Trump v. Anderson: Colorado Ballot, the Meaning of "Insurrection", and Due Process

Ronald W. Chapman II discusses the Colorado Supreme Court decision removing Donald Trump from the primary ballot. Prior SCOTUS cases discussing the meaning of "insurrection". Ron also discusses the progression of this Supreme Court case and some options for the Supreme Court and how to handle its most recent election shaping decision. 

Transcript

Welcome to another episode of De Novo, a Supreme Court podcast.  Big news this week. The Supreme Court just decided to take Donald Trump's case.  The Colorado ballot case,  it looks like briefing has been set at a bit of a rocket docket finishing up in January with oral arguments scheduled to be in February.

And on this episode, we're going to go through a preview of exactly what this decision entails, how the court is likely to handle it procedurally.  And then we'll go a little bit into some of the arguments behind,  um, the Trump camp's belief that Donald Trump didn't commit insurrection, as well as perhaps some of the arguments that, um,  that Colorado may make here.

And, uh, at the end of it, hopefully you'll have a pretty good understanding of exactly what this Colorado case means, the implications for the court, and perhaps even a bit of a  the court's decision. So, you know, there's a lot of procedural issues in this case. And I think that we can really get lost in the Colorado case.

When we talk about the procedural issues, um, I'm certainly a victim of that. Myself. Was there sufficient due process, this five day trial that happened in Colorado, was that enough? Um,  uh, It has the case. Does the case have standing? That was always a good question. Are the people who are suing? Are they the people that should be suing?

Do they have a legal right to be in court challenging Donald Trump on the ballot? And all of those questions are very important. Very interesting questions and they are questions that the court is likely to grapple with but they really don't get at the heart of the matter and I think that they can really be distractions.

So, I'd like to get outside of that for a bit and talk specifically  about insurrection and whether or not there's an argument that Donald Trump committed insurrection. And that's, that's really where we should go. So I did a bit of looking and unfortunately, uh, you've got to go to some old cases here. If I stood up in a court of law and I cited an 1827 case, um, I would expect a judge to laugh at me and then ask me if I was going to cite the Magna Carta next.

But unfortunately, we do not have a lot of cases. discussing insurrection at all. Um, the reality is, is that we've really only had one that resulted in war. That was the,  the reason that we created this section of the 14th amendment to prevent folks from holding office after they've been involved in an insurrection.

And so, so the question, the question before the court at its heart, if they get to it is going to be  Was there an insurrection on January 6th? And that's, that's what we need to look at as well in order to, to, to really understand this. So let's go through some of the facts. I know a lot of these are in dispute.

Um, Jack Smith has his case in, in Washington. We obviously have the Georgia case related to the fake electors, uh, scheme. And there's a couple of theories behind this. So the first is  Trump and others,  uh, before, um, President Biden's inauguration attempted to steal the election. This is the allegation, um, by creating a slate of fake electors  to, um, sort of confuse or cause delay  in the elector process when Congress was certifying the election. 

Then they also tried to get Mike Pence  Who is in charge of this whole proceeding on January 6th,  um, to not certify the election  in order to allow, um, some time so that other ballots could be cast for other electors,  um, and, and this was an effort to sort of overturn the efforts of the Electoral College and prevent elector votes from being cast.

Uh, based on their, their rightful winners. So I think, I think this is sort of a two fold idea. Number one, um, for those states that were in contention, um, those, those states may not have been counted by Pence if he decided to carry through with this. And then number two, potentially false electors going for Donald Trump would have been put in their place,  which could have resulted in. 

Trump being declared, um, the winner.  So that's the first thing.  The second thing. And I think the thing that the American public and perhaps even Jack Smith is spending a lot more time looking at is January 6th itself. And, and I think that that is a much less credible argument. for insurrection. So let's, let's look at January 6th.

And of course, if you paid any attention to, um, the January 6th report, the January 6th commission, Donald Trump's impeachment trial, the evidence in the federal case currently pending against him, you probably have a good idea of what occurred. But for those who don't, let's just go over some of the history here.

So January 6th, there was obviously a, um, An effort to, uh, have a lot of people show up in Washington, D. C. that day, um, and, and protest. And, and a lot of people will say that this was sparked by Donald Trump's interest in having a lot of supporters there, uh, potentially in an effort to do something. Maybe do something crazy. 

So people arrived in Washington, D. C. that day by bus, by train, they sort of flooded  and there was, there was a rally and that crowd started to get a bit out of control and we heard from the January 6th Commission in the January 6th report that there were a lot of President Trump's supporters telling him he should go outside and make a speech, that he should tell these people to be peaceful, that he should ensure  that nothing Um, bad happens and that he's sort of responsible for this rally.

And I think a lot of people hold him responsible for that, that rally because of a lot of the rhetoric early on about how certain states had essentially stolen the election. You had a lot of people who cast their vote for Donald Trump and they were subjected to a lot of information coming out from other states.

Michigan was one of them. Uh, I was sitting here in Michigan hearing about, uh, arguments about how, um. You know, certain votes weren't being counted and how at the TCF center, electors or, or I'm sorry, election observers were being prevented from accessing the building. And, and we were hearing all of those reports.

Of course, you don't know what to believe when, when all of this is occurring, but you had a lot of Donald Trump supporters that were disenfranchised that day.  So  you've got the crowd and then, and then you've got everybody begging Donald Trump to speak. Of course, Trump's busy. He's working on this. Um, and trying to get Mike Pence to, to not call the election in his favor, but eventually he does. 

And here's the problem with speech.  We have the right to free speech.  And when you're looking at somebody's speech or their actions,  we really have to determine  that this is not protected  before we can determine that it's somehow unlawful. So that's the analysis. Number one, is it protected speech?  Do you have a First Amendment right to say it?

You have a First Amendment right to say a lot of things. There's an old adage in the law, um, you don't have a right to say fire in a movie theater, that's certainly correct. Uh, and the reason for that is, you don't have a right to engage in speech. Um, that will cause harm to other people.  Um, hate speech is also another exception.

Um, but those exceptions are very limited. And, and usually by statute.  Okay, and if we want to have an exception to free speech, we would hope that Congress would create a statute and say, this is not considered free speech. And then that would be that, um, the Supreme Court has addressed this many times, um, in a, in a, in a Texas, uh, flag burning case,  um, that was very important to free speech rights, um, you know, flag burning was determined to be an active, uh, of speech  and, uh, and, and free speech. 

At that. And so we really want to look  at the context of the speech and also specifically what was said and we would need to make the determination  that it's not protected and you know, as, as a lawyer, um, looking at it from both sides, if I was a prosecutor taking the case, if I was defending Donald Trump, I, I, I look at the speech and it's not there, there's just not enough there to suggest that this was a fire in a movie theater.

situation. Um, it maybe was a half hearted go home  and maybe he could have done a lot more to stop  the rally from occurring. But that's not going to be enough to get you into a criminal speech  situation. That's not going to be enough to say that this speech is an inciting insurrection. And I think  One thing that is likely to happen during the Trump trial is if there is an argument that the statements that he made on January 6th to the public would have been enough to incite insurrection.

And I think this was also an argument that was made at his  impeachment trial as well.  Then I imagine he would, um, point to a lot of the rhetoric that we've heard from other movements, uh, Occupy Wall Street, um, the Black Lives Matter movement, um, certain protests. We, even since January 6th, have had multiple instances where state, um, Capitol buildings have been occupied by protesters, specifically.

Gaza protesters right now. And when you look at, um, those protests and you look at some of the language associated with them, um, you know, we see that in, in many cases, it's much more severe and, uh, and, and nothing was done and it was not considered, um, any sort of,  any sort of insurrection or insurrection type language. 

So I, I really don't think this speech argument is going to be Um, the best bet here, uh, in trying to argue that Donald Trump engaged in insurrection. I want to back up for a moment though and talk about something vitally important. Um, first, when we look at Jack Smith's indictment in Washington, D. C.

against, um,  Jack Smith, Uh, Jack Smith's indictment against Donald Trump filed in Washington DC before Judge Tanya Chutkin. And we look at the charges there. Remember, this is really a fraud case. The allegations are that Donald Trump defrauded the American people by attempting to steal The election. Okay.

Smart move by Jack Smith because he did not take on the insurrection idea  as a whole. Uh, he's going to use that as maybe one of Trump's motivations for engaging in this conduct. But he did not charge Donald Trump with insurrection. So we have to, we have to start there. There, there has been no, um, criminal case.

against Donald Trump  alleging that he committed an insurrection.  There just simply is not one of them. So, how then do we determine  if Donald Trump has engaged in an insurrection, if he was not convicted  of an act like that at an impeachment trial,  and no federal prosecutor  Specifically, the Attorney General Merrick Garland  has elected to charge him  and prove that he committed insurrection.

How then would we determine if Donald Trump engaged in an insurrection? And that's, that's really where this analysis becomes problematic for the American public. And let's just take  the heavily charged name Donald Trump out of this equation. Imagine that we have  a presidential candidate, and that presidential candidate has not been charged or convicted of an offense,  but because of the allegations and the evidence related to that offense. 

People move for that person's disqualification from office,  arguing that because of the allegations that they violated  some statute that disqualifies them, that they should not be able to hold the office.  I don't believe that we would want a standard like that in this country for a A candidate that's a Democrat, a candidate that is a Republican, or a candidate that is an Independent.

But yet we've seen a rise of these allegations that were not supported by criminal conviction or due process arising and trying to impact  our government. Um, we saw this with Brett Kavanaugh. We saw this a long time ago with Clarence Thomas. Um, we've certainly seen this happen with, with other  elected officials. 

But typically in our system, before we take  liberties away from people, before we saddle them with the impact of a criminal conviction or a crime,  we charge them, we provide them notice. That's what our constitution says.  First, we provide them notice in the law, and we tell them this is a law and you must follow it, and if you fail to follow it, then we can charge you, and then if somebody fails to follow the law, they receive charges, and that's a notification. 

There was a law, you broke it, here's how you broke it,  and then you get what's called due process. You get the ability  to contest the allegations in a court of law.  And so that's, that's what we need to get into when we start talking about The Colorado decision and, and insurrection. So, uh, this is where Colorado is unique compared to all of the other states.

I believe there are 60 pieces of litigation related to Trump being on the ballot. And this is where Colorado is distinctly different. So, for those, for those who haven't read the Colorado opinion, here's essentially what Colorado did.  They said,  Well, we get to determine whether or not Trump should be on our ballot, because we are the state of Colorado. 

How are we going to do that? We need to find out if he has committed insurrection.  Um, well, they wanted to provide a form of due process, so that they could make the argument that we provided Donald Trump due process,  and we determined as a result of that provision of due process,  that Donald Trump did in fact commit an insurrection. 

And so what did that due process look like? Well, you can read it in the Colorado Supreme Court opinion,  but essentially it was a five day trial.  Now mind you, the January 6th Commission met for Months and months  and authored a massive report.  Donald Trump's impeachment trial was also very long.  The due process protections afforded to Donald Trump in his criminal case in Washington, D.

C. have been going on for a very long time as well.  All of those, much, much, much, much more than five days.  To determine whether or not Somebody has  engaged in insurrection or rebellion against the United States, you would imagine would take much more than a five day trial. I mean, there are  petty crimes that are  that proceed to trial that take much longer to resolve at trial.

But, but Trump's trial. in Colorado to determine if he should be on the primary ballot  was merely a five day trial. And what right was he afforded at that five day trial? Well, he was given a very, um, short period of time to obtain witnesses and to obtain rebuttal witnesses.  That's, that's quite important because if the government wants to put a witness on, um, or if the accuser wants to put a witness on, then the defendant is going to want to respond with some sort of witness in order to help persuade. 

Trump wasn't given very much time to do that, to put witnesses on.  Um, there's a, a rule  called the hearsay rule. Many people have probably heard of it from court TV and whatnot, but the hearsay rule essentially says that you can't introduce a document.  Uh, for its truth,  if it was, uh, I, I say a document, really a statement, uh, for its truth, uh, if it was made outside of court, and there's some exceptions to that. 

There's many exceptions to that, and in some sense the exceptions kind of swallow the rule here.  But the reason hearsay exists is first to allow defendants to confront the witnesses against them,  and  to contest the evidence against them.  If we imagine a world in which hearsay rules didn't exist,  then one side would put in a bunch of documents and witness statements, the other side would put in a bunch of documents and witness statements, and then there would be closing argument on the case, and then the jury would get to decide.

Anybody would be able to put documents  forward to the court without them being tested through cross examination. And this is where the magic of our system happens. It happens. during cross examination. That's what I do, uh, most of the time as a defense attorney. Uh, most of my time in court is spent cross examining witnesses.

The government will put 30, 40, 50 witnesses up  in court. I have them say things and I will test them  through the process of cross examination. It's, it's a great process. It really gets to the truth. It hones things down. Uh, you can weed out liars. In fact, in, in, in my last trial, um, there was Somebody who was being cross examined, who, who lied so hard we had to stop the  The whole trial so that, uh, an attorney could, you know, come and appear and give some advice to this person. 

Um, and, and, and lies happen. Um, lies happen on the witness stand. Um, more often than we would want. And that's exactly why we need cross examination.  So, so why, why get into hearsay? Why is this important? Um, it's important in the five day hearing because the reason Colorado was able to give Donald Trump  A five day hearing and no more than that, the way that they could wrap this all up in just five short days, such a crucial issue, was to move the entire January 6th commission report into evidence  and all of the witness statements and documents  Move them into evidence  against Donald Trump in that five day Colorado hearing  of course Trump's team Objected to hearsay just as any of us would I don't imagine any of us would really like the idea  That an entire report created by a congressional committee that really  didn't have a ton of authority to do anything anyway  Should be used to prove  really the heart of the case If you're going to give due process,  give due process.

Call your witnesses, allow them to be cross examined, cross examined, put your documents in, let's have a trial, let's have a hearing, but Colorado couldn't do that, number one, it would be way too expensive for them to redo the entire January 6th committee hearing, this was one of the arguments, um, you know, the other argument is that, um,  that, that, that hearing, uh, was, you know, one that should have protected Trump's rights in some sense as well, um, and, and, and I think that's really where  Um, this case departs from  the idea that we're just kind of moving in. 

A hearing where Donald Trump was represented and had the ability to defend the January 6th Commission was not a criminal trial. The January 6th Commission was a commission that was set up to essentially investigate. It's more like, like moving police reports and investigative reports into evidence over a hearsay objection, as opposed to moving in the transcript of a prior criminal trial. 

So that's, that's going to be the first major hurdle. When we look at this case, when the Supreme Court looks at this case, they may not go to the fifth amendment. They may stop short at determining whether or not this section of the 14th amendment  applies to Donald Trump. That's that's argument number one, which I'm not really going to get into.

Um, it's, it's kind of boring, it's kind of weighty, and I don't think that that really has the heaviest implications for the American people, but  the, the real question will be, did he engage in insurrection, and who gets to decide that? And so, Colorado will say, Colorado gets to decide that. Uh, they get to have this hearing, and  they get to decide whether or not he engaged in insurrection, and I think  the Supreme Court may go a different way.

So, we have the five day trial, and then we have the decision in the district court. Um, that was appealed all the way up to the Colorado Supreme Court. And when a case goes to the State Supreme Court,  then it can be appealed directly to the United States Supreme Court, um, if it has constitutional implications and, uh, and what. 

So this case was appealed.  And, and the first step for this appeal, uh, the question is how much time do we have? That's what everybody on the court is wondering. So the ballot printing date was supposed to be something like January 4th or 5th.  Colorado was nice enough to automatically stay this decision to allow appeal to the Supreme Court  because I think they wanted the Supreme Court to have to weigh in on this. 

And Donald Trump  and other interest groups filed appeals to the United States Supreme Court. And, uh, the Supreme court took up the case just recently, just last week,  but they. They didn't take up the case of, uh, the interested groups that filed before Donald Trump, they took up Donald Trump's case. And I think,  I think that is really telling as well because they, the presidential candidate filed his appeal to the Supreme Court and that's the one they took indicating that they, they think that, that Donald Trump's case is a bit cleaner from a standing standpoint and I agree with that as well. 

So it's right now with the justices. And there was a petition for certiorari,  um, which is Donald Trump asking the Supreme Court to take the case.  Then there's a response to that petition. Then there's a briefing schedule that is set, which has already been set.  Then there will be three briefs. The first brief is going to be Donald Trump's opening brief in which he lays out his arguments.

These won't be new. We've heard all of these arguments before. They've been raised in the Colorado proceeding.  The arguments that weren't raised in the Colorado proceeding are raised in Donald Trump's petition for certiorari. We've heard political pundits and legal pundits talk about these arguments over and over again.

It is going to be number one. That this section of the 14th Amendment doesn't apply to Donald Trump because, um, he's, he's not an officer of the United States. They think that's one of the more compelling arguments to go forward on. Um, there's a smattering of other arguments, including, I believe, a bit of an attack  on the due process in, uh, the Colorado.

Colorado court. There's a standing issue. Um, and there's, there's many others.  There's going to be a reply. I'm sorry, a response.  In that response brief, it will essentially be arguments countering Donald Trump, and then he'll have the ability to file a reply.  Then we get to oral argument. Um, every case before the Supreme Court is scheduled for oral argument, um, after cert is granted and after the case is briefed.

Some appellate courts choose not to proceed to oral argument, but  with some very rare exceptions,  Supreme Court cases are orally argued. Those exceptions are shadow docket cases or cases where there's something called a GVR. The court is just simply,  uh, wrapping a case up and sending it down because of a, a prior case that they resolved.

Again, there's some limited exceptions, but for the most part, the cases are argued.  Um, the Supreme Court takes about 80 cases a year. I think some have estimated that there's about 8, 000 cases that come before the Supreme Court. Ironically, I had a case, um, Anderson v. United States, sitting at the Supreme Court before the justices.

That was my conference day, the day that cert was granted on the Trump case. I suspect they spent  All day dealing with Trump's case and none of the day dealing with mine. I hope that, uh, that I'll get a fair shake on this one because it's really important for my individual client, although he is not  facing, um, uh, an election and he's not a front runner for any political parties.

He's the doctor who's sitting  in custody right now.  Um, but the Supreme court will have oral argument and we expect that to be. A couple of hours long,  you know, there are time limits, but often they go over,  and we're dealing with very important issues here, and so we expect the court to chime in. Um,  often times we can glean where the justices are  at oral arguments. 

I think we can really understand already where the justices are on this case before we get to oral argument, but certainly  on some of those, you know, interesting issues that, um,  that haven't been analyzed yet.  A president as an officer of the United States. Some of those more nuanced issues. We don't know exactly where the justices stand.

And so some of the questions will be telling, but I think the most telling thing about the questions as we listen to oral argument.  It's really going to be, um,  which level is the court looking at dealing with this case? Are they going to go all the way down and challenge Colorado's decision and say that Donald Trump wasn't given due process or that this is not considered insurrection or are they going to look at the text? 

Um, are they going to say that  Congress must declare  that there was an insurrection or that somebody was involved in an insurrection before preventing them  from being part of an election or holding office in the United States? And those are all the really interesting questions.  Most people, when you hear all of the saber rattling and you look on, you know, Reddit and you look in the news,  it, it seems like a lot of people have their mind made up that this was insurrection.

That Trump shouldn't hold office and that Trump is responsible, um,  but  the longer lens of the Supreme Court is really important here. Um, it's incumbent upon the Supreme Court to  look at these cases without the same sort of passion or prejudice that we might.  We hear about Donald Trump, we see his rhetoric, and we feel a certain way. 

But we, we have to remember that a decision  that is bad for the country  as a whole, if it's repeated, is a bad decision.  So, if there is a decision  determining that a state can hold a five day trial,  and determine for the United States of America that somebody committed an insurrection,  Prevent that person from being on a ballot in that state and potentially swaying the election. 

I feel that the Supreme Court,  even those members of the Supreme Court that might be considered to be more liberal, I feel that the Supreme Court is pragmatic enough to understand  that this decision needs to be made very carefully and should not just be made  on political lines.  I think the Supreme Court recognizes one of the problems that we have since Bush v.

Gore,  and that is that increasingly, issues, political issues,  are  coming before the court for the court to resolve,  and  courts don't like to get involved in political questions. In fact, there's something called the political question doctrine.  The Supreme Court likes to abstain from cases where  the question is essentially a political one. 

The reason why? Separation of powers. It's  It's the court's job to interpret the law and to say what the law is.  It's the legislature's job to create the law,  and obviously it's the executive's job to execute the laws of the United States.  We did not have an executive charge Donald Trump and execute the law of the United States and convict him of insurrection. 

We didn't have a legislature pass a law preventing Donald Trump from being A political candidate in the future because of an insurrection  and instead we are turning to a court in Colorado and now ultimately the Supreme Court  to say not only that an insurrection was committed,  but that Donald Trump committed it  and that that was enough to implicate the 14th Amendment of the United States  resulting in removal from the ballot and Bye. 

It's possible that the court may seem that this potato is simply too hot to touch. So, so, so why take the case? Well, that's exactly what they may.  I mean, first, the court was put in a very difficult position.  They sort of have to take this case. If they don't take the case, Donald Trump essentially stays off the ballot.

Other states mirror this behavior. And when we get to the actual general election, Trump's name is appearing on half of the ballots. We have a lot of disenfranchised voters.  We have, um,  a lot of really disgruntled people on our hands, which can create problems for the United States and the stability of the United States.

I think we need to to, to, to prepare for the fact that that is a very real possibility. If there are a lot of people who support Donald Trump who aren't able to vote, uh, they're going to be very angry about that. And they are essentially going to feel like they got robbed. I think, I wouldn't be the first person to say it,  but, um, you want to give credence to Donald Trump's, uh, concerns about stealing an election?

Um, uh, pull a stunt like this and, and, and see what happens. And so,  the court is I believe attempting to jump in, um, to say something about it so that this doesn't just  get let fly. Um,  and so if the Supreme Court acts and they act against Donald Trump,  then those disenfranchised voters are going to feel a little less like Colorado stole the election and other states unchecked by the federal government stole the election, and they're going to feel a bit more like there was a process.

And that's what we typically do. in order to resolve disputes peacefully in the United States. We have criminal trials and civil trials for a reason, because we put our faith in the system, we put our faith in the process, we put our faith in the ability to resolve disputes peacefully and through this process, and as long as this process can be trusted to be fair and equitable, we give up our A portion of our rights in order to allow each other to engage in this process,  so that we can have more fair outcomes.

That's part of our social contract. And so I think the Supreme Court needs to jump in to play its role here,  and speak on that process, and speak on the fairness of the process. So I think they have to jump in here.  So let's, let's really get into the definition of, of insurrection here. I promised you, um, an 1827 case, uh, early on, um, when I started talking.

But I want to talk about a case,  Martin v. Mott.  And this occurred, um, back in, back in 1827. 

It's, it's really a question of whether or not 

the President has the authority to call forth a militia to execute the, the laws of the United States, um, when there,  there is a rebellion.  And so, Martin V. Mott was a Supreme Court case,  and it, and it really dealt with the President of the United States emergency powers to activate, um, state militias for federal service.

The other question is, Why are we talking about this? An insurrection case? Um, because it's, it's, it's kind of exactly what the president was trying to declare here. So, um, Jacob E. Mott was a militia private who disobeyed orders to be part of this militia.  for service during the war of 1812. And he appealed his court martial and he got all the way to the United States.

I, I wasn't a Marine Corps  attorney for a while. And I, I can't imagine some Lance corporal appealing his case  all the way to the United States Supreme court.  That's gotta be quite crazy. We don't see that very much at all anymore, but the path to the Supreme court was a lot quicker back in the day, a lot less cases. 

And so, um, the court's ruling in that case. Um, related to the militia man had an impact on, uh, the scope of executive powers during national emergencies. So you have this, this, this, um, just to backtrack this militia member, this National Guard member, they call it a militia,  um, refuses to deploy, uh,  Was court martialed, disciplined,  and, um, appealed as court martialed to the Supreme Court and the Supreme Court heard the case and the essential issue in the case was did the president have the ability to call up the militia at the time? 

And you'll see why this is important because essentially the question was, was there an insurrection occurring at the time? So.  By way of background, Congress passed the Militia Act of 1792, which outlined the President's authority to call up state militias to federal service. It was amended later in 1795,  and it said, whenever the United States shall be invaded or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth,  Such number of the militia of the United State or States most convenient to the place of danger or scene of action as he may judge necessary to repel such an invasion. 

So, generally speaking,  State Militia National Guard can't engage in military operations in the United States. There's a separate law that I dealt with a lot in the military that prevents the use of, um, military members on, on our soil. The reason for this is that we, we don't want to have a situation, um, like a coup where the military occupies the United States and, um, And, and takes over, and we also don't want United States citizens to be dealt with by our military.

We want them to be dealt with by, um, the police officers and those people who are protecting the police power  of the United States.  So, in order to provide manpower, um, to the United States in the War of 1812,  the Governor of New York mustered the forces of the New York State Militia. At the direction of James Madison, the president at the time. 

Um,  Mott said, of course, Martin V. Mott, Mott is the, um,  the militia member here who was court martialed.  Mott said, I'm not going.  So in 1818 he appeared before his court martial  on charges of  disobeying orders and get this, he was found guilty and fined 96. Now I've got to imagine  that 96 and 1812  Was a ton of money. 

I'm guessing it was an absolute crazy amount of money 

So  Matt was found guilty and fined  and his property was seized Which amounted to a single horse  can't pay the 96 bucks, but they say we're taking your horse, you know we're gonna take your ride and  That's how you're going to pay this back. So the seizure of the property was carried out by Martin  That's why we've got Martin v Mott. 

He appeals to the United States Supreme Court  hearings began in 1827.  So, um,  ultimately when we get to the Supreme Court decision,  the, the question really turned to  whether an emergency had arisen in the United States  and whether the Insurrection Act  of 1807  was capable of being invoked  in this case. 

And the court ultimately ruled in the decision in Martin V. Mott, that the authority to decide whether an exigency,  requiring the militia to be called out,  um, belongs exclusively to the president.  And this implies that the president has the authority to determine the occurrence of an insurrection.  Note, it doesn't say Congress, it says exclusively,  um, for the president. 

But later, there was a case, Stirling v. Constantine, that was  1932, the court clarified that, and the Supreme Court clarified, that while the President's decision to invoke the Insurrection Act is conclusive, the actions of the military can still be reviewed for lawfulness, meaning the President can invoke,  but then the actions of the military can still be reviewed to see if they are consistent with.

The outlines of the the insurrection act. So, you know, we have the insurrection act to protect the United States from Um, and then we have these two older Supreme Court cases, uh, not really being helpful for us here that say the president has the authority. So that, that gets really tough. Who's the president? 

And I think this is really where the rubber meets the road when it comes to insurrection.  We don't have a president that has invoked the Insurrection Act. We don't have the calling up of any militia to quell a rebellion.  We don't have any seizure of power or seizure of land. Certainly we have people who  were in the Capitol building, all have been independently prosecuted with a relatively high  conviction rate. 

And so when we look to see under the mock case, whether or not we have really the elements of an insurrection here, it's very difficult to make the argument when no president  determined that there was an insurrection, and we certainly don't have impeachment. Um, I don't think that Biden after inauguration could have come forward and said, well, there was an insurrection on January 6th, and I'm invoking the insurrection act.

Because there was nothing to do at that point. Everything had been, uh, essentially resolved and, and people were in the process of, of getting prosecuted and there was an inve investigation underway.  So, you know, right there, I don't think that we have the elements to really call this and insurrection. Um, and, and we don't have  any example in the United States law that I can think of, and I haven't seen any legal scholars pull out any really good examples here. 

For, um, an, an independent state in some quasi due process proceeding, like this five day trial that we have, having the ability to declare things like insurrection, which is a federal crime  and a federal statute. We don't really have good examples of, of where, where Colorado has the ability to interpret that and make that determination.

Uh, for itself. And, and, and that's, that's going to be a potential first stop for the Supreme Court. Does Colorado have the ability to say this was an insurrection?  Um, very, very difficult.  argument to make even with the five day trial and the inclusion of the January 6th commission report.  So let's lean forward a little bit more. 

We've got these arguments. We'll have oral argument. The court will issue a decision. They did not give a timeline for when they will issue a decision, but here's generally how that works. The case  um goes to oral argument and then the justices will ultimately meet to cast a vote on what they believe. 

should be done.  We've got nine Supreme Court justices. I don't believe that any of them will abstain from this case.  And so they will, they will each vote. Let's say we've got a 5 4 situation brewing. The  chief justice, if they are in the minority, majority, so if John Roberts is in the majority, he would author the majority opinion or he would delegate it to 

I think the Chief Justice is probably going to write this one if he's in the majority.  I would look for a John Roberts opinion.  Um, he's kind of fighting a bit of an existential crisis right now. We have Clarence Thomas who's been relatively vocal on the court.  Um, I think Justice Roberts is going to want to get out on top of this one and, and really kind of flex the Chief Justice muscle a bit. 

Um, by making the argument, um, but there are some people who may say he might delegate this decision to, you know, somebody like Clarence Thomas or, or Gorsuch,  um, in order to not have to be the lightning rod for the court  if they side for, for Donald Trump.  Um, if John Roberts is not in the majority,  Chief Justice John Roberts, if he's not in the majority,  then we would have.

Uh, the senior justice from the majority authored the opinion.  So if, uh, you know, we've got the liberal justices and John Roberts is maybe the swing vote,  we could have  maybe Justice Sotomayor or Kagan, uh, potentially authoring, uh, an opinion. I don't think that there's any chance Justice Jackson authors this one.

Um, I just don't see it. I don't see Justice Barrett authoring this one either. Um, I'm going to guess it's probably going to be Justice Roberts, Justice Thomas, or Justice Gorsuch. Maybe, maybe Justice Kavanaugh,  but I think unlikely, um, on that note as well.  And so the, the draft of the majority opinion will be circulated  to the justices who are joining the majority. 

And they will have a say.  If they agree with the majority opinion, they will cast a vote for the majority opinion.  If they agree with the outcome,  but they maybe depart on the reasoning, they can draft what's called a concurrence.  Um, a concurring,  you know, brief. And then, um,  if they disagree,  there, there's a dissent that can be drafted. 

And I would expect, um, a lot of dissents in this case. I would, I would almost expect each individual justice who disagrees with this, um, to dissent. But I, I think we may be in for a surprise here. I think we may be in for Um, a decision that isn't necessarily just split along ideological lines. I think the court should join hands here  and to speak very loudly and say, we do not believe that this process should always be kicked to the court.

We want political decisions to be left  up to politics and, um, that is. Is, is vital for the running of our system, so I, I see,  uh, Trump a potential, potential victor here in this, in this decision, but, but mostly for pragmatic reasons because I don't think anybody is going to enjoy a world in which  we are playing ballot games, um,  in absence of a conviction or impeachment.

or actual declaration of insurrection. I just think we're, we've gone a little too far afield with, with these sorts of arguments.  Now, opinion gets released,  obviously.  A significant portion of the public is going to be upset regardless of how this goes, and there's nowhere else to appeal. That's that.  But what are the implications? 

If the Supreme Court says Trump can stay on the Colorado ballot, that's, that's, that's fine, but that sort of ship would have already sailed.  And so the reason why the court is really taking the case is not just to deal with the Colorado ballot issue, but they're taking the case to  analyze whether or not any other state could take the same action and sort of prevent that action from being repeated. 

or  to review it to ensure that it has a valid legal basis.  So I would expect the decision not just to attack or defend what occurred in Colorado.  I would imagine this decision would stay a lot more along general lines as to whether or not a state has the authority to keep a presidential candidate off of a ballot based on an argument in that state. 

That the candidate has engaged in insurrection or other disqualifying behavior. This case is really going to be about the power of a state secretary of state  to control its ballot and determine who should be on the ballot. And who should be off the ballot. That's, that's where this decision would be. If, if the Supreme Court cabined it and only spoke about Colorado, um, this, this opinion would have almost no impact.

Um, Colorado's really not consequential in the overall election. What is consequential is what all of the other states are going to do with respect to their ballots  in order to determine, um, whether or not Trump should be on it. I think the court knows that it needs to stay very, very, very far away  from addressing the conduct on January 6th  and the allegations made by Jack Smith  because there is still a pending federal criminal case going on and courts are very weary of chiming in on facts and law that would impact an existing criminal case.

So they're going to stay far away from that. We're not going to have an analysis, unfortunately, as to whether or not Donald Trump's specific actions were enough  to be considered insurrection. Um, the question really will be,  was there a legal basis to say that there was an insurrection? Not, do the facts amount to it? 

Um, was there enough due process to show that there was an insurrection, not  were the witnesses credible or is the evidence there to support an insurrection.  There's going to be no breakdown  of Donald Trump's January 6th speech to analyze whether or not  an insurrection has, has actually occurred. Um, and you know, with that, I think this is going to be a spirited few months, oral arguments are going to be. 

Incredibly spicy. I'm looking forward to seeing who's arguing for both sides. I'm looking forward to assessing the questions that the justices ask  so that we can try to glean some indication, not necessarily of where they're going, but the most important issue for them. I think that's, that's what I'm really looking at.

What is the most important legal issue that the court is, is honing in on and intending to address in their decision and, and how are they going to  to navigate this,  I imagine that they're going to issue a decision that sort of once and for all deals with this in the hope that the Supreme Court won't have to have  quite a few Trump cases before it,  before the election actually happens.

Um, I'll just, you know, before I go,  there was a, a theory that I had that didn't really play out, um, and I'm, and I'm still very curious as to why it didn't.  But it seems to me that we're just dealing with a primary ballot here and the court could easily not address Colorado.  And if the court decided not to address the Colorado case, um, they may be, may be able to address some later case that came up to it that might have  a little bit more of an important implication.

And they, they didn't do that here. They jumped at really the first case that, that came before them.  Not exercising a ton of restraint, in which case it would take, which tells me that they are interested in nipping this in the bud, um, immediately, as opposed to sort of waiting back and, and looking for the right case.

The reason why I thought the court may have elected to wait is because if Trump doesn't become the front runner, this is really not an issue. If he's not on the actual ballot  for the, for the main election, then none of this really matters.  And I thought the court may want to wait to see, however, um, you know, Trump's gaining steam.

He's the front runner by a wide, wide margin.  Um, he hasn't announced his running mate yet, but I imagine that, you know, whoever he'll pick could probably result in a few points there and maybe even take a hint, hint, a candidate. um, to support him. Uh, as a running mate  we'll see. Um, but I thought the supreme court could sidestep the issue.

They do not seem to be interested in doing that. Um, I think they want the games to stop. I think they want to end this once and for all and, and issue an opinion. Um, so that's, that's really a different take on how the court may look at this through their long lens. They're going to have to pull through all of the precedent. 

And make the determination whether or not  a state can keep  a candidate off of the ballot despite not having any sort of conviction related to insurrection, no declaration of insurrection by the President of the United States as we see, uh, suggested in Mott and, um, not an easy decision for the court because of the political implications. 

It's certainly going to be very interesting for the country.  Looking forward to reviewing the arguments in the briefs when they come out in late January. And again, we have an early February oral argument for this case scheduled, which I'm sure is going to be electrifying and give us some indication of where the court's going to go. 

As always, you can find me over at my website,  RonaldWChapman. com. There you can find articles related to all of this. Notes, cases, additional reading and information, and even a few videos. RonaldWChapman. com. Find me over there. 

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