The Daily - Kick Trump Off the Ballot? Even Liberal Justices Are Skeptical

Episode Date: February 9, 2024

In December, the Colorado Supreme Court issued a bombshell ruling that said Donald Trump was ineligible to be on the state’s ballot for the Republican presidential primary, saying he was disqualified under the 14th Amendment of the Constitution because he had engaged in insurrection on Jan. 6.The Supreme Court has taken on the case and on Thursday, the justices heard arguments for and against keeping Trump on the ballot.Adam Liptak, who covers the Supreme Court for The Times, analyzes the arguments, the justices’ responses, and what they can tell us about the likely ruling in a case that could alter the course of this year’s race for president.Guest: Adam Liptak, who covers the Supreme Court for The New York Times and writes Sidebar, a column on legal developments.Background reading: What Happens Next in Trump’s Supreme Court Case on His EligibilityA Ruling for Trump on Eligibility Could Doom His Bid for ImmunityFor more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From The New York Times, I'm Michael Barbaro. This is The Daily. We are following breaking news. The Colorado Supreme Court has ruled that former President Donald Trump will be left off the state's primary and presidential ballots. In December, the Colorado Supreme Court issuedous decision. That said, Donald Trump was ineligible to be on the state's ballot for the Republican presidential primary. Because of his alleged role in the January 6th insurrection. Because, it found, he had engaged in insurrection on January 6th.

It's based on a little-known provision that bars people who have engaged in an insurrection from holding government office. Which, according to the 14th Amendment, disqualifies him from serving as president. It states that anyone engaging in insurrection cannot hold public office. But this is unprecedented constitutional territory, y'all. The Civil War era constitutional provision could knock the leading candidate of one of the two major political parties off the ballot. At the time, we turned to our colleague, Adam Liptak,

who covers the Supreme Court for The Times, to help us understand the meaning of that decision and what could happen next. This really needs to be an issue that is resolved on a nationwide basis, meaning it has to go to the Supreme Court. And it would be shocking if the Supreme Court would not wade in and issue a ruling

on this question that, you know, a decade ago would have been impossible to imagine. Just as Adam predicted, the Supreme Court did take the case. And on Thursday, the justices heard arguments for and against keeping Trump off the ballot in Colorado. off the ballot in Colorado. Today, we turn to Adam once again to analyze those arguments and the responses from the justices and what they reveal about how the high court is likely to rule in a case that could alter the course of this year's race for president. It's Friday, February 9th.

Adam, I really like your, what do the kids call it, your fit? Thank you. Adam, I really like your, what do the kids call it, your fit? Thank you. I like your shirt. It's a very handsome, business casual kind of thing going on there. It's barely business, but it is casual. Okay. So, Adam, the clock strikes 10 a.m. or so this morning, Thursday,

and the Supreme Court begins to hear this momentous case. Take us into the room. So this is the biggest election case since at least Bush v. Gore, the 2000 decision that handed the presidency to George W. Bush. And now the question is whether Donald Trump is eligible to be on the ballot in Colorado, but really all across the nation, under a provision of the Constitution that says, if you've sworn an oath to support the Constitution and then engage in insurrection, you may not hold any office. The court had put the case on an exceptionally fast track, partly because ballots in Colorado are going out in a matter of days. Super Tuesday is almost upon us, and the nation needs an answer to whether the leading candidate of one of the political parties is even eligible to hold office. Right. And Colorado, of course, is one of the Super Tuesday

states that's going to be holding a Republican primary on March 5th. That's right. So the courtroom, of course, just across the street from the Capitol, where on January 6th, 2021, there was the cataclysmic assault on the seat of our government. And you might think that that would have occupied a substantial part of the argument. Right, given what this case is about. Right. That question of, was it an insurrection? Did Right, that question of was it an insurrection? Did Donald Trump incite, engage in that insurrection? And although those topics were not wholly absent from the argument, they came up in passing a couple times, that really was not the focus of the argument. This was a legal argument about how the constitutional provision in this

case works. Okay. Well, let's then talk about the arguments made around that. We'll hear argument this morning in case 23719, Trump versus Anderson. Mr. Mitchell? So there are two basic arguments in the case. Mr. Chief Justice, and may it please the court. Jonathan Mitchell, Trump's lawyer, stands up. The Colorado Supreme Court's decision is wrong and should be reversed for numerous independent reasons. He starts off with his lead argument, which is a very close reading of Section 3 of the 14th Amendment that the Colorado Supreme Court used to say that Trump is not eligible to be president again. The first reason is that President Trump is not covered by Section 3 because the president is not an officer of the United States,

as that term is used throughout the Constitution. It probably helps, Michael, to parse through the words. And there are three different ideas embedded in the amendment. There's, first of all, who does it apply to? And it says you have to have 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. Officer of the United States refers only to appointed officials, and it does not encompass elected individuals, such as the president or members of Congress. And he argues that you can't fit the president into the phrase, an officer of the United States, that those are appointed, not elected officials. So that's his first textual argument about who it applies to. Second textual argument, what offices does it apply to? And here I'm going to read a different

part of the section. It says, 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. You'll notice the president is not mentioned by name, although he would seem to hold an office, civil or military. But there are arguments, again, that that doesn't apply. And then there's the phrase hold any office. And Mitchell says, because even if the candidate is an admitted insurrectionist, Section 3 still allows the candidate to run for office and even win election to office. but it doesn't say you can't run for office. It doesn't say you can't be elected to office. So if a state banned even an admitted insurrectionist from the ballot, it would be adding to and altering the Constitution's qualifications for office.

Because under Section 3... And he takes some additional comfort from the last clause of Section 3. Section 3 cannot be used to exclude a presidential candidate from the ballot, even if that candidate is disqualified from serving as president under Section 3, because Congress can lift that disability after the candidate is elected, but before he takes office. So he says even someone who is disqualified can run, can be elected, because the moment before Inauguration Day, Congress can say, by a two-thirds vote of each House, that the person is eligible after all,

so it's not lawful to bar someone from the candidacy when, at least in theory, Congress can make you eligible right up to the point of inauguration. And in this situation, a ruling from this court that affirms the decision below would not only violate term limits, but take away the votes of potentially tens of millions of Americans. I welcome the court's questions. Okay, so this admittedly is very technical, but there are three things going on here, right? First, Trump's lawyer is saying that this doesn't apply to presidents or former presidents because they're not mentioned specifically in this rule. Secondly, he's saying

it doesn't prevent anyone from seeking the office of the presidency because that office isn't specifically mentioned in this rule. And finally, it doesn't say anything about barring people from running for office. It only bars people from holding certain offices. So for all of those reasons, Trump's lawyer is saying this doesn't apply to Trump and that the Colorado Supreme Court, in its finding, has been wrong.

That's right. Mr. Murray? Mr. Chief Justice, and may it please the court. Jason Murray, the lawyer for the six Colorado voters challenging Trump's eligibility, says all of that is wrong. He says Section 3 disqualifies all oath-breaking insurrectionists except a former president who never before held other state or federal office. There is no possible rationale for such an exemption. That it would be an insane way to interpret the constitutional provision to exclude the most important office in the land and the highest executive official of the United States from

a provision meant to safeguard democracy from insurrection. Section 3 uses deliberately broad language to cover all positions of federal power requiring an oath to the Constitution. He also makes the point that Section 3 is similar to other kinds of qualifications to be president. States are allowed to safeguard their ballots by excluding those who are underage, foreign born. You have to be 35 years old. You have to be a natural born citizen of the United States. He's saying use your common sense, justices. This does apply to the president. That's pretty clear. Yeah. This does apply to the president. That's pretty clear. Yeah.

Under Article II and the Tenth Amendment, states have the power to ensure that their citizens' electoral votes are not wasted know whether their vote is going to count, depending on whether his current disqualification from running for office is perhaps lifted by Congress, and not only by Congress, by a two-thirds vote of each house, which is a little hard to imagine. 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. I welcome the court's questions. And how do the justices, Adam, respond to these two clashing claims of this close reading of the 14th Amendment by a lawyer for Trump and a lawyer for the Colorado voters? So at first it seems like the justices are going to divide along predictable lines, with conservative justices like Neil Gorsuch and Samuel Alito being open to this kind of close textual reading. Mr. Mitchell, stepping back on this, a lot hinges on the difference between, in your argument,

between the term office and officer. Yes. And I guess I'm wondering, what theory do you have from an original understanding or a textualist perspective, why those two terms so closely related would carry such different weight. And some of the liberals seem skeptical of Trump's lawyer's argument. Justice Kagan? Justice Kagan, for instance, kind of throws up her hands, saying, You know, if they had thought about it, what reason would they have given for that rule?

And it does seem as though there's no particular reason, and you can think of lots of reasons for the contrary, to say that the only people who have engaged in insurrection who are not disqualified from office are presidents who have not held high office before. Why would that rule exist? Let's be serious here. It can't be that the president is not included in these catch-all, all-encompassing phrases on something so important. And is there any better reason for saying that an insurrectionist cannot hold the whole panoply of offices in the United States, but we're perfectly fine with that insurrectionist being president? I think that's an even tougher argument for us to make. Justice Sotomayor? I just want to pin down your principal argument on Section 3.

And Justice Sonia Sotomayor, another liberal, makes the interesting point. Your principal argument is that the president is not an officer of the United States, correct? I would say it a little more forcefully than what Your Honor just described. A bit of a gerrymandered rule. Isn't it designed to benefit only your client? That this argument seems to be, as she put it, gerrymandered to favor Donald Trump. I certainly wouldn't call it gerrymandered. That implies nefarious. You remember that list of offices we discussed? I do. Every other president falls into one of the named offices. Joe Biden was a senator.

Bill Clinton was a governor. Right. Donald Trump, though, didn't serve in any previous official government capacity. He was a businessman, and then he became president. Right. Virtually every other president except Washington has taken an oath to support the Constitution, correct? That's right. And with the possible exception of George Washington, every other president fits into one of those other slots. So we have an argument here that's kind of a ticket for one ride only,

applies only to Donald Trump. Right. And so to my point is, that's a little too cute by half that you're coming up with an argument that applies to only one of our many presidents, or perhaps two, but the first one being the first when there really wasn't much of a precedent to think about. That's right. That gives you a sense of how technical, historical, originalist that part of the argument was. Thank you. Justice Jackson? Going back to whether the presidency is one of the barred offices, I guess— And then, in a little bit of a surprise, it turns out that not everyone is so predictable. Justice Katonji Brown Jackson, the third liberal, says it might actually make sense to her to exclude the presidency from

Section 3. Why? I didn't see any evidence that the presidency was top of mind for the framers when they were drafting Section 3 because they were actually dealing with a different issue. The pressing concern, at least as I see the historical record, was actually what was going on at lower levels of the government. She says the people who adopted it were concerned with the possibility of insurrectionists infiltrating state government. And that former Confederates would return to power in the South. Either in local offices or as representatives. to power in the South, but not that the national office, the president elected by the entire nation, would conceivably be a former Confederate. And that's a very different lens. If your concern is trying to make sure that these people don't come back through the state apparatus and control

the government in that direction, seems to me very different than the worry that an insurrectionist will seize control of the entire national government through the presidency. So suddenly it looks like Justice Jackson is also perhaps an originalist, a textualist on this court. Correct. And at her confirmation hearing, she held herself out to be an originalist. And many people, particularly on the right, scoffed. But she has, in her brief tenure on the court, occasionally shown strong originalist impulses. Right, and somewhat unexpectedly, that seems to be leading her to bolster an argument from Trump's lawyer here on whether or not this amendment

really does apply to Trump. That's right. He specifically mentioned the presidency and the vice presidency as an author. But it wasn't the final enactment. It wasn't, yes, I'm sorry. It wasn't the final enactment, but it does show that there was some concern

by some people about Confederate insurrectionists ascending to the presidency. And we didn't want to make a law office history type argument. So in listening to arguments on this first point, the main point pressed by Donald Trump's lawyers, it seemed like there was the beginning of the possibility of a scrambled lineup. And as other issues were discussed in the case, that possibility seemed only to grow. We'll be right back.

So Adam, right before the break, we covered the first issue in this hearing, and the justices' responses were ideologically confusing. As you said, what happens with the second big issue in this hearing? The second question is whether individual states are entitled to disqualify presidential candidates. are entitled to disqualify presidential candidates. A state cannot exclude any candidate for federal office from the ballot on account of Section 3. Jonathan Mitchell, Trump's lawyer, presses this point also. Unless and until Congress enacts implementing legislation allowing it to do so. And says Congress has to act, and we can't have one state here and one state there disqualifying candidates.

What he holds is that only Congress can provide the means of enforcing Section 3. Well, what would such congressional action look like? What is he referring to? You could imagine Congress enacting a law, saying here's what rights states do and don't have in making these determinations, just setting some ground rules. But then... President Trump's other arguments for reversal ignore the constitutional role of the states.

Jason Murray, the lawyer for the Colorado voters, says that's backwards. States are allowed to safeguard their ballots by excluding those who are underage, foreign-born, running for a third presidential term, or as here, those who have engaged in insurrection against the Constitution in violation of their oath. That the Constitution assigns states the substantial role of conducting federal elections. And this is part of that role. It is kind of common knowledge, and we especially learned it in 2020 when President Trump tried to overturn the election results at the state level,

that states very much are responsible for elections in this country, even federal elections, even the presidential election. That's right. Okay, so what do the justices think about both of these arguments being made about whether a state like Colorado can try to knock someone like Trump off the ballot? The justices are very wary of giving this power in this context to individual states. I mean, the whole point of the 14th Amendment was to restrict state power, right? Chief Justice Roberts says the whole point of the 14th Amendment,

after all, adopted after the Civil War, adopted after states seceded from the Union, was to restrict state power, to augment federal power. So wouldn't that be the last place that you'd look for authorization for the states, including Confederate states, to enforce the presidential election process? He's saying the 14th Amendment is at odds with the very idea of giving states such power. That's right. No, Your Honor. First, we would locate the state's authority to run presidential elections,

not in the 14th Amendment, but in Article II. So Jason Murray, the lawyer for the challengers, says that's the wrong way to think about it, that states have authority to run presidential elections. It's not located in the 14th Amendment. It's located in Article II of the Constitution. Article II gives states this broad power to determine how their electors are selected, and that broad power implies the narrower power

to enforce federal constitutional qualifications. Well, but the narrower power... And then... Counsel, what do you do with the, what would seem to me to be plain consequences of your position? Roberts picks up on another aspect of the question. If Colorado's position is upheld, surely there will be disqualification proceedings on the other side and some of those will succeed. Some of those will succeed.

Saying it could result in kind of the Wild West of voting, where different states would not only use different standards to decide whether Donald Trump was on or off of their ballot, but perhaps knock President Biden off the ballot for supposed insurrectionary crimes of his own. I would expect that a goodly number of states will say, whoever the Democratic candidate is, you're off the ballot, and others, for the Republican candidate, you're off the ballot. It'll come down to just a handful of states that are going to decide the presidential election.

That's a pretty daunting consequence. And having this kind of back and forth mayhem would be a recipe for disaster in a democracy. Justice Kagan? Mr. Mary, you talked, you relied on the state's extensive powers under the electors. And then even Justice Kagan says, listen. What's a state doing deciding who gets to who other citizens

get to vote for for president? The practical effect of allowing Colorado to bar Trump from the ballot affects voters in other states. Colorado is not deciding who other states get to vote for per president.

It's deciding how to assign its own electors under its Article II power. And the Constitution grants them that broad power. Well, but the effect of that is obvious, yes? No, Your Honor, because different states can have... And what do we think Kagan's specific fear is when she argues that letting Colorado take Trump off the ballot will affect other people's voting, she seems to be saying outside of Colorado? It could mean that it just affects the balance of power across the electoral college and makes it less likely that the candidate, someone in Texas or New Jersey wants to support is

going to win because the Colorado votes drop out. It may also mean that if Colorado knocks Trump off the ballot, other states will feel persuaded that they should do the same thing. That said, the lawyer for the voters, Jason Murray, doesn't get it. He says Colorado is not deciding who other states get to vote for for president. It's deciding how to assign its own electors in the electoral college. That's just a function of states' power to enforce, to preserve their own electors and avoid disenfranchisement of their own citizens. Thank you.

And then... What about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice? Justice Kavanaugh also raises his own concerns about disenfranchisement. Does that come in when we think about should we read Section 3 this way or read it that way? What about the background principle, if you agree, of democracy? I'd like to make three points on that, Justice Kavanaugh. The first is that constitutional safeguards are for the purpose of safeguarding our democracy, not just...

Jason Murray responds that Section 3 is designed to protect democracy. This case illustrates the danger of refusing to apply Section 3 as written, because the reason we're here 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. Thank you. So you had Murray trying very hard to convince them otherwise. But nonetheless, both Justice Kavanaugh, a conservative, and Justice Kagan, a liberal, seem to be worried about the potential that a ruling that would knock Donald Trump off the ballot would amount to a kind of disenfranchisement. Right. And when we start to do the math here,

it's not just Justice Jackson anymore who is surprising us as a liberal justice skeptical of Colorado's argument for keeping Trump off the ballot. We now have at least two of the liberal justices saying this might not hold up. As the argument goes forward, it seems that there are probably eight justices prepared to keep Trump on the ballot, and the only wild card, and it could end up being unanimous, but the only wild card is Justice Sotomayor. Hmm. Adam, if eight justices agree that Trump should be allowed to be on the ballot in Colorado, that would be kind of staggering given the nature of this case. It would also be

kind of staggering given the nature of this court. That's right. And this is a court that has been battered and questions have been raised about its legitimacy and authority and prestige. where a contrary ruling, one that would knock a leading presidential candidate off the ballot, would give rise to a very tough reaction from half the country. Adam, it's possible, of course, that what you're saying is right, but the justices have done a kind of political analysis here and decided they want to be on the same page, and that page is to let voters have choice, keep Trump on the ballot. But is it also possible that at the end of the day, what many people saw as a strong legal case being presented by the Colorado voters and their lawyer just turned out to be weaker once it got to the highest court in front of the nation's preeminent jurists and started to kind of crumble?

Most legal scholars think that the case against Donald Trump is very strong. The court, for various reasons, good faith legal ones, political calculations, concerns about the consequences of a ruling, were always likely to be looking for an exit ramp. It looks like they've found one, and that that exit ramp will be embraced by a substantial majority, maybe even all of the justices. But that doesn't undermine the purely theoretical question of does Section 3 apply to Donald Trump's conduct, it is a reflection of kind of a judicial reality of a court that has been under some substantial stress, not wanting

to use what political capital it has left on this particular cause. Well, for those who see what Trump did on January 6th as disqualifying for the presidency, the Colorado effort to keep him off the ballot was very meaningful, and it was, in many of their eyes, justifiable. And if the Supreme Court rules that Trump can't be held off the ballot, it will have eliminated a major route

by which American voters can hold Trump accountable for trying to overturn the results of a free and fair election. Yeah, I don't want to undersell that point at all. If the court rules as I expect it to, it will be a stinging loss for opponents of Donald Trump who saw what happened on January 6th, who consider it a vile insurrection that he incited, and in the face of a constitutional provision that it is child's play to read as applying to him. All of that is true. But of course, this isn't the only Trump case. Trump is the subject of numerous criminal prosecutions, including most notably a federal case arising from some of these same events. will soon be at the Supreme Court, probably next week, in the form of a request from Donald Trump that he be deemed absolutely immune from criminal prosecution for his activities

in trying to subvert the 2020 election. And it would not surprise me at all, Michael, And it would not surprise me at all, Michael, if these cases would be decided in tandem and in different ways with a ruling that Trump is eligible to run, but a ruling that he is not immune from prosecution and sending the case back down for trial, even as the election season heats up. And that would give the court the opportunity to look even-handed, to give Trump a significant victory and a significant loss, and leave it not only to the political process, but the ordinary criminal judicial process to decide whether Donald Trump can be held accountable for his January 6th related activities. Well, Adam, thank you very much. We appreciate it. Thank you, Michael.

We'll be right back. Here's what else you need to know today. The special counsel investigating President Biden's handling of classified materials will not seek to prosecute him, handling of classified materials will not seek to prosecute him, but said there was evidence that Biden willfully retained and disclosed some sensitive material. In a report released on Thursday, the special counsel said that when Biden left the White House after his vice presidency in 2017, he took classified documents about Afghanistan and notebooks with handwritten entries that referred to sensitive intelligence. But in an unflattering assessment, the special counsel, Robert Herr, said that a jury would be unlikely to find Biden guilty of a crime

because of his poor memory. Herr said that Biden could not remember key dates, such as when his vice presidency ended and when his eldest son, Beau, had died. Do you feel your memory has gotten worse, Mr. President? My memory is not good. My memory is fine. During a news conference a few hours later, Biden angrily rejected the claim that his memory was in decline. Take a look at what I've done since I've become president. None of you thought I could pass any

of the things I got passed. How'd that happen? You know, I guess I just forgot what was going on. Today's episode was produced by Rob Zipko, Lindsay Garrison, and Mary Wilson, with help from Alexandra Lee Young. It was edited by Paige Cowett and Brendan Klinkenberg, contains original music by Marian Lozano and Corey Schreppel, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly.

That's it for The Daily. I'm Michael Barbaro. See you on Monday.