Donald Trump's lawyers opened today's oral arguments in the former president's ballot-access case with claims that are weak under the law and should not prevent the U.S. Supreme Court (SCOTUS) from ultimately removing Trump from the ballot in Colorado (and probably around the nation) for his actions related to the insurrection at the U.S. Capitol on Jan. 6, 2021. That is what Section 3 of the 14th Amendment (also known as the "Insurrection Clause") calls for, but a number of news outlets and legal analysts have expressed doubts that the high court will uphold the law and could essentially "punt" on the matter over concerns about possible political and social unrest if they remove Trump from the 2024 race.
Such concerns, of course, have nothing to do with the legal case at hand, so doubters will have to wait awhile to see if the justices have the integrity and guts to issue a ruling that upholds the clear language and legislative history of Section 3. It is unclear when that ruling might come, but a post at SCOTUSblog.com suggests it could be about one month from today.
Axios reports this morning -- along with an early account of oral arguments -- that Trump's lawyers likely will focus on semantics surrounding Section 3, focusing on three main arguments:
- That the insurrection clause of the 14th Amendment doesn't apply to the president.
- That Jan. 6 wasn't an insurrection.
- And even if it was, Trump did not "engage" in that insurrection.
As we have reported in multiple posts, citing constitutional lawyers and legal scholars (see here and here), those arguments are weak as a matter of law and should not prevent SCOTUS from removing Trump by properly applying Section 3 -- if the high court is open to removing Trump, which is a big "if".
How did oral arguments get started this morning? CNBC provides this account, under the headline "Trump lawyer tells Supreme Court that Colorado cannot bar him from ballot":
The Supreme Court on Thursday morning began hearing oral arguments on an effort by former President Donald Trump to reverse a ruling by Colorado’s top court barring him from that state’s 2024 Republican presidential primary ballot on the grounds “he engaged in insurrection.”
Trump’s attorney Jonathan Mitchell opened the hearing by telling the court’s nine justices that a president is not “an officer of the United States,” and therefore is not subject to the provision in the Constitution that Colorado’s Supreme Court cited in its ruling banning Trump from the ballot.
“Officer of the United States refers only to appointed officials and it does not encompass elected individuals such as the president or members of Congress,” Mitchell said.
He later argued that the Colorado Supreme Court had incorrectly found that the Jan. 6, 2021, invasion of the U.S. Capitol, which Trump had incited, was an insurrection that the former president engaged in.
“For an insurrection, there needs to be an organized, concerted effort to overthrow the government through violence,” Mitchell said. “This was a riot.”
How did justices react to early arguments? CNBC provides these insights:
Justice Clarence Thomas asked the first question of the hearing, about Mitchell’s argument that the constitutional provision is “not self-executing,” and requires a separate finding by Congress that someone engaged in insurrection.
Another justice, Sonia Sotomayor, later pressed the attorney on whether his argument against Colorado’s authority to review the qualifications of presidential candidates was “setting up” a later claim that a president could seek a third term in the White House without a state blocking such a candidacy. Third terms are explicitly barred by the Constitution.
Mitchell said, “Of course not,” to Sotomayor’s question.
Justice Samuel Alito asked Mitchell if any state before Colorado had used the constitutional provision to block a candidate for federal office from their ballot. The attorney said that no state had done so.
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