Three Big Legal Questions – The New York Times

There are still court cases that could upend this year’s presidential election, but the one involving Donald Trump’s eligibility to be on the ballot doesn’t seem likely to do so.

In a two-hour oral argument at the Supreme Court yesterday, nearly all justices appeared skeptical of Colorado’s effort to keep Trump off the ballot. Colorado officials have argued that his role in the Jan. 6 attack on Congress makes him an insurrectionist and that the 14th Amendment bars insurrectionists from the presidency. Maine has also moved to bar Trump, and other states would likely follow if the Supreme Court were to allow it.

The legal issues are complex, and we walk through them below. But the justices are surely considering a larger political question, too. As Adam Liptak, who covers the Supreme Court for The Times, told us yesterday:

Donald Trump is accused of doing grave wrongs in trying to overturn the election. But who should decide the consequences of that? Should it be nine people in Washington? Should it be individual states? Should it be Congress? Or should it be the electorate of the United States, which can, for itself, assess whether Trump’s conduct is so blameworthy that he should not have the opportunity to serve another term?

As Neal Katyal, a former Obama administration official who argues before the Supreme Court, said yesterday, “This argument did not go well for the Trump challengers.”

Officially, the case involves Colorado’s Republican primary, which is scheduled for March 5, less than four weeks away. Many legal experts expect the court to rule quickly (as this story explains) and to issue a broad decision that applies to all states.

Here is our guide to the three biggest legal questions:

1. Who is an officer?

The best known parts of the 14th Amendment, which was ratified after the Civil War, bestowed citizenship on people who had been enslaved and said states must provide equal legal protection to all residents. But the amendment also included a provision to prevent former Confederates from holding office. The provision said that any “officer” of the U.S. who had taken an oath to support the Constitution and then “engaged in insurrection or rebellion” could not hold future office.

Part of the debate at the Supreme Court yesterday revolved around whether the president is an officer. To some legal scholars, the answer is obviously yes. “The meaning of ‘officer’ in the 1780s was the same meaning that it has today,” said Jason Murray, the lawyer representing Colorado voters who want to bar Trump.

Other legal scholars take a different view, and several justices seemed open to this argument. Justice Ketanji Brown Jackson noted that the amendment lists many jobs that count as officers, including senators and representatives — but not president. Justice Neil Gorsuch emphasized that the Constitution elsewhere used the term to refer to appointees to an office, rather than to presidents.

2. What can states do?

The Constitution bars several categories of people from serving as president, including anybody who is under 35 or who already served two terms as president. Murray argued that officials who engaged in insurrection are likewise ineligible because of the 14th Amendment.

But several justices questioned whether the 14th Amendment in fact gave states the power to bar officials from federal elections. If it did, individual states might have outsize power over national elections. “The question that you have to confront is why a single state should decide who gets to be president of the United States,” Justice Elena Kagan told Murray.

John Roberts, the chief justice, pointed out that the drafters of the 14th Amendment wanted to restrict state power, and Jackson seemed to agree.

The justices instead seemed to believe that only Congress could bar candidates from federal elections. “The consensus at Thursday’s argument seemed to put the ball in Congress’s court,” Adam Liptak told us. “But since the chances of action from that body are nil or close to it, it will be up to the voters to decide whether Trump is fit to be president.”

3. What is an insurrection?

Another major issue involves Jan. 6: Did it count as an insurrection, and did Trump take part in it?

Murray argued that the answer to both questions was yes. Jonathan Mitchell, Trump’s lawyer, countered that the events of Jan. 6 were “shameful, criminal, violent” — but not an insurrection. Mitchell defined an insurrection as “an organized, concerted effort to overthrow the government” with violence.

Some justices seemed open to that interpretation. Justice Brett Kavanaugh noted that there was a federal statute making it a crime to incite an insurrection — and that Trump has not been charged with it. Still, yesterday’s argument did not dwell on the issue, suggesting that the ruling may focus on other questions.

What’s next

The Supreme Court may soon hear a separate case involving Trump: whether he is immune from prosecution over his efforts to overturn the 2020 election. A federal appeals court ruled this week that Trump can be charged.

If Trump asks the Supreme Court to take the case, as is likely, its ruling may determine if any trial will finish before the election. The timing is important: In polls, some voters say they would be less willing to vote for Trump if he were convicted.

Read two Times reporters explain their takeaways from yesterday’s arguments.

Related: On late night, Seth Meyers discussed the hearing.

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