Cliff's Notes for a Corrupt Supreme Court

The United States Supreme Court is scheduled to hear oral arguments on February 8, 2024 regarding the constitutionality of keeping Donald Trump off primary and (presumably) general election ballots for the office of President in 2024. The case stems from a decision by the Colorado State Supreme Court which ruled Trump COULD be blocked from the state's primary ballot after concluding that Trump DID engage in acts of insurrection and thereby triggered the conditions set forth in Section 3 of the Fourteenth Amendment. As the country waits for the oral arguments and the eventual ruling that emerges from an unpredictable court, an amicus brief filed with the USSC by five noted historians regarding this case is especially worth reviewing by all Americans. It sets forth, in plain, non-technical language, a clear summary of the actual history of the Fourteenth Amendment which makes the original intent of the amendment's authors very clear and one hundred percent applicable to the facts of the case involving Donald Trump.

Background on the Colorado Case

Understanding the circumstances and facts of the case from Colorado triggering this USSC decision is crucial to understanding the legal questions the USSC may choose to address in its eventual decision. The case in Colorado, Anderson vs. Griswold, was a suit by multiple parties (four registered Republicans and two independents) against the Colorado Secretary of State, Jena Griswold, attempting to force Griswold to keep Donald Trump off the Colorado Republican primary ballot as a presidential candidate in 2024 on the grounds that he engaged in acts of insurrection and was barred from holding federal office under the terms of Section 3 of the Fourteenth Amendment.

The initial stance of the Colorado Secretary of State (a Democrat) was that her office did not have the legal standing to make a decision on whether Trump's actions constituted "insurrection" and thus her office had no standing to block Trump from the ballot. The case was heard by a trial court and an appeals court and both courts ruled against the plaintiffs (seeking to block Trump from the ballot) and the case was appealed to the Colorado State Supreme Court. On December 19, 2023, the CSSC reversed the decision of the lower courts on a 4-3 vote and the majority opinion went to great lengths to explicitly support its findings of fact and its legal decision. The CSSC opinion itself is a masterpiece of analysis and legal insight and can be seen at this link:

https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf

The decision surgically tackled each of the questions regarding procedural due process, semantic definitions of key words and actual findings of fact and directly concluded Trump had engaged in insurrection and should be kept from the Colorado ballot. Specifically,

Due Process -- Trump's attorneys claimed he has not been convicted of acts related to insurrection and any decision to exclude him from a ballot would violate his right to due process. The CSSC ruling held that months of Congressional investigation which ultimately concluded Trump had engaged in insurrection and investigations and charges in multiple states regarding attempts to manipulate state voting results were appropriate due process for the Colorado Secretary of State to conclude Trump HAD engaged in acts of insurrection.

Self-Executing Nature of the Fourteenth Amendment -- Trump's attorneys argued that no specific laws were enacted by Congress that explicitly stated how provisions of Section 3 can be enforced. The CSSC held that the terms of Section 3 are self-executing, meaning that the terms are clear enough that while the Amendment states Congress shall pass any laws deemed necessary for enforcement, ALL of the sections of the Fourteenth Amendment are self-executing and that the US Supreme Court has held previously that other sections are self-executing which have identical language.

The Definition of Office -- The lower court decisions stated they could not find clear enough language to explicitly confirm whether the Office of President of the United States was an "office" under the definition of Section 3 of the Fourteenth Amendment. As lower courts, in the absence of what they felt was incontrovertible proof of the intended meaning of "office" by the authors of the amendment, the lower courts concluded it was beyond their standing to create such an interpretation. The CSSC bluntly stated this was a reversible error and that the Office of President was absolutely an "office" under the terms of the Fourteenth Amendment. Full stop.

Hearsay / January 6 Findings -- Trump's lawyers attempted to argue in the lower courts that use of information and testimony from Congressional hearings into January 6 and the events leading up to it constituted hearsay for the purposes of Colorado determining Trump's eligibility for the ballot in Colorado. The CSSC ruling held the lower courts did not err in admitting this information, did not err in concluding that the events of January 6, 2021 did in fact constitute insurrection and did not err in concluding Donald Trump "engaged" in that insurrection via a multitude of actions.

First Amendment Rights -- Trump's lawyers attempted to argue in the lower courts that Trump's speech to the crowd on January 6 prior to the violence at the Capital was merely the President engaging in free speech regarding his opinion of the fairness of the election. The CSSC ruling held Trump's speech incited the crowd to violence and was not protected First Amendment speech.

Is Section 3 Justiciable? -- Trump's lawyers attempted to argue in the lower courts that a decision to keep a candidate off a ballot is inherently political and thus not suited for being adjudicated in courts which are supposed to avoid purely political questions. The CSSC ruling rejected this argument, first stating that Trump's argument failed to claim that the facts required to make a determination about ballot eligibility in relation to Section Three were not objectively discoverable and amenable to comparison against meaningful standards and that this omission waived his right to make this larger claim. However, in the interest of clarity, the CSSC explicitly held that the terms of Section Three by no means held all power to make such determinations to the federal government and that states HAD authority to assess and enforce qualifications for President.

It is crucial to understand these findings from the Colorado State Supreme Court decision for two key reasons:

1. In theory, the United States Supreme Court does not attempt to re-evaluate questions of FACT. The USSC only focuses on evaluating legal decisions within a case which either failed to follow prior precedent or involved case law where unique facts of the present case mapped to gray areas in existing case law, requiring new decisions.
2. In theory, the United States Supreme Court limits new decisions to explicit issues present in a case before them. The USSC typically does NOT use a case involving precedent in area A of the law to lay down new precedent in area B of the law.

Of course, these are THEORETICAL caveats. The REALITY of the US Supreme Court's record over the past twenty years reflects numerous cases where decisions have been issued that seem to stray far from any reasonable interpretation of the bounds of the actual case involved. And in many controversial cases, USSC decisions have involved tortured searches for supporting evidence from questionable historical sources in order to justify controversial reversals of prior USSC precedents.

How tortured?

Justice Alito's writing on the Dobbs decision overturning abortion rights hinged in part on concluding that abortion had never been viewed historically as a "right" and was in fact historically viewed as a criminal act. In making that point, Alito cited common law and legal writings from Sir Matthew Thomas Hale, the Lord Chief Justice of England in 1671. Hale's logic and writings became the basis for guidance to courts and jurors that lasted in America until the 1970s that held that marital rape isn't a crime and that any claims of rape should be met with skepticism.

A reading of the majority opinion in the Colorado State Supreme Court decision seems to suggest those writers constructed the opinion explicitly to draw the attention of the US Supreme Court Justices to existing case law - in some cases ruled on by current Supreme Court Justices - that supports their decision to eliminate Trump from the ballot for unambiguously justifiable reasons. As it turns out, the wording of the Colorado ruling isn't the only prose that is putting public pressure on the US Supreme Court to abandon its revisionist / originalist unwinding of sound precedent for partisan preferences and focus on reality.

A Scholarly Shot Across the Bow

The context of the issue now facing the US Supreme Court is unprecedented in its risks to the future of democracy in the country and in the utter failure to-date of existing mechanisms of the law to adequately deal with the issues. That context involves:

• pre-planned, coordinated physical attacks by thousands of citizens...
• upon members of Congress as they were executing one of the most crucial administrative tasks of a democracy to certify an election for President...
• which were devised by the sitting President and led by the President for more than two months PRIOR TO THE ELECTION...
• resulting in legitimate attempts to ban said ex-President from appearing on ballots to compete for the office of President again under language explicitly stated in a Constitutional Amendment...
• resulting in legal disputes getting escalated to a US Supreme Court with a track record of distorted, politicized rulings based on unpredictable references to grossly mis-interpreted or completely wrong history

It is that context which makes the content of the amicus brief filed with the US Supreme Court on January 29, 2024 so much more crucial to understand. The brief was submitted by four nationally acclaimed historical scholars:

Jill Lepore - Harvard Professor of History, author of fourteen books
David Blight - Yale University Professor of History, author
Drew Faust - Harvard University President Emerita, author
John Witt - Yale University Professor of Law, author

The content of the brief is available at this link on the SCOTUS website:

https://www.supremecourt.gov/DocketPDF/23/23-719/298999/20240129110006501_23-719%20bsac%20American%20Historians%20Final.pdf

A reading of the entire brief, all thirty-five pages, leaves one inescapable conclusion. The authors of the brief intended to put the entire US Supreme Court on public notice, even BEFORE they even hear oral arguments in this case, that the ACTUAL history involved with the Fourteenth Amendment and Section Three in particular is in fact NOT A MYSTERY to actual historians, is WELL UNDERSTOOD in both its original historical context and modern interpretation, and is COMPLETELY UNAMBIGUOUS in its intent to ensure persons who have violated ANY oath of office are BLOCKED from holding office.

It seems this "shot across the bow" of the amateur historians within the Supreme Court begins with the FIRST PARAGRAPH of the brief which states:

Amici curiae are distinguished scholars whose expertise includes the histories of federal constitutional amendment, the laws of war, and the Civil War and Reconstruction.1 All amici are elected members of the American Academy of Arts and Sciences and winners of either the Pulitzer or the Bancroft Prize or both.

After providing a brief two-sentence biography on each member of the team, the summary ends with this:

Amici’s interest in this appeal arises from the gravity of the case before the Court and the necessity of grounding any decision in a proper historical understanding of Section Three of the Fourteenth Amendment. As eminent American historians with expertise in the relevant era, actors, and events, amici are well qualified to assist the Court by establishing the original intent, meaning, and public understanding of the Disqualification Clause.

In plainer English, perhaps those first paragraphs can be translated like this:

The authors of this brief are not mere dabblers in armchair history. Each contributor has spent their entire career studying the aspects of political history of the period originating the amendment at the core of this case, the policies enacted at the time of its inception regarding the participation of oath-breakers in elected positions and the expectations those persons had for the application of this amendment in perpetuity in the country. Each participant in this effort has achieved national recognition for their entire body of work in these exact fields. THEY KNOW ACTUAL HISTORY. Rather than seeking your own Fractured Fairy Tale version of history to rationalize your decisions, you would be advised to stick with the verifiable history cited within and avoid further destruction of your own Constitutional legitimacy.

Like the final decision from the Colorado Supreme Court, the brief reads like it was intended to be a Cliff's Notes summary for a Supreme Court all too willing to go off and attempt its own search for supporting history to justify what it wants to decide. Like the Colorado Supreme Court ruling, the brief is filled with explicit citations of debates and correspondence throughout the Civil War and through the drafting of the Fourteenth Amendment and the effort to ratify it supporting the conclusions. The clarity of both of these documents provides citizens a very clear means by which to evalate whatever decision emerges from the court. Did they stick to the prescribed scope and facts of the case? Did they use history or invent history to support their conclusions? Do their conclusions have any grounding in actual law or history?

Just scanning through the brief and noting the headings in bold provides a very clear outline of the overall point made by the brief:

I. THE ORIGINS OF SECTION THREE
  A. From the Start of the Civil War, the Federal Government
     Took Steps to Ensure Loyalty and Disqualify
     Insurrectionists in its Midst
  B. At the End of the War, Disqualification Became a Pressing
     Concern as Insurrectionists Were Elected to Congress

II. THE DRAFTING AND RATIFICATION OF SECTION THREE
  A. A Congressional Inquiry Discovered Widespread 
     Rebelliousness in the South
  B. The Development of Section Three Demonstrates
     Congress’s Intent to Make Disqualification
     Targeted and Permanent
  C. Southern States Resisted Ratification, in part,
     Because of the Disqualification of ex-Confederates

III. THE PERSISTENCE OF SECTION THREE
  A. The Jefferson Davis Case Showed That Section
     Three Required No Criminal Conviction and Was
     Self-Executing
  B. Requests for Amnesty Underscore the Broad and
     Immediate Impact of Section Three

Perhaps the most concise quote from the brief expands upon comments found in the Report of the Joint Committee on Reconstruction, from 1866:

Without a disqualification clause that would endure, a Congressional committee warned, “flagrant rebellion, carried to the extreme of civil war,” would become “a pastime.” Future insurrections could be defeated by force of arms but “the battle may be still fought out in the legislative halls of the country.”6 Insurrectionists could take over state legislatures, state houses, Congress, the cabinet, and even the White House. Section Three was meant to prevent that possibility. Its framers intended Section Three: (1) to automatically disqualify insurrectionists; (2) to apply not only to the Civil War but also to future insurrections; and (3) to bar anyone who has betrayed an oath to uphold the Constitution from becoming President of the United States. It remains in place and in force today.

As another example of how this Cliff's Notes brief puts the Supreme Court itself on notice, the brief addresses how language of Section Three was explicitly crafted to close off a path to elected office for Confederate actors who escaped conviction for treason - including Jefferson Davis. A brief filed on behalf of Trump's position by Ed Meese III (yea, him), Michael Mukasey and William Barr (yea, him) claimed that historical records reflect that actors in the 1860s were NOT concerned that a Confederate leader could win the Presidency. The real historians call that falsehood out directly and refute it in detail:

Amici curiae briefs filed in support of the Petitioner by individuals who are not historians claim that “Historical records ... reveal that the Framers and ratifiers of the Fourteenth Amendment were not concerned that a Confederate leader could attain the presidency” and that “No Republican seriously feared that the national electorate would place a former rebel like Jefferson Davis in the White House.”76 These assertions are mistaken.

In 1868, as part of normal judicial procedures at that time, US Supreme Court Chief Justice Solman Chase was presiding over a circuit court handling the trial of Jefferson Davis for treason. Chase had political ambitions at the time that made the prospect of him actually presiding over the trial disadvantageous to his interests. During preparations for trial, Chase met with Davis' lawyers behind the scenes and suggested they argue that because Davis had already been automatically disqualified by Section Three, he had already been punished and could not be convicted of treason.

Lo and behold, that's exactly the argument Davis' lawyers made in court. They stated directly in court, "It needs no legislation by Congress to give it effect." The government's lawyers made the argument that the Constitution and criminal code serve distinct purposes and should be considered separately. Disqualification on Constitutional grounds from seeking office is unrelated to criminal penalties for treason. Lo and behold, Justice Chase and the other judge hearing the case on the circuit came to different conclusions regarding Davis' defense and the prosecution withdrew the criminal case, knowing Davis' own case conceded his ineligibility for future office.

The point of this anecdote? Section Three of the Fourteenth Amendment was not only ANTICIPATED as a means of gating who might become President, it has already fufilled that intended purpose in a court of law. And not just in a race for dog catcher or Senator, but in a case that was the marquee scenario of its purpose, by helping ensure the nation's most infamous insurrectionist -- at least until January 6, 2021 -- never attained the office of President.

---

Amicus briefs are a routine part of Supreme Court proceedings. The fact that multiple parties on both sides of the issues around Donald Trump's ballot eligibility have attempted to submit their own spoonfed "think-bytes" to the US Supreme Court to spur thinking in their preferred direction is no surprise. Perhaps the only surprise greater than the surprise that America sits at a point in its history where the need to prevent a former President who planned an insurrection to retain power from regaining power exists is the surprise that seemingly no one in the country can predict how the US Supreme Court will rule in what should be such an open and shut case. At this point, that's as dangerous a sign as Trump's sway over Republicans that we as a nation have lost the plot.

WTH

A Bloc Diagram of Political Extremism

In a previous commentary here prior to the 2022 mid-term elections, a football field was used as a visual metaphor to explain how the discussion space of public issues has shifted within America over the last fifty plus years. The point of the metaphor was to show how a simplistic two dimensional view of available answers for issues can completely distract the public from recognizing that the two teams on the field aren't scrimmaging at the midfield balanced starting point of fifty years ago. In fact, the game has been shifted heavily to one side.

The football field analogy may help visualize how the origin of political solutions has shifted over decades but it doesn't do much to explain other dynamics WITHIN parties and BETWEEN parties resulting from gerrymandering and basic ignorance of democratic processes that combine to accelerate the shift and accentuate the sense of jarring shock each time something big comes out of government. The two dominant parties may appear to act as monoliths but their actual behavior is the result of blocs within the parties that have very distinct characteristics that have huge impacts on what "the monolith" does. Understanding those impacts requires modeling those underlying preferences and actions of individual blocs of voters within the parties or within independent ranks.

Devising a Model of Political Blocs

To visually illustrate how the behavior of individual blocs of voters changes over time, an ideal model would convey all of the following elements at a glance:

• The proportion of the voters in the bloc to the total number of voters
• The position of that bloc's political preferences on a simplified two dimensional spectrum of policy choices
• The "width" of policies on either side of the bloc's core preference that voters in the bloc will consistently accept
• How all of the blocs appear together on the spectrum and how their core preferences and tolerances overlap

The image below provides an example of a graph of such a "bloc" diagram.

This approach obviously merits a few hand-waving caveats. Namely:

• The horizontal axis reflecting "policy" is a numeric scale synthesized out of thin air. No one attempts to compute a single numeric "score" of any arbitrary policy and there's no way an agreed upon scheme could be devised.
• Attempting to simplify political ideas down to a artificial two-dimensional space (left / right, liberal / conservative, etc.) doesn't reflect the dimensionality of all solutions that SHOULD be available but, in a perverse way, it DOES reflect the distortion of choices imposed by an arbitrary two-party system
• The y-axis of the diagram has no direct mapping to the real world. The vertical dimension is chosen to allow all of the blocs to fit on the diagram while making their areas proportional to that bloc's share of total voters. Since the horizontal axis is in units of "policy", the vertical scale is essentially a reflection of the number of voters holding a particular policy preference. Again, not a number that can be scientifically sampled and validated.

Even with those caveats, which may not make sense at first, this diagramming approach does achieve a few key goals:

• Each bloc's area intuitively conveys its proportionate strength within its party and to the total voting population.
• Each bloc's width provides an immediately intuitive understanding of its tolerance for neighboring ideas.
• The degree of overlap between blocs reflected by stacking them atop each other provides an instant impression of the opportunities for compromise to combine ideas into a majority of votes.
• The y-axis of the diagram has no direct mapping to the real world. The vertical dimension is chosen to allow all of the blocs to fit on the diagram while making their areas proportional to that bloc's share of total voters. Since the horizontal axis is in units of "policy", the vertical scale is essentially a reflection of millions of voters holding a particular policy preference. Again, not a number that can be scientifically sampled and validated.

Unfortunately, even with this immediate intuition that might stem from a diagram like this, the fact that the underlying policy dimension of the horizontal axis is synthesized makes any ONE model rendered in this format useless for discussion. The model is far more useful by scripting it, then generating the same chart over different scenarios that alter the political target and tolerance of each bloc over time. A bloc can shift left or right on the horizontal access in terms of its core target positions. It can also expand or narrow its tolerance of adjacent policy ideas over time, increasing or reducing opportunities for compromise.

To truly capture insight from the model, scripting it then defining models based upon historical data for total voters and verifiable records for party registrations can make it possible to see patterns in overall political direction, even when exact numbers aren't available from the results.

Implementing the Model

As a brief technical aside, the model and graphing of results were implementing using a script written in Python utilizing the Manim graphing and animation library. The rectangles for each bloc are sized s that their areas are proportional to the number of voters mapped to the block. Each year's illustration performed these steps to generate the bloc bars:

1. Multiply the total voter count by each party's registration percentage.
2. For Democrat and Republican blocs, the party voter count was then evenly divided among the blocs within that party. (It can be easily argued this is not accurate and that blocs within the major parties are consolidating and tending to shift counts away from the moderate side.)
3. For Independent blocs, the center bloc was allocated 12% of the total and 44% was allocated to the remaining "Leans" blocs. This reflects actual polling data from Gallup that has remained consistent for decades.

To get all of the areas to reflect a uniform amount of voters between 1972 and 2024, an arbitrary area on the screen was chosen to represent all voters in 2024, the largest vote tally. That "density" was used as a constant scaling factor in all years so if the voter count doubles, the screen area occupied by bars for those blocs will double while ensuring the extrapolated 2024 results fit cleanly on the diagram.

The Python object model for a bloc includes a a "core target" parameter that dictates where that bloc's political preferences sit on the arbitrary x-axis of policy ranging from -18 to +18. Each bloc also includes a "shift factor" that allow that bloc's core target preference to shift a fixed percentage each election cycle.

Each bloc definition also has two parameters for "tolerance" and "tolerance shift" that reflect the range of policies acceptable to that bloc and how that tolerance range narrows or expands each election cycle. The initial state of most blocs in 1972 were arbitrarily configured with a tolerance range of 5, meaning each bloc can accept positions from -2.5 to +2.5 around their core target. The tolerance of the independent blocs were made initialy larger, reflecting the expected behavior of centrists. The tolerance shift factors of the partisan blocks were configured with NEGATIVE percentages, causing their tolerance value to DECREASE each cycle, reflecting a NARROWING of acceptable preferences. For the Independent blocs, those percentages were larger POSITIVE percentages, causing their tolerance value to INCREASE each cycle, reflecting a WIDENING of acceptable preferences.

Data Sources for the Model

The factual data used in the model consisted of figures for total voters in each Presidential election between 1972 and 2020 and percentages of voters registered in each political party or as independents. Total voter data was obtained from this web site managed by the University of California - Santa Barbara summarizing total votes cast in each Presidential election. The 2024 voter total was then estimated by applying prior growth rates to the 2020 numbers.

https://www.presidency.ucsb.edu/statistics/elections/2012

Party registration percentages for 1972 through 2004 were obtained from this Washington Post article providing registration percentages in each presidential election year.

https://www.washingtonpost.com/wp-srv/politics/interactives/independents/data-party-identification.html

Registrations for 2008 through 2024 were gathered from data collected by Gallup available here:

The party registration data is not perfect. Some states REQUIRE registration with a party in order to vote in primaries. Other states ALLOW an affiliation to be collected but do not require it. Other states do not require registration at all. Here, the available stats were used as a proxy for the nation, which could skew results SLIGHTLY.

Also, the same Gallup results cited above also provide data for "leanings" of independents over the same 1972 to 2024 range. Those leanings have remained very consistent over time, with between 42-46 percent "leaning Democrat" and 42-46 percent "Leaning Republican" with the balance claiming true centrist preferences swinging equally in both directions. The models here will assume a 44 / 44/ 12 split within independents.

Mapping the Model to Reality

As stated earlier, the dimensionless nature of "politics" on the x-axis of this visualization means that any specific graph is incapable of conveying anything specific about policy details from any legislation. However, watching the size, dimensions and relative positions of all of the blocs to each other over time can actually provide significant insight into general behaviors. With all of the data from 1972 to 2020 defined in the model, a video was generated showing the bloc view for each Presidential Election year from 1972 to 2024. You can watch the video here on YouTube:

Here are some dynamics that become obvious from watching the blocs evolve over an extended time.

Inter-Party Paralysis -- As blocs narrow their tolerance for ideas outside their core preference, it becomes more difficult to find a majority of votes for a given policy towards the middle ground. Impeding compromises on proposals positioned towards the center of political space not only slows down the pace of any legislation, it makes it less likely any legislation emerging comes from that centrist space. Instead, legislation getting enacted is more likely to come from a policy point closest to the majority party's core which is further from the center.

Intra-Party Paralysis -- As blocs narrow their tolerance for ideas outside their core preference, it not only inhibits the ability to make deals across the aisle with members of other parties, it also begins preventing coalitions WITHIN a party from forging agreements that allow legislation to be drafted and enacted. In this model, the "Fanatic" bloc of Republicans has shifted so far to the right, by 2020 it lacks any overlap with blocs within the Republican Party. Actual reality reflects that change, with a minority within the party so unwilling to compromise with ANYONE, they have already outsted their own Speaker and threaten to do so again with the replacement.

Oscillation Instead of Evolution -- As blocs within both dominant parties shift directionally towards their extreme away from the center and as those blocs become less tolerant over time, a secondary effect becomes evident to the voting public. Any legislation that DOES manage to get passed looks less like an evolution of the current state on the issue involved and more like an instantaneous jolt from one state of affairs to a vastly different state of affairs. Of course, this whipsaw effect on public policy is the LAST thing society needs in areas like environmental regulation, civil rights, etc. Having one party support automakers by trying to create long-term demand for electric vehicles then having another party attempt to support automakers by further relaxing emissions rules and ending EV rebates can entice a maker to spend billions on investments whose value is tanked by a whiplash change in policy that shifts consumer demand instantly.

Spite as a Form of Alternate Political Success -- In a climate where actually ENACTING new legislation is nearly impossible, sheer spite has emerged as the most common form of political victory pursued. Spite has an advantage over actual progress because politicians have discovered it is vastly easier to achieve, not only due to unique flaws built into the United States Constitution regarding representation but also mere parliamentary traditions adopted decades / centuries ago within the House and Senate that provide a minority of a minority to block consideration of bills or appointments in the Executive branch or the courts. The most intolerant politicians and the voters who support them have more frequently concluded over the past two decades that if they cannot WIN what they want via the voting booth, they will DAMN SURE ensure the actual winners won't get what they want either. And the system provides ample tools to make good on such threats.

Tolerance of Independents Is Stretched -- By necessity, a political climate only allowing policies towards the flanks to become law requires the tolerance of Independents to grow over time, in contrast to the tolerance of politicians and voters remaining aligned with the dominant parties. It's not necessarily a sign of ACTUAL preferences of those in the independent blocs, only a reflection of the fact that with no choices being presented that lie in their actual PREFERRED range, their only choice is to ACCEPT a wider range of policies while remaining engaged or to abandon participation entirely.

Predictions and Implications

A model that only rationalizes an explanation for past events is limited in value. Does this bloc model provide any predictive value? As stated in the caveats, the "units" for the horizontal axis of policy choices lack any specific tie to particular issues, they simply reflect a degree of "difference" between different people. This model can't predict how the terms of a bill scoring a -3 on the scale would differ from the terms of a bill scoring a +3. However, the shifts in positions of blocs and their overlaps with other blocs do illustrate how cooperation will continue to break down in efforts to solve large problems in the political sphere.

A Very Risky Environment for Capital Investments -- The prospect of hardliner blocs within the two parties attempting to continually undo any legislature or crucial court battles made possible under the other party's control one of the branches of government creates enormous risk for businesses making investment decisions in industries impacted by government policies. The dominant parties have widely divergent views on critical topics such as climate change, financial regulation, intellectual property rights and privacy rights. All of these areas require hundreds of billions of dollars in investments in coming years or threaten the safety of trillions of dollars in assets. These are not areas where rapid swings between contradictory policies every four to eight years will produce optimial long-term outcomes for the United States or the world.

No Corrective / Stabilizing Force -- The behaviors of voters and politicians acting from within these blocs are not self-correcting and self-balancing towards a neutral equilibrium. Narrower tolerances over time WITHIN blocs limits opportunities for cooperation and compromise BETWEEN blocs, even those of the same party. This makes government less able to respond to new issues and voter expectations. A less effective government lessens interest in voting from those who feel their needs are unmet, producing a positive feedback cycle ignoring centrist interests.

No Improvement Without Reducing Gerrymandering -- The principal force behind narrowing tolerances of blocs is the gerrymandering of US and State voting districts. Allowing politicians to select their voters insulates politicians from centrist interests, creating an environment where the only threat to their re-election are candidates with more extreme views.

Growing Voter Apathy -- Between 1970 and 2020, the population of the United States grew from 203,211,926 to 331,449,281, an increase of 63 percent over fifty years. Vote totals in Presidential elections grew from 76,340,294 in 1972 to 155,507,476, an increase of 103 percent. Over the entire period, that reflects an increase in voter participation (at least in Presidential election years) from about 37% to 46%. However, dragging back and forth through the yearly graphs shows years of DROPS in election turn-out despite an ever-growing population. Were those drops due to voters' delight in their circumstances at those times? Not likely. The turnout dips in 1988 (Bush versus Dukakis), 1996 (Clinton versus Dole) and 2012 (Obama versus Romney) seem to be the yawning reaction of the public to a mediocre candidate offered up by one or both of the parties. It's also possible that as reluctant independents continue to see major parties ignore them and pass legislation that continues to whipsaw the country between extremes, the very independents most in a position to AFFECT the direction in such hair-trigger electoral times may become so disgusted with the lack of consistency that they abandon particpation. Frankly, that may be exactly what many in the dominant political parties want, to the country's detriment.

No Evolutionary Fix for Corrupt, Two-Party Dominance -- This is really a corollary to the prior points. No aspects of the forces in this model create self-correcting, moderating forces to shift conditions back to a center. Because incumbent politicians in majority parties can select their voters, House legislative bodies at the Federal and State levels that are SUPPOSED to be the most immediate, small-D democratic representations of the People's interest are in fact very UN-representative of the people's will. This eliminates any external force for altering parliamentary practices that protect the existing TWO dominant parties. There can be no GRADUAL change that alters the behavior of an existing party towards moderation or ALLOWS a third party to participate in the process and obtain meaningful levels of power to reflect voters who might support it. The only way change will occur with the existing parties is via internal collapse or some political force majeure that cuts through the corruption and decades of insulation from reality and grenades the status quo. Given the types of self-induced problems experienced by the United States in past decades -- terrorist attacks, a tragically mis-managed war of retribution in Afghanistan, a tragically mis-managed war in Iraq based upon fabricated intelligence pitched to the American public, a worldwide financial collapse stemming from American "innovations" in financial engineering -- it is a sobering process to contemplate the level of calamity that would shock American out of the current stupor that is allowing these parties to carry on in the current mode of operation.

WTH

Such Deference to Idiocy

On January 9, 2024, a three-judge panel of the DC Circuit Court of Appeals convened at 9:30am EST to hear oral discussions of the implications of a claim by Donald Trump and his defense attorneys that a President has immunity from criminal prosecution for any acts conducted within the sphere of his duties as President. Put an eighteen point bold Helvetica bullet by that statement cuz we're going to come back to that.

Within hours of the conclusion of the hearing it was easy to find commentary stating what a catastrophic case Trump's attorney, John Sauer, made in his arguments before the panel. It remains impossible to find any legitimate opinion that Trump's arguments had any legal merit or purpose, other than satisfying the requirement that a defense attorney attempt every possible means of defending his or her client.

The arguments for immunity put forth for Donald Trump by his defense boil down to the following:

1. Section 4, Article 2 of the Constitution should be interpreted as allowing criminal prosecution and conviction of a President for acts committed as President only AFTER leaving office but ONLY if the President was impeached by the House and convicted by the Senate in an impeachment trial for those actions.
2. Anything "a" President DOES while "the" President is ipso facto within that President's duties as President and thus covered by said immunity.

The idiocy of these arguments should be obvious to any lawyer or American historian. The idiocy of these arguments should also be obvious to any American citizen with an IQ above 75.

Prioritizing the Public Over a President

The principal that a sitting President cannot be be sued in civil court for official acts performed within the scope of duties as President makes perfect sense. First of all, civil litigation uses a lower standard of proof ("a preponderance of the evidence" versus "beyond a reasonable doubt"), lowering the bar for thousands of decisions a President legitimately makes that SOMEONE is always going to oppose.

Recent history has already provided a useful clarification that a sitting President is NOT immune from civil suits over actions taken PRIOR to becoming President WHILE President. That's a reflection of a belief that ANY form of immunity for the single most powerful role in the government must be carefully restricted.

The language in the Constitution regarding impeachment as a POLITICAL process versus criminal prosecution and conviction of a President as a JUDICIAL process reflects an obvious but crucial reality. A sitting President is the leader of the entire Executive branch of the government which includes the Department of Justice that handles all work associated with investigations, indictments and prosecutions of criminal defendants in the courts operated by the Judicial branch. Any attempt to criminally prosecute a sitting President for ANY action, performed prior to becoming President or while President creates enormous conflicts of interest.

• As head of the Executive branch, a sitting President can attempt to delay or terminate attempts at prosecution by altering personnel under his control to eliminate the threat or direct actions to destroy evidence, etc.
• Employees responsible for investigations, indictments and prosecutions within the Department of Justice may feel undue pressure from the President or merely from other employees loyal to the President which may unjustly affect any attempt at prosecution, drenching any such efforts with political overtones that undermine faith in the ability of officials to equitably enforce the law.

The sole purpose of the language in the Constitution regarding impeachment of a President is to recognize that any attempt to criminally prosecute a sitting President would be INHERENTLY political. So the founders designed a PURELY POLITICAL process called impeachment that the Legislative branch of government could follow to REMOVE a President from office, eliminate the conflicts of interest that would have existed and allow an now-unconflicted Department of Justice to investigate, indict and prosecute a (former) President as warranted based on normal, less politicized criteria.

The founders intentionally designed the impeachment process with "trigger mechanisms" intended to be simultaneously responsive (a mere simple majority vote in the House to impeach) yet conservative (a two-thirds majority in the Senate to convict / remove). Conceptually, the POLITICAL bar for impeachment sits BETWEEN the lower legal standard for civil cases ("preponderance of the evidence") and the much higher standard for criminal conviction ("beyond a reasonable doubt"). When considered from a combination of perspectives for both the public and the President involved, the thinking of the founders seems VERY clear.

In a criminal matter, no citizen is above the law (immune from prosecution) or below the law (unentitled to protections from undue prosecution / conviction enjoyed by others). However, when criminal processes may be required against a sitting President, the PUBLIC'S right to the expectation of a functional Executive branch outweighs a sitting President's "right" to hold power. The PUBLIC comes first. If the House (reflecting the will of the people) opts to impeach and the Senate (testing against a more conservative criteria) decides to convict, that President might face criminal prosecution and might very well be acquitted but the fact that President got close enough to a line triggering that much concern by the public and Congress is enough to justify removal from office.

The corollary to this prioritization of individual rights of a President and public rights to a functional, unconflicted Executive branch is that the impeachment process is SOLELY a POLITICAL process aimed at solving a POLITICAL problem and by definition is NOT a finding of fact under the more strict criminal threshold. As has been seen three times in thirty years, the political judgements of one hundred sitting Senators may have little bearing on actual facts. The failure of a House body to impeach or a Senate body to convict a President has ZERO bearing on any criminal culpability that President might face after leaving office. There was zero intent by the framers of the Constitution to make impeachment and conviction a prerequisite to subsequent criminal prosecution. Impeachment was and is solely a mechanism for hastening the process to get a potentially paralyzed President out of office so the government can focus on its obligations while a civilian ex-President can face whatever consequences might be appropriate.

Trump's Arguments

In the oral discussion before the 8th District Court of Appeals, Trump's lawyer answered questions from the panel for over an hour. The answers provided to the panel's questions were absurd and ultimately should destroy Trump's specific claim. The key question involved the sequential requirement of impeachment and conviction prior to criminal prosecution. The root of Trump's argument is that a President has lifetime immunity from prosecution for any acts performed while President. Not just acts related to official duties, but ANY ACTS.

As the panel posed purposely absurd hypothetical after hypothetical to John Sauer, he continued to state such immunity was absolute. Finally, Judge Florence Pan put the question directly. I understand your position to be that a president is immune from criminal prosecution for any official act, even if that action is taken for an unlawful or unconstitutional purpose. Is that correct?

Read her question carefully. "…even if that action is taken for an unlawful or unconstitutional purpose."

At that point, Sauer attempted to backpedal, in search of a position that sounded more reasonable. Or, at least, less insane. His actual answer effectively destroyed his own argument. Sauer responded by saying if a President was impeached by the House and convicted by the Senate, THEN he could be criminally prosecuted. (Even this caveat is not terribly forthright. I believe Trump's lawyers have not only argued this point, but further restricted it by saying an ex-President can only be criminally charged for acts cited in the impeachment that ejected the President from office. If a President was impeached and removed from office for an international kickback scheme but also signed off on the murder of a political opponent while in office discovered after impeachment, the murder charge cannot be prosecuted.)

The judges immediately jumped on Sauer's caveat, pointing out that if impeachment and conviction are required for subsequent prosecution, couldn't the President just direct a sufficient number of opponents in the House or Senate to be killed to ensure an impeachment effort fails to gain protection from prosecution?

THESE ARE POINTS ACTUALLY BEING DISCUSSED WITHIN AMERICAN COURTS REGARDING AN EX-PRESIDENT.

Why Such Deference to Idiocy?

The real question to ask regarding the entire collection of criminal cases against Donald Trump is very simple. Why are the courts and media exhibiting such deference to the idiocy reflected in Trump's motions? I started listening to the January 9, 2024 hearing five minutes after it started and could only listen for about twenty seconds of John Sauer before I had to stop. If you remember the scene in The Blues Brothers where Ellwood takes Jake back to his sleazy boarding house / motel and introduces Jake to the motel's manager sitting behind a glass partition watching a boxing match on TV, Sauer sounds exactly like that motel manager. The prospect of listening to that voice for multiple hours was revolting enough but having to listen to the arguments being made was beyond my tolerance.

Sauer's background seems to be no surprise. Sauer received a career boost by being appointed Missouri's Solicitor General by then Missouri State Attorney General Josh Hawley in 2017. While serving as Missouri Solicitor General, Sauer provide Missouri's signature to the motion filed by multiple states supporting the attempt to decertify the electoral votes for the states of Georgia, Michigan, Pennsylvania and Wisconsin.

If I had been a member of the panel, after giving the counsel the time they requested to make their arguments, I would have gaveled the proceeding and told the assembled legal teams...

Thank you very much counselor for addressing our questions. The panel will adjourn this hearing for a short break. My fellow judges and I will be heading in that room over there for a short coffee break to discuss the arguments we just heard and we'll be back in fifteen minutes.

My peers and I would have adjourned to the coffee room, drawn coffee straws to decide which one gets to announce the decision, then walked back into the court after ten minutes, then told the assembled...

The panel has carefully considered the arguments and motion before us. The court will issue this in writing but we have an answer for you right now. The court explicitly rejects the motion, remands the proceeding back to the trial court where it belongs, and explicitly states our finding that there is ZERO serial requirement of a POLITCAL impeachment by the House and conviction by the Senate as a prerequisite for criminal prosecution of an ex-President for ANY action. Furthermore, the court finds there is ZERO immunity from criminal prosecution afforded to any ex-President for ANY action taken prior to office, during office or after office.

I understand that every criminal defendant has a right to defense counsel and that defense counsel has an obligation to pursue any ethical or logical strategy for defending the client. This requirement can involve pretty absurd interpretations of the law that have little or no chance of success before a judge. But this requirement doesn't mean the judges and courts must show such deference for such idiotic claims and theories. There was no need for this hearing to require two weeks of preparation after being granted. Based on the existing law and the arguments made in court, there is no need for a decision by the appellate panel to take even DAYS to formulate. The issue could have been decided in real time and the defendant sent back to trial court.

The same timetable should apply to the inevitable final appeal to the US Supreme Court. A defendant may be entitled to argue an immunity claim from trial to appellate and from appellate to Supreme Court. But it doesn't mean the appellant is owed additional WEEKS to re-re-draft their argument and it doesn't require the Supreme Court to spend more than a hour listening to arguments or spending more than fifteen minutes creating a reply. The arguments have no merit and the time wasted even entertaining them is delaying justice owed not only to the defendant but the larger public.

WTH