On the docket: 14th amendment oral arguments
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The US supreme court meets today to hear oral arguments on whether the 14th amendment of the constitution bars the former president Donald Trump from appearing on the ballot in Colorado and other states because of his role in the January 6 Capitol riot. The case is unprecedented: the clause has rarely been used since it became part of the constitution after the civil war in 1868, and it has never before been applied to a former president.
The oral arguments are expected to be something of a free-for-all, with nine justices asking about a bevy of unresolved constitutional issues. And the justices’ questions on Thursday could hint at exactly how they might rule.
What they have been asked to decide is whether Trump should not be allowed to run for president because of section three of the 14th amendment, which says no one who has taken an oath to support the constitution – typically administered when elected officials are sworn into office – and goes on to engage “in insurrection or rebellion” against the US, is allowed to hold public office again.
Many legal scholars and former government officials have made the case in briefs that the plain language of the amendment applies to Trump, but few expect the supreme court to, in effect, decide the 2024 election by disqualifying one of the main candidates. Court watchers suspect that they would rather not hear the case at all – and may seek to make as narrow a ruling as possible.
“I don’t think [the court] wants to be involved in these disputes,” the University of Notre Dame law professor Derek Muller told the Guardian’s Sam Levine in his excellent preview of the hearing. “I think, on a bipartisan basis, there’s an interest on staying as far away from these issues as possible.”
What court watchers will be listening for especially is whether any of the justices show any interest in any of the possible legal off-ramps identified by Trump’s lawyers and legal scholars based on the semantics of the 14th amendment’s text. Here’s a quick guide to what they might be talking about:
● “Officer” – Trump’s legal brief in the case spends a lot of its time arguing that the term “officer of the United States” in the 14th amendment does not apply to the presidency.
● “Insurrection” – Another argument in the Trump brief is whether his efforts to overturn the 2020 election results amount to the sort of rebellion the amendment’s authors had at the time. Trump has also argued that his actions on that day do not meet the definition of “engaged in”.
●“Self-executing” – Another argument, which has come up in the few times the section 3 has been considered in the past, is that Trump cannot be disqualified unless Congress acts to do so. The Colorado supreme court found that the section is “self-executing”, that is it does not require legislative action for the courts to apply.
If the justices spend a lot of the oral arguments discussing Trump’s actual conduct on and before the January 6 Capitol riot, that might be a sign they may actually address the issue at the heart of the case.
Will This Matter?
The Guardian US Washington bureau chief, David Smith, takes a close look at how one of the briefs filed in this case was intentionally designed to appeal to the conservative justices who have been deciding major cases such as abortion and gun rights using “originalist” readings of the US constitution – the theory that constitutional issues should be interpreted as they would have been in the era they were written.
The left-leaning non-profit Public Rights Project used historians to craft their brief, heavily citing the Senate debate on adopting the 14th amendment just after the US civil war. They make it clear that the senators believed the provision would not only apply to former Confederates but to the leaders of future rebellions, as well.
“Our goal was to bring an originalist historical perspective to the supreme court as it considered the meaning of section 3 of the 14th amendment,” Jill Habig, the head of Public Rights Project, told the Guardian. “The point we make with our historian colleagues is that the history of section 3 is actually very clear. It demonstrates that section 3 was intended to automatically disqualify insurrectionists.”
Sidebar: Not so immune
On Tuesday, a three-judge panel issued a ruling that eviscerated all of Trump’s claims that as president he had “absolute” immunity from criminal prosecution. The scathing 57-page opinion from three judges on the DC circuit court of appeals systematically knocks down his lawyers’ arguments – and just might put the timeline of the federal January 6 trial in DC back on track.
“We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power,” the judges wrote. “For the purpose of this criminal case, former President Trump has become citizen Trump.”
Trump unsurprisingly suggested he will appeal, declaring “SAVE PRESIDENTIAL IMMUNITY” in a post on his Truth Social website after the decision dropped.
The judges also included an order in their decision that is meant to speed the case along: the panel gave Trump until just Monday, 12 February, to ask the supreme court to overturn their decision and put the case on pause. They also cut off one potential stalling technique for Trump by also ruling that if he does ask the entire circuit court to rehear his immunity claim, which he has the legal right to do, the trial will not stop.
Judge Tanya Chutkan paused the trial proceedings on 13 December for the immunity appeal, about three months ahead of her scheduled trial start date of 4 March, and officially announced late last week that the trial would be rescheduled. It will take about three months for those pre-trial proceedings, so if Trump did not appeal (which he will) the trial’s original timeline would put a start date in early May.
While no one expects the supreme court to overturn the case if Trump seeks review, they do have a fateful decision to make regarding the case’s timing. There are three possible outcomes:
1. They could decline review or affirm the appeals court decision stand, which would put the trial on track for late spring or summer;
2. They could take it up on an expedited basis – as they did the 14th amendment case – which would delay the trial but still give it a good chance of happening before the election;
3. Or, they could take it up under normal procedures, essentially pushing the trial past the election, since the earliest the supreme court might rule would be June.
Just four of the nine justices would need to want to consider the case. The appellate judges’ comprehensive opinion seems designed to encourage the first outcome.
Briefs
● Judge Arthur Engoron missed his self-imposed deadline to rule in the New York business fraud case by the end of January. He has already ruled that Trump and the Trump Organization committed fraud by inflating the values of properties in financial documents, all that is to be decided are the civil penalties. On Monday, Engoron asked the trial’s lawyers to give him more information about a potential plea bargain that the former Trump Organization executive Allen Weisselberg is reportedly negotiating with the office of the Manhattan district attorney, Alvin Bragg, in the separate hush-money criminal prosecution in which he would admit to committing perjury. Engoron wants to know if Weisselberg plans to admit “he lied under oath in my courtroom at this trial”; if so, Engoron may toss out all of Weisselberg’s testimony as not credible.
In their response briefs, both prosecutors and Trump’s defense urged Engoron not to delay his decision. Prosecutors said they were unaware of any negotiations with Weisselberg and argued he “lacks credibility” in any case , while Trump’s defense called the reports of a plea bargain “speculative”.
● The Fulton county district attorney, Fani Willis, admitted on Friday to having a romantic relationship with Nathan Wade, a special prosecutor on the Georgia criminal election subversion case in a legal filing on a motion from the defense seeking to have them removed from the trial, claiming a conflict of interest.
The Republican House judiciary committee chair, Jim Jordan, a close Trump ally, also subpoenaed Willis on Friday, demanding documents related to an investigation into whether she misused federal funds. He gave a 23 February deadline for the documents.
What’s next?
12 and 13 February Trump and prosecutors will clash in sealed hearings before Judge Aileen Cannon in the classified documents case over how much of the classified information to redact when used at trial. Prosecutors want to redact the documents for national security reasons; Trump doesn’t.
15 February The judge overseeing Trump’s Georgia criminal case, Scott McAfee, has scheduled a hearing to determine whether Willis and Wade should be disqualified from prosecuting the charges against Trump. Meanwhile, in the New York hush money cases, Judge Juan Merchan has scheduled a hearing to consider Trump’s pre-trial motions – including a bid to reduce the falsifying business charges to misdemeanors – in advance of that trial’s 25 March start date.
Mid-February The court’s new guidance for when to expect a ruling from Judge Engoron in Trump’s New York civil fraud trial.
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