It's always fascinating to see what attorney Alan Dershowitz has to say regarding former and potentially future President Donald Trump. He's not only spoken out against the weaponization of the federal government and the courts against Trump, but he's also defended him, all while he has made clear he's a Democrat who has voted against him and wants the opportunity to do so once more. However, from the Colorado Supreme Court to Special Counsel Jack Smith, plenty of powerful liberals are making it as difficult as possible for voters to have the opportunity to vote for or against Trump at the ballot box.
Dershowitz has certainly weighed in on the efforts against Trump before, including having strong words for Smith's moves, from indicting Trump to Smith appealing to the U.S. Supreme Court.
It's looking increasingly likely that the 2024 general election will be a rematch of 2020 between President Joe Biden and Trump. "Chaos" is certainly one word to describe that scenario, and it's going to become even more chaotic thanks to the Colorado Supreme Court. "Colorado's unconstitutional anti-Trump judicial power grab will trigger Republican retaliation and plunge the 2024 election into chaos," Dershowitz's headline warns. It also appeared on his Substack, under the same headline.
The four justices in the 4-3 decision are looking to keep Trump off of the ballot due to a provision of the 14th Amendment regarding insurrectionists after the Civil War. But, as Dershowitz points out, that doesn't apply today. "But authors of the 14th Amendment never intended for it to be used to deny voters the right to decide who their next president would be in all future elections," he writes. "To the framers of this amendment that would have been utterly ridiculous."
Dershowitz goes on to discuss the importance of "historical context," while also raising how dangerous the ramifications of this decision are:
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The decision by the all-Democrat Supreme Court of Colorado to remove Donald Trump from the ballot is among the most undemocratic and unconstitutional rulings that I have ever read in my 60 years of teaching and practicing law.
How could this be read otherwise?
Furthermore, the 14th Amendment was not designed to circumvent the impeachment provisions of the U.S. Constitution which also authorize disqualification from the ballot, but require a two-thirds vote of the U.S. Senate and other procedural safeguards.
Under the Colorado court's power-grab, there are no safeguards. Due process has been thrown out of the courthouse window.
In the opinion of these Colorado judges, a candidate need not even be convicted by a jury of the crimes of insurrection or rebellion before their rights are stripped away.
What follows is plenty of legalese about applying the amendment, all worth reading, which includes a reminder about there being "no legal precedent." It's worth reminding we're experiencing a whole of unprecedented moves here:
Finally, there is no legal precedent for such a momentous judicial fiat. If presidential candidates can be disqualified, there must be a clearly established mechanism. It's utterly ridiculous to accept that state courts are empowered to jerry-rig an ad hoc, previously unknown process that can be manipulated in a result-oriented manner.
It is this common-sense thinking that provides the strongest argument against the Colorado court's decision.
The 14th Amendment does not empower individual states to make such important decisions regarding the right to vote for presidential candidates. Rather, it is a time-bound provision rooted in post-Civil War fears that confederates would meddle in state reconstruction efforts.
Toward the end, Dershowitz issues his warning of what's likely to come, regardless of how the U.S. Supreme Court steps in, and he believes it will:
But regardless of what the high court does, the Republicans will fight back in a tit-for-tat manner.
Outraged – and perhaps emboldened – by this obvious misuse of the 14th Amendment some may try to disqualify President Joe Biden in some states or attempt other anti-democratic means to restrict access to the ballot.
The end result will be more disarray in our electoral system in the 2024 presidential election and beyond.
Make no mistake - the Colorado Supreme Court has damaged American democracy and violated our constitution.
And the American people will pay the price – as the country inevitably become more bitter, distrustful and divided.
There are already suggestions, including from primary challenger Florida Gov. Ron DeSantis, that President Joe Biden should be kept off the ballot. DeSantis pointed to how the current president hasn't enforced the border, as one example.
And, as Guy shared on Friday, Republican lawmakers in Pennsylvania, Georgia, and Arizona are looking to keep Biden off the ballot in their states.
Here we go…GOP state lawmakers file legislation to remove Biden from the ballot in 3 states, claiming he’s guilty of aiding an ‘insurrection’ at the border & citing his family’s foreign business dealings. They explicitly say their goal is to “showcase the absurdity” of Colorado: pic.twitter.com/A0fArAlsti
— Guy Benson (@guypbenson) December 22, 2023
As Biden continues with his narrative that Trump is supposedly a danger to democracy and a threat, as we and our sister site Twitchy have covered, users have chimed in on X to remind Biden that his failures and incompetency contribute to making him the threat. As of Friday afternoon, there were 46,000 replies.
Trump poses many threats to our country: The right to choose, civil rights, voting rights, and America’s standing in the world.
— Joe Biden (@JoeBiden) December 21, 2023
But the greatest threat he poses is to our democracy.
If we lose that, we lose everything.
This piece in the Daily Mail and posted to his Substack wasn't the only way Dershowitz spoke out, far from it. He also spoke with Fox Business's Maria Bartiromo, Newsmax, and Forbes and covered the topic at length during his recent episode of "The Dershow."
At the start of the episode, Dershowitz noted he was stating his opinion rather than asking questions as he would in the classroom, sharing, "I think this is one of the most dangerous Supreme Court decisions I've seen in my 60 years of practicing and teaching law." Adding, "It is, in my view, a completely lawless decision."
He also went further than he did in his writing, picking apart just how "totally wrong" the Colorado justices interpreted the decision. The president even takes a slightly different oath than the lawmakers mentioned in the 14th Amendment, something that the framers of this amendment may have done purposefully. "That might very well lead to the conclusion that the framers of the amendment didn't intend to include a president," Dershowitz offered, especially since those framers might have reasoned "that's a unique office and maybe the public should have a right to make the decision who's president by taking into account the totality of a person's career."
Dershowitz also warned about the vagueness of the statute's language, including when it comes to an "insurrection." To those who get it so wrong, including judges, law professors, and members of Congress, Dershowitz begged them to "just know a little bit about history" and "please read a book about the Civil War."
Dershowitz especially focused on Rep. Jamie Raskin (D-MD), Harvard Professor Laurence Tribe, and Judge Michael Luttig and their view of the Constitution as "a piece of clay that can be manipulated and shaped into whatever form you think will serve the best interests of your views," although Dershowitz still emphasized "there's no plausible reading of the text of this Constitution which entitles a state court to determine that a candidate for president isn't eligible to hold office."
Raskin was even a student of Dershowitz at Harvard, with the professor emeritus pointing out that the congressman "obviously doesn't" remember being taught by him.
And, when it comes to the examples of Biden's dereliction of duty, Dershowitz addresses that, too. However, he does so to point out how ridiculous he finds it all to be. Regarding the amendment applying to Biden, because he gives aid and comfort to insurrections coming over the open border, Dershowitz stated that is "an absurd point of view," though he also wondered, "Is it really less absurd than what the Colorado Supreme Court wrote?"
When it comes to Dershowitz's prediction, he adds some historical context while discussing the text of the amendment, which is to say that Congress has the authority to decide who is an insurrectionist, not the states, which was especially crucial right after the Civil War. Leaving it to the states, Dershowitz pointed out, "would have been totally undercutting what you wanted to do, so, of course, they didn't give it to the states to determine how to interpret and construe the statute or what procedural safeguards should apply, they left it to the Congress." And he thinks the Court will focus on that as part of his prediction. "It will create turmoil," Dershowitz later offered, for state courts to have such authority.
Dershowitz would return to such a focus throughout this episode, emphasizing that the Colorado Supreme Court does not have the authority, as nobody in Congress at the time thought it would apply to the 2024 election. "This is an amendment that was designed for its time," he pointed out. "It's so clear," Dershowitz stressed, that if one were to read the entire amendment, it applies to the Civil War.
"Now, Donald Trump's old," Dershowitz reminded. "Not as old as I am, but he's old, not old enough to have served in the Civil War, I'm sorry," Dershowitz quipped, apologizing to Raskin, Tribe, and Luttig.
Dershowitz also thinks there are many questions as to what constitutes an insurrection. He offered that "protests go bad," which they did on January 6, but they also did with Black Lives Matter protests and are now doing so over supporting Israel.
There's even more worthwhile historical context regarding the Civil War, but when it comes to how Eugene V. Debs ran for president in the 1920s, despite having been accused of and serving time for being accused of advocating for the violent overthrow of the government. Not only did Debs get three million votes, but, as Dershowitz pointed out, "nobody took him off the ballot, nobody thought of invoking the 14th Amendment, and that was closer in time obviously to the enactment of the 14th Amendment," and it "never occurred to anybody" to use that, Dershowitz pointed out.
Dershowitz used other examples of what the framers had in mind, such as the impeachment process, for instance, to point out that "what the Colorado Supreme Court had to do is make it up as they go along," with "no precedent" as "it's never happened before," so it's become this "kind of jerry-rigged, ad hoc approach," with the justices, Dershowitz guaranteeing, starting with the pre-determined result of getting Trump off of the ballot.
As for the logistics of what's next, the Colorado Supreme Court has given a short stay until January when the U.S. Supreme Court reconvenes. Dershowitz believes that the Court will grant an additional stay if they're going to decide the case on its merits and then set an argument schedule very quickly, with an argument in February.
Dershowitz emphasized that the Supreme Court "will not affirm the Colorado Supreme Court decision." Although he can't tell enough to make a prediction, Dershowitz offered a "guess" that it won't be 5-4 or 6-3 but that it could include some liberal justices who "see the light on this one," including Justice Elena Kagan, who had Dershowitz as a professor. A 6-3 decision from the conservative justices only would be "too bad," Dershowitz offered.
Why Dershowitz can't say for certain, though, is because "we've become so politicized, the justice system is become so weaponized that you can't really predict how justices will vote."
Dershowitz hopes that the results in 2024 are so clear that "nobody will complain. He also warned, though, that "if Trump is taken off the ballot in a single state and he loses, he'll have a lot to complain about," before reminding he's going to vote against Trump, but that he's "going to be on his side on that" and that he's "on the side of the Constitution."
