From Washington DC to Fulton County to Denver, Colorado, the Trump cartel just doesn’t want to be in state court, and yet they keep being told to hush and sit back down.
It all comes down to jurors and judges.
On Tuesday, a federal judge ruled that Trump didn’t properly serve Colorado Secretary of State, Jena Griswald, and sent the case back to state court.
Putting my lawyer hat on momentarily, generally speaking, if you mess up service to the state — and it’s surprisingly easy to do it wrong, by the way — you can serve them again, do it right, and have the motion heard on the merits.
But even though the Colorado Secretary of State wasn’t properly served — and Trump agreed to the remand (because they agreed they had done it wrong) — Trump let the judge know that they didn’t think they needed the Secretary of State’s consent to remove the case in its entirety to federal court.
In a four-page order, Chief U.S. District Judge Philip A. Brimmer shot that down, effectively sending the case back to state court for good. Brimmer wrote:
“Because Secretary Griswold accepted service before Mr. Trump removed the case and she did not join in or consent to removal, the Court finds that removal was defective.”
The rule is that all parties must consent unless they are a “nominal party” and Trump argued that the Secretary of State is a “nominal party” because the voters filed the case and Trump and the Secretary of State are the defendants. (We don’t know the Secretary of State’s position on the matter but she would need a court order, either way, so it really doesn’t matter.)
The judge didn’t buy the “nominal party” argument, either.
“The first claim further alleges that ‘[a]ny action by the Secretary to provide ballot access to a presidential primary candidate who fails to meet all constitutional qualifications for the Office of President is an “impropriety,” [Colo. Rev.Stat.] § 1-4-1204(4), and “a breach or neglect of duty or other wrongful act,” id. § 1-1-113(1).’ Id. at 106, ¶ 442. Thus, petitioners focus their first claim on Secretary Griswold’s alleged statutory duty to ensure that candidates for federal elections in Colorado have the necessary qualifications. Moreover, as Mr. Trump’s response to petitioners’ motion notes, Secretary Griswold is the person who will make the decision to ‘allow or disallow Trump’s name on the ballot.’”
That is called “losing.”
So, as is the case in Washington DC — where Trump wants his case removed to West Virginia — and Fulton County — where Trump sought to remove his case to the federal court for the Northern District of Georgia and lost — Trump will be “making his case” that he didn’t stir an insurrection in Denver County Court in Colorado.
A more interesting question is whether the case requires a trial. I am not going to pretend to know the answer to that, and I’m not sure anyone is certain about that question at this point.
It isn’t like there have been cases like this before.
Is it a question of law whether Trump waged “war” or an insurrection on the United States, decided by the judge?
Or does a jury have to make a factual finding that “yeah, he pretty much attacked the United States of America”?
Can they ask for a bench trial, where the judge is the fact finder?
I can guarantee that Trump will move for summary judgment to have it dismissed as a matter of law. We will certainly find out more then.
Until then, I genuinely don’t know if anyone knows.
I can be reached at firstname.lastname@example.org and on Twitter @JasonMiciak.
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Editor’s Note: This is an opinion piece reflecting the opinion of the author alone.
Jason Miciak is an associate editor and opinion writer for Occupy Democrats. He's a Canadian-American who grew up in the Pacific Northwest. He is a trained attorney, but for the last five years, he's devoted his time to writing political news and analysis. He enjoys life on the Gulf Coast as a single dad to a 15-year-old daughter. Hobbies include flower pots, cooking, and doing what his daughter tells him they're doing. Sign up to get all of my posts by email right here: