Like It Or Not, The Roberts Court Is About To Be Confronted With The Trump Problem

A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.

Extraordinary Times

The decision by the Colorado Supreme Court to remove Donald Trump from the GOP primary ballot has cast us deeper into uncharted waters.

I had a vague notion even into adulthood that the constitutional order in America was challenged every 50 years or so in ways that stress-tested the system. By that measure, I regret to inform you that we live in extraordinary times.

Since 1998, some of the markers – by the numbers:

• 3 going on 4 presidential impeachments;

• 2 winning presidential candidates losing the popular vote;

• 1 going on 2 presidential elections decided by the Supreme Court;

• 1 attempted coup; and

• 4 criminal prosecutions of an ex-president.

While it’s not just Donald Trump, you can see his outsized impact on those numbers.

I’m not of the view that testing constitutional limits is somehow dangerous or ill-advised. We should thoroughly ventilate the 14th Amendment’s Disqualification Clause, as is being done now. It’s been a mistake, in my view, to spend decades circling around but never quite confronting the true extent of executive privilege. In the half century since Watergate, we shouldn’t have operated under the untested specter of a Justice Department opinion that sitting presidents can’t be criminally charged.

So I don’t think there’s anything inherently ill-advised about treating the Constitution as a robust mechanism to be used, tested, amended, and reinvigorated. Not every brush with a constitutional question is a constitutional crisis. (To clear up any possible confusion, I’m talking here about the constitutional structure itself, not the scope of individual rights protected by the Constitution, whose developments have their own history and evolution under the law.)

The next few months are going to see a series of new tests.

What’s On Tap For The Supreme Court

It’s hard to envision a scenario in which the Supreme Court doesn’t take up the Colorado decision. Not touching it leaves a momentous decision intact and could lead to a patchwork of state-by-state decisions without a nationwide Supreme Court ruling to provide consistency.

But touching it creates all sorts of legal and logistical challenges. I think it’s going to be important, for instance, to see this first and foremost as an elections case. Colorado officials will soon be up against the clock on basic election administration issues like printing the ballot. While the GOP primary in the state isn’t until March, early voting starts well before then in February. That creates a sense of urgency not just in Colorado, but in other states where courts may be newly emboldened to rule against Trump on the Disqualification Clause.

I’ve seen a number of smart observers note that because the Colorado decision was stayed until the Supreme Court rules, the Supreme Court could do nothing and just let the GOP primary proceed with Trump on the ballot. I’m skeptical that it will backdoor its way to a decision that way. It’s possible, but that would cast a cloud over the entire election.

I lean toward more expedited and immediate action from the Supreme Court, but I can’t predict the outcome here. There are a number of different paths the Supreme Court could take. The suspense is real. The stakes could hardly be higher.

A Departure From The Norm

Neither the majority opinion nor the three dissents (remember, all seven justices were appointed by Democratic governors) offers much real insight into how the Supreme Court will rule, so I’m not going to dissect them here for you. I think the Supreme Court will largely consider the legal issues anew. Remember: the Supreme Court really isn’t bound by the Colorado decision, except it has to defer on what state court says about Colorado law. So this will be close to a fresh bite at the apple for the high court.

Informed Reaction

• Harry Litman: “[W]e are in for a wild and woolly constitutional ride over the next 16 days and perhaps beyond, and it’s difficult to know where or how it will end.”

• Aaron Blake: 4 takeaways from the Colorado Supreme Court’s disqualifying Trump

• Law professor Derek Muller: “Never in history has a presidential candidate been excluded from the ballot under Section 3 of the Fourteenth Amendment. United States Supreme Court review seems inevitable, and it exerts major pressure on the court.”

Political Analysis Falls Short

The reaction to the Colorado decision from elected officials and political reporters (as opposed to legal reporters) was predictable and tired.

Jack Smith Still Gets Access To Rep. Scott Perry’s Phone

WaPo: “A federal judge on Tuesday granted the Justice Department access to nearly 1,700 records recovered from the cellphone of Rep. Scott Perry (R-Pa.) in a long-running legal battle in the criminal investigation of former president Donald Trump’s efforts to overturn the 2020 presidential election.”

Plus … bit more on what was on the phone.

A Glimpse Of What DOJ Was Doing Before Jack Smith

Politico: “Months before special counsel Jack Smith took over the case, federal prosecutors in Washington, D.C. were considering obstruction charges in connection with Donald Trump’s bid to subvert the 2020 election.”

From The Ellipse To The Supreme Court

TPM was the first to report back in 2021 that a second rally had been planned for Jan. 6 by Trump’s “Stop The Steal” allies, this one at the Supreme Court. Now a new inspector general’s report from the Interior Department adds further confirmation and detail to what we previously knew.

Rudy G’s Financial Desperation Played A Role In Probe

Newly unsealed documents show that criminal investigators were looking into whether Rudy Giuliani’s antics in Ukraine were driven in part by his increasingly dire personal financial situation. As you know, the case was closed with charges being brought against Giuliani.

What Trump II Would Do To The Pentagon

TPM’s Josh Kovensky: How Trump Is Laying The Groundwork For A Coopted Military

Sign Of The Times: Trump Denies Reading Mein Kampf

Trump renewed his vicious anti-immigrant rhetoric in Iowa Tuesday, telling a crowd: “They’re destroying the blood of our country. That’s what they’re doing — they’re destroying our country.”

Great Lede

Philip Bump on the racism and ahistoricism of Trump’s “poison the blood” rhetoric:

Removal Of Confederate Memorial Is Back On

A federal judge in Virginia lifted the order blocking removal of a Confederate memorial at Arlington National Cemetery after visiting the site himself and being satisfied that graves were not being disturbed, as the pro-memorial plaintiffs had claimed.

The Best Reaction Of All

No! Don’t do it! Pleeeease!

For its part, the Colorado Republican Party says it will ditch the presidential primary in favor of a caucus if Trump is left off the ballot.

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