A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.

Extraordinary Times

The decision by the Colorado Supreme Court to remove Donald Trump from the GOP primary ballot has cast us deeper into uncharted waters.

I had a vague notion even into adulthood that the constitutional order in America was challenged every 50 years or so in ways that stress-tested the system. By that measure, I regret to inform you that we live in extraordinary times.

Since 1998, some of the markers – by the numbers:

• 3 going on 4 presidential impeachments;
• 2 winning presidential candidates losing the popular vote;
• 1 going on 2 presidential elections decided by the Supreme Court;
• 1 attempted coup; and
• 4 criminal prosecutions of an ex-president.

While it’s not just Donald Trump, you can see his outsized impact on those numbers.

I’m not of the view that testing constitutional limits is somehow dangerous or ill-advised. We should thoroughly ventilate the 14th Amendment’s Disqualification Clause, as is being done now. It’s been a mistake, in my view, to spend decades circling around but never quite confronting the true extent of executive privilege. In the half century since Watergate, we shouldn’t have operated under the untested specter of a Justice Department opinion that sitting presidents can’t be criminally charged.

So I don’t think there’s anything inherently ill-advised about treating the Constitution as a robust mechanism to be used, tested, amended, and reinvigorated. Not every brush with a constitutional question is a constitutional crisis. (To clear up any possible confusion, I’m talking here about the constitutional structure itself, not the scope of individual rights protected by the Constitution, whose developments have their own history and evolution under the law.)

The next few months are going to see a series of new tests.

What’s On Tap For The Supreme Court

It’s hard to envision a scenario in which the Supreme Court doesn’t take up the Colorado decision. Not touching it leaves a momentous decision intact and could lead to a patchwork of state-by-state decisions without a nationwide Supreme Court ruling to provide consistency.

But touching it creates all sorts of legal and logistical challenges. I think it’s going to be important, for instance, to see this first and foremost as an elections case. Colorado officials will soon be up against the clock on basic election administration issues like printing the ballot. While the GOP primary in the state isn’t until March, early voting starts well before then in February. That creates a sense of urgency not just in Colorado, but in other states where courts may be newly emboldened to rule against Trump on the Disqualification Clause.

I’ve seen a number of smart observers note that because the Colorado decision was stayed until the Supreme Court rules, the Supreme Court could do nothing and just let the GOP primary proceed with Trump on the ballot. I’m skeptical that it will backdoor its way to a decision that way. It’s possible, but that would cast a cloud over the entire election.

I lean toward more expedited and immediate action from the Supreme Court, but I can’t predict the outcome here. There are a number of different paths the Supreme Court could take. The suspense is real. The stakes could hardly be higher.

A Departure From The Norm

Neither the majority opinion nor the three dissents (remember, all seven justices were appointed by Democratic governors) offers much real insight into how the Supreme Court will rule, so I’m not going to dissect them here for you. I think the Supreme Court will largely consider the legal issues anew. Remember: the Supreme Court really isn’t bound by the Colorado decision, except it has to defer on what state court says about Colorado law. So this will be close to a fresh bite at the apple for the high court.

Informed Reaction

• Harry Litman: “[W]e are in for a wild and woolly constitutional ride over the next 16 days and perhaps beyond, and it’s difficult to know where or how it will end.”
• Aaron Blake: 4 takeaways from the Colorado Supreme Court’s disqualifying Trump
• Law professor Derek Muller: “Never in history has a presidential candidate been excluded from the ballot under Section 3 of the Fourteenth Amendment. United States Supreme Court review seems inevitable, and it exerts major pressure on the court.”

Political Analysis Falls Short

The reaction to the Colorado decision from elected officials and political reporters (as opposed to legal reporters) was predictable and tired.

Jack Smith Still Gets Access To Rep. Scott Perry’s Phone

WaPo: “A federal judge on Tuesday granted the Justice Department access to nearly 1,700 records recovered from the cellphone of Rep. Scott Perry (R-Pa.) in a long-running legal battle in the criminal investigation of former president Donald Trump’s efforts to overturn the 2020 presidential election.”

Plus … bit more on what was on the phone.

A Glimpse Of What DOJ Was Doing Before Jack Smith

Politico: “Months before special counsel Jack Smith took over the case, federal prosecutors in Washington, D.C. were considering obstruction charges in connection with Donald Trump’s bid to subvert the 2020 election.”

From The Ellipse To The Supreme Court

TPM was the first to report back in 2021 that a second rally had been planned for Jan. 6 by Trump’s “Stop The Steal” allies, this one at the Supreme Court. Now a new inspector general’s report from the Interior Department adds further confirmation and detail to what we previously knew.

Rudy G’s Financial Desperation Played A Role In Probe

Newly unsealed documents show that criminal investigators were looking into whether Rudy Giuliani’s antics in Ukraine were driven in part by his increasingly dire personal financial situation. As you know, the case was closed with charges being brought against Giuliani.

What Trump II Would Do To The Pentagon

TPM’s Josh Kovensky: How Trump Is Laying The Groundwork For A Coopted Military

Sign Of The Times: Trump Denies Reading Mein Kampf

Trump renewed his vicious anti-immigrant rhetoric in Iowa Tuesday, telling a crowd: “They’re destroying the blood of our country. That’s what they’re doing — they’re destroying our country.”

Great Lede

Philip Bump on the racism and ahistoricism of Trump’s “poison the blood” rhetoric:

Donald Trump doesn’t hate immigrants. He married two women who immigrated to the United States from Eastern Europe. Nor is he particularly insistent about immigrants having children in the United States. His three oldest children were born to Ivana Trump, who at the time had not yet become a citizen. His youngest child was born in March of the year that Melania Trump got her citizenship.

Removal Of Confederate Memorial Is Back On

A federal judge in Virginia lifted the order blocking removal of a Confederate memorial at Arlington National Cemetery after visiting the site himself and being satisfied that graves were not being disturbed, as the pro-memorial plaintiffs had claimed.

The Best Reaction Of All

No! Don’t do it! Pleeeease!

I pledge to withdraw from the Colorado GOP primary ballot until Trump is also allowed to be on the ballot, and I demand that Ron DeSantis, Chris Christie, and Nikki Haley do the same immediately – or else they are tacitly endorsing this illegal maneuver which will have disastrous… pic.twitter.com/qbpNf9L3ln

— Vivek Ramaswamy (@VivekGRamaswamy) December 20, 2023

For its part, the Colorado Republican Party says it will ditch the presidential primary in favor of a caucus if Trump is left off the ballot.

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A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.

What’s Good For The Goose …

In rapid order, the 11th Circuit Court of Appeals heard oral arguments Friday on whether Mark Meadows can remove the Georgia RICO case to federal court and then cranked out a ruling on Monday that handed Meadows a significant defeat.

The ruling against Meadows on removal all but eliminated the chances of any other defendant in the Georgia case to succeed in removing their prosecutions to federal court.

And on top of all that, it may have signaled trouble for Trump’s claims of immunity. More on that in a moment.

Adding to the weight of the 11th Circuit opinion, it was authored by Chief Judge William Pryor, a former GOP elected official and reliable conservative. The court ruled against Meadows’ removal gambit on two alternate grounds: The removal statute doesn’t apply to former federal officials and, more importantly, that even if it did, Meadows’ alleged participation in the RICO conspiracy was not part of his duties as Trump White House chief of staff.

The Supreme Court may yet hear this case, so it may not be the last word. But the 11th Circuit ruling was definitive and even if the Supreme Court takes issue with the ruling on the status of former federal officials, it still has the too-tenuous connection between Meadows’ official duties and the criminal conduct to fall back on.

But in finding that Meadows was engaging in conduct that fell outside his official duties, the appeals court by implication suggested Donald Trump was, too, and that has implications for the immunity claims Trump is pressing, as law professor Ryan Goodman notes.

In another sign of the federal courts rallying to defend the rule of law from Trump’s attacks, the Pryor opinion favorably cites U.S. District Judge Amit Mehta’s ruling on immunity for Trump in the civil context, specifically this line: [T]he Office of the President has no preference for who occupies it.”

Appeals Court Sets Oral Argument On Trump Immunity

Here’s the latest schedule of the appeals courts (BOLD is Supreme Court) considering Trump’s claim of absolute presidential immunity against criminal prosecution:

Dec. 20, 2023: Trump response due on whether SCOTUS should take the case
Dec. 23, 2023: Trump brief due
Dec. 30, 2023: Smith brief due
Jan. 2, 2024: Trump reply brief due
Jan. 9, 2024: Oral arguments

Rudy G Gonna Get Walloped Again

Georgia election workers Ruby Freeman and Shaye Moore have sued Rudy Giuliani again, on the first business day since the $148 million damages award against him and in their favor. This time, they want the court to bar Giuliani permanently from repeating the same falsehoods for which they won the defamation judgment against him.

Trump Miscellany

• Trump filed a new motion to dismiss the Georgia RICO case against him because the charges intrude on his core First Amendment right to engage in political speech.
• Trump asked the full DC Circuit Court of Appeals to reconsider the three-judge panel ruling that mostly upheld the gag order imposed on him in the Jan. 6 case.
• The group seeking to use the Disqualification Clause to keep Trump off the ballot in Michigan has appealed to the state Supreme Court.

A Little Gamesmanship

PUNCH: Like a schoolboy bringing an apple to the teacher, Special Counsel Jack Smith is meeting the deadlines set by U.S. District Judge Tanya Chutkan even though everyone agrees that the case is on hold while Trump’s immunity claim works its way through appeals.

COUNTERPUNCH: Put off by Smith’s showboating, Trump’s legal team refused to accept Smith’s latest filing in the case.

More Reading On the Current Moment

• Former U.S. Attorney Joyce Vance:

Trump told the crowd: “We’re going to win four more years in the White House, then after that we’ll negotiate. Based on the way I was treated; we’re probably entitled to another four after that.” That’s not a joking matter. That’s the leading GOP candidate saying he intends to stay in office for longer than the Constitution allows.

• Law professor Kate Shaw:

For a Supreme Court that holds itself out as hewing closely to text, history and tradition, immunity should present an easy case, and Mr. Trump should lose. … If the court nevertheless distorts precedent and principle to endorse some version of Mr. Trump’s logic — or if it facilitates a delay that has functionally the same result — it will have revealed the hollowness at the core of its professed method and expose itself as willing to act in the most craven ways to advance the electoral prospects of the leading Republican contender.

• Bulwark editor Jonathan V. Last:

[T]he New York Times illustrates precisely how unprepared our liberal institutions are for dealing with the expressly illiberal threat of Trump 2024 … The Times has no idea how to handle this threat except to present two sides: One which warns about the danger and one which prevaricates and misdirects in an attempt to hide it.

Great Read

TPM’s Josh Kovensky and Kate Riga: Inside The Russian Propaganda Mill Beaming Out Of A Florida Strip Mall

Judge Halts Removal Of Confederate Memorial

Groups who oppose the removal of a Confederate memorial at Arlington National Cemetery obtained a temporary restraining order blocking the Army from continuing the work. But the federal judge who issued the order warned that he did so based on representations by the plaintiffs that the work was disturbing nearby graves and that he “takes very seriously the representations of officers of the Court and should the representations in this case be untrue or exaggerated the Court may take appropriate sanctions.”

Who Will Rid Me Of This Meddlesome Debt?

Saddled with debt, Justice Clarence Thomas was complaining loudly about his meager government paycheck and suggesting he might resign from the Supreme Court right around the time wealthy benefactors began to shower him with gifts, according to new reporting from ProPublica.

Justices Honor Sandra Day O’Connor

Pope Francis Allows Blessings Of Same-Sex Couples

The Pope stopped short of conferring the sacramental rite of marriage on same-sex couples, but the Vatican made clear that priests could bless same-sex couples without running afoul of church doctrine on marriage.

Behold

Perhaps you remember the Icelandic town of Grindavík being evacuated last month in anticipation of an imminent volcanic eruption in an area that until quite recently had been relatively calm, at least for Iceland.

As magma pushed toward the surface, Grindavík was rocked by a flurry of earthquakes that did extensive damage to infrastructure. But in recent weeks, the seismic activity abated somewhat, which given the pattern of Icelandic magmatic intrusions meant either that there would be no eruption or that this was the calm before the storm.

Yesterday, the calm broke as a new fissure unzipped with very little warning and lava spewed forth in the precise area scientists had thought most likely to be the focal point of an eruption, nearby but not in the town. Here’s a time lapse of the first 20 minutes of the new eruption:

Fyrstu 20 mínútur gossins á margföldum hraða. pic.twitter.com/tF0UXhT25W

— Fréttastofa RÚV (@RUVfrettir) December 19, 2023

Some of the lava fountains reached 300-feet high in the initial moments of the eruption, although later reports suggest a less vigorous flow as the fissure elongated:

My first close-up shots of the new eruption on Reykjanes Peninsula which began a few hours ago (December 19th, 2023).

© Hörður Kristleifsson – @h0rdur pic.twitter.com/1Ue3b2B1kO

— Hörður Kristleifsson (@h0rdur) December 19, 2023

One Of Those Kinds Of Days

In case you need a little inspiration, too:

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