Trump’s presidential bid hangs in the balance at the Supreme Court. Here’s what you need to know

(John Minchillo/Associated Press)

Trump’s presidential bid hangs in the balance at the Supreme Court. Here’s what you need to know

Election 2024


February 7, 2024

The fate of former President Trump’s attempt to return to the White House rests in the hands of the U.S. Supreme Court.

On Thursday, the justices will hear arguments in Trump’s appeal of a Colorado Supreme Court ruling that he is ineligible to run for president again because he violated a provision of the 14th Amendment that prohibits those who entered into rebellion is prevented from holding office.

Many legal observers expect the nation’s highest court to reverse the Colorado ruling rather than remove the leading contender for the Republican presidential nomination from the ballot. But it’s always difficult to predict a Supreme Court ruling, and the case against Trump has already provided new legal ground.

Some of the key issues involved in the 14th Amendment cases:

What may Trump have violated?

It’s called Section 3 and it’s quite short. There is:

No person shall be a Senator or Representative in Congress, or an 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, be elected as a member of Congress, or as an officer of the United States, or as a member of a legislature of any State, or as an executive or judicial officer of any State, in support of the Constitution of the United States, shall have been engaged in rebellion or rebellion against the same, or aid or comfort given to the enemies thereof. But Congress, by a vote of two-thirds of each House, may remove such a disability.

Nice and simple, right?

Not so fast, Trump’s lawyers say.

Trump’s defense

Trump’s lawyers say this part of the Constitution was not intended to apply to the president. Notice how voters, senators, and representatives are specifically mentioned, but not the president.

It also says it applies to those who take an oath to support the United States. The presidential oath does not use that word. Instead, the Constitution requires presidents to swear to preserve, protect, and defend the Constitution. And finally, Section 3 speaks of any other official of the United States, but Trump’s lawyers argue that the language is intended to apply to presidential candidates, not the president.

That was enough to convince the Colorado District Court judge who initially heard the case. She found that Trump had engaged in insurrection, but also agreed that it was not clear that Section 3 applied to the president. That part of her decision was reversed by the Colorado Supreme Court

thus excluding Trump from the state ballot


The majority of the state’s highest court wrote: President Trump asks us to hold that Section 3 disqualifies any oath-breaking insurrectionist except the most powerful, and that it bars oath-breakers from virtually every office, state or federal, except the highest . in the country.

Other Trump arguments

Trump’s lawyers argue that the question of who falls under a rarely used, once unclear clause should be decided by Congress, not unelected judges. They argue that the January 6, 2021 attack on the US Capitol was not an insurrection. They say the attack was not widespread, did not involve large quantities of firearms and showed no other signs of incitement. They say Trump was doing nothing that day other than exercising his protected rights to free speech.

Others who have been skeptical about the application of Section 3 to Trump have made an argument that the dissenting justices of the Colorado Supreme Court also found persuasive: the way the court went about finding that Trump had violated Section 3


the former president’s right to a fair trial was violated. They argue he was entitled to a structured legal process rather than having a Colorado court figure out whether the Constitution applied to him.

That affects the unprecedented nature of the cases. Section 3 has rarely been used after an 1872 congressional amnesty excluded most former Confederates from it. The U.S. Supreme Court has never heard such a case.

Arguments about legal precedents date back to a lone 1869 opinion by Chief Justice Salmon Chase, who heard an appeal as a circuit judge rather than before the Supreme Court.

The Trump case is historic and is expected to create new legislation.

Isn’t this just a partisan issue?

Not really. Many Democrats are calling for Trump to be kicked off the ballot and many Republicans are angry about the campaign against him. The case was filed by Citizens for Responsibility and Ethics in Washington, a left-wing group.

But some of the most vocal supporters of removing Trump from the ballot are conservative legal scholars who believe in following the strict words of the Constitution. There is no way to get around Trump’s disqualification due to the insurrection, they argue, adding that it is in the plain text and was intended by the authors. The plaintiffs in Colorado are all Republicans or unaffiliated voters.

All seven justices of the Colorado Supreme Court were appointed by Democrats. But they were split 4-3 on the decision, a stark demonstration that this issue is not neatly divided along partisan lines.

The majority cited a statement by Neil M. Gorsuch, one of Trump’s conservative Supreme Court nominees, from when he was a federal judge in Colorado. He then ruled that the state rightly excluded a naturalized citizen born in Guyana from the presidential elections because he did not meet constitutional requirements.

In Maine, the Democratic secretary of state also removed Trump from the ballot. But in Illinois, a retired Republican judge who served as hearing officer for the state Board of Elections suggested Trump be retained, but only because he believed courts should decide eligibility. The retired judge ruled that it was likely that Trump was disqualified because of Section 3, making him a notable Republican who sided with those who sought to impeach the former president.

The US Supreme Court consists of six justices nominated by Republican presidents, including three by Trump. Partly because this is a completely new legal ground, it is difficult to predict how individual judges will rule based on their ideology.

What could the court do?

There are several possible outcomes, but they generally fall into three areas.

The first is that the court could uphold Colorado’s ruling. That would mean victories for the plaintiffs on the full range of Trump’s defenses.

The second is that the court could decide that Trump cannot be disqualified under Article 3, paragraph. There are many ways the court could do this, but the result would be to end the case against him, as well as dozens of similar lawsuits filed across the country.

The third possibility makes many legal experts nervous. The court could actually rule and not make a final decision on whether Trump is qualified to serve as president. That could push the question to Jan. 6, 2025, if he wins the election and Congress must decide whether to certify his victory.

It would also keep many of the challenges alive across the country. Some of them have been put on hold as state courts wait to see what the U.S. Supreme Court will do. Places where a Trump challenge could be reignited if the Supreme Court doesn’t quell it include Illinois, Minnesota and Oregon. It could add further pressure to challenge Trump’s position on the ballot in other Democratic strongholds such as California and New York, where efforts have been made to invalidate his candidacy but have remained relatively muted.

Although the Trump campaign says more than 60 Section 3 cases have been filed nationally, most are from low-profile figures and have generally been dismissed for procedural reasons. Uncertainty at the nation’s highest court could fuel a new wave of cases in those states as well.

The lack of a clear statement could also lead to counter reactions. Republicans have warned that Section 3 could also be applied to Democrats.

Some have already proposed filing a complaint against President Biden, on the theory that his failure to stem the flow of migrants at the US-Mexico border amounts to providing aid and comfort to the country’s enemies . Vice President Kamala Harris could also be targeted over the theory that raising bail money for people arrested during protests against the 2020 killing of George Floyd by Minneapolis police is tantamount to participating in an insurrection.

Unless the Supreme Court shuts it down, they warned, Trump’s case could be just the beginning.


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