The U.S. Supreme Court hears oral arguments Thursday about whether likely Republican presidential nominee Donald Trump is ineligible for the office and must be excluded from states’ ballots because of his role in the January 6, 2021, attack on the U.S. Capitol.
On that day, a mob of the former president’s supporters who believed his rhetoric that the November 2020 election was stolen stormed the Capitol to try to prevent lawmakers from certifying Joe Biden’s victory.
Earlier this week, a federal appeals court rejected Trump’s claim that he has “absolute immunity” from prosecution on criminal charges in a separate election interference case, United States of America v. Trump.
That case was brought by special counsel Jack Smith in U.S. District Court in Washington, resulting in four indictments in connection with Trump’s widespread efforts to overturn the 2020 election.
Trump is likely to also appeal this case to the Supreme Court. He maintains the various criminal and civil lawsuits brought against him are part of Biden’s “witch hunt” to eliminate a political opponent — a claim the White House and Democrats deny.
Trump v. Anderson
Trump v. Anderson, to be brought before the Supreme Court on Thursday, addresses whether Trump must be barred from participating in the Colorado primary election under Section 3 of the 14th Amendment to the U.S. Constitution.
The case began as Anderson v. Griswold, filed by Citizens for Responsibility and Ethics in Washington on behalf of Norma Anderson, a former Republican lawmaker in Colorado, with five other Republican and independent voters, against Colorado Secretary of State Jena Griswold.
Both cases look at whether Trump is an insurrectionist who tried to stop the peaceful transfer of power and whether under Section 3 he should be barred from holding office again.
Section 3 was written in 1866 after the end of the Civil War to keep former Confederates — officials from the 11 Southern states that seceded from the United States to protect the institution of slavery — from returning to power.
It provides: “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’s lawyers argue that Section 3 does not apply to presidents, that January 6 was not an insurrection, and that Trump was only exercising his free-speech rights.
In November, a Colorado judge ruled that Trump engaged in insurrection. But she ruled against blocking him from the state’s 2024 presidential primary ballot, finding that Section 3 did not apply to the president. That part of her ruling was appealed and later reversed by the Colorado Supreme Court.
Amicus briefs
Various scholars, election officials, lawmakers and other political figures have filed amicus — “friend of the court” — briefs to share their views in support of or against Trump.
One of them is Mark Graber, Regents professor at the University of Maryland Francis King Carey School of Law and a leading expert in constitutional law on insurrections and the 14th Amendment. His brief argues that the Colorado Supreme Court’s ruling is consistent with how the legal community understood insurrection at the time Section 3 was framed, and that it correctly ruled an insurrection occurred.
“Donald Trump incited that insurrection,” Graber told VOA.
“He was told his tweets were inspiring violence against election workers. He responded by intensifying his tweets. He was told there were people in the crowd with weapons who intended to invade Congress. He responded by saying, ‘When there’s fraud, you don’t use the usual means. You fight — you fight like hell,’ ” he said. “A reasonable person could say given Trump’s behavior, he intended to inspire an insurrection and participate.”
In response to another central question in this case — whether the 14th Amendment applies to the president — Graber said the answer was “obvious.”
“Every member of Congress who used the phrase ‘officer of the United States’ in the 39th Congress said that the president was included,” he underscored.
Others argue that enforcement of the 14th Amendment is for Congress to determine, including Indiana Attorney General Todd Rokita, who filed a brief with 26 other Republican attorneys general.
“Section 3 is not self-executing textually,” he said during a Wednesday event hosted by the Heritage Foundation, a conservative think tank. He argued that under Section 5 that provides, “Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” lawmakers should determine how the 14th Amendment is to be enforced.
Alan Dershowitz, Felix Frankfurter professor of law at Harvard Law School who defended Trump during his Senate impeachment trial, supports this argument.
“In the absence of congressional action, I don’t believe the 14th Amendment is self-enforcing,” he told VOA. “Otherwise, why would you need Article 5 of the 14th Amendment that explicitly gives Congress the power to make these decisions?”
A group of 25 leading historians, including Allan J. Lichtman, distinguished professor of history at American University, argued in their brief that Section 3 covers Trump and does not “require another act of Congress or a conviction” of insurrection.
Lichtman told VOA it’s clear that Section 3 is designed to guard against “not just ex-Confederates but future insurrectionists.”
“They wanted an amendment that would last in perpetuity and couldn’t be tampered with by future congresses because it’s part of the Constitution,” Lichtman said.
Legal questions aside, the American people should have the right to choose their president, not judges, said Rokita. “Voters will lose all confidence if judges decide that voters cannot even consider one of our nation’s two leading presidential candidates,” he warned.
Far-reaching impact
Although the Supreme Court will only decide on the Colorado case, the impact would be far-reaching, including for the state of Maine, whose secretary of state ruled in December that Trump should be taken off the state’s primary ballot, and pending cases in 11 other states that challenge his electoral eligibility, as well as others in the future.
The Supreme Court could uphold the Colorado ruling, which would be a devastating blow to Trump’s reelection bid. Or it could rule that Trump cannot be disqualified under Section 3 and put him back on the ballot.
The justices could also decline to make a final decision and leave it to lawmakers – for example, let Congress decide whether to certify Trump’s victory should he win in November.
Six of the nine Supreme Court justices were appointed by Republican presidents, including three by Trump. But since the question has almost no legal precedent, it’s difficult to predict the justices’ individual rulings based on their ideology.
It will be difficult for the justices to “contradict the historical evidence,” said Lichtman. However, given the political magnitude, the Supreme Court is likely to “take a technical off-ramp” and “punt on this issue.”
Dershowitz agreed, predicting the justices would either “say the 14th Amendment just doesn’t apply absent congressional action, or they will figure out some way of putting off the ultimate issue.”
He underscored the importance of a unanimous decision by the Supreme Court.
“A split decision would keep the country very divided,” he said. “That means we’re likely to see a narrow decision that doesn’t decide broad issues.”
It is unclear how long the Supreme Court will take to rule. In the coming months, the high court also will likely deliberate on Trump’s appeal of the election interference case prosecuted by Smith, which was rejected Tuesday by a federal appeals court.