WASHINGTON − The U.S. Supreme Court is in an uncomfortable position Thursday as it considers whether former President Donald Trump is disqualified from being president again.
Allowing states to take him off the ballot – as Colorado and Maine have moved to do – would be anti-democratic and violate the rights of the tens of millions of Americans who want to vote for the GOP frontrunner, Trump’s lawyers have told the court.
But allowing him to run again after he refused to accept his 2020 loss − which led to the Jan. 6, 2021, attack on the U.S. Capitol − would violate an anti-insurrectionist provision of the Constitution, the other side argues.
The stakes for this year’s election are enormous: Not since an almost entirely different Supreme Court decided Bush v. Gore in 2000, effectively handing the presidency to George W. Bush, has the court wielded such potential power over presidential politics.
At issue: whether Section 3 of the 14th Amendment, an anti-insurrection provision added after the Civil War to keep government officials who sided with the Confederacy from returning to power, applies to Trump. The provision bars people who took an oath to support the Constitution from holding office again if they engaged in insurrection.
Was Jan. 6, 2021, an insurrection?
What happened on Jan. 6, 2021, was not an insurrection, Trump’s lawyers told the court.
Insurrections need to be an organized, concentrated effort to overthrow the government through violence,” Jonathan Mitchell said.
“This was a riot,” he said. “It was not an insurrection.”
— Maureen Groppe
‘Office of United States’ − a term of art?
Trump’s lawyer was probed on his argument that Section 3 doesn’t apply to the presidency because the president is not an “officer of the United States.”
Section 3 doesn’t specifically mention president. It bars from office insurrectionists who have previously taken an oath “as an officer of the United States” to “support the Constitution.”
Jonathan Mitchell called “office of the United States” a term of art that doesn’t refer to federal office holders but only to those who are appointed.
Trump also never swore an oath to “support” the Constitution, he argues, because presidents promise to “preserve, protect, and defend” the Constitution.
While Trump would “fall through the cracks in a sense,” Mitchell said, if “officer of the United States” means appointed officials, there’s no way he can be covered under Section 3.
— Maureen Groppe
A third term as president? Was there an insurrection? Questions from justices spark laughter
The justices probed the attorneys for Donald Trump on different scenarios that would lead to him being disqualified from the ballot, with spirited debate about hypotheticals sparking laughter in the courtroom.
The opening discussion included questions from all nine Supreme Court justices.
Discussing the 14th Amendment
Even if a candidate admitted to being an insurrectionist, a secretary of state cannot remove him from the ballot because Congress could later absolve him of the disqualification under Section 3 of the 14th Amendment, Trump’s lawyer said in response to a question from Chief Justice John Roberts.
That section allows Congress, with a two-thirds vote, to let an insurrectionist hold office again.
That may be unlikely, attorney Jonathan Mitchell said, but a secretary of state is not allowed to predict whether Congress will act before a candidate assumes the office.
— Maureen Groppe
Was Trump an insurrectionist? Debate focuses on key provision in Constitution
The anti-insurrectionist provision of the Constitution does not apply to former President Donald Trump because the provision refers only to appointed officials and not elected officials, Trump’s lawyer, Jonathan Mitchell, told the Supreme Court in his opening argument Thursday.
In a historic case with potentially major repercussions for this year’s presidential election, the Supreme Court is deciding whether Colorado’s Supreme Court correctly concluded that Trump is disqualified from the presidency because of Section 3 of the 14th Amendment.
Trump has given the court multiple reasons why they think that decision was wrong. If the justices agree with him on any one of those reasons, he will remain on Colorado’s presidential primary ballot.
We don’t know whether President Trump will be excused (from disqualification) before he’s sworn in, if he wins the election,” Mitchell said. “Section 3 bans him only from holding office.”
— Maureen Groppe
Dig deeper: Calling himself `presumptive nominee,’ Trump tells Supreme Court to keep him on the ballot
Protestors carry signs blasting a ‘failed coup’ from Trump
As the arguments inside the courtroom began, about wo dozen anti-Trumpers demonstrated outside, carrying signs like “Failed Coup” and “Trump Led A Riot,” and urging the court to rule their way.
Just a few Trump supporters showed up, most of them displaying 2024 election signs.
Demonstrators of all stripes were outnumbered by reporters and student tour groups, one of the latter from Belgium. Still, people who showed up said it was important for their voices to be heard. “We’re a country of laws – hopefully,” said Jennifer Hobbs an anti-Trump lawyer from New York.
— David Jackson
Colorado, where the issue began, is watching Supreme Court argument
Coloradoans are waiting to see if the Supreme Court will put Donald Trump back on their presidential ballot this year – or leave him off, as the state Supreme Court ruled in December.
Richard Maes, 52, said he hopes the former president is kept off the ballot.
“I think it’s great that wealthy and powerful people can be held to the same standards and rules that your average ordinary person is,” said Maes, an unaffiliated voter who works in banquet operations. “I believe that someone who doesn’t respect the desires of the American people, as a whole, doesn’t deserve to hold its highest office.”
But some voters thought the court decision was made too hastily while criminal cases alleging Trump tries to steal the 2020 election are still pending. The Colorado court knocked Trump off the ballot Dec. 19, Trump appealed Jan. 3, the high court accepted the case Jan. 5 and set oral arguments for Thursday.
“He hasn’t been convicted of anything yet, it’s all allegations until proven guilty so, it’s setting the stage to make accusations,” said Bill Waugaman, 61, a retired engineer and registered Republican .
Regardless of the U.S. Supreme Court’s decision, Deborah Klein, 68, said she would vote for Trump by writing in his name if he isn’t on the ballot.
“I will still vote for him no matter what, I think he’s the only one who can do something about how corrupted the Department of Justice and FBI is for that matter,” said Klein, a business owner and Republican voter in El Paso County.
Bush v. Gore
Justice Clarence Thomas is the only current member of the court who was on the bench in 2000 when the court ruled 5-4 along ideological lines that vote recounts in Florida had to stop. The majority said a recount of the presidential election wasn’t feasible in a reasonable time period. That decision came a day after oral arguments.
After Thursday’s oral arguments on Trump’s ballot eligibility, the justices are expected to issue an opinion quickly, but not as fast as in 2020.
Supreme Court seals off its plaza, crowds line the streets hoping for ‘landmark’ case
The spacious marble plaza in front of the Supreme Court building is a No Person’s Land. Court security sealed off the plaza, leaving demonstrators, police – and many reporters – to fend for themselves on the sidewalk in front of the iconic court setting.
So far, anti-Trump protesters are dominating the crowds. Nearly two dozen people were carrying signs, accusing the former president of being a “traitor,” and breaking out in occasional chants on this theme.
Meanwhile, a few Trump supporters were walking up and down the sidewalk carrying signs advertising the former president’s 2024 campaign. The good news: Skies are clear and temperatures are in the mid-30s – chilly but not horrible.
— David Jackson
Waiting on folding chairs in for two freezing nights to attend arguments
Hundreds of spectators lined up – for as long as two nights in freezing temperatures – to attend the Supreme Court’s argument Thursday about whether Donald Trump’s name should appear on Colorado’s presidential ballot this year.
Third in line and sitting on a folding chair, Landon Eckard, 22, a law student at Elon University Law School in Greensboro, North Carolina, said he was eager to attend to hear a historic case.
“It’s going to be a landmark,” Eckard said. “It highlights both the political and the legal spheres. Not a lot of people can say they’ve seen a landmark case and it’s going to be historic.”
A crisp, clear dawn broke Thursday beneath blue skies, with temperature about 32 degrees. Eckard said he joined the line about 7 p.m. Tuesday.
“Two cold nights,” Eckard said with a laugh.
What is Section 3 of the 14th Amendment?
The provision bars people who took an oath to support the Constitution from holding office again if they engaged in insurrection. The clause says:
“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.”
Trump to speak on Supreme Court arguments later today at Mar-a-Lago
Donald Trump will not be attending today’s arguments before the Supreme Court. Instead, he’ll be monitoring events from his Mar-a-Lago home in Palm Beach Florida.
The former president is expected to “address the public” via television after the arguments, according to his schedule. Trump is also scheduled to travel to Nevada for tonight’s 2024 campaign caucuses, which he is expected to win easily.
— David Jackson
What time does Supreme Court hearing start?
The court is scheduled to debate Trump v. Anderson at 10 a.m. EST Thursday. The allotted time is 80 minutes but is expected to run much longer. Audio is available through the court’s website: www.supremecourt.gov.
Trump not expected to attend Supreme Court arguments
Donald Trump has confronted judges, disparaged opponents and given hallway speeches during recent trials, employing his legal battles as an extension of his presidential campaign.
But don’t expect provocations and off-the-cuff drama when the Supreme Court hears arguments Thursday about whether Trump should be on Colorado’s ballot.
Trump, who has shown up at two of his civil trials recently, isn’t expected to attend the Supreme Court arguments, scheduled for the same day as Nevada’s GOP presidential caucuses. And the high court conducts its arguments much more strictly than the lower courts do − making it less likely Trump will be the star of a similar courthouse drama.
Also, the Supreme Court updated its rules in 2013 to codify the practice that only lawyers can present arguments.
More: ‘Open mic night’ at the Supreme Court? Don’t expect Donald Trump to let loose at the marble palace
How are the Supreme Court justices leaning in the Trump Colorado ballot case?
Determining which way the justices are leaning will be difficult from the oral arguments, lawyers for the Colorado voters said Wednesday. The issues being debated are all new, said attorney Sean Grimsley, as this is the first time the nation’s highest court will hear a case on Section 3 of the 14th Amendment.
“I think it’ll be a little hard to predict or to tea leaf read tomorrow,” Grimsley told reporters. “I think there are certainly some who are going to be very interested in the textual analysis, the historical analysis, others in some of the policy arguments.”
Noah Bookbinder, president of the watchdog group Citizens for Responsibility and Ethics in Washington (CREW), which is representing the voters, expected “really probing questions” in all directions.
— Maureen Groppe
This article originally appeared on USA TODAY: Supreme Court Trump case live updates: Latest news on oral arguments