Supreme Court judges lean towards allowing Donald Trump to run for office

Whether or not Donald Trump can return to the White House and, before that, whether he can even run for office, depends on how a convoluted 95-word sentence full of subordinate clauses is interpreted. The meaning of that phrase has been debated this Thursday, for more than two hours, in an oral hearing before the Supreme Court of the United States. The judges will hand down a sentence in the coming weeks. Without being able to draw definitive conclusions ahead of time, their interventions suggest that they are mostly inclined to let Trump run for office. Of the nine justices, six are conservative – three of them appointed by Trump himself – and three are progressive.

The session has served to show that the clause in question, the third section of the 14th amendment, which regulates disqualification for insurrection, leaves more doubts than certainties. It is not clear who applies it, how it is applied, when it is applied and to whom it is applied. There has been debate on each of these issues in a session that has been experienced inside the room with the solemnity typical of the Supreme Court. Outside, beyond the few protesters who have approached the Court headquarters, it has become a television spectacle, despite the fact that the strict rules of the Supreme Court do not allow access to the cameras.

The judges must rule specifically on the ruling of the Colorado Supreme Court that disqualified Trump from running in the primaries in that State on March 5 – so the ruling is rushed – but the Supreme Court doctrine can be applied in dozens of states. In Maine, a similar disqualification is on hold pending what the High Court justices say. The Supreme Court has not had a similar role in electoral matters since the case Bush vs. Gorewhich settled the dispute over the recount of votes in Florida in the 2000 elections and ended up giving the presidency to George W. Bush.

Trump's lawyer, Jonathan Mitchell, has defended that the constitutional amendment does not prevent anyone from running for office, but in any case from “serving” the office, which is the word used in the law. The rule allows Congress, by a two-thirds majority, to lift the disqualification, but that provision would not make much sense if a candidate is not even allowed to be elected. “We don't know if President Trump would be excused if he wins the election before being sworn into office on January 20, 2025,” Mitchell has argued. Several judges have been receptive to that argument. “The amendment is about holding office, not running for office,” conservative Samuel Alito has said, for example.

Mitchell also maintains that it is not a clause provided for the presidency, since it is cited that an insurrectionist will not be able to “be a senator or representative in Congress, nor an elector to elect president and vice president, nor will he hold any civil or military office,” in a order that appears descending and in which the president is not cited. And that in this case, charge (office) does not include the tenant of the White House.

It is also not clear whether it is a rule that is executed automatically or if it has to be developed by Congress, nor if it is Congress that must establish whether someone has participated in an insurrection.

Trump's defense also maintains that the clause applies to anyone who participated in an insurrection while being an “official.” [officer] of the United States,” a term that, according to his interpretation, does not apply to the president. His defense argues that this expression appears in three other constitutional provisions and in all of them the president is excluded from its scope.

Going down to the detail of the phrase, another of the arguments of Trump's legal team is that upon assuming office he did not take an “oath to support the Constitution,” but rather the president's oath is to “preserve, protect and defend” the Constitution. Furthermore, he points out that he did not take that oath as an “official of the United States,” which would also exclude him from the clause.

In the process, furthermore, Trump's defense has maintained that “the events of January 6, 2021 were not an insurrection in the sense in which that term is used in the third section. [de la 14ª Enmienda]”, but is part of the “long history of political protests that have turned violent” in the United States. As Trump's lawyer said this Thursday, they were “riots, not an insurrection,” since an insurrection would require an organized, concerted and violent attempt to overthrow the Government, an argument that does not seem to have convinced progressive judge Ketanji Brown Jackson.

According to Mitchell, even if those acts were considered an insurrection, the then president would not have participated in it. And that in any case, disqualification would only apply to someone convicted, not merely accused. In reality, not much time was spent in the session analyzing whether the assault on the Capitol was an insurrection and whether Trump took part in it. This reinforces the idea that the judges will resolve the issue by remaining strictly legal, without entering into questions of political appreciation, such as whether what happened in the assault on the Capitol can be considered a failed coup attempt. The Colorado Supreme Court accepted the report of the congressional commission that investigated what happened on January 6, 2021 as valid evidence to determine that Trump is an insurrectionist.

The one who has fully entered into the substance of the issue has been Jason Murray, the lawyer who represented the Colorado voters who have challenged Trump's participation in the primaries of that State. “We are here because, for the first time since the War of 1812, our nation's capital came under violent assault. For the first time in history, the attack was incited by a sitting president of the United States to disrupt the peaceful transfer of presidential power,” he said. “By participating in the insurrection against the Constitution, President Trump disqualified himself from public office. As we have heard before, President Trump's main argument is that this Court should create a special exemption to the third section that would apply to him and him alone. He says the third section disqualifies all oath-breaking insurrectionists except a former president who has never previously held another state or federal office. “There is no possible reason for such an exemption and the court should reject the claim that the Founding Fathers made an extraordinary mistake,” he said.

However, both Samuel Alito and Neil Gorsuch, both conservatives, put him on the spot by asking how to reconcile different decisions and criteria from different states on whether or not a candidate has participated in an insurrection and whether he should be disqualified. Chief Justice John Roberts himself has suggested the possibility that if Colorado is allowed to remove Trump from the ballot, other states may choose to v
eto Biden. The progressive Elena Kagan also seemed uncomfortable with the possibility of letting each State decide according to its own criteria.

Shannon Stevenson, attorney general of the State of Colorado, has defended her territory's court decision. “The petitioner maintains that Colorado should place it on the ballot due to the possibility of a supermajority.” [de dos tercios] of Congress to eliminate his legal incapacity. Under this theory, Colorado and all other states would have to accommodate this possibility, not just for the primaries, but throughout the presidential election and until an ineligible candidate is sworn into office. Nothing in the Constitution strips the States of their power to conduct presidential elections in this way,” he said.

The first sentence of the third section of the 14th amendment says: “Whoever, having previously sworn to support the Constitution of the United States as a member, may not be a senator or representative in Congress, nor an elector to elect president and vice president, nor may he hold any civil or military office under the authority of the United States or any State. of Congress, as an officer of the United States or as a member of the Legislative Assembly of any State or as an executive or judicial officer thereof, has taken part in any insurrection or rebellion against the United States or has given aid or facilities to the enemies of the country. The second sentence is clearer: “However, Congress, through the vote of two-thirds of each Chamber, may correct this inability.”

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