The Supreme Court seems ready to hand Donald Trump his first consequential legal victory of the campaign season.
After hearing more than two hours of argument today, the justices signaled that they were likely to overturn a ruling by the Colorado Supreme Court removing Trump from that state’s presidential ballot under a 157-year-old provision of the 14th Amendment.
The justices seemed generally receptive to the two main points that Trump’s lawyer, Jonathan Mitchell, raised in support of reversing the lower court’s decision: that Section 3 of the 14th Amendment, which bars insurrectionists from holding office, was not “self-executing” but could only be enforced by a separate act of Congress, and that the provision simply did not apply to presidents.
Significantly, two of the court’s three liberal justices, Elena Kagan and Ketanji Brown Jackson, joined their conservative colleagues in suggesting doubts about Colorado’s decision.
Justice Kagan expressed concern that by allowing Trump to be removed from the Colorado ballot, it could set a precedent of giving individual states “extraordinary” power to affect national elections.
Justice Jackson pointed out that the text of the amendment did not explicitly include “president” in the list of offices that could face disqualification for engaging in insurrection. That was because the amendment, she argued, was not initially intended to keep Southern rebels from running for president, but rather to stop them from using their popularity in their home states to seek local offices and get back into power by running for Congress.
Trump has railed relentlessly against moves by several states to disqualify him from the ballot, attacking them as attempts to fix the election against him. And during the hearing, some of the justices worried aloud that letting the Colorado ruling stand could unleash broader chaos that could damage American democracy.
Chief Justice John Roberts, for example, envisioned the “daunting consequence” that other states could retaliate against Trump’s removal from the ballot by seeking to remove Democratic candidates. Justice Samuel Alito echoed those concerns, raising the specter that Colorado’s decision could have “unmanageable consequences.”
But Jason Murray, a lawyer for the Colorado voters who sought to bar Trump from running, said that acts of insurrection — like the one he said Trump was responsible for at the Capitol on Jan. 6, 2021 — were so “rare” and “extraordinary” that he could not imagine a wave of partisan 14th amendment challenges.
Murray also rebuffed a suggestion by Justice Brett Kavanaugh that barring Trump from the ballot would harm democracy by effectively disenfranchising people who wanted to vote for him.
“The reason we’re here,” Murray countered, “is that President Trump tried to disenfranchise 80 million Americans who voted against him, and the Constitution doesn’t require that he be given another chance.”
While the justices heard the case on a remarkably accelerated schedule, they gave no indication of when they might return a decision. The Colorado Supreme Court has said that its ruling would be stayed pending the higher court decision and Trump’s name remains on the ballot for the state’s March 5 primary.
The ruling is likely to have a significant ripple effect far beyond Colorado: there have been challenges to Trump’s ballot eligibility in at least 35 states.
The arguments about the 14th amendment came just days before the Supreme Court was likely to face another crucial question concerning Trump: whether or not to review his claims to be immune from prosecution on charges of plotting to overturn the 2020 election.
On Tuesday, a three-judge panel of the federal appeals court in Washington swatted down those claims, asserting that “citizen Trump,” as the judges called him, was subject to federal criminal law like any other American. As part of its decision, the panel put in place a measure designed to restrict Trump’s ability to prolong his appeal of the immunity issue, a move that he has used repeatedly in an effort to push his election interference trial until after this fall’s election.
Under the provision, the panel gave Trump until Monday to ask the Supreme Court to extend a pause on the underlying case that has been in place since December. If he and his lawyers fail to do that — or if they take an extra step and seek an intermediate review by the full appeals court — the case will be sent back to the trial judge, Tanya Chutkan.
Judge Chutkan, who has shown every sign of wanting to move the case to trial as fast as possible, would then have the power to restart all of the hearings and filing deadlines that have been on hold for weeks.
The move by the panel was clearly designed to encourage Trump to take his immunity appeal directly to the Supreme Court, setting up a momentous decision by the justices. Depending on whether they decide to hear the case and how quickly they resolve it, Trump could go to trial on the election subversion charges as early as this spring or not until next year — after the election is decided.
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What happens if Trump loses one or more cases and is elected president? Can and will he pardon himself, and what will that lead to? — Magnus Liedholm, Stockholm, Sweden
Alan: If Trump is elected president, he could try to pardon himself from a conviction in either of the two federal cases he is facing — although a presidential self pardon has never been attempted before and would likely be challenged in the courts. Trump would not be able to pardon himself from guilty verdicts in the two states cases. However, there are constitutional principles that might preclude local prosecutors from continuing to pursue criminal charges against a sitting president.
Where does each criminal case stand?
Trump has been indicted in four inquiries, with the cases expected to unfold as he runs for president again. Here’s a look at where each case stands.