SCOTUS To Hear Presidential Eligibility Case

(The Guardian) Supreme court convenes to hear Trump election eligibility case
The supreme court has gathered and is soon expected to begin hearing arguments from both sides in the case over whether Donald Trump is eligible to run for president because of his involvement in the January 6 insurrection.

As Steve Vladeck, a law professor at the University of Texas, notes, the court won’t begin hearing the case immediately:


Nor are the nine justices expected to announce their decision today. That is likely to come at some point in the future.

(The Guardian) The justices are taking turns bouncing questions off Jonathan Mitchell, the former Texas solicitor general who is representing Donald Trump.

After a lengthy period of silence, conservative justice Brett Kavanaugh just asked his first question. We still haven’t heard anything from his fellow conservative Neil Gorsuch. All the other justices have had the chance to spar with Mitchell.

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One of the arguments being made by Donald Trump’s attorney Jonathan Mitchell is that the president is not an “officer of the United States”, the role that section three of the 14th amendment singles out for disqualification.

Liberal justice Sonia Sotomayor wanted to know more about that. “Your principal argument is that the president is not an officer of the United States, correct?” Sotomayor asked, to which Mitchell responded in the affirmative, while noting he would make his argument “a little more forcefully”.

Before he could continue, Sotomayor interjected, wondering if Mitchell’s view wasn’t “gerrymandered” and “designed to benefit only your client”. “I certainly wouldn’t call it a gerrymander. That implies nefarious intent,” Mitchell replied.

(The Guardianb) Attorney for group trying to keep Trump off presidential ballots begins supreme court arguments
Donald Trump’s attorney Jonathan Mitchell has wrapped up his arguments before the supreme court.

Up next is Jason Murray, the attorney representing the Colorado voters who successfully sued to keep Trump off the state’s presidential ballot, and Norma Anderson, a former legislator in the state who signed on to the suit.

As he began his arguments, Murray said: By engaging an insurrection against the constitution, President Trump disqualified himself from public office.

As we heard earlier, President Trump’s main argument is that this court should create a special exemption to section three that would apply to him and to him alone. He says section three disqualifies all oath-breaking insurrectionists, except a former president who never before held other state or federal office. There is no possible rationale for such an exemption, and the court should reject the claim that the framers made an extraordinary mistake. Section three uses deliberately broad language to cover all positions of federal power requiring an oath to the constitution. My friend relies on a claimed difference between an office under, and an officer of the United States, but this case does not come down to mere prepositions.

The two phrases are two sides of the same coin, referring to any federal office, or to anyone who holds one.

(The Guardian) Conservative justice Brett Kavanaugh is asking plaintiffs’ attorney Jason Murray about the necessity of relying on the constitution to disqualify a candidate for office if they committed insurrection, when they could just be prosecuted.

Donald Trump is indeed facing federal charges for allegedly plotting to overturn the 2020 election, but those have yet to be decided. Immediately following January 6, the House of Representative impeached him, but the Senate rejected convicting him.

“If the concern you have, which I understand is that insurrectionists should not be able to hold federal office, there is a tool to ensure that that does not happen, namely federal prosecution of insurrectionists. And if convicted, the Congress made clear you are automatically barred from holding a federal office. That tool exists, you agree, and could be used, but has not, could be used against someone who committed insurrection. You agree with that?” Kavanaugh asked.

“That’s absolutely right, your honor,” Murray replied. “But I would just make the point that the framers of section three clearly understood that criminal prosecutions weren’t sufficient, because oftentimes insurrectionists go unpunished, as was the case in the civil war, and that the least we can do is impose a civil disqualification penalty.”

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Jason Murray, the attorney for the people challenging Donald Trump’s eligibility, just wrapped up his arguments, but before he did, liberal justice Ketanji Brown Jackson wanted to hear his thoughts on the implications if the court turns him down.

“If we think that the states can’t enforce this provision, for whatever reason, in this context, in the presidential context, what happens next in this case? I mean, is it done?” Jackson asked.

In his reply, Murray argues that Trump’s eligibility could become an even more relevant issue if he wins the upcoming election, and members of Congress wonder if he is indeed eligible for the office: If this court concludes that Colorado did not have the authority to exclude President Trump from the presidential ballot on procedural grounds, I think this case wouldn’t be done. But I think it could come back with a vengeance, because ultimately members of Congress may have to make the determination after a presidential election if president Trump wins about whether or not he’s disqualified from office, and whether to count votes cast for him under the Electoral Count Reform Act. So, President Trump himself urges this court in the first few pages of his brief to resolve the issues on the merits, and we think that the court should do so as well.