Subject: Re: Help Wanted: Constitutional Grammarian
I've seen two additional points about this ruling either from those in the professional commentariat and the larger internet that are thought provoking at the very least.

As with my comment, the commenters thought it was odd that the judge devoted so much of the ruling to evaluating the factual claims of the petitioners (the parties that cited the January 6 Committee's output regarding the riot and events leading up to it) and explicitly ruled as to the validty of those facts. That made it odder still that on the final issue -- if insurrection WAS committed by Trump, should he be banned under the Fourteenth Amendment? -- the judge seemed to ignore her factual findings and rule he could not be barred from the Colorado primary ballot.

What they drew from that was that by so explicitly recounting those facts while issuing a verdict that would likely be appealed, the appeal cannot re-litigate the FACTS of the case. Appeals can only re-litigate the legal rationale used UPON those facts and their compliance with established precedent or their validity if addressing some new corner case not covered by precedent. In effect, the judge succeeded at getting on the record a long litany of acts undertaken by Trump and his minions and a declaration that each HAPPENED and was a CRIME.

They also concluded that the judge absolutely got the ultimate decision wrong and there are numerous points in federal law which can be identified to correct her logic that a) the office of President is some separate realm of "office" different than that referenced in the Fourteenth Amendment and b) an "oauth to defend" the Constitution is different than an "oauth to uphold/support" the Constitution and that other case law exists that can correct these findings. Given the petitioners will appeal to the Colorado State Supreme Court and eventually the US Supreme Court if needed, these professionals seem to think it is likely an appellate court will rule the amendment DOES apply to the "office of President" and to the "oauth of office" of the President.

Which brings up a second attention getting point. One comment mentioned that maybe the judge was legitimately concerned about getting over-ruled if she ruled in favor of the effort to block Trump's appearance on the ballot, given that language and grammar ARE often obtuse across different sections of the United States code. Maybe she was concerned that getting overturned on a ruling FAVORING the removal from the ballot would lead to more confusion and delay as Trump and Republicans appealed. Maybe an initial ruling PROTECTING the right to appear on the ballot would require an appellate court to more EXPLICITLY explain WHY such a candidate should NOT appear and WHY the actions now accepted as fact DO constitute acts subject to the Fourteenth Amendment. And most importantly, if the case goes all the way to the Supreme Court for that body to issue that ruling, now that ruling is in effect across all 50 states and territories - INSTANTLY.
No need to litigate it in multiple states.

The flaw with THIS argument is that it assumes Trump would appeal a COSC decision that kicked him off the ballot. If he determines he might likely lose in Colorado anyway, he could just eat the loss on this issue and blow off Colorado's electoral votes. This would prevent the issue from being established nationwide, requiring more litigation and delay before achieveing critical mass.

The overall logic is appealing but it isn't clear these judges are playing that many moves ahead. A more plausible explanation is that many of these judges for some reason fear having to stick their legal / intellectual necks out to make such an obvious ruling in hope that the population will regain its sanity and not elect someone who may not surrender the reigns in another four years. They are acting almost as if they believe if they don't have to make these types of decisions and don't want to sully the law of the land by having rulings on file that have to explicitly tell the country a candidate for President COULD be under indictment or could be a convicted felon and we probably shouldn't put those types in arm's length of enforcing the Constitution and the nuclear football. This isn't really happening and it will go away.

That is patently false and dangerous. This problem is NOT going away.


WTH