The Dispatch, My Favorite Site, Is Misleading Its Audience About the Maine Secretary of State's 14th Amendment Decision

Criticize her process all you like, but the level of process is not "none"

Above: Maine’s Secretary of State Shenna Bellows. Photo from her official site.

My favorite site is The Dispatch. I am a lifetime member. As a relentless consumer of audio content, I am a fan of many of their podcasts. As a lawyer, one of my favorite podcasts is Advisory Opinions, hosted by the very bright and energetic Sarah Isgur and essentially co-hosted by David French, whom I admire greatly, as I have written many times. I heartily recommend you subscribe to The Dispatch and listen to Advisory Opinions and the site’s other excellent podcast content. Also, keep David French’s lovely wife in your prayers as she fights cancer.

All those accolades aside, I got a lotta problems with these people, and now you’re gonna hear about it.

Specifically, The Dispatch generally, and Advisory Opinions (and the newsletter The Collision specifically), have been misinforming their readers and listeners about the December decision by the Maine Secretary of State to remove Donald Trump from the ballot.

Isgur and French have both told their readers and listeners that the level of process given by the Maine Secretary of State was “none.” Isgur, who is the principal offender, has also: said that Donald Trump was not given an opportunity to defend himself; strongly implied that the Maine Secretary of State conducted no hearings and took testimony from no witnesses; and repeatedly claimed (and since corrected herself, on this claim only) that the Maine Secretary of State did not make it clear what standard she was applying.

As I will show in detail in this post, all of these claims are false. The Maine Secretary of State gave the parties notice and an opportunity to respond, which are the hallmarks of procedural due process. The Secretary of State conducted a hearing with testimony from witnesses. Trump, through his lawyers, participated in that hearing. Before that hearing, the parties exchanged witness lists and exhibit lists. There was briefing. Trump filed objections. And the Maine Secretary of State issued a written decision, detailing all of the procedures she had followed, explicitly stating the standard she was using, and explaining her reasoning—including descriptions of the evidence that she used to reach her conclusions.

Not only would you know virtually none of this from listening to the Advisory Opinions podcast, you would actually conclude the opposite of the truth—because that podcast described the process as “none,” and strongly implied there had been no hearing and no witnesses. You would also be misled if you relied on the Collision newsletter, which said that Trump had no chance to provide his side of the case, and that the Maine Secretary of State had failed to disclose the standard she applied, or the evidence upon which she had relied.

All of that is just flat wrong.

Let me conclude these introductory paragraphs by stating clearly that today’s newsletter is not a brief for the majesty of the process employed in Maine. If Isgur and French wanted to accurately describe Maine’s process, and then argue that process was insufficient, I would have no problem with that. My beef is that they claimed that no process was given at all. That’s just not accurate, and it does not live up to the high standards I am used to from these legal commentators. It is my hope that they will see this post and issue a correction on their next podcast.

Why Write This Post?

Someone might well say: OK, but why write a whole Substack post about this? Isgur and French are good people. They are always eager to correct themselves when in error. I believe both of those things to be true. So why am I putting all this in a long post when I could just drop them a comment or an email?

Well, others and I have tried obtaining corrections through comments to the posts, which French and Isgur say they read. I could follow up with an email, but I decided to write a Substack post instead, for three reasons.

First, showing the difference between what they have said, on one hand, and the actual procedures employed by the Maine Secretary of State, on the other, is a process that requires detail to be done effectively. It’s not the kind of thing you can do in a short email. This is a case best made with time and space to set forth the claims made by Isgur and French, and the facts that undermine those claims.

Second, it’s possible Isgur and French would not see my email. They are very popular and get a lot of feedback. An email could get lost in the shuffle. This way, on the outside chance that these errors don’t get corrected, at least my small readership will be given the true facts of the matter. That’s really all I can do.

Third, and relatedly, if two legal commentators as respected as Isgur and French are this confused about the procedures employed by the Maine Secretary of State, they can’t be the only ones. So I think I will be providing a public service in explaining the procedures employed to those who did not read the Maine Secretary of State’s decision.

The Claims

I’ll start by quoting the claims made by Isgur and French, so we can all easily see exactly what they said.

January 4 “The Collision” Newsletter

First, let’s look at the January 4 edition of the newsletter The Collision, co-authored by Isgur and Michael Warren. I am attributing the content of the following block quote to Isgur and not Warren, for two reasons: 1) the similarity between the content of the following passage and what Isgur says on Advisory Opinions, and 2) the fact that Isgur is a lawyer and Warren is not. I have thus made an educated guess that she is the one more likely to write about legal topics for that newsletter. Bold emphasis here is mine:

Maine Ups the Ante on Trump’s Ballot Question

. . . .

[I]n case you missed it just before the new year: In late December, Maine’s secretary of state also decided that Trump would be kept off the ballot there, citing the same Section 3 of the 14th Amendment. This is important because it highlights for the Supreme Court the “self enforcing” problem of this disqualification clause.

In Colorado, there was a trial with evidence, and a judge decided it was more likely than not that Trump “engaged in insurrection.” There are still problems with that, as Sarah noted last time. For example, the 14th Amendment doesn’t specify whether the standard is supposed to be more likely than not or very likely or beyond a reasonable doubt, and it would seem odd that different states could have different standards for who is allowed on their ballots. Still, a legal process is a legal process. 

But Maine’s process was even more arbitrary, to the point of being nonexistent. We don’t know what standard the secretary of state used or what evidence she considered before declaring the former president ineligible. And Trump wasn’t allowed to defend himself before losing the right to run for office. Although the Supreme Court will be considering only the Colorado case, Maine’s action to keep Trump off the ballot could underscore the problem with state officials trying to enforce a standardless provision of the Constitution that doesn’t specify who does—or doesn’t—get to enforce it. The court could hold that Congress was required to pass a statutory enforcement mechanism. (Arguably, Congress already did this—it is a federal crime to engage in an insurrection, and it is punishable by not being allowed to hold office, which means the standard is “beyond a reasonable doubt.” The court could point to this and hold that Colorado—and Maine—didn’t use the correct standard.) 

On the other hand, Trump has now appealed the secretary of state’s decision to a Maine superior court, which will ensure all sorts of legal process. In the meantime, the secretary of state’s decision to remove him from the ballot is on hold. And anyway, it will likely all be moot once the U.S. Supreme Court weighs in on the Colorado case. 

As highlighted in bold, Isgur here says that Trump “wasn’t allowed to defend himself” in the Maine proceeding. She says we “don’t know what standard the secretary of state used or what evidence she considered.” She says the process was so “arbitrary” that it was “to the point of being nonexistent.”

Keep all of that in mind when I describe the Secretary of State’s actual process below—because everything you just read from Isgur was wrong. You will find that Trump was allowed to defend himself—and that the SoS (Secretary of State) did articulate a standard, and did explain what evidence she considered.

January 4 Advisory Opinions Podcast

That same day, January 4, The Dispatch published an episode of the Advisory Opinions podcast in which the hosts both inaccurately described the process employed by the Maine Secretary of State as “none”—and in which Isgur falsely implied that the Maine SoS had held no hearing and heard no testimony, and said she did not know what standard the SoS had used.

The following two block quotes are from audio that begins at 21:10 in the podcast. All emphasis is mine; italics are intended to show words that the hosts emphasized, while bold emphasis shows what I think is most significant about what they are saying.

ISGUR: But the reason I bring up the Maine thing—Maine, the state, not Main, the street, let’s say—is to me, Maine just made Donald Trump’s case much stronger at the U.S. Supreme Court. By allowing just the Secretary of State, in Maine, to get to enforce the 14th Amendment, on her own? OK, like, I talked about the due process problems in the Colorado situation? There was a hearing in Colorado!

FRENCH: Yeah.

ISGUR: There were witnesses! There was actually quite a bit of process comparatively! The due process complaints from the dissent [in the Colorado case] are well taken, but . . . there was some process in Colorado. Here [in Maine], there was none.

You have to hear the audio to understand just how incredulous Isgur sounds while describing what she believes to be the total lack of due process in Maine, as contrasted with Colorado. My use of italics and exclamation points is intended to convey some small measure of her disdainful tone, which is punctuated in several places by instances of contemptuous and astounded laughter.

Isgur is setting up a contrast between Colorado and Maine when she describes the processes in each state. When she says “I talked about the due process problems in the Colorado situation? There was a hearing in Colorado! . . . There were witnesses! There was actually quite a bit of process comparatively!” she is strongly implying that Maine had none of these things. Her claim is that Colorado’s process was bad, but it least it had a hearing and witnesses—while Maine had no hearing and no witnesses.

As we will see, though, Maine did have a hearing and witnesses . . . and more.

Continuing with the commentary from Isgur and French:

ISGUR: The Secretary of State got to determine whether Donald Trump engaged in an insurrection . . . I do not know, sitting here right now, what evidentiary standard the Secretary of State used. Donald Trump has now sued, his team, rather, has sued, to prevent, you know, Maine from, like an actual court to actually look at this, which, you know, is the only way this has to go. So due process will now start. But the idea that, like, a random person, frankly, gets to determine the 14th Amendment, I think adds to the argument that the 14th Amendment is not self-executing, because Congress, or rather, the amendment itself does not include any standard that can be used by the people who have to determine whether someone appears on the ballot, and that Congress did create a standard, in the criminal law, against insurrection, the punishment for which is being disqualified from holding federal office. So, like, this was executed by Congress; there is a standard; it’s beyond a reasonable doubt. You gotta meet that standard, according to Congress. I think, I just think that case is getting stronger, thanks to Maine.

FRENCH: Uh, I don’t agree with that. I do, I see your point. I think it’s relatively easy to say about Maine, whatever the standard is, or whatever process is due, it’s more than none.

ISGUR: [Laughs]

FRENCH: Right? [Laughs] And, here, when it comes to, so you can just say about Maine, it’s more than none.

French here is not saying Maine gave Trump more due process than none. He’s saying that they gave Trump no due process at all—”none.” He’s saying that, whatever “due” process means, the process that is “due” is “more than none”—and “none” is, he falsely implies, the level of process that the Maine SoS gave to Trump.

(French then goes on to describe the nature of his disagreement with Isgur regarding the process in Colorado. It’s an interesting and relevant discussion of the law of due process—which requires a “liberty interest” before any process is “due” to a person, and tailors the process “due” to the nature of the liberty interest. He also says that some liberty interests do not entitle you to pre-deprivation process. He says the liberty interest here is pretty weak, as compared to, say, the interests implicated by a criminal prosecution. Given the limited nature of Trump’s liberty interest, he says, the process required is going to be pretty limited . . . “but some process.” All of that is fair comment, and helpful to the average listener.)

So: to sum up what was claimed above:

• Both hosts say that the level of process Maine gave to Trump was “none”;

• Isgur implies that, unlike Colorado, Maine had no hearing, and took no testimony from witnesses;

• Isgur says she has no idea what standard the Maine SoS used; and

• Isgur says that that having the Maine SoS deciding this question is equivalent to having a “random person” making the decision.

The summary of the episode at the link for the episode characterizes this portion of the podcast as a discussion of “Maine skipping due process.” Again, the bold emphasis here is mine:

David and Sarah are back from a hearty break and catch up on cases from last year and various legal topics, including judicial salaries and the death of Justice Sandra Day O’Connor. Stay tuned for:

—David and Sarah’s low confidence in the outcome of the Jarkesy case;
—No love lost for the Sacklers;
—A good attempt at avoiding the income tax;
—Maine skipping due process; and
—A lawsuit that could eviscerate the realtor business.

January 11 Advisory Opinions Podcast: A Small Correction

The Maine process comes up again briefly in the January 11 Advisory Opinions podcast, in which Isgur issued this correction, which was accurate as far as it went, but was still entirely inadequate:

The Maine Secretary of State actually did state her evidentiary standard. She said she was deciding it by a preponderance of the evidence. But she was getting that standard from the Maine Administrative Procedures Act, and, OK, so I had said that she had not stated her standard. She had. That is embarrassing.

I take my hat off to Isgur for the correction.

I assume—and I mean this sincerely—that if Isgur sees this post and reads it all the way through, she will want to issue a far more extensive set of corrections. Because the correction just quoted is just the tip of the iceberg when it comes to what Isgur and French got wrong about the Maine decision. There’s a whole lot more.

So What Process Did Maine Actually Give Trump?

When I listened to the January 4 Advisory Opinions podcast, I had not yet read the decision by the Maine Secretary of State. But I knew that the Maine SoS had issued a decision in writing. And after hearing the podcast, I was curious. Just how does a public official issue a written decision that: describes no process used to reach the decision; cites none of the evidence relied upon; details no standard by which the decision was made; and makes clear that the adversely affected party had no notice, no opportunity to be heard, and no chance to participate in the proceedings or object to the official’s conclusions?

That would have to be an odd decision indeed! I really wanted to see what such a document looked like.

So I went and found the decision. And I read it, and started literally rubbing my eyes in disbelief. (I’m not joking; I know what the word “literally” means, and I actually did exactly that.) I checked to make sure it was from the correct state. I went back to the recording to make sure they were talking about Maine. I looked at the decision again.

When I describe what the decision says, I think you will see why I was so stunned. Let’s go through the Maine SoS’s decision, starting with the very first sentence:

On December 15, 2023, I held a hearing under 21-A MRS. § 337 on three challenges to the nomination petition of Donald J. Trump, or the Republican primary for President of the United States.

Hmmm. So right off the bat we see that the Secretary of State held a hearing. That contradicts what Isgur had implied: that while Colorado had held a hearing, the Maine SoS had not.

The Maine SoS next describes how she had received three separate challenges from Maine voters to Trump’s eligibility for the presidency, and notified the parties that there was to be a hearing:

On Monday, December 11, 2023, I issued a Notice of Hearing to all parties, indicating that a consolidated hearing would be held at 10:00 am on December 15, 2023, in Augusta. The Notice informed the parties that the hearing would be conducted in accordance with 21-A MRSS. § 337 and the Maine Administrative Procedure Act (“APA”). The parties exchanged exhibit and witness lists during the afternoon of December 13, 2023, and the Secretary of State's Office received timely applications to intervene from the Citizens for Responsibility and Ethics in Washington (“CREW”); John Fitzgerald of Sedgwick; State Representative Mike Soboleski; Professor Mark A. Graber; and Michael Lake of Belgrade.

So far, we know that the “parties” were given notice of a hearing, and “exchanged exhibit and witness lists” in advance of the hearing. Moreover, Trump was one of the parties who received that notice, according to a “Notice of Hearing sent by email and U.S. mail to the challengers and the candidate, dated December 11, 2023.”

(I will note that Trump’s lawyers claimed they were unable to open the exhibit list, but the Maine Secretary of State says that doesn’t matter much because Trump “was fully aware of all of the exhibits that would be offered against him at the hearing” by the night before, which was enough notice (according to the Secretary of State) because “the majority of the evidence that the Rosen Challengers offered at the hearing had already been presented and litigated” in the Colorado case.)

We also learn that Trump submitted exhibits, and submitted a brief after the hearing. In short, Trump had an opportunity to respond to the voters’ claims, and did respond.

This is important, because notice and an opportunity to the respond are the key components of procedural due process. And if a party has had notice and an opportunity to respond, it seems hard to claim that the level of process they received was “none.”

The decision goes on to describe the hearing itself:

At the hearing, Ms. Royal and Attomey Gordon testified under oath. The Rosen Challengers called one witness, Professor Gerard M. Magliocca, a law professor at the Indiana University School of Law. Mr. Trump called no witnesses. I also heard argument on the scope of my authority under state and federal law.

Wait. There were witnesses who testified? And Mr. Trump’s side was not just given notice of the hearing, but his side was actually there at the hearing? And he chose to call no witnesses?

But I was told that there was no hearing, no witnesses, and that “Trump wasn’t allowed to defend himself.”

It’s starting to look like that wasn’t true either.

The decision continues:

Without objection of the parties, I set a deadline of 5:00 pm on Monday, December 18, for articulation and briefing of objections to any provisionally admitted exhibits, and I therefore held the hearing record open. Mr. Trump timely filed a brief articulating objections, and the Rosen Challengers timely responded by the deadline I set at the hearing: 5:00 pm on Tuesday, December 19. No other party filed objections.

I likewise permitted the parties to submit final legal briefs regarding the merits of the challenges by Tuesday, December 19, at 5:00 pm. The Rosen Challengers and Mr. Trump chose to waive closing statements at the hearing, deferring instead to their legal briefs. I received timely closing briefs from the Rosen Challengers and Mr. Trump.

I’ll drop the ironic pose of shock each time we learn more about the details of the process that was conferred by the Maine Secretary of State. Not only did Trump have the chance to file a legal brief, he did so. He also had a chance to make a closing statement, but chose not to. The decision notes that the parties then filed supplemental briefs regarding the Colorado Supreme Court’s decision after it issued.

Subsequent to all of that, Trump tried to disqualify the SoS, which motion was denied as untimely.

As for Isgur’s complaint that the Secretary of State was a “random person” who “gets to determine the 14th Amendment,” the decision next explains that under Maine state law, “the Secretary of State is statutorily obligated to determine if a nomination petition meets the requirements” of a statutory provision that requires candidates to provide, among other things, “a statement that the candidate meets the qualifications of the office the candidate seeks . . .” Thus, the Secretary of State concludes: “Maine’s election laws thus contemplate that I review the accuracy of a candidate’s declaration that they meet the qualifications of the office they seek.” Maine law also confers upon the Secretary of State the duty and authority to resolve any questions regarding those qualifications.

The person designated by state law to resolve a dispute is not exactly a “random person.”

The SoS says: “There is no other mechanism of which I am aware by which a Maine voter can challenge the qualifications of a candidate for office.” Although this is usually a straightforward matter, the SoS cites instances in which this decision has involved somewhat complex issues. “The Secretary of State has, for example, wrestled with complex evidentiary records regarding potential fraud of petition circulators. . . . The Secretary has also had to consider novel and difficult questions of state and. federal constitutional law.”

The opinion contains a detailed analysis of whether Trump qualifies for the presidency under the 14th Amendment. I won’t repeat all of the arguments here, because this post is principally about the level of process provided to Trump. I will just briefly summarize her conclusions, with a focus on her explanations of what evidence she reviewed and what standard she applied.

In my view, the Secretary of State does an admirable job of analyzing the application of Section 3 of the 14th Amendment.

She concludes that Section 3 is self-executing, which I believe to be nearly self-evident. She says: “The Supreme Court has described the Fourteenth Amendment as ‘undoubtedly self-executing without any ancillary legislation, so far as ts terms are applicable to any existing set of circumstances.’ Civil Rights Cases, 109 US. 3, 20 (1883).” No legislation is required to give force to the 14th Amendment’s principles of due process or equal protection, and Section 3 is no different. It was enforced before Congress ever passed any legislation to enforce it—and the fact that Section 3 contains a provision for Congress to remove the disability that Section 3 imposes on insurrectionists presupposes that this disability already exists. In addition, Section 3 covers the presidency; nobody in 1868 thought Jefferson Davis could become President of the United States under Section 3.

The Secretary of State also concludes that the events of January 6 were an insurrection. She cites “a United States Goverment Accountability Report” and proceedings and evidence from the Colorado case, which was fully briefed and the subject of a five-day trial. She says, relying on videos and documentary evidence from sources such as the January 6 committee, that the attack constituted an insurrection. Here is a representative paragraph from the decision, citing numerous specific evidentiary sources in the record:

As demonstrated by videos and ‘documentary evidence in the record, a large and angry crowd entered the U.S. Capitol near midday on January 6 and assaulted the capitol police officers charged with defending it, vandalized and stole property, and ransacked offices. See Rosen Ex. 62 (Staff Report, Examining the U.S. Capitol Attack: A Review of the Security, Planning, and Response Failures on January 6, Committee on Homeland Security and Government Affairs & Committee on Rules and Administration (“Senate Staff Report"), at 1; Rosen Exs. 67-72, 75 (video of attack on Capitol). Many of those involved were armed with weapons—some brought to the Capitol, some wrested from police officers, and some repurposed items looted from inside the Capitol itself—and over a few hours they used them to breach barriers and attack those who resisted. See Rosen Ex. 62 (Senate Staff Report) at 28-29; see also Rosen Exs. 67-72, 75 (video of attack on Capitol). The crowd ultimately entered the Capitol as Members of Congress were meeting to certify the Electoral College vote count. See Trump Ex. 2 (Review of the DOD's Role, Responsibilities, and Actions to Prepare for and Respond to the Protest and Its Aftermath at the U.S. Capitol Campus on January 6, 2021, Inspector General, US. Dep't of Defense, Report No. DODIG-2022-039 (“DOD Report™)), at 5. In other words, the attack was violent enough, potent enough, and long enough to constitute an insurrection.

It also cannot reasonably be disputed that the rioters were organized behind a common purpose. That purpose is evident not only from the context, discussed in more detail below, but also from the very chants and recitations of the rioters themselves. They were present to “stop the steal,” i.e., prevent by force the certification of the results of the 2020 presidential election that was scheduled to occur in the halls of Congress that aftemoon. See, e.g. Rosen Ex. 7 (Final Report, Select Committee to Investigate the January 6th Attack on the United States Capitol, (Dec. 22, 2022), 117th Cong, 2d Sess., H. Rep. 117-663) (“Jan. 6 Report”) at 57, 105-07, 533; Rosen Ex. 37 at 75, 80 (tweets claiming then-Vice President Pence could reject electors).

This violent disruption of Congress's duty, through a transparently public use of force, meets both Professor Magliocca’s historically accurate definition of an insurrection, and Mr. Trump's alternative definition. See Dec. 15, 2023 Hearing 5:49:18-5:51:08 (Magliocca); accord Anderson, 2023 CO 63, 17 186-89. I therefore conclude that the events of January 6, 2021, the “most significant breach of the Capitol in over 200 years,” Rosen Ex. 62 (Senate Staff Report) at 21, constituted an insurrection.

The Secretary of State then addresses whether Trump “engaged” in insurrection, specifically stating the standard by which she is required to assess this question:

Instead, under Sections 336 and 337, I am obligated to assess the record before me and make a determination based on the preponderance of the evidence, just as my predecessors have in other ballot access cases. See Douglas v. Bd. of Trustees of Me. State Retirement Sys., 669 A2d 177, 179 (Me. 1996) (applying preponderance standard in APA proceeding).

The Secretary of State cites numerous authorities to support the conclusion that “incitement” of insurrection is considered to be conduct included within Section 3’s provision disqualifying federal officers who “engaged in” insurrection. She then spends several pages discussing the specific evidence supporting the conclusion that Trump incited this insurrection. I won’t quote all of it, but here is a representative passage:

On the morning of January 6, 2021, Mr. Trump implored then-Vice President Pence to block certification of the election. See Rosen Ex. 37 (tweets) at 80. A few hours later, in a speech. that began at about noon following a variety of other speakers, see id. at 78; Trump Ex. 2 (DOD Report) at 5, 44, Mr. Trump in no uncertain terms urged Mr. Pence to “do the right thing,” and. asked his supporters to go to the Capitol; “show strength”; and demand that Congress not certify the election for President Biden. See Rosen Ex. 63 (speech) at 16:15-16:30; see also Rosen Ex. 62 (Senate Staff Report) at 22. The crowd chanted “fight for Trump.” Rosen Ex. 63 (speech).

At the conclusion of his speech around 1:10 pm, minutes after the joint session of Congress to certify the election results had begun, see Rosen Ex. 7 (January 6 Report) at 461, 577; Rosen Ex. 62 (Senate Staff Report) at 23-24, Mr. Trump implored his supporters to:

Fight like hell. And if you don’t fight like hell, you're not going to have a country anymore. .. So we're going to, we're going to walk down Pennsylvania Avenue. I love Pennsylvania Avenue. And we're going to the Capitol, and we're going to try and give... We're going to try and give the the kind of pride and boldness that they need to take back our country. So let's walk down Pennsylvania Avenue.

Rosen Ex. 63 (speech) at 1:09:30-1:11:19. As the President concluded his speech, a large crowd marched toward the Capitol and forced their way past security barricades. See Rosen Ex. 7 (Jan. 6 Report) at 638; Rosen Ex. 62 (Senate Staff Report) at 22; Trump Ex. 2 (DOD Report) at 5, 44.

It’s impossible to reconcile this sort of detailed description, with citations to specific exhibits, with Isgur’s claim that “[w]e don’t know what standard the secretary of state used or what evidence she considered before declaring the former president ineligible.”

In her written decision, the Maine Secretary of State summarizes her rejection of Trump’s process objections as follows:

Mr. Trump's concerns about the adequacy of this proceeding are therefore without merit. He has had the opportunity to present evidence; to call witnesses; to cross-examine; and to argue at length both the legal and factual issues germane to my decision. And while the timeline of the proceedings has, by necessity, been compressed, ths is hardly the first time that Mr. Trump—or Attorney Gessler—has confronted the applicability of Section Three of the Fourteenth Amendment to a presidential candidate. It likewise is not the first time that Mr. Trump has had to grapple with whether the evidence presented here, which almost directly mirrors that which was offered in Anderson, demonstrates that he engaged in insurrection" And Mr. Trump has the opportunity to appeal my decision, providing him with additional process in both the Superior Court and the Law Court.

Note how different this reality is from the claims made by Isgur and French, who asserted (or implied so strongly that it amounted to an assertion of) the following inaccurate set of factual assertions or characterizations:

• The level of due process Maine provided was “none” or “nonexistent”;

• Trump was not allowed to defend himself;

• Maine had no hearing;

• Maine took no testimony from witnesses;

• The Maine Secretary of State did not say what evidence she considered;

• The Maine Secretary of State did not say what standard the she used to disqualify Trump (this error alone has been corrected, as discussed); and

• The Maine Secretary of State was no more than a “random person” making the decision (as opposed to the person entrusted by state law with making the decision).

It’s actually fairly stunning to compare the reality of the written decision to the characterization offered by Isgur and French. I conclude that they cannot possibly have read the decision before opining on it. They must have relied on secondhand descriptions.

This, by the way, is the charitable view. If I thought they had actually read this opinion before opining, I would be speechless.

Previous Attempts to Obtain a Correction

There have been some attempts to bring these matters to the attention of Isgur and French in the comments sections at The Dispatch. In comments to the January 4 edition of The Collision, a reader named Joshua Heslinga said: “The Maine Secretary of State's written decision details the evidence considered, applying Maine evidence law, and Trump was allowed to -- and did in fact -- advocate for his position in the state administrative procedures for election law issues that the Secretary of State applied.” Heslinga linked the press release announcing the Maine SoS’s decision, which had a link to the decision itself. In another comment, Heslinga made this very cogent observation:

Anyone who argues that "Maine's grandstanding politician simply issued an opinion on her own" is not at all reasonable.

The state constitutional officer in Maine empowered and charged with resolving election challenges received one and followed the process set forth in state administrative law to resolve it, holding a hearing, receiving evidence from all parties, allowing witnesses and cross-examination, receiving extensive briefing, and issuing a detailed written opinion, which can (again pursuant to state law) be appealed within Maine's state court system.

I also left a comment attempting to correct the record, which said in part:

Very strange to hear the hosts claim that the Maine Secretary of State gave no “due process” whatsoever to Trump.

Did the Maine SOS not give Trump notice? Did she not give Trump an opportunity to respond? Did Trump not actually respond?

For the curious listener who wants to know the answers, you can read the decision here:

https://www.maine.gov/sos/news/2023/Decision%20in%20Challenge%20to%20Trump%20Presidential%20Primary%20Petitions.pdf

The answer to all three questions is “yes.” There was notice. There was an exchange of witness lists and exhibits. There was briefing. There was a hearing. There was testimony. Trump filed objections.

Not that you’d know that listening to this podcast! Sarah and David both describe the process as “none” and Sarah falsely implies there was no hearing and no witnesses. Again, read the decision. There were both.

I left a similar comment in the comment thread for what was then the most recent podcast, from January 9. Commenter Tim Margheim responded, noting the inadequate correction in the January 11 podcast:

Yeah, I'm bothered that today they corrected the "we don't know what standard of evidence the Maine SoS used" mistake, but didn't correct the equally-clear "there was no process" mistake.

I have a high opinion & expectation of their readiness to issue corrections, and it's not being met here.

I agree. I too have a high opinion of these folks, their honesty, and their willingness to issue corrections.

They have a few more to issue, as this post has made clear. I hope they do.