10 min read

Four questions driving Trump’s day at court

The main questions on the table as the Supreme Court decides whether to kick Trump off the 2024 ballot.
Four questions driving Trump’s day at court
Photo by Phil Roeder

Good morning! It’s Thursday, February 8, 2024. Election Day is 272 days away. If this newsletter was forwarded to you, subscribe here. If you want to contribute to support my work, donate here.

Today’s newsletter is coming out earlier than usual because I’m currently on my way to the Supreme Court, where I’ve been credentialed to cover the oral arguments on whether Donald Trump should be disqualified from the 2024 ballot.

I’m looking forward to watching the proceedings firsthand, and I’ll have a full inside-the-room piece for you tomorrow with my observations and analysis. For now, I want to make sure you’re all caught up on the legal issues in the case, so you can listen along like an expert if you want to tune into the arguments. (Here’s a feed to listen in, starting at 10 a.m. Eastern Time.)

For background: This case comes from Colorado, where the state Supreme Court has ruled that Trump is ineligible to be on the state’s Republican primary ballot under Section 3 of the 14th Amendment. Here is the full text of that provision, which was originally crafted to block ex-Confederates from returning to the U.S. government after the Civil War:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Today’s case, Trump v. Anderson, was precipitated by a lawsuit by Norma Anderson, a 91-year-old former Colorado Republican legislator. It will be the first time that the Supreme Court has considered a case involving Section 3.

The case is a historic one — with vast implications for the election, for our country, and our democracy — but it could very well hinge on a set of nitty-gritty legal issues that delve into the weeds of the provision.

To make sure you’re ready to follow these questions as they come up, I’ve summarized the four key questions at hand below — and how each side will argue them, using briefs filed by Trump’s lawyers and Anderson’s.

Let’s start off with Question No. 1:

Does Section 3 apply to former presidents?

Here is a simplified version of what Section 3 says, as it applies to the case today:

No person shall hold [List of Offices] if they previously served as [List of Officers] and then engaged in insurrection against the Constitution or gave aid or comfort to its enemies.

In his legal filings, Trump has not quibbled with whether the presidency is included in the initial [List of Offices], so it is not in dispute whether Section 3 can apply to a presidential candidate. However, he has argued that the president does not fall under the second grouping, [List of Officers], which would mean that the language of the provision does not apply to a former president who had engaged in insurrection.

Obviously, the president is not a member of Congress, a state legislator, or a state executive or judicial officer, so the question here is whether the president is included in the broadest subgroup in the list: “officer of the United States.”

Anderson’s lawyers argue that there is no distinction between “office” and “officer”: if someone holds an office, they are an officer. “It would defy common sense to hold that Section 3 disqualifies every oath-breaking insurrectionist officer (down to postmaster or county sheriff) except the most powerful one—a former Commander-in-Chief,” they write, adding that “judicial decisions spanning roughly 150 years” have called the president an “officer.”

Trump’s lawyers, meanwhile, point to provisions like the Commissions Clause of the Constitution, which states that the president “shall Commission all the Officers of the United States,” to argue that the president is indeed in a class of his own.

“The president does not (and cannot) appoint or commission himself,” Trump’s lawyers argue, “and he cannot qualify as an ‘officer of the United States’ when the Constitution draws a clear distinction between the ‘officers of the United States’ and the president who appoints and commissions them.”

Does Section 3 apply to Trump?

Let’s say the provision does apply to former presidents. The next question the court will have to tackle is whether Trump meets the definition of having “engaged in insurrection or rebellion against the [Constitution], or given aid or comfort to the enemies thereof.”

The trial court in this case, the Colorado state district court, ruled that Trump’s conduct on and before January 6th met this bar, which the Colorado Supreme Court affirmed. (Notably, the trial court held at the same time that the president was not an “officer of the United States,” which the state Supreme Court reversed.)

Typically, the Supreme Court does not question factual findings by a lower court — they allow trial courts to set the factual record, and focus on the larger constitutional issues at hand. However, the justices can overrule lower courts on questions of fact if they believe the lower court’s findings were “clearly erroneous.”

In their brief, Anderson’s lawyers urge the justices not to revisit the lower court’s findings, arguing that Trump’s rhetoric before January 6th (“Be there, will be wild”), on January 6th (“fight like hell”), and during the riot itself (when he waited for three hours to say anything) meet the bar of having incited an insurrection. They further argue that incitement can count as engaging in an insurrection for the purposes of Section 3. “Requiring the individual to personally commit violent acts would also defeat a core purpose of Section 3: to target leaders rather than foot soldiers,” they write. “Leaders rarely take up arms themselves.”

Trump’s lawyers, meanwhile, argue that Trump was speaking “metaphorically” when he urged his supporters to “fight like hell,” and that even if January 6th itself was an insurrection, Trump did not physically engage in it. “Raising concerns about the integrity of the recent federal election and pointing to reports of fraud and irregularity is not an act of violence or a threat of force,” they write.

Does Section 3 require an act of Congress?

Section 3 of the 14th Amendment has been invoked very few times in U.S. history, so there remains some confusion about how to go about enforcing it.

The provision clearly states that Congress can pass a law stating that Section 3 doesn’t apply to someone. Does that mean that Congress has to pass a law stating that it does apply to someone in the first place?

Trump’s lawyers say yes. The main precedent they cite here is Griffin’s Case, an 1869 legal matter involving a Confederate-era state legislator in Virginia. The opinion in the case was written by then-Chief Justice Salmon P. Chase (acting in his capacity as a circuit court judge, not as a Supreme Court justice), who held that the invocation of Section 3 requires an act of Congress.

Considering the “vagueness of the ‘engaged in insurrection’ standard,” Trump’s lawyers add, Congress is the best forum to decide the “politically charged” question of whether Section 3 should be invoked, rather than courts made up of unelected judges.

In response, Anderson’s lawyers point to a precedent of their own — also written by Salmon P. Chase. In a separate case involving Jefferson Davis, also in his capacity as a circuit court judge, Chase flatly contradicted himself by ruling that Section 3 “executes itself” and “needs no legislation on the part of Congress to give it effect.”

Furthermore, they argue, the rest of the Fourteenth Amendment — such as the landmark Equal Protection Clause in Section 1 — has never been viewed as requiring a law to go into effect, so why should this one? “Nothing in its text or history suggests Section 3 is somehow different in this respect from all other provisions of the Reconstruction Amendments,” Anderson’s lawyers write.

Can Section 3 be invoked before an election?

Finally, we’ve reached the last hurdle that must be jumped through. Because, theoretically, the court could rule that Section 3 applies to Trump and that it doesn’t need an act of Congress — but still kick the can down the road and say now isn’t the time to be debating this.

In arguing this, Trump’s lawyers are relying on the very first words of the provision, the ones that say no insurrectionist shall “hold” the listed offices. Does that mean an insurrectionist could be elected to those offices — and that any dispute over their qualifications would have to be adjudicated during the post-election certification period, before they are sworn in?

The Colorado Supreme Court blocked Trump from the ballot on the grounds that state law only allows “qualified” individuals to be added to it. But Trump’s lawyers argue that this “adds a new qualification for the presidency not present in the text of the Constitution,” in violation of a U.S. Term Limits, Inc. v. Thornton, a 1995 Supreme Court ruling which prohibited states from creating new qualifications for federal office.

“The Colorado Supreme Court’s ruling violates Term Limits by prescribing a new qualification for the presidency,” Trump’s lawyers write. “It requires that a president be ‘qualified’ under section 3 not only on the dates that he holds office, but also on the dates of the primary and general elections— and on whatever date a court renders judgment on his eligibility for the ballot.” Consider, for example, the case of Joe Biden, who was not 30 years old (the mandated minimum) at the time of his election to the Senate in November 1972, but was still able to take office in January 1973 because he turned 30 before being sworn in.

Anderson’s lawyers counter this by arguing that Colorado isn’t adding a new disqualification, as Term Limits prohibited, but interpreting an existing one. They go on to argue that, because states primarily oversee elections, the Supreme Court should defer to the Colorado court’s interpretation, at whatever point in the process Colorado chose to make it.

“Under their power to regulate elections, states can and do refuse ballot access to candidates who flunk [other] requirements for holding office,” Anderson’s lawyers write, arguing that Colorado’s decision here was no different.

So there’s a general overview of some of the key questions that are sure to come up in today’s arguments — and how the lawyers on both sides will approach them.

Think of each question as presenting the justices one more off-ramp to avoid deciding the deeper questions in the case, and instead begging off on a technicality. After all, to block Trump from the ballot, the Supreme Court would have to decide that Section 3 (a) applies to former presidents; (b) applies to the January 6th riot and Trump’s role in it; (c) does not require an act of Congress; and (d) that it should be invoked before, not after, an election.

If five or more justices take issue with any single link in that chain of reasoning, Trump will stay on the ballot.

Not since Bush v. Gore have the nine Supreme Court justices played such a direct role in an American presidential election. Three of the justices on the bench today were appointed by Trump himself — although that has not stopped them, in the past, from ruling against him. A fourth, Justice Clarence Thomas, is married to an activist who played a role in the same election subversion efforts at the heart of today’s case.

Before Election Day, the justices will likely be asked to answer other novel constitutional questions involving Trump and January 6th. The former president has been indicted in connection to his role in efforts to overturn the 2020 election; earlier this week, a panel of federal judges rejected his claims of presidential immunity in the case. Trump, who is the first former president to be indicted, is expected to appeal that decision to the Supreme Court.

More news to know.

Marianne Williamson has exited the presidential race. (Matt Johnson)

Senate Republicans defeated a bipartisan deal that would have tightened border restrictions and provided aid to Ukraine and Israel. The bill failed 49-50, with all but four Republicans voting against it. Five Democrats also opposed the measure, although one only voted “nay” for procedural reasons.

After the package was rejected, the Senate voted 58-41 to advance a bill that would just aid Ukraine and Israel, without the border security measures. The measure will need 60 votes to advance any further; it is unclear if it will receive the necessary Republican support.

Special Counsel Robert Hur has completed his investigation into President Biden’s handling of classified documents from his vice presidency, Attorney General Merrick Garland told lawmakers Wednesday. Hur’s full report is set to be released in the coming days; he is not expected to file criminal charges.

Marianne Williamson ended her Democratic presidential bid last night after single-digit finishes in South Carolina and Nevada. “Her campaign is in debt, and more than one dozen disgruntled staffers have been left in its wake,” Politico reported.

More headlines:

The day ahead.

Chuck Schumer is attempting to round up enough votes to pass a foreign aid package. (Senate Democratic Caucus)

White House: President Biden will deliver remarks at the House Democratic retreat in Leesburg, Virginia. VP Harris has nothing on her public schedule.

Congress: The Senate is expected to hold a procedural vote on the Ukraine/Israel aid package. The measure will need 60 votes to advance. The House is not in session.

Supreme Court: The justices will hear oral arguments in Trump vs. Anderson. Listen here at 10 a.m. ET.

Campaign Trail: Nevada Republicans will hold their caucuses, where Donald Trump is expected to sweep all 26 of the state’s delegates.

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