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Supreme Court Takes Up Donald Trump’s Ballot Eligibility
Justices hear oral arguments on whether 14th Amendment’s disqualification clause bars him from returning to the White House

WSJ
WASHINGTON—The Supreme Court on Thursday for the first time is hearing arguments over disqualifying a presidential candidate for allegedly engaging in insurrection, in a special sitting where lawyers for Donald Trump are seeking to keep his name on the Colorado ballot and defeat a legal challenge that could broadly threaten his candidacy.

A Colorado decision that barred Trump from the ballot “is wrong and should be reversed for numerous independent reasons,” Trump lawyer Jonathan Mitchell told the court at the outset of a hearing expected to last all morning.

A Supreme Court decision affirming that ruling would “take away the votes of potentially tens of millions of Americans,” Mitchell said.

Signaling sympathy for that argument, Justice Samuel Alito said the Colorado decision could have very severe consequences if upheld. He also said there was little if any history of a state attempting to disqualify someone from a federal office in this way.

The case involves not only the mayhem of Jan. 6, 2021, when a pro-Trump mob raided the Capitol in an effort to prevent lawmakers from certifying President Biden’s victory in the November 2020 election. Equally at issue is the meaning of a spare phrase added to the Constitution following the Civil War disqualifying from public office former federal and state officers who “engaged in insurrection or rebellion against” the U.S. and gave “aid and comfort” to its enemies.

There is little legal authority on applying the insurrection stricture, one of several provisions adding the Union’s war aims to the Constitution through the 14th Amendment. Contained in the amendment’s Section 3, it had a brief heyday; Congress passed an amnesty for most former rebels in 1872, and in 1898, President William McKinley signed legislation restoring the right of all former Confederates to hold public office.

Donald Trump has asked the Supreme Court to weigh in on whether the 14th Amendment bars him from being on the primary ballot in Colorado. WSJ explains the history behind the law. Photo illustration: Madeline Marshall
But some lawmakers and legal scholars saw the Jan. 6 attacks as an insurrection, and an advocacy group that had tangled with Trump during his presidency, Citizens for Responsibility and Ethics in Washington, sought to apply Section 3 to the perpetrators. CREW lawyers filed a suit that led New Mexico courts in 2022 to strip office from a county commissioner who had participated in the attack.

When Trump announced a campaign to retake the White House, CREW filed suit in Colorado to remove him from the ballot. State laws there make ballot challenges relatively straightforward. In December, a 4-3 Colorado Supreme Court affirmed a state trial judge’s finding that Trump engaged in insurrection by fomenting the attack, and ruled that he was covered by Section 3.

On appeal to the U.S. Supreme Court, Trump’s lawyers have raised several arguments against his disqualification. The presidency, they say, isn’t covered by the disqualification clause, and, regardless, Trump’s actions related to the Jan. 6 attack fall short of insurrection.

Even if the allegations are true and Trump falls under the disqualification clause, the ex-president’s lawyers argue that Colorado courts have no power to enforce it. Instead, they say, Congress needs to spell out procedures for keeping insurrectionists and rebels from public office rather than allowing each state to fashion its own approach.

Justice Clarence Thomas asked about that issue early in Thursday’s session.

“What would the role of the state be?” Thomas asked. “Or is it entirely up to Congress to implement the disqualification?”

“It is entirely up to Congress,” Mitchell replied. “There would not be any role for the states in enforcing Section 3, unless Congress were to enact a statute that gives them that authority.”

Justice Sonia Sotomayor questioned Mitchell’s arguments, saying it would be very rare for state officials to be circumscribed in the way Trump is advocating.

CREW is representing six Colorado voters who sued to strike Trump’s name—two independents and four Republicans, including a former congresswoman and a former majority leader of the state Senate.

The plaintiffs say that nothing in the Constitution makes the provision inoperative absent congressional action. Section 3 allows Congress to nullify an officer’s disqualification by a two-thirds vote of each house, which the plaintiffs say implies that Section 3 can be enforced by a state without special permission from Congress.

The most vigorous disagreements involve the way Trump’s Jan. 6 actions are characterized. While the ex-president’s lawyers stress that he never explicitly called for violence to stop Congress from certifying the election, the voters’ brief points to trial-court findings that Trump’s incessant flogging of his false claims of a stolen election and fueling of his followers’ feelings of grievance and outrage needed no translation.

“Requiring the individual to personally commit violent acts would also defeat a core purpose of Section 3: to target leaders rather than foot soldiers,” the brief says. “Leaders rarely take up arms themselves.”

Outside Colorado, several pending lawsuits seek to disqualify Trump from the ballot in other states. While several have been rejected, at least at this stage, Trump was barred from the ballot in Maine on insurrection grounds; that December decision from Secretary of State Shenna Bellows, a Democrat, is on hold until the Supreme Court decides the Colorado dispute.

“The weight of the evidence makes clear that Mr. Trump was aware of the tinder laid by his multi-month effort to delegitimize a democratic election, and then chose to light a match,” Bellows wrote in her decision.

Thursday probably won’t be the only time Trump’s name comes before the justices this year. He is expected to appeal Tuesday’s circuit court decision denying him categorical immunity for crimes allegedly committed while serving as president, in a case filed by special counsel Jack Smith over Trump’s efforts to retain office despite losing the 2020 election.

Separate criminal prosecutions and civil suits percolating against Trump in Georgia, New York and Florida could bring other issues to the justices later in the year.

Opinion Right-wing judges flaunting their bias and conflicts threaten democracy


WAPO Columnist Jennifer Rubin
The mere presence of Justice Clarence Thomas — never mind his chutzpah in asking the first question — at the oral argument in four-times indicted former president Donald Trump’s appeal of the Colorado Supreme Court’s ruling disqualifying him from the ballot represented a new low for the Supreme Court. It constituted one more assault on the rule of law and the credibility of the court, already at low ebb in public support. After all, Thomas’s wife worked to overturn the 2020 election (sending multiple messages to then-White House Chief of Staff Mark Meadows, egging on fake electors, using her relationships with former Thomas clerks).

Thomas declined to recuse himself in the matter involving release of Meadows’s text messages relating to the Jan. 6, 2021, coup attempt. He was the sole dissent in the ruling ordering that the messages be released. At the time, constitutional scholar Leah Litman told me, “The court protects its reputation in large part through good will, and by acting like a respectable institution. Ginni Thomas is burning through that good will at a rapid pace — making the court and its justices appear corrupt, as if they are or could be casting votes in cases based on the interest or possible involvement of their spouse.” Calling Thomas’s refusal to recuse “appalling,” Litman joined others, including Rep. Ted Lieu (D-Calif.), who sits on the House Judiciary Committee, in castigating Thomas for “wielding his significant power to attempt to shield his wife and himself from scrutiny is an abuse of his role as a Supreme Court justice.”

And that brings us to Thursday’s argument about whether the attempted coup was an “insurrection.” When Trump’s counsel conceded that it was a “criminal” activity, one could barely believe that Thomas was allowed to sit there. Imagine if this were a robbery case and the judge’s wife had urged on the robbers. No one with a shred of respect for the judicial system would countenance that judge hearing such as case.

Rep. Dan Goldman (D-N.Y.), a former prosecutor, weighed in on Thursday: “Justice Thomas’s participation in Trump’s ballot case is a shocking and intentional violation of his ethical obligations. Clarence Thomas is not above the law.” He added, “This is a true crisis at the Court.” And, of course, this makes a total mockery of the announced “ethics” guidelines.

It is a shame that the counsel for Colorado did not petition Thomas to recuse. Thomas would not have done so, but it would have focused the other justices and the American people on the travesty.

Thomas is hardly the only right-wing judge fouling the judicial nest. Even before her latest ruling in the matter concerning Trump’s alleged snatching of highly sensitive documents and obstructing the investigation thereof, U.S. District Judge Aileen M. Cannon’s impartiality was sufficiently in doubt as to warrant recusal. Her ruling appointing a special master and preventing the Justice Department from continuing its national security investigation was widely vilified and reversed unanimously by the infamously conservative U.S. Court of Appeals for the 11th Circuit.

When she was assigned the criminal case, legal scholars Norman L. Eisen, Richard W. Painter and Fred Wertheimer wrote at Slate, “Because her earlier handling of this case went well outside the judicial norm and was roundly criticized by the Court of Appeals, reasonable observers of this case could question her impartiality.” They explained, “Federal law has a way to deal with this challenge: Under 28 U.S.C. § 455(a), a judge ‘shall disqualify himself [or herself] in any proceeding in which his [or her] impartiality might reasonably be questioned.’ Cannon’s situation clearly fits that test, and she is obligated to recuse herself in Trump’s case.” Unfortunately, the special counsel made no motion to recuse.

Since then, the argument for recusal has grown only stronger. Last month, constitutional gurus Dennis Aftergut and Laurence H. Tribe wrote that Cannon’s ruling rejecting “special counsel Jack Smith’s entirely standard request that she order Trump to state whether he intends to rely on an ‘advice of counsel’ defense” was yet another sign the judge was in Trump’s “pocket.” That followed months in which she has foot-dragged, delayed and made irrelevant demands of the prosecutors.

Then came her latest affront: Granting Trump’s motion to unseal classified documents. As the special counsel noted, this would put the identities of government witnesses at risk, reveal “signals intelligence” and identify an FBI code name. This is a bridge too far. Smith filed a motion for Cannon to reconsider, citing the threats to witnesses, her “clear error” and her disregard for 11th Circuit precedent.

Multiple legal experts registered their alarm. But there is a remedy if Cannon does not reverse herself. As the Lawfare blog explained, “Section 7 [of the Classified Information Procedures Act] allows the government — and only the government — to file a fast-track interlocutory appeal of any district court ruling that would require the disclosure of classified information or penalize the government for failing to reveal such information.” Smith could exercise that right, combine it with a motion to recuse and clearly articulate the argument that in this case Cannon’s bias not only makes it impossible for the government to get a fair trial but puts national security at risk. Alternatively, former prosecutor Joyce Vance wrote that Smith could wait until “the Section 4 hearing rulings are issued.” That is when Cannon will decide if classified documents must be revealed at trial.

Whatever the timing, Smith should not let these unprecedented and dangerous rulings slide. Though the special counsel might be concerned about aggravating Cannon, she could hardly be more unfair than she has already been. Having harshly rebuked her in the civil case, the 11th Circuit might be more prepared than usual to intervene.

In short, both Thomas and Cannon pose a troublesome question: To what degree do we allow ethically challenged hacks on the bench to hijack our judicial system? If we do nothing in the face of the Supreme Court’s outlandish violations of ethical restraints or when lower-court judges become partisan flunkies, Trump’s sabotage of the rule of law will succeed. And let’s remember: In the event Trump gets a second term, the federal courts will be littered with the likes of Thomas and Cannon. Now, that’s a reason to keep him far from the Oval Office.

Nothing you wrote relates to the the issues in the article.

What does that have to do with conflict of interest and bias allegations, against the Justus and the Judge, respectively?

It was like déjà vu. I could have sworn I already heard you discussing your argument before about that right-wing Clarence Thomas guy fouling the judicial nest. I see no reason to repeat that discussion.

Read it and weep.

He is nothing less than a tainted SCOTUS Justice. Period.
I'll take Scalia back on SCOTUS over Thomas' lack of integrity- any day of the week!
Replace him with someone equally "conservative", please.