I want you to spend your entire campaign imagining you have a sour lemon in your mouth. Be extremely angry at everyone, even your mom. And if you need to summarize, just say, ‘Florida is the place that woke goes to die.’ That will supercharge the electorate!”
Accordingly, the DeSantis campaign is nearly over. In the meantime, as conservative as Nikki Haley is, it would be nice to have a Republican candidate who wants Zelenskyy and Ukraine to live and thrive. We will find out how viable she is in New Hampshire on January 23. In the meantime in “honor” of DeSantis, let’s get back to guaranteeing that Florida is a swing state again. The right to choose may well be on the ballot in November. Help make that so by supporting Floridians Protecting Freedom. |
2) Do This to Help Ukraine |
 | The leading Republican supporter of Ukraine in the House is Michael McCaul of Texas, chair of the House Foreign Affairs Committee. It is a good thing that he cannot abide walking away from further aid to Zelenskyy. Call his office at 202-225-2401 and tell him now is the time to step forward to make certain his caucus does the right thing. |
3) Shore Up State Election Laws |
 | It’s time to circle around to our state legislators to make certain they are doing due diligence in strengthening election processes. The best guide there is on what legislators should be doing right now on such issues as election certification and dispute resolution is How States Can Prevent Election Subversion in 2024 and Beyond. Get it from the Brennan Center and contact your own legislator. |
There would not be a way to overstate the danger to our nation of the swirling, Trump-generated anti-Democratic forces. These are formidable foes, but this is a battle that we will win.
David Harrison
Bainbridge Island, Washington
