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Notes -
District court judge making a grand political conclusion antithetical to the law isn’t exactly uncommon. See for example the Republican judge in Texas and the abortion in the mail ruling.
It is and remains a joke of an opinion.
The decision is being appealed. Do you predict that the Colorado Supreme Court will find that Trump did not incite an insurrection?
Depends a bit on the make up of panel (a lot of Biden and Obama judges on the tenth — I generally have little respect for Biden and Obama judges though there are exceptions such as Kagan). If it goes to SCOTUS I expect a strong bitch slap.
Would add this might stand on the premise that what you quoted is effectively dicta
Cool. My not-super-confident expectation is that the factual finding of insurrection will not be overturned at any point, though anything could happen in regards to the legal questions around applicability to the presidency. We'll see!
Do you think the issue will be settled as a matter of law? That is, it would be easy to agree with the holding without addressing the issue.
I think that the judicial approach to the issue so far would suggest that the courts will not disqualify Trump but will also avoid saying he did nothing wrong. Judges seem to realize it would cause a massive drama and they aren't game to put themselves at the centre of it. E.g. if you read the part of the Colorado ruling that says the 14th amendment doesn't apply to the Presidency, the judge seems eager to emphasize the weaknesses in her own decision and explicitly says that it is partly based on not wanting to take such a drastic action.
I will be interested to see what happens if and when the issue is addressed by a GOP-aligned judge though. That might give a better indication of where SCOTUS is likely to land on the issue, and we all know it's ending up there.
Given Baude's politics, I suspect the motivation of the original law review article was "Dear Conservative Movement, if you want to yeet Trump and replace him with a more electable candidate, here is how to do it without having to beat him in a primary." At the time he published the article, it had only just become clear that Trump couldn't be beaten in a Republican primary, but non-MAGA Republicans were still assuming that Trump would go down to Biden in a landslide given how badly MAGA candidates did in 2022.
This isn't an area of law where a judge is going to worry about setting a dangerous precedent, so I think the average GOP-aligned judge would disqualify Trump iff he thought doing so would help the GOP. Right now, the core MAGA vote is sufficiently behind Trump that any attempt by the GOPe to change candidate would blow up the party, so Trump is probably safe.
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