How Rep. Jamie Raskin sees the Colorado Supreme Court ruling

August 02, 2024

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In today’s edition … Christie defies calls to bow out, leaving anti-Trump movement splintered … Bennet’s family escaped the Nazis. Now, he won’t give up on Ukraine … American democracy is cracking. These ideas could help repair it … but first …

From the courts

How Rep. Jamie Raskin sees the Colorado Supreme Court ruling

The Colorado Supreme Court’s ruling Tuesday disqualifying former president Donald Trump from the primary ballot in the state over his role in the Jan. 6, 2021, insurrection seems destined to end up before the U.S. Supreme Court — more than two decades after the high court intervened to stop the 2000 Florida recount in Bush v. Gore, effectively delivering the presidency to George W. Bush.

One Democrat who cheered the Colorado Supreme Court’s 4-3 ruling: Rep. Jamie B. Raskin (Md.), a former constitutional law professor who served as the lead impeachment manager during Trump’s second impeachment. He talked through some of the big questions in the case and what he described on Wednesday as a “great and meticulous opinion.”

Who’s an officer?

The 14th Amendment prohibits from holding office anyone who has “taken an oath, as a member of Congress, or as an officer of the United States” to support the Constitution and later “engaged in insurrection or rebellion against the same.”

“Some of the trial judges have been getting tripped up on the argument that it doesn’t apply to the presidency,” Raskin said. But the Colorado Supreme Court’s ruling “completely demolished that distraction.”

Raskin was referring to an argument advanced by Michael Mukasey, who served as attorney general during George W. Bush’s administration. Mukasey argued that the 14th Amendment doesn’t apply because the president isn’t an “officer of the United States.”

“The use of the term ‘officer of the United States’ in other constitutional provisions shows that it refers only to appointed officials, not to elected ones,” Mukasey wrote in a Wall Street Journal op-ed in September.

A lower court sided with Mukasey’s argument. But the Colorado Supreme Court disagreed, citing a 2008 ruling, District of Columbia v. Heller: “We prefer a phrase’s normal and ordinary usage over ‘secret or technical meanings that would not have been known to ordinary citizens in the founding generation.’”

“They demonstrate that that argument violates common sense, the history of the provision and the general interpretation of the Constitution,” Raskin said. “They identify 25 different places where [the presidency is considered an office] under the Constitution.”

What does it mean to engage in insurrection?

There’s another argument for why the 14th Amendment might not apply to Trump: the idea that he wasn’t “engaged in insurrection.”

“One, was there an insurrection?” William P. Barr, Trump’s former attorney general who is now one of his critics, told CNN’s Jake Tapper on Wednesday. “Did the public disturbance rise to the level of an insurrection? And second, what was the role of the individual in there? Was it engagement? Did they do something to break their oath of office? Those are complicated facts, and this was denied due process.”

Colorado Justice Carlos Samour made a similar argument in his dissent.

“I recognize the need to defend and protect our democracy against those who seek to undermine the peaceful transfer of power,” Samour wrote. “And I embrace the judiciary’s solemn role in upholding and applying the law. But that solemn role necessarily includes ensuring our courts afford everyone who comes before them (in criminal and civil proceedings alike) due process of law. Otherwise, as relevant here, how can we ever be confident that someone who is declared ineligible to hold public office pursuant to Section Three actually engaged in insurrection or rebellion after taking the prerequisite oath?”

Raskin said he agreed with the majority’s ruling that Jan. 6 was an insurrection and that Trump was engaged in it.

The ruling does “a great job of explaining why Section 3 of the 14th Amendment is self-executing, which means that a court can take a case like this even without” Congress passing legislation that spells out the process for deciding whether someone has engaged in insurrection, Raskin said.

(In his dissent, Samour writes that the idea that Section 3 is self-executing “is hard for me to swallow.”)

What will the Supreme Court do?

There are several ways the U.S. Supreme Court could rule in Trump’s favor if the justices hear the case, Raskin said.

“I would expect them to gather around the idea that this is not a fit matter for the courts to decide and it’s really up to Congress,” he said. “I suspect that is where Trump’s supporters will congregate.”

Raskin was referring to a line of the 14th Amendment that gives Congress the power to overrule the prohibition barring those who have engaged in insurrection from holding office “by a vote of two-thirds of each House.”

“The Colorado court refutes that argument by explaining that the constitutional language of participation in insurrection is subject to the normal rules of evidence in traditional judicial decision-making,” Raskin said. “But the conservatives will undoubtedly argue that the two-thirds requirement for removing disqualification indicates that it’s within congressional control exclusively.”

Raskin thinks such an argument flies in the face of the plain text of the 14th Amendment.

Whatever route they go, Raskin is betting that the justices skeptical of the Colorado Supreme Court’s ruling will rally around a single approach.

“I assume that they are going to figure out what they think their best target is and then focus on that,” Raskin said. “A kitchen-sink approach doesn’t help them too much here.”

A kitchen-sink approach would risk making the justices “look like they’re flailing about, just trying to throw a bunch of Hail Marys,” Raskin added. “They’re better off zeroing in on what they think is the weakest link in the chain.”

The campaign

Christie defies calls to bow out, leaving anti-Trump movement splintered

Our colleagues Meryl Kornfield and Maeve Reston sat down with Republican presidential candidate Chris Christie amid calls for him to end his campaign and clear the way for a more viable anti-Trump alternative: former U.N. ambassador Nikki Haley.

“After gaining little traction outside New Hampshire with his straight-talk campaign centered on preventing Trump from returning to power, Christie, a former Trump ally, is now accused by some Republican operatives of increasing that possibility by refusing to clear the way for alternatives now seen as more viable, most notably Haley,” our colleagues write.

“Sarah Longwell, a GOP strategist and the founder of Republican Voters Against Trump, noted that she has ‘tons of appreciation for [Christie] getting up and prosecuting the case against Trump.’ But she said it has been clear to her and many others who have been polling the Republican electorate that many of Christie’s voters would turn to Haley if he left the race.”
“His negatives are too high. He can’t just stay in the race like he did 2016,” she told Meryl and Maeve. “There’s a bunch of people who are very frustrated with the way that this race feels beat by beat like a replaying of 2016.”
Christie forcefully rejected that logic in an interview with our colleagues on Tuesday: “There is no leader of the anti-Trump wing of the party in this race other than me,” Christie told Meryl and Maeve, “accusing Haley and Florida Gov. Ron DeSantis of tiptoeing around criticisms of Trump while positioning themselves for the 2028 nomination fight. He noted, for example, that neither of them immediately condemned Trump, as Christie did, for stating that immigrants are ‘poisoning the blood of our country,’” Meryl and Maeve write.

On the Hill

Bennet’s family escaped the Nazis. Now, he won’t give up on Ukraine.

Our colleague Jacob Bogage profiled one of Ukraine’s biggest supporters in Washington: Sen. Michael F. Bennet. Here’s an excerpt:

“The Democratic senator from Colorado can trace the lineage of his father — Douglas J. Bennet, a longtime Washington operator turned statesman turned university president — to ships that followed the Mayflower to North America and to ancestors who lived through the American Revolution and rebuilt the union after the Civil War,” Jacob writes.

“Bennet’s mother, Susanne Klejman Bennet, was born to a secular Jewish family in Poland in 1938 and smuggled out of the Warsaw ghetto as a toddler. His grandparents each later escaped and survived the Holocaust, immigrating to New York in 1950.”
“Bennet has emerged as a leading voice in Washington for additional U.S. support for Ukraine, drawing on all of his family’s history: the pilgrims and pioneers who made the United States the world’s leading power, and the migrants and refugees who found a haven in this country and helped construct modern America.”
“They will never give up because they will never submit to a tyrant,” said Bennet, who has compared Russia’s invasion of Ukraine to Nazi Germany’s invasion of Poland and genocide of his mother’s Jewish community. “They will always fight for freedom. They understand what freedom is and the people in Russia and living under autocrats for all these centuries and that the Ukrainian people have a different understanding of what that freedom is.”

In the states

American democracy is cracking. These ideas could help repair it.

Our colleague Dan Balz is out with the next installment of The Post’s Imperfect Union series, which since August has explored the reasons Americans feel unrepresented by the country’s political system.

Dan’s story offers some suggestions on how to fix America’s broken political system, from creating multi-member districts to eliminating the electoral college.

Here are some proposed changes:

Expand the House: “In 2020, the American Academy of Arts and Sciences issued a lengthy report called ‘Our Common Purpose: Reinventing American Democracy for the 21st Century,’” Dan writes. “The American Academy report proposed adding 150 members to the House, roughly the number of seats that have shifted from state to state due to reapportionment since 1931. That would reduce the number of people per district to about 566,000. … [If] accomplished, proponents say expansion would create a body that’s more responsive and more representative of the public it serves.”
Change the Senate: “The filibuster has become a target of those who want to change the Senate. Once used sparingly and often to block civil rights legislation, the tool has been employed far more frequently in recent years to stymie all kinds of bills and nominations. One proposal calls for a return to the practice of senators having to stand and hold the floor for the duration of their filibuster, rather than merely signal their intent to block legislation, a change that would limit its use.”
Address voting rights: “Americans vote in lower percentages than citizens in many peer democracies. Automatic voter registration is one idea to encourage more participation. Citizens would become registered automatically at the time they receive a driver’s license, for example. A 2021 study by three California-based researchers found that automatic voter registration boosts both registration and turnout rates in states where it is enacted, and that the increase grows over time. Mandatory voting is another proposal, though more controversial. Voter identification requirements are controversial politically, though they enjoy public support. Making election day a holiday or moving elections to a Sunday, as is the case in many countries, might make it easier for people to cast their ballots.”

The Media

Must reads

From The Post:

From across the web:

California Democrats want Trump off their ballot too. By the Los Angeles Times’s Noah Bierman.

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