Bad news/good news for Trump
The decision of the Colorado Supreme Court might sink a normal candidate. By a 4-3 vote, the court held that the provision of the 14th Amendment enacted after the Civil War to bar those who had committed insurrection from holding office means that Donald Trump should not be on the Republican primary ballot. The ink was barely dry before Trump and his team went on the attack.
“Unsurprisingly, the all-Democrat appointed Colorado Supreme Court has ruled against President Trump, supporting a Soros-funded, left-wing group’s scheme to interfere in an election on behalf of Crooked Joe Biden by removing President Trump’s name from the ballot and eliminating the rights of Colorado voters to vote for the candidate of their choice,” campaign spokesman Steven Cheung, said. “We have full confidence that the U.S. Supreme Court will quickly rule in our favor and finally put an end to these un-American lawsuits.”
The fundraising letter went out that night, urging supporters — as they had in response to the four outstanding indictments — to respond to the “witch hunt” with more contributions to the campaign. And if past experience holds, they will. Trump has perfected that playbook, and so far, it has been working. He traffics in conspiracy theories, in which he is the ultimate victim.
Similar suits have been rejected in two other states on procedural grounds. The justices in Colorado explicitly recognized the force of the decision. “We do not reach these conclusions lightly,” the majority wrote. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”
Trump’s team will take an immediate appeal to the Supreme Court, which the Colorado court clearly anticipated, putting its own decision on hold until at least Jan. 4 to allow the Supreme Court time to act. The lesson of Bush v. Gore might be that the court should resist attempts to embroil it in presidential politics — Bush v. Gore did great harm to the court’s credibility as an institution that is above politics — but this will be a hard case for it to turn down: a case like this calls out for a national solution by the highest court rather than 50 different standards. Bush v. Gore damaged the court’s credibility, but so would a series of conflicting decisions at the state level.
But similar logic suggests that the Supreme Court also should grant expedited review of Trump’s claim, raised in the pending D.C. indictment in the election interference case, where Trump has made the argument that he enjoys absolute immunity for crimes committed while he was president. In that case, Jack Smith has gone to the court to ask for direct and expedited review of the trial court decision rejecting Trump’s claim.
To date, Trump’s legal strategy has been to do anything he can to delay the trial of any of the four indictments — and 91 counts — pending against him. So long as he can delay, he can sell the argument to his strong base among Republican primary voters that he is the innocent victim of a left-wing conspiracy, which he can undermine if he is elected president and can pardon himself from any federal charges (state charges, as in Georgia, present a different challenge) or order the Justice Department to drop the charges, triggering yet another challenge to the department’s independence.
A conviction, on the other hand, presents a bigger challenge. The D.C. election interference case presents the greatest obstacle to Trump’s strategy because it is slated to go to trial first, just around the time of the busy March primary season. That is why Smith is seeking an expedited appeal of the broad immunity claim, bypassing the usual route through the federal appellate court so as not to delay the trial.
Indeed, even among Republican primary voters, a conviction could cost Trump dearly. In a poll taken before the Colorado decision, The New York Times found that up to 25% of Trump’s base would reconsider their support if he is convicted of a crime. That is why Trump will do everything he can to delay the court’s consideration of his unprecedented immunity claim, even as they try to hasten the appeal of the unprecedented Colorado decision. A foolish consistency may be the hobgoblin of little minds, which is something Trump has never been accused of.