I should add that I hope to put out a piece within the next week, principally for the paid subscribers, that I have been working on for months, on and off. I wanted to make this one free to make sure the hosts of Advisory Opinions could see the whole argument without a paywall.
Thank you so much for taking the time to write this piece. I am a Dispatch/AO reader/listener and with no legal background. I often read at least some of the comments but hadn't for these pieces so would not have been aware of the incorrect claims. I appreciate being able to read your response as well.
Patterico (and Beldar), thank you both for all your work in correcting the record. I was among those piling on in the comments both in the AO podcast and the Collision piece. I was also among those whose head exploded (NOT literally) when Sarah made a big deal on last week’s episode about owning her mistakes and correcting the record, and then proceeded to give the insufficient record-correction you describe.
Sadly, I believe that Sarah had become more and more strident and certain of the correctness of her positions, unwilling to acknowledge corrections pointed out to her in the comments.
Also sadly, I believe (perhaps reflecting his status as “guest host” since taking the NYT gig) that David has faded somewhat into the background, being far more limited in his own confident assertions, becoming a bit of a “yes man” to Sarah rather than a check on her self-certainty.
I associate myself with these remarks — including the general praise for AO and its hosts' acumen, honesty, and good faith, and including the disappointment at the MISINFORMATION recently conveyed on the Section 3 issues.
To my friend Mr. Frey's comments about the Maine case, I reproduce here a comment I left on Dispatch Media's January 4th Collision newsletter referenced by Mr. Frey, but my focus was on Colorado, with which I was already familiar.
In Colorado, they had not merely a hearing, but a full-blown bench trial — not that you would know that from reading Dispatch Media articles/newsletters or listening to its AO podcast:
=====begin quote=====
When you hear an opponent of Section 3 disqualification argue that Trump was denied "due process" or a "fair trial" in Denver, you should consider as part and parcel of that argument that which Trump and his lawyers chose to present through witnesses that they called.
To an experienced eye, this was a trial that one side's trial lawyers — the petitioners, who were seeking to disqualify Trump — took with utter gravity and seriousness. Trump's trial team basically mailed it in, committing a genuinely stupendous (even by Trump's normally low standards of lawyering) series of procedural screwups and defaults while presenting a pathetically lame set of witnesses, testimony, and evidence.
Just as a for instance: Trump obviously wants to paint what happened in the storming of the Capitol, and interruption of the Joint Session of Congress convened pursuant to the Twelfth Amendment, as something less than an insurrection. So who does he call to offer evidence in support of this proposition, with his limited time and limited number of witnesses?
He puts on Amy Kremer, for instance:
===begin quote===
Amy Kremer testified on behalf of Intervenor Trump. Ms. Kremer is the founder of Women for America First. Her group hosted the January 6, 2021 rally at the Ellipse. Ms. Kremer’s testimony was like Ms. Pierson’s in that she worked with Ms. Pierson to keep the people she described as “whackos” from speaking at the Ellipse. The reason she did not want “whackos” to speak at the Ellipse is because she was worried they might incite violence. She testified that from where she stood on the stage of the Ellipse, she did not witness any violence. Ms. Kremer acknowledged that she remained by the event stage throughout the rally, did not interact with anyone outside the security perimeter at the rally, and was unaware that in response to Trump’s speech, some people in the crowd yelled “storm the Capitol,” “take the Capitol,” and “take the Capitol right now.” She personally did not walk with the crowd to the Capitol and did not go to the Capitol but instead returned to her hotel immediately after Trump’s speech. Ms. Kremer also testified before the January 6th Committee. The Court found Ms. Kremer to be credible but found her testimony to be largely irrelevant other than that she was concerned about speeches at the Ellipse inciting violence and that the January 6th Select Committee interviewed many Trump supporters.
===end quote===
(Trial court opinion, paragraph 49, at pp. 22-23.)
In other words, when it was his turn to try to prove his side of sharply contested facts, Trump deliberately chose to call as a witness someone with ZERO relevant personal knowledge — indeed, less than what we watching TV were gaining at the time.
He wasn't denied the chance to put on a defense. But the defense he did choose to put on genuinely sucked. And now he is stuck with that record. No take-backs, no do-overs, no mulligans.
Yes, there are still lots of legal issues, including legal issues that turn directly on federal constitutional law, which could still rescue Trump in the SCOTUS. But he could hardly be facing a WORSE factual record — a pathetic spectacle of abysmal trial lawyering matched only by Trump's universally unsuccessful lawsuits directly challenging the 2020 election results.
=====end quote=====
In response to another commenter who asserted that the Colorado case ignored the rules of evidence, prevented Trump from presenting a defense, and came from an all-elected Democrats state supreme court bench, I commented:
=====begin quote=====
Yes, of course Trump's lawyers were afforded the opportunity to cross-examine each live witness, and indeed, to present their own — and did so, albeit without much skill or persuasive impact. The case was tried on an expedited basis with time and witness limits for both sides, and Trump got as much time and as many witnesses for Trump's defensive case as the petitioners' and the Colorado Attorney General's attorneys got put together.
By statute, and as is very common nationally for election-law disputes, it was a bench trial with no jury — but a full "merits" trial, not a preliminary injunction proceeding or any sort of mere "hearing."
The rules of evidence, including rules regarding the exclusion of some hearsay and the exceptions to the hearsay rule, were followed. Trump's lawyers made objections, some of which were sustained, others of which were overruled. None of those rulings were found to be erroneous on appeal; to the contrary, those which Trump challenged were all affirmed.
The most important of these rulings was the applicability of an exception to the hearsay rule for reports from governmental bodies, on the basis of which the petitioners sought to introduce the evidence submitted to, and conclusions reached by, the January 6th Committee. The trial judge's own findings of fact never relied solely upon the January 6th Committee's findings or evidence, and discounted its weight very heavily (indeed sometimes to zero) on particular points. Independent evidence from live witnesses and other documents buttress all of those findings, including those regarding Trump's engagement in insurrection. The admissibility, weight, and use of this sort of evidence is ordinarily a question of state, not federal, law, and it is unlikely that the SCOTUS has either jurisdiction or the inclination to second-guess the Colorado Supreme Court on them; but Trump will ask them to, and we'll see whether they do, in due course.
Preponderance of the evidence was the standard used by the federal courts in Bush v. Gore, when they were not even dealing with a final "merits trial" determination of the facts, but rather with a preliminary injunction whose grant or denial depended on the court's evaluation of the litigants' respective "probability of success on the merits." There is literally no support in the state or federal constitution for importing into this office-eligibility determination in civil court a standard and burden of proof used in the criminal courts, and both the trial court and Colorado Supreme Court so held when they upheld the Colorado statute specifying that standard. But as a belt and suspenders finding, the trial judge said that even if she'd applied a higher, "clear and convincing" standard as Trump (without legal support) argued for, the petitioners' evidence satisfied that higher burden too.
Those who say "beyond a reasonable doubt" applies here are deeply confused about the difference between criminal law and jeopardy, on the one hand, and civil-law eligibility for office on the other.
If your last best argument is that all the judges on the Colorado Supreme Court were elected as Democrats, to you I say: You cite no law to show that these Democrats did any differently than Republicans should or would have done. It's a smear based on inuendo, an assumption of corruption without a particle of support. Is that the best you've got?
There is no shortage of political information on certain topics - but which report is to be given the assent of trust? This post, with its details, is why I trust content from Patterico. I look forward to reading the future hoped for post.
I actually had another and perhaps even more pertinent comment to reprint here, which was specifically in response to The Collision's description of Maine as having been "even more arbitrary" than Colorado. But it was too long to fit in my other comment, as judged by Substack's character limit — shocking, right?
===begin quote===
"[E]ven more arbitrary"?!?
That is the kind of line I'd expect to read only in a Trump brief's description of the Colorado statute, which was recently and expressly tailored by its state legislature to pin down exactly the kind of procedural details whose ABSENCE would perhaps furnish arguments of arbitrariness.
To the contrary, the statute in question here expressly anticipates precisely what legal process Colorado, acting through its state legislature in accord with obligations under both the state and federal constitutions, has determined LAWFUL for purposes of determining ballot eligibility. The legislature took into account the urgency of the decision and therefore crafted timelines for the proceedings to take place — with a bench merits trial (rather than some sort of preliminary injunction hearing to predict, in part, the "probability of success on the merits at a future trial"), and an expedited appeal. The statute doesn't leave courts to guess what standard of proof need be met, but rather explicitly specifies "preponderance of the evidence" — the same evidentiary standard that the SCOTUS was applying, albeit in a guess about a future trial on the merits that would never happen, in Bush v. Gore. Indeed, we use this standard as the near-universal default in all civil litigation. The statute also allocates the burden of proof on the challengers, meaning if the evidence were exactly in equipoise — if it were exactly as likely as not that Trump engaged in insurrection, for example — the tie would go to him.
Trump's not facing any criminal jeopardy as part of any ballot eligibility determinations, either, so to suggest that "beyond a reasonable doubt" applies is deeply stupid. It is not an argument capable of being made with a straight face by a lawyer who has even a fragmentary concept of the difference between civil and criminal law.
There may be other excuses that the SCOTUS finds to avoid this hot potato, but it will NOT be based on a conclusion that the Colorado statute denied Trump due process or is otherwise constitutionally invalid as arbitrary or capricious.
EDIT: And because the Colorado statute and the procedure it specifies are indeed constitutional, under both the Colorado and federal constitutions, the final judgment of the Colorado Supreme Court is entitled to full faith and credit in every other state of the union unless the SCOTUS overturns it.
Which the SCOTUS should only consider doing on questions of federal law. Whether the evidence in the record from this bench trial supports its factual findings, as affirmed on appeal, or instead whether those findings are "clearly erroneous," is not a question of federal law.
All of the due process touchstones to be met for full faith and credit recognition throughout the union were present in the Colorado trial and the Colorado Supreme Court's final judgment thereupon. Trump had advance and fair/due notice of the issues and proceedings, and a full opportunity to appear through counsel. He had the opportunity to compel the appearances of witnesses and production of evidence; he had, and his lawyers used, their rights to call witnesses and present counter-evidence and legal arguments. He could have appeared in person to testify — but stayed carefully outside the subpoena range of the Denver court, lest he be called adversely as a hostile witness by those challenging his eligibility. On key issues such as his subjective intent to engage in insurrection, he left it to the factfinder (here, the trial judge) to draw its own inferences from the circumstantial evidence, with no opposing direct evidence from him of his intentions.
I heard some legal pundit on TV yesterday saying, "The SCOTUS is going to be really interested in what Mark Meadows has been telling that grand jury on this insurrection issue." Well, that isn't going to happen. The ONLY EVIDENCE that matters in the cert petition from the Colorado Supreme Court's judgment is the evidence ALREADY IN THE PUBLIC RECORD FROM THE BENCH TRIAL IN DENVER. Neither side can supplement that record now with evidence found elsewhere.
A lot of brilliant lawyers frankly don't yet appreciate how DISPOSITIVE the Colorado proceedings are likely to turn out to be — nationally — on a record that is already absolutely fixed, to the last comma and period. I read and hear almost no well-informed discussion among legal pundits on the specific subject of this having been a merits trial, not an injunction case. And I read and hear no discussion at all about the very high likelihood that collateral estoppel (issue preclusion) is going to cut the legs out of Trump's factual arguments in all these proceedings nationally, unless the SCOTUS somehow finds the factfindings from Colorado "clearly erroneous" based on this specific record.
At some point the increasing accumulation of hyperbole, errors and partisan talking points (all Fed Soc judges are beyond reproach!) from AO all pointing in the same direction is just making me trust the product less especially when compared to a newsletter like Unikowsky’s.
I think Isgur especially is uncomfortable with the moral valence of “unprecedentedly bad guys necessitate unprecedented actions” because it casts her the Admin in a moral light she finds hard to deal with.
It’s not fair to psychologize someone like that but I don’t know how else to explain being wrong off target in the same direction every time you are wrong other than to question the sights...
Patterico (and Beldar), dou you guys have any thoughts on Sarah’s response to, and deflection of, this article when I brought it up and lightly pressed her on it in today’s AO comments section? I kind of let it go but think it’s most apt for you guys to push it further if you find it appropriate.
I should add that I hope to put out a piece within the next week, principally for the paid subscribers, that I have been working on for months, on and off. I wanted to make this one free to make sure the hosts of Advisory Opinions could see the whole argument without a paywall.
Thank you so much for taking the time to write this piece. I am a Dispatch/AO reader/listener and with no legal background. I often read at least some of the comments but hadn't for these pieces so would not have been aware of the incorrect claims. I appreciate being able to read your response as well.
As always you are a huge help!!
Patterico (and Beldar), thank you both for all your work in correcting the record. I was among those piling on in the comments both in the AO podcast and the Collision piece. I was also among those whose head exploded (NOT literally) when Sarah made a big deal on last week’s episode about owning her mistakes and correcting the record, and then proceeded to give the insufficient record-correction you describe.
Sadly, I believe that Sarah had become more and more strident and certain of the correctness of her positions, unwilling to acknowledge corrections pointed out to her in the comments.
Also sadly, I believe (perhaps reflecting his status as “guest host” since taking the NYT gig) that David has faded somewhat into the background, being far more limited in his own confident assertions, becoming a bit of a “yes man” to Sarah rather than a check on her self-certainty.
I associate myself with these remarks — including the general praise for AO and its hosts' acumen, honesty, and good faith, and including the disappointment at the MISINFORMATION recently conveyed on the Section 3 issues.
To my friend Mr. Frey's comments about the Maine case, I reproduce here a comment I left on Dispatch Media's January 4th Collision newsletter referenced by Mr. Frey, but my focus was on Colorado, with which I was already familiar.
In Colorado, they had not merely a hearing, but a full-blown bench trial — not that you would know that from reading Dispatch Media articles/newsletters or listening to its AO podcast:
=====begin quote=====
When you hear an opponent of Section 3 disqualification argue that Trump was denied "due process" or a "fair trial" in Denver, you should consider as part and parcel of that argument that which Trump and his lawyers chose to present through witnesses that they called.
To an experienced eye, this was a trial that one side's trial lawyers — the petitioners, who were seeking to disqualify Trump — took with utter gravity and seriousness. Trump's trial team basically mailed it in, committing a genuinely stupendous (even by Trump's normally low standards of lawyering) series of procedural screwups and defaults while presenting a pathetically lame set of witnesses, testimony, and evidence.
Just as a for instance: Trump obviously wants to paint what happened in the storming of the Capitol, and interruption of the Joint Session of Congress convened pursuant to the Twelfth Amendment, as something less than an insurrection. So who does he call to offer evidence in support of this proposition, with his limited time and limited number of witnesses?
He puts on Amy Kremer, for instance:
===begin quote===
Amy Kremer testified on behalf of Intervenor Trump. Ms. Kremer is the founder of Women for America First. Her group hosted the January 6, 2021 rally at the Ellipse. Ms. Kremer’s testimony was like Ms. Pierson’s in that she worked with Ms. Pierson to keep the people she described as “whackos” from speaking at the Ellipse. The reason she did not want “whackos” to speak at the Ellipse is because she was worried they might incite violence. She testified that from where she stood on the stage of the Ellipse, she did not witness any violence. Ms. Kremer acknowledged that she remained by the event stage throughout the rally, did not interact with anyone outside the security perimeter at the rally, and was unaware that in response to Trump’s speech, some people in the crowd yelled “storm the Capitol,” “take the Capitol,” and “take the Capitol right now.” She personally did not walk with the crowd to the Capitol and did not go to the Capitol but instead returned to her hotel immediately after Trump’s speech. Ms. Kremer also testified before the January 6th Committee. The Court found Ms. Kremer to be credible but found her testimony to be largely irrelevant other than that she was concerned about speeches at the Ellipse inciting violence and that the January 6th Select Committee interviewed many Trump supporters.
===end quote===
(Trial court opinion, paragraph 49, at pp. 22-23.)
In other words, when it was his turn to try to prove his side of sharply contested facts, Trump deliberately chose to call as a witness someone with ZERO relevant personal knowledge — indeed, less than what we watching TV were gaining at the time.
He wasn't denied the chance to put on a defense. But the defense he did choose to put on genuinely sucked. And now he is stuck with that record. No take-backs, no do-overs, no mulligans.
Yes, there are still lots of legal issues, including legal issues that turn directly on federal constitutional law, which could still rescue Trump in the SCOTUS. But he could hardly be facing a WORSE factual record — a pathetic spectacle of abysmal trial lawyering matched only by Trump's universally unsuccessful lawsuits directly challenging the 2020 election results.
=====end quote=====
In response to another commenter who asserted that the Colorado case ignored the rules of evidence, prevented Trump from presenting a defense, and came from an all-elected Democrats state supreme court bench, I commented:
=====begin quote=====
Yes, of course Trump's lawyers were afforded the opportunity to cross-examine each live witness, and indeed, to present their own — and did so, albeit without much skill or persuasive impact. The case was tried on an expedited basis with time and witness limits for both sides, and Trump got as much time and as many witnesses for Trump's defensive case as the petitioners' and the Colorado Attorney General's attorneys got put together.
By statute, and as is very common nationally for election-law disputes, it was a bench trial with no jury — but a full "merits" trial, not a preliminary injunction proceeding or any sort of mere "hearing."
The rules of evidence, including rules regarding the exclusion of some hearsay and the exceptions to the hearsay rule, were followed. Trump's lawyers made objections, some of which were sustained, others of which were overruled. None of those rulings were found to be erroneous on appeal; to the contrary, those which Trump challenged were all affirmed.
The most important of these rulings was the applicability of an exception to the hearsay rule for reports from governmental bodies, on the basis of which the petitioners sought to introduce the evidence submitted to, and conclusions reached by, the January 6th Committee. The trial judge's own findings of fact never relied solely upon the January 6th Committee's findings or evidence, and discounted its weight very heavily (indeed sometimes to zero) on particular points. Independent evidence from live witnesses and other documents buttress all of those findings, including those regarding Trump's engagement in insurrection. The admissibility, weight, and use of this sort of evidence is ordinarily a question of state, not federal, law, and it is unlikely that the SCOTUS has either jurisdiction or the inclination to second-guess the Colorado Supreme Court on them; but Trump will ask them to, and we'll see whether they do, in due course.
Preponderance of the evidence was the standard used by the federal courts in Bush v. Gore, when they were not even dealing with a final "merits trial" determination of the facts, but rather with a preliminary injunction whose grant or denial depended on the court's evaluation of the litigants' respective "probability of success on the merits." There is literally no support in the state or federal constitution for importing into this office-eligibility determination in civil court a standard and burden of proof used in the criminal courts, and both the trial court and Colorado Supreme Court so held when they upheld the Colorado statute specifying that standard. But as a belt and suspenders finding, the trial judge said that even if she'd applied a higher, "clear and convincing" standard as Trump (without legal support) argued for, the petitioners' evidence satisfied that higher burden too.
Those who say "beyond a reasonable doubt" applies here are deeply confused about the difference between criminal law and jeopardy, on the one hand, and civil-law eligibility for office on the other.
If your last best argument is that all the judges on the Colorado Supreme Court were elected as Democrats, to you I say: You cite no law to show that these Democrats did any differently than Republicans should or would have done. It's a smear based on inuendo, an assumption of corruption without a particle of support. Is that the best you've got?
===end quote===
There is no shortage of political information on certain topics - but which report is to be given the assent of trust? This post, with its details, is why I trust content from Patterico. I look forward to reading the future hoped for post.
I actually had another and perhaps even more pertinent comment to reprint here, which was specifically in response to The Collision's description of Maine as having been "even more arbitrary" than Colorado. But it was too long to fit in my other comment, as judged by Substack's character limit — shocking, right?
===begin quote===
"[E]ven more arbitrary"?!?
That is the kind of line I'd expect to read only in a Trump brief's description of the Colorado statute, which was recently and expressly tailored by its state legislature to pin down exactly the kind of procedural details whose ABSENCE would perhaps furnish arguments of arbitrariness.
To the contrary, the statute in question here expressly anticipates precisely what legal process Colorado, acting through its state legislature in accord with obligations under both the state and federal constitutions, has determined LAWFUL for purposes of determining ballot eligibility. The legislature took into account the urgency of the decision and therefore crafted timelines for the proceedings to take place — with a bench merits trial (rather than some sort of preliminary injunction hearing to predict, in part, the "probability of success on the merits at a future trial"), and an expedited appeal. The statute doesn't leave courts to guess what standard of proof need be met, but rather explicitly specifies "preponderance of the evidence" — the same evidentiary standard that the SCOTUS was applying, albeit in a guess about a future trial on the merits that would never happen, in Bush v. Gore. Indeed, we use this standard as the near-universal default in all civil litigation. The statute also allocates the burden of proof on the challengers, meaning if the evidence were exactly in equipoise — if it were exactly as likely as not that Trump engaged in insurrection, for example — the tie would go to him.
Trump's not facing any criminal jeopardy as part of any ballot eligibility determinations, either, so to suggest that "beyond a reasonable doubt" applies is deeply stupid. It is not an argument capable of being made with a straight face by a lawyer who has even a fragmentary concept of the difference between civil and criminal law.
In other, shorter words: THE COLORADO STATUTE IS WORKING EXACTLY AS CRAFTED, and to call it "arbitrary" is grossly inaccurate. Link: https://codes.findlaw.com/co/title-1-elections/co-rev-st-sect-1-4-1204/
There may be other excuses that the SCOTUS finds to avoid this hot potato, but it will NOT be based on a conclusion that the Colorado statute denied Trump due process or is otherwise constitutionally invalid as arbitrary or capricious.
EDIT: And because the Colorado statute and the procedure it specifies are indeed constitutional, under both the Colorado and federal constitutions, the final judgment of the Colorado Supreme Court is entitled to full faith and credit in every other state of the union unless the SCOTUS overturns it.
Which the SCOTUS should only consider doing on questions of federal law. Whether the evidence in the record from this bench trial supports its factual findings, as affirmed on appeal, or instead whether those findings are "clearly erroneous," is not a question of federal law.
All of the due process touchstones to be met for full faith and credit recognition throughout the union were present in the Colorado trial and the Colorado Supreme Court's final judgment thereupon. Trump had advance and fair/due notice of the issues and proceedings, and a full opportunity to appear through counsel. He had the opportunity to compel the appearances of witnesses and production of evidence; he had, and his lawyers used, their rights to call witnesses and present counter-evidence and legal arguments. He could have appeared in person to testify — but stayed carefully outside the subpoena range of the Denver court, lest he be called adversely as a hostile witness by those challenging his eligibility. On key issues such as his subjective intent to engage in insurrection, he left it to the factfinder (here, the trial judge) to draw its own inferences from the circumstantial evidence, with no opposing direct evidence from him of his intentions.
I heard some legal pundit on TV yesterday saying, "The SCOTUS is going to be really interested in what Mark Meadows has been telling that grand jury on this insurrection issue." Well, that isn't going to happen. The ONLY EVIDENCE that matters in the cert petition from the Colorado Supreme Court's judgment is the evidence ALREADY IN THE PUBLIC RECORD FROM THE BENCH TRIAL IN DENVER. Neither side can supplement that record now with evidence found elsewhere.
A lot of brilliant lawyers frankly don't yet appreciate how DISPOSITIVE the Colorado proceedings are likely to turn out to be — nationally — on a record that is already absolutely fixed, to the last comma and period. I read and hear almost no well-informed discussion among legal pundits on the specific subject of this having been a merits trial, not an injunction case. And I read and hear no discussion at all about the very high likelihood that collateral estoppel (issue preclusion) is going to cut the legs out of Trump's factual arguments in all these proceedings nationally, unless the SCOTUS somehow finds the factfindings from Colorado "clearly erroneous" based on this specific record.
===end quote===
At some point the increasing accumulation of hyperbole, errors and partisan talking points (all Fed Soc judges are beyond reproach!) from AO all pointing in the same direction is just making me trust the product less especially when compared to a newsletter like Unikowsky’s.
I think Isgur especially is uncomfortable with the moral valence of “unprecedentedly bad guys necessitate unprecedented actions” because it casts her the Admin in a moral light she finds hard to deal with.
It’s not fair to psychologize someone like that but I don’t know how else to explain being wrong off target in the same direction every time you are wrong other than to question the sights...
Patterico (and Beldar), dou you guys have any thoughts on Sarah’s response to, and deflection of, this article when I brought it up and lightly pressed her on it in today’s AO comments section? I kind of let it go but think it’s most apt for you guys to push it further if you find it appropriate.
I will say it if no one else does, although I know we all agree:
The Dispatch needs to have Patterico handle its legal podcasts.
The amendment is not self-executing. 18 USC 2383 is the execution, and Trump has not been charged under it.