Supreme Court judges gave a favorable opinion hear former President Trump on Thursday, suggesting they will clear the way for him to run for office this year despite crowd attack at the Capitol following his defeat in 2020.
The justices, both conservative and liberal, expressed skepticism about giving each state the constitutional power to disqualify candidates for a national office like the presidency.
“Why should one state make this decision for the rest of the nation? » said Justice Elena Kagan. “It seems terribly national.”
“It just doesn’t seem like an appeal by the state,” added Judge Amy Coney Barrett.
In December, the Colorado The Supreme Court became the first and so far only state or federal court to rule that Trump must be deleted from the primary ballot because he is not qualified to hold office again.
By a 4-3 vote, the state judges ruled that Trump had violated Section 3 of the 14th Amendment, which says no person may “hold any civil or military office” after taking an oath to support the Constitution and then “having engaged in an insurrection”. » against the United States.
“We are here because, for the first time since the War of 1812, our nation’s Capitol was violently attacked. For the first time in history, the attack was instigated by a sitting president of the United States to disrupt the peaceful transfer of presidential power,” said Denver attorney Jason Murray, who represented the voters of the Colorado who sued to disqualify Trump.
But he quickly encountered continued skeptical questions from the judges. They didn’t spend much time considering whether Trump’s actions through Jan. 6 amounted to engaging in an insurrection.
Instead, they took turns challenging the idea that state judges in Colorado or elsewhere could decide whether a presidential candidate is qualified.
Chief Justice John G. Roberts Jr. said the 14th Amendment was adopted by the Reconstruction Congress to limit the authority of the states. “Wouldn’t that be the last place you would seek permission for the states, including the Confederate States, to operate the presidential election process?” He asked.
He predicted that if the high court were to approve Colorado’s decision, other states would “very quickly” make their own decisions about who can run for president, and some of them may seek to disqualify Democrats.
Justice Brett M. Kavanaugh repeatedly cited an 1869 ruling that Congress must pass a law to enforce the 14th Amendment’s disqualification rule. It doesn’t depend on each state, he said.
He also noted that although federal law makes it a crime to “incite insurrection,” Trump has not been charged under that law.
The tenor of Thursday’s argument suggests that a solid majority of the court, and perhaps all nine justices, will rule in favor of Trump and overturn the Colorado court’s decision.
Only Justice Sonia Sotomayor gave the impression that she might vote against Trump.
The court, led by Roberts, is expected to issue its opinion in a few weeks. March is prime time for primary elections in much of the country.
However, by next week, the justices will hear another appeal from Trump that could decide whether he will be tried this spring for the Jan. 6 attack.
Last week, the U.S. Court of Appeals for the District of Columbia Circuit rejected Trump’s claim that former presidents are immune from being prosecuted for their actions while in office. The appeals judges said they would keep the criminal case on hold until the Supreme Court decides whether to hear Trump’s appeal of the ruling.
If judges quickly reject Trump’s appeal, his trial could begin in April or May. But if the justices decide to hear the appeal, the trial will likely be postponed until late summer or fall.
Before Thursday’s argument, some legal experts framed the disqualification issue as a test of the conservative court’s commitment to originalism.
Legal scholars and Historians told the justices in friend-of-the-court briefs that the words and history of the 14th Amendment call for disqualifying Trump. They said members of the Reconstruction Congress were determined to prevent insurrectionists from taking power and overthrowing American democracy.
But the six conservatives are also Republican Party appointees, and Trump’s lawyers have said it would be undemocratic to remove the Republican presidential front-runner from the ballot.
And that argument seems to resonate with most of the justices, including the three Democratic-appointed justices.
The former president is “the presumptive Republican nominee and leading candidate for President of the United States,” Trump’s lawyers said in their closing brief filed Monday. “The American people – not the courts or election officials – should choose the next president of the United States. However, at a time when the United States is threatening sanctions against the socialist dictatorship of Venezuela for having excluded the main opposition presidential candidate from the vote… [the Colorado lawsuit] asks this court to impose the same undemocratic measure here.
Much of Thursday’s argument was devoted to procedural and technical objections to Colorado’s decision.
In his legal argument for Trump, Texas lawyer Jonathan Mitchell said the president is not “an officer of the United States” and therefore not covered by Section 3 of the 14th Amendment. He said leaders are appointed, not elected, and the 14th Amendment does not mention the president or vice president.
Many historians and jurists call this assertion absurd.
This would mean that the Reconstruction Congress sought to prevent former Confederates from holding “any office” across the country except the presidency.
But by the end of the debate, it appeared the justices would decide the case without ruling on whether the former president was covered by the 14th Amendment or whether he had led an insurrection before leaving office.
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