Trump disqualification case looks weak

November 8, 2023 2:43 pm

The Minnesota Judicial Center. Photo courtesy of the Department of Administration.

The Minnesota litigation seeking to keep former President Trump off the ballot and out of the White House is an accident waiting to happen. The train hasn’t crashed yet, but it’s about to collide with reality.

The Minnesota Supreme Court heard the case last week, and the justices gave it a frosty reception. It was brought by a coalition of “good government” folks, including an all-star cast bipartisan worthies like long-time DFL Secretary of State Joan Growe and retired state Supreme Court Justice Paul Anderson, a moderate Republican. They are litigating under the auspices of a Democratic front group called Free Speech for People, whose goal is to prevent others from voting for the presidential candidate of their choice.

It’s one of a coordinated group of legal actions around the country with a single — and singular — objective of disqualifying the ex-president from running again under the “insurrection” clause of post-Civil War 14th Amendment. The provision bars anyone from holding government office who has “engaged in an insurrection or rebellion,” in this case the heavy-handed, multi-faceted attempt to overturn the 2020 Presidential election by Trump and his confederates.

Reality v. ruminations

Disqualification under that clause is a prospect that has some Democrats, anti-Trump Republicans and academics aflutter. But it seems to have met its match during the state Supreme Court hearing, which provided a dose of reality.

The case began with a request to Secretary of State Steve Simon, who certifies ballot eligibility, to bar Trump from the upcoming Republican primary ballot in March and the general election should he win the Republican nomination this summer, as seems increasingly likely.

But Simon demurred, feeling he lacks the legal right to make that determination, which propelled the case before the state high court, where five of its seven jurists — two had excused themselves — heard the challengers out in a 70-minute hearing that included participation of attorneys for the Free Speech outfit, the state GOP, the Trump campaign, and Simon himself, who was non-committal except to acknowledge that he would abide by any court ruling.

The hearing went badly for the anti-Trump forces, as the justices chewed on a myriad of legal issues but seemed focused on the practical aspects of barring the former president from the ballot. The tribunal’s reluctance was manifested in the rhetorical question asked by new Chief Justice Natalie Hudson, presuming the court has the authority to make that decision: “Should we?”

Her colleagues seemed at least as hesitant to take that action, putting the odds of the anti-Trump forces succeeding somewhere between slim and none.

But a major deficiency, perhaps the biggest flaw, in the Minnesota case is its timing. Knowing since last November that the former president was officially running, the group had ample time to bring a lawsuit to flesh out the facts and legal issues, rather than a belated rush to judgment.

Which means the Minnesota case is based upon lawyers bellowing, but devoid of actual evidence to answer the vital questions: 1. Did an “insurrection” occur? and 2. whether the former commander-in-chief indeed commanded the undertaking.

Absent any prior judicial determination of these issues, it’s improbable that the state high court jurists will be able or willing to make those decision themselves.

Colorado Case

Not so in Colorado, where a parallel proceeding in the Colorado state judicial system shows much more promise for the anti-Trump crowd. A jurist in Denver has been conducting a full-scale trial on the “insurrection” issue, consisting of witnesses, testimony, evidence and other customary judicial features, all notably absent from the Minnesota case.

The strong evidence adduced there creates a realistic possibility that the claimants may get what they want: a judicial ruling barring Trump from the ballot.

But it may be for naught. As the Minnesota jurists recognized, the issue probably will ultimately have to be resolved by the U. S. Supreme Court in the interest of national uniformity.

That tribunal, stocked with three Trump appointees, two other right-wing jurists and the conservative Chief Justice John Roberts, is unlikely to bar the former president from seeking to return to his former position, even if he might be incarcerated or under house arrest.

There’s an unlikely to be a judicial shortcut when it comes to excising the would-be tyrant from the body politic.

The electorate must ultimately make the decision to to keep the 45th President from becoming the 47th, by answering the question: “Should we?”

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Marshall H. Tanick
Marshall H. Tanick

Marshall H. Tanick is a Twin Cities employment law attorney with the law firm of Meyer Njus Tanick.