WASHINGTON, D.C. – Former President Donald Trump appears headed for a landslide victory at the Supreme Court in a Colorado lawsuit over his 2024 voting eligibility after being assaulted by judges against his lawyers on Thursday.
The liberal-leaning Colorado Supreme Court ruled 4-3 that President Trump had committed an insurrection and was disqualified from running for president in 2024 under Section 3 of the 14th Amendment. He sided with Secretary of State Jenna Griswold.
Trump’s lawyers reject accusations that Trump’s actions amounted to insurrection, ask Congress to pass legislation to consider whether Title III applies to presidential candidates at all, and whether to disqualify them , appealed on a number of issues, including whether the state had any right to sue. This issue, and whether President Trump was denied due process in Colorado, must be determined independently.
It is clear that Mr. Trump will win by a landslide, likely by either an 8-1 or a unanimous 9-0 decision. With the presidential election in full swing, these decisions are very likely to widen his lead in the polls.
One point that some justices seem to agree on is that the president is not an official of the United States. The term refers to federal officials appointed by the president, rather than the president himself. Various articles of the Constitution, such as the Appointments Clause, the Commissions Clause, and the Impeachment Clause, refer to the President separately from any “officer of the United States” or any office “subject to the control of the United States,” and Article 3: should be interpreted as such. Those other provisions.
President Donald Trump holds up a “Make America Great” hat and speaks to supporters at the Ellipse near the White House on January 6, 2021 in Washington, DC. (Brendan Smialowski/AFP via Getty Images)
Justice Clarence Thomas asked attorneys representing Colorado voters who are seeking to disqualify Mr. Trump that he has no historical record of state officials or state courts declaring national candidates ineligible to vote. I asked him if he could give an example. That lawyer, Jason Murray, had none.
“I’d like to look at Justice Thomas’ question from 30,000 feet. So the whole point of the Fourteenth Amendment was to limit the power of the state, right?” Chief Justice John Roberts said in a follow-up. , listed various protections of the 14th Amendment. “The nation must not be shortened.” [citizens’] We grant immunity, we do not deprive people of their property without due process, and we do not deny them equal protection. And on the other hand, federal powers under Article V were strengthened. Congress has enforcement powers. [the Amendment through legislation]”
Murray later said the Supreme Court didn’t have to worry about setting a dangerous precedent because states have the power to disqualify presidential candidates, a provision that hasn’t been used in practice for 155 years. insisted.
That won’t happen to Judge Brett Kavanaugh. Citing a court ruling the year after the 14th Amendment was ratified in 1868, Kavanaugh countered:
Regarding your point that it has been dormant for 155 years, I think the other side would say that the reason is Chief Justice Chase’s 1869 opinion. griffin incident First, we’re saying Congress has the power here, not the states. Then the Implementing Act of 1870 was enacted, and Congress acted on that understanding and followed it – and as Justice Thomas pointed out, there is no history contrary to this era – up to this point. In all the years, there is no history to the contrary that no state has exercised such powers. The reason it’s dormant is because there’s an entrenched understanding that Chief Justice Chase was right in essence, even if he wasn’t right in every detail, and every branch of government has acted on that entrenched understanding for 155 years. I think. And Congress can change that.And Congress actually [18 U.S.C. § 2383], of course, sedition law, criminal law. But Congress could change that, but Congress hasn’t changed it for 155 years, at least in terms of what you want here today.
Separately, Kavanaugh pointed out that President Trump has never been indicted, let alone convicted, of Section 2383, the sedition charge mentioned in the exchange.
An image of former President Donald Trump displayed by members of the House Select Committee investigating the Jan. 6 attack on the U.S. Capitol, which will hold its final public meeting on Dec. 19, 2022. (Jim Lo Scalzo-Pool/Getty Images)
Justice Elena Kagan expressed concern about adopting a view of the Constitution that could allow a single state to determine the outcome of a presidential election. She explained her concerns as follows:
But perhaps most boldly, I think the question you have to face is why a single state should decide who becomes the President of the United States. In other words, this question of whether a former president should rebel and be disqualified from serving as president again seems deeply national to me. This suggests, therefore, that whatever means of enforcing it must be federal and national. Why, if you’re from Wisconsin and not Colorado, or if you’re from Michigan, and the fact is, the actions of the Michigan Secretary of State are going to make the difference between whether Candidate A gets elected or Candidate B gets elected. Will it make a huge difference? , I mean, that’s pretty unusual, don’t you think?
Justice Samuel Alito used his own example to highlight the dangers of such an approach.
Now, let me ask you a question as to whether the authority you described as plenary is really plenary. Suppose that the outcome of a presidential election is determined by a single state vote, or how the electors of a single state vote. And suppose Candidate A wins a majority of votes in that state, but Congress passes a law because it doesn’t really like Candidate A and thinks Candidate A is an insurrectionist. . [three days before election] ordering electors to vote for other candidates;
When pressed, Murray said the state Legislature does have such authority.
Justice Neil Gorsuch addressed other issues with Colorado and Democrats’ arguments, specifically the argument that Article III is “self-enforcing” to the extent that it takes effect immediately upon the occurrence of a triggering event. I dug deeper. If that were true, Trump was no longer commander in chief for the final two weeks of his term after January 6, 2021, and his actions lacked legal authority, Gorsuch said. he said.
When Murray rejected Gorsuch’s suggestion that military commanders and other officials no longer have to follow President Trump’s orders, Gorsuch replied:
Why not? You’re saying he’s disqualified from the moment it happened. Now, I understand that the de facto officer doctrine can be used to prohibit people from seeking judicial redress for decisions made after the date of disqualification. . But if he is actually disqualified from that moment, why should anyone follow his instructions?
Some were surprised that Justice Ketanji Brown Jackson expressed concern that the president’s office was not listed among the various positions that would be disqualified for involvement in the insurrection, such as senators and representatives. there was. (Author’s Disclosure: This point was thoroughly discussed in a court brief I co-authored on behalf of former U.S. Attorneys General Ed Meese, Michael Mukasey, and Bill Barr.)
Anti-Trump protesters shout in Washington, DC, on August 3, 2023, ahead of former President Donald Trump’s arraignment on federal charges of conspiracy and obstruction related to the January 6, 2021 Capitol riot. (Brian Dozier/Anadolu Agency via Getty Images)
Mr Jackson said:
But then why didn’t they put the word “president” in the very enumerated list in section 3? What really bothers me is, I see your point, but they don’t want to be banned. The president is not there. So I’m concerned that maybe they weren’t focused on the president. For example, the fact that the vice presidential and presidential electors are there suggests that if we were concerned about charismatic figures, they really thought so.Man [running for president]I’m going to keep the rebels out [presidential] elector [included on that list] And therefore, the person [running for president] never rises [to the office]?
When Murray didn’t provide a convincing answer, Jackson pressed on, saying, “It looks like the word ‘president’ isn’t included here.” why is that? “
Justice Amy Coney Barrett expressed concern about the lack of due process in the proceedings that declared Trump invalid. Of all nine justices, only Justice Sonia Sotomayor gave no hint as to which side she was on.
If this victory is as lopsided as Thursday’s arguments suggest, it raises interesting questions for Chief Justice Roberts. The senior justice of the majority assigns the person to write the court’s opinion, and the chief justice is the most senior member of the court.
Mr. Roberts has assigned major election issues to himself recently, and there is a good chance he will do so in this unusual and historic case. But if he assigns it to a liberal justice in the majority — like Judge Jackson, who was appointed by President Joe Biden — he will try to characterize the decision as some kind of partisan or ideological decision. It would close the door completely to experimentation and would satisfy all but the greatest number of people. Far-left activists wide-eyed.
But regardless of who the author is, this is no longer an urgent case. Although the press conference and arguments were ended on an emergency basis, the justices did not intend to issue an elaborate ruling since Trump became the presumptive Republican nominee and it was clear that the courts would not rule that he was eligible to remain on the ballot. You can concentrate on writing. and detailed opinions that stand the test of time.
For judges, time is one of their allies. The term ends in the last week of June, so the decision will come before the parties’ nominating conventions and formal general election campaigns.
The case is Trump vs. AndersonU.S. Supreme Court No. 23-719.
Breitbart News senior legal contributor Ken Kurkowski is a lawyer who has worked in the White House and the Department of Justice. Follow him on X (formerly Twitter) @kenklukowski.
