The Guilt of Donald Trump - I need a lawyer

 I wrote an Amicus brief for Trump v. Anderson (the Colorado ballot case) and a dear friend demurred on filing it for me. She did suggest I do an article anyway, so here it is. If anyone on the Supreme Court Bar can file this for me, I would be much appreciated. It is offered here to any other Amicus supporting the respondents. Steal liberally.

INTEREST OF THE AMICUS CURIAE 

Amicus advanced to doctoral candidacy in 1990 at the School of Public Affairs at the American University, having completed the required pro-seminars, including those on American Government, and has sworn an oath of allegiance to the U.S. Constitution as a Senate Intern, a Presidential Management Intern and as a political appointee in the District of Columbia. His interest is in protecting the Constitution from all domestic enemies, such as Mr. Trump and any associated foreign enemies associated with the former President, as the Amicus has sworn to do, as well as a scholar.

INTRODUCTION AND SUMMARY OF ARGUMENT

Petitioner Trump as invoked his ability to retain ballot access under Amendment XX § 3 without acknowledging that this implies that he is, in fact, disqualified to serve as president because of his involvement in the Insurrection. This Amicus brief lays out twelve arguments as to why Trump must be declared an Insurrectionist and what must be done to officially take notice of this fact so that he may not serve without permission of super-majorities of each chamber of Congress.

THE ARGUMENT

I. The Question Presented Ignores Disqualification

Candidate Trump's petition for certiorari limits the question presented to “Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?” quite correctly invoking Amendment XX § 3, while at the same time arguing the question of whether he is an insurrectionist under Amendment XIV § 3, which is the underlying issue of this case. 

(Donald J. Trump petition for certiorari. II. Disputed questions of Presidential Qualifications are reserved for Congress to resolve, 18.)

II. Petitioner Is Covered Under Amendment XIV § 3

Petitioner claims that he is not an officer of the United States.  He must be considered an officer of the United States covered under Amendment XIV § 3 because Amendment XX § 3 provides that he may be later qualified. This qualification cannot be the counting of electoral votes because the Vice President Elect is to serve as acting President. That this service is possible indicates a valid electoral count may already have been achieved. As this eventuality is laid out in the text, the implication is that disqualification under Amendment XIV § 3 is possible for Petitioner, even if ballot access is allowed or the Electors of the President-Elect’s party cast faithless votes for Petitioner. Petitioner is therefore mistaken in his claim.

(Donald J. Trump petition for certiorari. III. Section 3 is inapplicable to President Trump, 23.)

III. There Are Legitimate Doubts That Congress Will Enforce Amendment XIV § 3

A. Respondents Have Cause to Distrust the Process

Removing the Petitioner from the ballot betrays a distrust of the process by which presidential disqualification is adjudicated. Currently, there is no provision in the Electoral Count Act, as Amended, to consider the constitutional qualifications of the president-elect to serve. Denying ballot access may be the only path to enforce the amendment.

B. The Process Is Not Trustworthy

If the president-elect’s party controls the Congress, these doubts may be justified, therefore the process by which a president-elect is disqualified must be beyond politics.

If the president-elect’s party does not control the Congress, it may abuse the process. The Insurrection can be seen as an attempt to do so.

C. The Process is Unbalanced

Amendment XIV § 3 empowers a third of either Chamber to disqualify a member of Congress, a president-elect or a vice president-elect. Expelling a member or impeaching a federal officer requires two-thirds votes to accomplish. A simple majority is required to change the rules to enforce the provisions of the Amendment. It is no wonder that such provisions are absent.

D. No Objection was In Order to Enforce Amendment XX § 3 On January 7, 2021

After the Insurrection, when the involvement of President Trump was obvious to both parties, there was no discussion on invoking the Amendment. While the question was largely moot, had it not been, the result would have been the declaration that Petitioner would be re-elected. Therefore, provisions for recognizing such disqualification must be part of the constitutional process, regardless of the text of the Electoral Count Act. The process for disqualification is not self-executing.

E. No Objection was In Order to Enforce Amendment XX § 3 on January 3, 2023

Although members of Congress had been implicated in the Insurrection, having met with the President on December 21st, 2020 and having taken actions in furtherance of illegal efforts to overturn electoral votes in certain states through the proposed appointment of Jeffrey Clark as Attorney General,  no objection was in order to further examine such conduct when the 118th Congress convened. The only qualification examined was the receipt of valid certifications of election from the various states.  That this is the case provides support for Respondent efforts to deny Petitioner ballot access.

(Select January 6th Committee Final Report, Dec 22, 2022, House Report 117-663

Congressional Record: 118 Congress, Vol. 169 Washington, Tuesday, January 3, 2023 No. 1, H1)

F. Acknowledgement of Disability Under Amendment XIV § 3 is Prohibited By The Electoral Count Act

The Electoral Count Act, as amended, does not allow for consideration of the qualifications of the President or Vice President Elect. 

3. U.S.C. §15. Counting electoral votes in Congress

(b) Powers of the President of Senate.—

(1) Ministerial in nature.—Except as otherwise provided in this chapter, the role of the President of the Senate while presiding over the joint session shall be limited to performing solely ministerial duties.

(2) Powers explicitly denied.—The President of the Senate shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors.

G. Examination Of Electoral Votes is Limited

To further quote the Act

(d) Procedure at Joint Session Generally.—

(2) Action on certificate.—

(B) Requirements for objections or questions.—

(ii) Grounds for objections.—The only grounds for objections shall be as follows:

(I) The electors of the State were not lawfully certified under a certificate of ascertainment of appointment of electors according to section 5(a)(1).

(II) The vote of one or more electors has not been regularly given.

IV. Petitioner Participated in the Insurrection

A. Standard of Proof

This Court must consider the question of whether the Petitioner committed Insurrection. First, because the underlying issue of this case is to determine whether the Petitioner may serve, only the determination of whether the President is or may be disqualified from office is necessary. Second, the Petitioner opens the door for the Court to examine this question by raising the matter himself. 

B. An Insurrection Did Occur

Trials in the U.S. District Court for the District of Columbia have found ten individuals guilty of seditious conspiracy as part of the events of January 6, 2021. A conviction on this charge proves that the event was an act of sedition, rebellion and insurrection. 

(Donald J. Trump petition for certiorari, IV. President Trump did not engage in Insurrection, 26.)

(United States v. Rhodes, III, et al., 1-22-cr-15-APM (D.D.C.) which convicted Elmer Stewart Rhodes III,Kelly Meggs, Roberto Minuta, Joseph Hackett, David Moerschel, Edward Vallejo, United States v. Minuta 1:22-cr-15-APM and 

United States v. Nordean, 1:21-cr-175 (TJK) (D.D.C. Dec. 11, 2022) convicting Henry “Enrique” Tarrio, Ethan Nordean,, Joseph Biggs, and Zachary Rehl.)

C. Congress Has Examined the Question 

In addition to referring the Petitioner for Impeachment and Trial by the Senate, the House has examined the circumstances behind the effort to “Stop the Steal” and has identified the President’s tweet to invite Insurrectionists to the Capitol on January 6th. While a tweet may not be considered evidence in a criminal trial, the Court may consider it as part of a bar to qualification rather than beyond a reasonable doubt, which the task of the Special Counsel and others in current and future criminal proceedings.

(House Report 117-663)

D. Actions Under the Klan Act

There exist three cases where Petitioner is being sued under the Ku Klux Klan Act . While the case is still in the preliminary arguments phase, the facts are not in dispute, including the alleged fact of the President’s tweet,  which was included under the analysis of presidential immunity. As this proceeding is not criminal, but a determination of Petitioner’s fitness to serve, such allegations should be considered in this question. Note that the Klan Act itself was enacted to enforce Amendment XIV § 3. This implies that a finding under this lawsuit that Petitioner is liable is a disqualification to serve.  

(Ku Klux Klan Act of 1871 42 U.S.C. § 1985

 Trump v. Thompson, 590 F. Supp. 3d 46 (D.D.C. 2022), Case No. 21-cv-00400 (APM) Case No. 21-cv-

00586 (APM) Case No. 21-cv-00858 (APM)  2. Presidential Immunity, iii. The President’s Challenged Acts 83

 Gerard N. Magliocca, 2021, “Amnesty And Section Three Of The Fourteenth Amendment”  MAGLIOCCA 36:1.https://constitutionalcommentary.lib.umn.edu/article/amnesty-and-section-three-of-the-fourteenth-amendment/ First Ku Klux Klan Act, § 14 (“[W]henever any person shall hold office, except as a member of Congress or of some State legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution of the United States, it shall be the duty of the district attorney of the United States for the district in which such person shall hold office . . . to proceed against such person, by writ of quo warranto, returnable to the circuit or district court of the United States in such district, and to prosecute the same to the removal of such person from office . . . .”). Members of Congress were excluded because, as we shall see in a moment, each House was fully capable of excluding a member-elect who was ineligible under Section Three. See infra text accompanying notes 124–126. State legislators were not included because they presumably did not pose (or seem to pose) the kind of threat to voting rights that executive officials or judges did. ) 

E. Timing of the Climax of the Insurrection

The January 6th Committee related, but did not connect, the events surrounding the climax of the insurrection. At 2:44 pm, insurrectionist Ashli Babbitt was injured by a member of the Metropolitan Police as she was breaching the door to the Speaker’s Lobby.  Coincidentally, it was at this point that special weapons officers arrived and arrested her immediate accomplices. This ended what was the likely aim of the Insurrection. The drama around hanging the Vice President was a diversion. Sadly, those events captured the attention from what was the plainly stated intention. One need only pay attention to the Petitioner’s words: 

And after this, we're going to walk down—and I'll be there with you—we're going to walk down. We're going to walk down any one you want, but I think right here. We're going to walk down to the Capitol, and we're going to cheer on our brave senators, and congressmen and women. 

And we're probably not going to be cheering so much for some of them because you'll never take back our country with weakness. 

You have to show strength, and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard. 

Today we will see whether Republicans stand strong for integrity of our elections, but whether or not they stand strong for our country, our country…

…So, we're going to walk down Pennsylvania Avenue ... and we're going to the Capitol and we're going to try and give —the Democrats are hopeless. They're never voting for anything. 

But we're going to try to give our Republicans, the weak ones, because the strong ones don't need any of our help, we're going to try and give them the kind of pride and boldness they need to take back our country. So, let's walk down Pennsylvania Avenue. 

Whether these words are protected by the first amendment or as is more likely, an incitement to violence, or as is mostly settled, outside the duties of the President, they betray the motivations of the tip of the spear at the Speaker’s lobby and the Petitioner’s knowledge of these acts.

At this point, messages began pouring in to stop the rally – however the President – who had been watching the coverage from the Executive Dining Room – called off the attack before any of these communications could have reached him. 

The circumstances indicate that Trump had knowledge of the plot and called a halt once the objective could not be met. Given his remarks earlier in the day, the fate of the Democrats and “weak Republicans” had this assault not been stopped and had been supplemented by “quick reaction forces”  who were “waiting on the outside in case of worst case [sic] scenarios.”  How ironic these words seem in hindsight.

(House Report 117-663, 601) 

(Trump v. Thompson, 4.2.i.)

(House Report 117-663, 515-516)

F. The Motive for the Insurrection

The common misunderstanding is that Petitioner’s motivation was the toxicity of his ego. This is one of the three perfect cover stories in what is a much larger affair (the second being the impossible and frankly laughable drama to “hang Mike Pence” – with the fake gallows obviously overselling the theme.

The first cover story, which likely showed that the President’s opponents will take the easy route, is the effort to steal the election by somehow embarrassing the current President with a declaration from the President of Ukraine that it was investigating the firing of the Prosecutor General in Ukraine, which had been instigated by then Vice President Biden, for his failure to prosecute Burisma – a firm on which Hunter Biden served as a member of the Board of Directors. That firing the prosecutor who was not investigating his son’s company somehow benefited his son would hardly make the Vice President father of the year. As dirty tricks go, this one was ham handed. The “perfect phone call” was effective, however. No one with any electoral experience, and Senators have more than a little such experience, would consider such a stunt cause to remove a sitting president.

Had the issue been confined to the effort orchestrated by acting Chief of Staff Mulvaney to withhold Javelin missiles from Ukraine, and the funding of the Protect the House PAC from overseas sources as a returned favor, the Senate would have been forced to convict. The incident, which was revealed by a whistleblower, false certifications by an appointee at the Office of Management and Budget (because career staff refused), and was only stopped because Pentagon personnel in DoD Comptroller refused to participate.  The ruse that the reason for withholding funds from Ukraine was due to a campaign stunt rather than the actual goal of the operation should have been obvious at the time. 

The related quid pro quo as the dispersal of overseas funds to the Protect the House PAC, for which Lev Parnas and Igor Furman were convicted.  The extent to which members of the congressional majority at the time cooperated with the establishment of the fund is unknown. The desire to keep it that way may have been the motivation for congressional participation in the Insurrection conspiracy.  Time will tell, as Furman and Parnas are cooperating with federal prosecutors.

That this matter was not pursued vigorously was likely because both the justice system and the political system resist criminalizing foreign policy. Petitioner is relying on this reluctance in his claim of presidential immunity.

 (The Trump-Ukraine Impeachment Inquiry Report of the House Permanent Select Committee on Intelligence, Part I.)

 (United States v. Furman, No. 14-323(DSD/LIB), United States v. Parnas, 19-CR-725 (JPO) (S.D.N.Y. Mar. 7, 2022).

(Protect the House Top Donors, https://www.opensecrets.org/jfc/donors.php?id=C00669622&cycle=2018)

G. Team Crazy Was Team Russia

The seventh hearing of the January 6th Committee meeting, held July 12, 2022, describes the meeting at the White House on December 18, 2020 with President Trump and a group now known as “Team Crazy. ” This meeting included, aside from the Petitioner, Rudy Giuliani, who participated in the Ukraine conspiracy, Michael Flynn, who as National Security Advisor had worked to remove sanctions from Russia and who had previously been honored by Vladimir Putin., and former Overstock.com CEO Patrick Byrne – who was unknown to White House Counsel Pat Cipollone but is also known as one of Russian Agent Maria Butina’s paramours.  Given the composition of this group and the fact that after this meeting, the infamous Presidential Tweet calling for the January 6th Insurrection was sent on the early morning of December 19th, the possible involvement of the Kremlin in planning the events of January 6th cannot be ignored, and must not be ignored by this honorable Court. Had this fact been stressed in the second Trump impeachment, conviction might have resulted and this case would not have been inevitable.

 (NPR Special Series: House Jan. 6 committee hearings - Here's every word from the seventh Jan. 6 committee hearing on its investigation, https://www.npr.org/2022/07/12/1111123258/jan-6-committee-hearing-transcript)

(https://www.businessinsider.com/pro-trump-former-overstock-ceo-gave-russian-spy-ex-lover-money-2021-9)

H. The Secured Documents are part of the Cover-Up

During the hearings leading to the first impeachment, Lt. Colonel Alexander Vindman described how the Zelinsky phone call record, as well as at least one other conversations, were loaded onto NICE, the NSC Intelligence Collaboration Environment at the suggestion of Deputy White House Counsel John Eisenberg. This system was created to prevent the leaking of presidential communications which might be politically embarrassing to the President by introducing a keyword system to access the data.  Any conversations having to do with planning the obstruction of aid to Ukraine would have been loaded onto this system, which is an essential clue to why President Trump retained classified information, rather than the prevailing meme that his motivation was vanity. Ironically, the Special Counsel now possesses all of this material as part of this case.  Had Trump let it flow to the National Archives, it would likely have been lost in the massive number of documents any administration retains by law.

 (Politico: White House ordered ultrasecret system upgraded to prevent leaks.  Daniel Lippman and Natasha Bertrand 10/01/2019  https://www.politico.com/news/2019/10/01/white-house-trump-leaks-code-015194)

 United States of America v. Donald J. Trump, Waltine Nauta, and Carlos De Oliveira Case 9:23-cr-80101-AMC.)

I. The Insurrection Could Not Have Succeeded

The Insurrection was doomed to fail for two reasons. 

First, the reading of the Amendment XII at the heart of the plot was faulty because, even had all the electoral challenges subtracted from Democratic electors succeeded, President Biden still had more votes than Mr. Trump. A majority of the electoral votes accepted, rather than of the total, elects the President. That the plot ignored this fact shows complete incompetence.

Second, had the Babbitt cohort reached their quarry and a Quick Reaction Force limited the number of votes in opposition to Trump available, the rule of law would have held. No military officer, career employee or federal judge would have honored such a tainted result.

This incompetence indicates that the overall conspiracy was either planned by less then stellar minds or by someone who was not familiar with the nuances of the American system. Whether Trump was the brains of the operation or merely a pawn in larger events, he cannot be allowed to return to office.

J. Petitioner Acts as if Holding Office Confers Presidential Immunity

Petitioner has, on three occasions, gotten away with serious crimes, both by obstructing the Special Counsel’s investigation and not being prosecuted for this documented obstruction and by partisan support for his actions during two Senate trials. The existence of the Office of General Counsel memorandum has been used as a get out of jail free card, even though its legal effect has never been tested and likely would not have deterred any federal magistrate from issuing an arrest warrant had one been sworn out. Had one been attempted, the Secret Service would have enforced it, as they will if Trump is either sanctioned for contempt, attempts to flee, or is convicted. Regardless of the final outcome decision of this case, the opinion of the Court must demolish this assumption by either directly ruling on it or in dicta. Doing so will end this matter quickly.

K. A Second Inaugural Is Problematic for the Chief Justice

If Petitioner is granted ballot access without the matter of Amendment XIV § 3, the Chief Justice faces the issue of whether his constitutional oath prevents him from swearing Petitioner in for another term of office without his disqualification being removed by the required majorities of each chamber and whether his role in this duty is simply ministerial. 

L. The Question of Insurrection Must Be Settled Prior to January 6, 2025

Given the weight of evidence against Petitioner, the issue of how his participation in the insurrection is to be acknowledged is essential to the health of the nation, especially given his problematic relationship with Mr. Putin, which is very public, and the continued attempts by his allies serving in Congress to obstruct aid to Ukraine.

V. Five Options Exist For Determining Disqualification

1. This honorable Court may deem Petitioner disqualified for office. By raising the issue in his petition, the former president opened the door for this honorable Court to declare he is disqualified to serve, regardless of ballot access, and must face the required bicameral super-majority vote to remove the disability.

2. This honorable Court can rule that states have the authority to disqualify a presidential candidate by the same means congressional candidates can be disqualified by denying ballot access, although this runs the risk that faithless electors may still elect him president-elect.

3. This honorable Court can rule that the pending case under 42 U.S.C. § 1985 is sufficient to disqualify Petitioner until it is completed, thus requiring congressional removal of this disability.

4. This honorable Court can rule that conviction in either of his current federal cases disqualifies Petitioner, thus requiring congressional removal of this disability.

5. This honorable Court can direct the Ethics Committees of both Chambers of Congress to consider the issue with due haste.

VI. There Is Precedent For The Court To Intervene In The Rules Of Congress

This honorable Court has both construed and invalidated the rules of both the House (Christoffel v. United States 338 U.S. 84 (1949)) and the Senate (United States v. Smith 286 U.S. 6 (1932)). It has also set the boundaries on congressional rulemaking.   

 Under Ballin, the House and Senate may exercise their rulemaking authorities at their discretion provided there is (1) a reasonable relation between the rule’s method and the desired result, and (2) the rule does not ignore constitutional restraints or violate fundamental rights. 3 Case law on when a House or Senate rule transgresses this standard is limited.”  

Amicus counsels that, while it is preferable to defer to Congress regarding its own rules, such separation of powers issues are not resolved.

See “338 U.S. at 95. In her concurrence denying certiorari in Schock v. United States, No. 18-406, slip op. at 1 (U.S. Feb. 19, 2019), Justice Sonia Sotomayor noted that the Court has not resolved whether the separation of powers doctrine is violated by a federal court interpreting internal rules adopted by the House of Representatives to govern its own Members. She stated: Although this question does not arise frequently—presumably because criminal charges against Members of Congress are rare—the sensitive separation-of-powers questions that such prosecutions raise ought to be handled uniformly.”  

(ArtI.S5.C2.1 Congressional Proceedings and the Rulemaking Clause, Constitution Annotated at constitution.congress.gov.)

VII. Intervention Is Unavoidable To Preserve Democracy

There is now a very real question of whether majorities in Congress, which are responsible for setting their own rules and procedures by majority vote, will do so when faced with enforcing constitutional provisions that require a supermajority to overcome. That the Petitioner was able to overcome two impeachment trials shows why this issue must not be regarded as a political question. 

That a majority of the President’s Party acted in concert with a member of the conspiracy behind the insurrection did in fact vote as directed by the Petitioner casts doubt on whether the House of Representatives is competent to make the necessary rules changes.

Conclusion

Petitioner is an Insurrectionists who cannot be allowed to serve as President without satisfying the requirement that his disability must be removed by super-majorities of each chamber of Congress. This honorable Court should declare this is the case or assure a process is created by which such a declaration can be made without political obstruction and that this fact must be noted in counting Electoral Votes. At minimum, it should declare those portions of the Electoral Count Act which prevent recognition of his disability unconstitutional and specify by ruling or dicta that the Office of General Counsel opinion has no legal force and must be overturned.