A rule meant to expel separatist rebels from politics after the U.S. Civil War is now being invoked to determine the fate of Donald Trump.
Section 3 of the U.S. Constitution’s 14th Amendment bars people from holding office if they ever engaged in insurrection or rebellion after swearing an oath as an officer of the U.S.
Now the U.S. Supreme Court is poised to be asked to make one of the most momentous constitutional decisions in American history: whether this bars the Republican presidential front-runner from running for president.
This comes after a state court found the leading candidate in most presidential election polls, Trump, ineligible to run for office after he inspired a mob to attack the U.S. Capitol on Jan. 6, 2021, in an effort to halt the transfer of power to Joe Biden.
“It is an extraordinary historical moment,” said Richard Friedman, an expert on constitutional law and the history of the Supreme Court at the University of Michigan.
“A major candidate for president has just been held ineligible to be on the ballot.”
Friedman was referring to the groundbreaking ruling on Tuesday by the Colorado Supreme Court that ordered Trump removed from the state’s primary ballot, in a move that’s hypothetical for now: The court paused enforcement of the decision to give the U.S. Supreme Court a chance to weigh in.
The nation’s top court will be pressed to consider every angle of that above-mentioned amendment from 1868: What is an officer? What is an insurrection? What does it mean to be engaged in one? And who gets to make that determination?
‘Uncharted territory’
In their ruling, the Colorado judges made clear their own awareness that they were doing something unprecedented.
“We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us,” the court said in its decision.
“We are likewise mindful of our solemn duty to apply the law, without fear or favour, and without being swayed by public reaction to the decisions that the law mandates we reach. We are also cognizant that we travel in uncharted territory.”
Trump’s political future may hinge on U.S. Supreme Court decision
The United States Supreme Court is expected to hear an appeal of a Colorado Supreme Court ruling that Donald Trump is ineligible to run for the presidency because he participated in an insurrection. The court’s decision on the matter could determine whether other states will opt to bar him from running.
The potential implications of this decision are akin to lobbing a gas canister into the already combustible political environment of the moment.
Almost immediately, Fox News was running a headline across its screen: “Targeting The Frontrunner.” Trump was quickly fundraising off the news. He sent supporters a message calling this the greatest constitutional travesty in American history and vowed to never surrender.
In terms of electoral politics, the case has no immediate impact; Colorado’s ballot will not change for now and, even if it does, it’s unlikely to decide the election, as no Republican has won Colorado in 20 years.
But other states are watching.
A tracker at Lawfare, a legal blog, lists about a half-dozen key states where cases like this are percolating, places vital to Trump’s election chances — like Michigan, Wisconsin, Arizona and Texas; in several states, courts have rebuffed cases like this, but appeals are pending.
5 potential outcomes at top court
Constitutional experts interviewed by CBC News outlined five potential outcomes if, as expected, the Supreme Case takes up the case.
Trump’s electoral prospects are already, to a certain degree, before the high court.
Justices will hear cases that could determine the timing of at least one Trump trial and potentially address an important question: whether a case against Trump will proceed before the presidential election in November 2024.
The U.S. Supreme Court in Washington, D.C., is shown in November. Trump is expected to appeal this week’s Colorado court ruling, which ordered the former president removed from the state’s primary ballot, to the country’s top court. (Mariam Zuhaib/The Associated Press)
Legal scholars interviewed by CBC News described five potential outcomes in this extraordinary case.
Possibility No. 1: The Supreme Court upholds the Colorado ruling.
“Absolutely fatal [for Trump],” said Amanda Shanor, an assistant professor of constitutional law and a scholar of free-speech issues at the University of Pennsylvania’s Wharton School. “If the plaintiffs prevail in the Supreme Court, he will not be president.”
At the very most for Trump, the University of Michigan’s Friedman said, there could be court challenges in other states where Trump allies argue the court decision for Colorado doesn’t apply to their electoral law.
“An earthquake” is how this scenario was described by Julian Davis Mortenson, a scholar of the Constitution and the U.S. presidency at the University of Michigan.
“He would soon be disqualified everywhere. Except for places that engaged in judicial disobedience.”
‘There’s still an out’ for Trump
A second possibility would see a narrow ruling against Trump. In this scenario, the court would uphold the Colorado ruling but argue that it’s specific to the exercise of electoral law in that state and doesn’t apply elsewhere. Shanor called this scenario extremely unlikely, as it involves a national question about a fundamental constitutional issue.
A third possibility: a procedural escape hatch. The court strikes down the Colorado decision on procedural grounds and entirely ignores the substance of the case — an off-ramp for the judges, if you will.
“There’s still an out,” Mortenson said. “They can declare it a political question.”
Supporters of Trump, who is the front-runner in the race to be the Republican presidential nominee, are shown at a rally in Durham, N.H., on Dec. 16. (Brian Snyder/Reuters)
He’s referring to the political question doctrine in which judges can declare an issue as so fundamentally political that they have no business interfering in it. The court once laid out six factors in determining what qualifies as a political question.
It’s fuzzy and unevenly applied — and it’s not always clear where the line stands, as virtually any constitutional case will have a political dimension to it. Case in point: The Bush v. Gore case that may have decided the 2000 election was not dismissed as a political question.
In Mortenson’s view, this is the likeliest way Trump walks away from this case.
The court could declare this a political question and would, in that case, almost certainly make clear that its judgment invalidated the Colorado ruling, he said.
A fourth possibility: a punt. In this scenario, the court would take its time getting to the case. Trump still appears on the Colorado primary ballot in the meantime, pending a decision.
Then there are new challenges related to general election ballot.
Shanor said the court would have plenty of time to decide by November. But there are no guarantees. It’s possible the election could come and go before a decision, Mortenson said, and justices would thereafter declare the question moot.
The fifth and final of these possibilities: The court quashes the Colorado decision.
A majority of justices could disagree with the state court on the meaning of the words “engage” or “insurrection” or “officer.”
And then Trump is free to keep running in the 2024 election, in the face of four criminal cases.
Legal observers split on Colorado ruling
So, what’s the bottom line: Do these experts think Colorado judges made the right call?
Some wholeheartedly agree: “A very reasonable decision,” Friedman said.
To those who argue that it constrains democratic choice, he added: So? “That’s what constitutions do.” They define the extent of political rights. For example, he said, they also infringe upon Taylor Swift’s right to run for president before she turns 35.
On the left-leaning MSNBC network, conservative former judge Michael Luttig saluted the decision: “It was masterful. It was brilliant. It is an unassailable interpretation of the 14th Amendment.”
Unsurprisingly, the conclusions ran the other way on Fox News. Its legal analyst, Francey Hakes, called it “a couple of hundred pages of hot garbage.”
She’s not alone. Writing about this issue recently, Stanford law professor Michael McConnell, a former federal judge, said he has no use for Donald Trump, but he called “insurrection” a very serious term and said it should only be applied narrowly, and carefully, in a case this serious.
Rioters loyal to Trump are shown at the U.S. Capitol in Washington on Jan. 6, 2021, to prevent Joe Biden from being confirmed as president following the November 2020 election. (Jose Luis Magana/The Associated Press)
He also questioned the logic of applying this insurrection provision when none of the Jan. 6 participants has actually been convicted in court — or even charged — under the criminal statute that covers insurrection. Including Trump.
Regarding the democratic implications of this, McConnell asked rhetorically: “What could go wrong?”
Even in the Colorado ruling, the minority dissenting opinion raised these concerns.
“The irregularity of these proceedings is particularly troubling given the stakes,” said the minority opinion. “What took place here doesn’t resemble anything I’ve seen in a courtroom.”
Did an insurrection occur on Jan. 6?
The University of Michigan’s Mortenson, for his part, has been wrestling with this.
He called the Colorado decision solidly reasoned. The Supreme Court, he said, will have a hard time rejecting it on its merits — in fact, the Colorado ruling made sure it quoted conservative high court Justice Neil Gorsuch to buttress its opinion.
But he’s uncomfortable.
Mortenson is a proud liberal and occasionally refers, in casual conversation, to the events of Jan. 6, 2021, as an “insurrection.”
This, however, is not casual conversation. He said it stretches credulity that the events at the Capitol resemble the armed effort to secede from the United States in the Civil War.
“We’re just not talking about two equal things,” he said.
“To call it insurrection for the purposes of the Constitution is on the outer edges of what the term, I think, plausibly means — and leaves me very uncomfortable if the result of that is to disqualify a major, broadly supported political candidate from office.”
We’ll see what the Supreme Court might say. The American presidency hangs in the balance.
OTTAWA – The federal agency that investigates election infractions found insufficient evidence to support suggestions Beijing wielded undue influence against the Conservatives in the Vancouver area during the 2021 general election.
The Commissioner of Canada Elections’ recently completed review of the lingering issue was tabled Tuesday at a federal inquiry into foreign interference.
The review focused on the unsuccessful campaign of Conservative candidate Kenny Chiu in the riding of Steveston-Richmond East and the party’s larger efforts in the Vancouver area.
It says the evidence uncovered did not trigger the threshold to initiate a formal investigation under the Canada Elections Act.
Investigators therefore recommended that the review be concluded.
A summary of the review results was shared with the Canadian Security Intelligence Service and the RCMP. The review says both agencies indicated the election commissioner’s findings were consistent with their own understanding of the situation.
During the exercise, the commissioner’s investigators met with Chinese Canadian residents of Chiu’s riding and surrounding ones.
They were told of an extensive network of Chinese Canadian associations, businesses and media organizations that offers the diaspora a lifestyle that mirrors that of China in many ways.
“Further, this diaspora has continuing and extensive commercial, social and familial relations with China,” the review says.
Some interviewees reported that this “has created aspects of a parallel society involving many Chinese Canadians in the Lower Mainland area, which includes concerted support, direction and control by individuals from or involved with China’s Vancouver consulate and the United Front Work Department (UFWD) in China.”
Investigators were also made aware of members of three Chinese Canadian associations, as well as others, who were alleged to have used their positions to influence the choice of Chinese Canadian voters during the 2021 election in a direction favourable to the interests of Beijing, the review says.
These efforts were sparked by elements of the Conservative party’s election platform and by actions and statements by Chiu “that were leveraged to bolster claims that both the platform and Chiu were anti-China and were encouraging anti-Chinese discrimination and racism.”
These messages were amplified through repetition in social media, chat groups and posts, as well as in Chinese in online, print and radio media throughout the Vancouver area.
Upon examination, the messages “were found to not be in contravention” of the Canada Elections Act, says the review, citing the Supreme Court of Canada’s position that the concept of uninhibited speech permeates all truly democratic societies and institutions.
The review says the effectiveness of the anti-Conservative, anti-Chiu campaigns was enhanced by circumstances “unique to the Chinese diaspora and the assertive nature of Chinese government interests.”
It notes the election was prefaced by statements from China’s ambassador to Canada and the Vancouver consul general as well as articles published or broadcast in Beijing-controlled Chinese Canadian media entities.
“According to Chinese Canadian interview subjects, this invoked a widespread fear amongst electors, described as a fear of retributive measures from Chinese authorities should a (Conservative) government be elected.”
This included the possibility that Chinese authorities could interfere with travel to and from China, as well as measures being taken against family members or business interests in China, the review says.
“Several Chinese Canadian interview subjects were of the view that Chinese authorities could exercise such retributive measures, and that this fear was most acute with Chinese Canadian electors from mainland China. One said ‘everybody understands’ the need to only say nice things about China.”
However, no interview subject was willing to name electors who were directly affected by the anti-Tory campaign, nor community leaders who claimed to speak on a voter’s behalf.
Several weeks of public inquiry hearings will focus on the capacity of federal agencies to detect, deter and counter foreign meddling.
In other testimony Tuesday, Conservative MP Garnett Genuis told the inquiry that parliamentarians who were targeted by Chinese hackers could have taken immediate protective steps if they had been informed sooner.
It emerged earlier this year that in 2021 some MPs and senators faced cyberattacks from the hackers because of their involvement with the Inter-Parliamentary Alliance on China, which pushes for accountability from Beijing.
In 2022, U.S. authorities apparently informed the Canadian government of the attacks, and it in turn advised parliamentary IT officials — but not individual MPs.
Genuis, a Canadian co-chair of the inter-parliamentary alliance, told the inquiry Tuesday that it remains mysterious to him why he wasn’t informed about the attacks sooner.
Liberal MP John McKay, also a Canadian co-chair of the alliance, said there should be a clear protocol for advising parliamentarians of cyberthreats.
This report by The Canadian Press was first published Sept. 17, 2024.
WINNIPEG – The federal New Democrats have kept a longtime stronghold in the Elmwood-Transcona riding in Winnipeg.
The NDP’s Leila Dance won a close battle over Conservative candidate Colin Reynolds, and says the community has spoken in favour of priorities such as health care and the cost of living.
Elmwood-Transcona has elected a New Democrat in every election except one since the riding was formed in 1988.
The seat became open after three-term member of Parliament Daniel Blaikie resigned in March to take a job with the Manitoba government.
A political analyst the NDP is likely relieved to have kept the seat in what has been one of their strongest urban areas.
Christopher Adams, an adjunct professor of political studies at the University of Manitoba, says NDP Leader Jagmeet Singh worked hard to keep the seat in a tight race.
“He made a number of visits to Winnipeg, so if they had lost this riding it would have been disastrous for the NDP,” Adams said.
The strong Conservative showing should put wind in that party’s sails, Adams added, as their percentage of the popular vote in Elmwood-Transcona jumped sharply from the 2021 election.
“Even though the Conservatives lost this (byelection), they should walk away from it feeling pretty good.”
Dance told reporters Monday night she wants to focus on issues such as the cost of living while working in Ottawa.
“We used to be able to buy a cart of groceries for a hundred dollars and now it’s two small bags. That is something that will affect everyone in this riding,” Dance said.
Liberal candidate Ian MacIntyre placed a distant third,
This report by The Canadian Press was first published Sept. 16, 2024
OTTAWA – Prime Minister Justin Trudeau say the Liberals have “all sorts of reflections” to make after losing a second stronghold in a byelection in Montreal Monday night.
His comments come as the Liberal cabinet gathers for its first regularly scheduled meeting of the fall sitting of Parliament, which began Monday.
Trudeau’s Liberals were hopeful they could retain the Montreal riding of LaSalle—Émard—Verdun, but those hopes were dashed after the Bloc Québécois won it in an extremely tight three-way race with the NDP.
Louis-Philippe Sauvé, an administrator at the Institute for Research in Contemporary Economics, beat Liberal candidate Laura Palestini by less than 250 votes. The NDP finished about 600 votes back of the winner.
It is the second time in three months that Trudeau’s party lost a stronghold in a byelection. In June, the Conservatives defeated the Liberals narrowly in Toronto-St. Paul’s.
The Liberals won every seat in Toronto and almost every seat on the Island of Montreal in the last election, and losing a seat in both places has laid bare just how low the party has fallen in the polls.
“Obviously, it would have been nicer to be able to win and hold (the Montreal riding), but there’s more work to do and we’re going to stay focused on doing it,” Trudeau told reporters ahead of this morning’s cabinet meeting.
When asked what went wrong for his party, Trudeau responded “I think there’s all sorts of reflections to take on that.”
In French, he would not say if this result puts his leadership in question, instead saying his team has lots of work to do.
Bloc leader Yves-François Blanchet will hold a press conference this morning, but has already said the results are significant for his party.
“The victory is historic and all of Quebec will speak with a stronger voice in Ottawa,” Blanchet wrote on X, shortly after the winner was declared.
NDP Leader Jagmeet Singh and his party had hoped to ride to a win in Montreal on the popularity of their candidate, city councillor Craig Sauvé, and use it to further their goal of replacing the Liberals as the chief alternative to the Conservatives.
The NDP did hold on to a seat in Winnipeg in a tight race with the Conservatives, but the results in Elmwood-Transcona Monday were far tighter than in the last several elections. NDP candidate Leila Dance defeated Conservative Colin Reynolds by about 1,200 votes.
Singh called it a “big victory.”
“Our movement is growing — and we’re going to keep working for Canadians and building that movement to stop Conservative cuts before they start,” he said on social media.
“Big corporations have had their governments. It’s the people’s time.”
New Democrats recently pulled out of their political pact with the government in a bid to distance themselves from the Liberals, making the prospects of a snap election far more likely.
Trudeau attempted to calm his caucus at their fall retreat in Nanaimo, B.C, last week, and brought former Bank of Canada governor Mark Carney on as an economic adviser in a bid to shore up some credibility with voters.
The latest byelection loss will put more pressure on him as leader, with many polls suggesting voter anger is more directed at Trudeau himself than at Liberal policies.
This report by The Canadian Press was first published Sept. 17, 2024.
