The Supreme Court heard arguments on Thursday in the case over whether states can toss Donald Trump off their ballots. Much of the discussion centered around a wildly inane legal question: whether America’s president qualifies as “an officer of the United States.”
The case will review Colorado’s decision to disqualify Trump from its ballot on the grounds that he committed “insurrection” by inciting the violent assault on the U.S. Capitol on Jan. 6, 2021, as lawmakers were preparing to certify President Joe Biden’s electoral victory.
At issue is Section 3 of the 14th Amendment, added by Congress after the Civil War, which bars “officers” who have “engaged in insurrection” against the U.S. Constitution from holding “any office.” In December, the Colorado Supreme Court ruled that Trump is ineligible for the state’s ballot because he engaged in said “insurrection.”
Observers expect that the Supreme Court, which conservatives control 6-3, will reverse the Colorado decision. Indeed, during oral arguments Thursday, the conservative justices appeared skeptical about the state’s arguments for tossing Trump from the ballot, with Chief Justice John Roberts noting that a “handful of states” being able to swing an election by removing a candidate from the ballot is a “pretty daunting consequence.”
On the other hand, the justices did not all appear to buy one of Trump lawyer Jonathan Mitchell’s primary arguments — that the president is exempt from the 14th Amendment’s definition of “officers” of the United States. “President Trump is not covered by Section 3 because the president is not an officer of the United States,” Mitchell said, adding that there are “officers who don’t hold offices.” Trump’s lawyers have argued that “officer” is a term specifically reserved for those who are appointed, rather than elected, like the president.
Justice Neil Gorsuch, a Trump appointee, asked the former president’s legal team to explain why the terms “office” and “officer,” despite being “so closely related, would carry such different weight.”
Justice Sonia Sotomayor told Mitchell that his argument seemed like “a bit of a gerrymandered rule,” that would “benefit only your client.”
The attorney representing Colorado’s voters, Jason Murray, took aim at the claim in his own arguments before the court, accusing Trump’s attorneys of attempting to have the court “create a special exception to Section 3 that would apply to him and to him alone,” by proposing that Section 3 disqualify “all oath-breaking insurrectionists except a former president who never before held a federal or state office.”
The conservative judges, however, pushed back strongly against Murray. In his questioning, Roberts seemed wholly unconvinced that the 14th Amendment allowed states to disqualify a candidate on the basis of insurrection, describing the argument as “a position that is at war with the whole thrust of the 14th Amendment.”
Very little discussion took place regarding whether Jan. 6 actually constituted an insurrection, and if Trump himself was responsible for the violence that occurred that day. It was almost an hour into oral arguments before any of the justices posed a question to Trump’s attorney on the matter, to which Mitchell replied that Jan. 6 was “a riot, not an insurrection.”
As president, Trump appointed three of the Supreme Court’s conservative justices — Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
Some Democrats have demanded that conservative Justice Clarence Thomas recuse himself from the case, because his wife, Ginni, worked behind the scenes to overturn Trump’s 2020 election loss. However, Thomas participated in the hearing Thursday.
Lawsuits have been filed in more than 30 states seeking to disqualify Trump from the ballot. Many of the lawsuits have failed; there are still pending cases in nearly a dozen states, according to the national security website Lawfare.
Colorado is one of two states that has moved to block Trump from the ballot. Colorado’s Supreme Court ruled that Trump engaged in insurrection and thus “is disqualified from holding the office of the president” under the 14th Amendment. Maine Secretary of State Shenna Bellows similarly ruled that Trump cannot qualify for the state’s 2024 ballot because he incited the Capitol insurrection.
In a brief filed last month, Trump’s lawyers wrote that Supreme Court justices “should put a swift and decisive end to these ballot-disqualification efforts, which threaten to disenfranchise tens of millions of Americans and which promise to unleash chaos and bedlam if other state courts and state officials follow Colorado’s lead and exclude the likely Republican presidential nominee from their ballots.”
Trump’s lawyers argued in a new brief this week, “The events of January 6 were not an ‘insurrection’ as they did not involve an organized attempt to overthrow or resist the U.S. government,” adding, “President Trump did not ‘incite’ violence by telling his supporters to ‘fight,’ ‘fight like hell,’ march to the Capitol, and ‘take back our country.’” Even if Trump had incited the violence at the Capitol, the lawyers argued, “‘Incitement” (which did not occur here) is not ‘engagement’ in ‘insurrection.’”
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