The Journal. - Will the Supreme Court Kick Trump off the Ballot?

Episode Date: February 8, 2024

In December, the Colorado Supreme Court ruled that Donald Trump couldn’t appear on the presidential ballot because his actions on January 6 disqualified him. The case made its way to the U.S. Supreme Court. WSJ’s Jan Wolfe listened to today’s arguments, and explains why it appears the decision will likely be overturned.  Further Listening: - The Prosecutor Bringing a Racketeering Case Against Trump  - Meet Jack Smith, the Special Counsel Prosecuting Trump  - Pro-Trump Mob Storms the Capitol  Further Reading and Watching: - Supreme Court Appears Skeptical of Challenge to Donald Trump’s Ballot Eligibility  Learn more about your ad choices. Visit megaphone.fm/adchoices

Today, the U.S. Supreme Court took on a major case. We'll hear argument this morning in case 23719, Trump versus Anderson. The central question of the case is whether or not former President Donald Trump should be allowed to appear on the presidential ballot after his actions leading up to the January 6 riots. Here's Jason Murray, one of the lawyers making the case against Trump. 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. By engaging in insurrection against the Constitution, President Trump disqualified himself from public office. The case stems from a ruling out of the Colorado Supreme Court, which barred Trump from the ballot there. Here's Trump's lawyer, Jonathan Mitchell. The Colorado Supreme Court's which barred Trump from the ballot there. Here's Trump's lawyer, Jonathan Mitchell.

The Colorado Supreme Court's decision is wrong and should be reversed for numerous independent reasons. The first reason is that President Trump is not covered by Section 3 because... Our colleague Yan Wolf was watching the arguments. The stakes in this case are incredibly high in that theoretically the Supreme Court could remove Donald Trump from the ballot by affirming the Colorado Supreme Court decision saying he should not be on the ballot in that state. But, you know, going into the argument, very few people expected that to happen because it would be such a profound thing for a Supreme Court to do. Welcome to The Journal, our show about money, business, and power.

I'm Ryan Knudson. It's Thursday, February 8th. Coming up on the show, will the Supreme Court kick Trump off the ballot? Because at TD Insurance, we understand that your business is unique, so your business insurance should be too. Contact a licensed TD Insurance advisor to learn more. I was wondering, as a legal reporter, do you have a favorite amendment of the U.S. Constitution? The First Amendment, obviously. Good answer. Where does the 14th Amendment rank for you? Very highly. I mean, it's, you know, the 14th Amendment, it was part of the Reconstruction Amendments that ended slavery and gave at least men of all races the right to vote and ensures equal protection under the law and due process and all that.

So the 14th Amendment is a huge part of constitutional jurisprudence. While the most famous part of the 14th Amendment is granting citizenship to all men, no matter their race, there's another section that most people don't know about. Section 3. So Section 3 of the 14th Amendment is punitive in a sense. I mean, it is saying that people who have engaged in insurrection or rebellion against the Constitution can't serve. And it was enacted right after the Civil War. Clearly what was on the mind of the drafters was, you know, Confederates should not be holding positions of power in the reconstructed U.S. government.

Since the Civil War, pretty much nobody thought about this dusty little section tucked in the corner of the U.S. Constitution. of the U.S. Constitution. But pretty much as soon as the January 6, 2021 riot happened, there was talk among most of the liberals, but also some Republicans and independents about, wait a second, what about this provision? Does this apply to Trump? Does it apply to members of Congress who helped him challenge the election results?

The first time Section 3 was used after January 6th was to remove a local politician from office in New Mexico. Coy Griffin was arrested after taking part in the riot at the Capitol. He was convicted of trespassing on restricted grounds. On top of the criminal charges, an advocacy group called CRU, which stands for Citizens for Responsibility and Ethics in Washington, filed a lawsuit. Saying that this particular guy is an insurrectionist, that he's not eligible for this local county office because he engaged in an insurrection on January 6th. The court ruled in CRU's favor.

For the first time in more than 100 years, I'll put it another way, in more than a century, an official in the United States has been barred from holding office and barred under the Constitution's ban on insurrectionists. After the court's ruling, Griffin lost his job as a county commissioner. He's barred from holding public office ever again. Griffin says that he continues to fight his removal from office, and he's asked the Supreme Court to review it. Then, Cruz set their sights on Donald Trump, who they've been critical of in the past. They recruited six voters in Colorado, four Republicans and two independents,

and filed a lawsuit that said Trump should be barred from office, because he was also an insurrectionist. Crew, you ever hear of crew? Bunch of losers. They've been losing for seven years, but they don't stop. They'll never stop. Trump and his lawyers have portrayed the lawsuit as interfering with democracy, and he defended his actions on January 6th.

The case was first heard in front of a Colorado judge who took testimony from witnesses, like a Capitol Police officer who was attacked on January 6th. Ultimately, the judge determined that Trump did engage in insurrection, and the ruling was appealed to the Colorado Supreme Court, which decided to kick Trump off the ballot. We've got some breaking news right now. The Colorado Supreme Court, get this, has just ruled on a challenge to Donald Trump off the ballot. We've got some breaking news right now. The Colorado Supreme Court, get this,

has just ruled on a challenge to Donald Trump's appearance on the state's 2024 ballot. Historic first, the Colorado Supreme Court disqualifying President Trump from their state's 2024 primary ballot. What was your reaction to that decision? I had never expected these cases to get very far.

It just seemed far-fetched for courts to wade in and take Trump off the ballot entirely. We just never had anything like that, so I think it was a bit hard to conceive of. Colorado, the state Supreme Court there is relatively liberal compared to other states. Trump denounced the decision, saying on Truth Social that it was election interference and blamed the Democrats. Yet, within days, Trump was also kicked off the ballot in Maine, and several other states are considering the same thing.

Trump appealed Colorado's ruling, and quickly, the U.S. Supreme Court decided to take the case That's next Whether you're practicing your morning breath work waiting for your favorite artist to come on stage, or running errands at the perfect pace, Liquid IV Powder helps you turn ordinary water into extraordinary hydration so you can live a more extraordinary life. Live more with Liquid IV Hydration Multiplier. Available in refreshing lemon-lime, passion fruit, and strawberry flavors. Buy a stick in store at Costco, Walmart, Amazon, and other Canadian retailers. We'll see you next time. The sandwich for only $5 at A&W's in Ontario. One of Trump's main arguments is that Section 3 of the 14th Amendment doesn't apply to him.

Here's Trump's lawyer, Jonathan Mitchell, speaking in front of the Supreme Court today. 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. 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. But Justice Sonia Sotomayor pushed back against the idea. A bit of a gerrymandered rule, isn't it designed to benefit only your client? I certainly wouldn't call it gerrymandered. That implies nefarious. Well, you didn't make it up. I know some scholars have been discussing it,

but just so we're clear, under that reading, only the petitioner is disqualified because virtually every other president except Washington has taken an oath to support the Constitution, correct? That's right. And Justice Alana Kagan questioned whether Colorado should have the power to influence a national presidential election. But maybe put most boldly, I think that the question that you have to confront is why a single state should decide who gets to be president of the United States. In other words, you know, this question of whether a former president is disqualified for insurrection to be president again is, you know, just say it.

It sounds awfully national to me. Yann says that a lot of the hearing today was filled with similar questions. So they're going to need to confront all these threshold questions of, is the presidency even covered by Section 3 of the 14th Amendment? Is Section 3 of the 14th Amendment something states can even enforce? And that's the part that people don't find as interesting. People want a ruling on, was that insurrection? Was that an incitement of violence? That sort of thing.

But you can't reach those questions until you cross certain thresholds. And so the court is going to look very closely at these preliminary questions. The question as to whether or not Trump engaged in an insurrection wasn't even discussed for almost an hour until Katonji Brown-Jackson started pushing back on Mitchell's assertion that January 6th wasn't an insurrection.

For an insurrection, there needs to be an organized, concerted effort to overthrow the government of the United States through violence. And this... So the point is that a chaotic effort to overthrow the government is not an insurrection? No, we didn't concede that it's an effort to overthrow the government of the United States through violence. And this... So the point is that a chaotic effort to overthrow the government is not an insurrection? No, we didn't concede that it's an effort to overthrow the government either, Justice Jackson.

None of these criteria were met. This was a riot. It was not an insurrection. The events were shameful, criminal, violent, all of those things. But it did not qualify as insurrection as that term is used in Section 3. Thank you. And Justice Brett Kavanaugh questioned whether different definitions of insurrection would create confusion.

Well, when you look at Section 3, the term insurrection jumps out. And the question is, the questions are, what does that mean? How do you define it? Who decides? Who decides whether someone engaged in it? What processes, as Justice Barrett alluded to, what processes are appropriate for figuring out whether someone did engage in that?

The court really honed in on what they saw as chaos that would erupt if they upheld a Colorado decision. they upheld a Colorado decision. They worried about a future where you have lots of eligibility challenges and you could envision Republicans trying to disqualify Democrats for purported insurrection. And then the court has to wade in and referee all these disputes. And that's not the role a lot of these justices envisioned for the court. They are very aware of checks and balances and not being perceived as overstepping their authority. Here's Chief Justice John Roberts. 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. And it'll come down to just a handful of states that are going to decide the presidential election. That's a pretty daunting consequence.

But Murray, the lawyer for the Colorado voters, pushed back on skepticism from some of the justices. He argued that an extraordinary moment called for an extraordinary measure. There's a reason Section 3 has been dormant for 150 years, and it's because we haven't seen anything like January 6th since Reconstruction. Insurrection against the Constitution is something extraordinary. The arguments lasted about two hours. Overall, Yan says it went well for Trump. Going into this argument, it was expected that the Supreme Court would ensure Trump is on the ballot. In other words, overturn the Colorado decision. It was really a question of how they would get there. And that became even more clear during the argument.

From his Mar-a-Lago residence in Florida, Trump reacted to today's hearing. So I just say that in watching the Supreme Court today, I thought it was very, it's a very beautiful process. I hope that democracy in this country will continue. The court is expected to announce its decision in the next few weeks. How likely is it that the justices will rule on the side of the Colorado Supreme Court and say that Trump should be off the ballot? I am loathe to make too many predictions, but I will say that it's a virtual certainty that the Supreme Court will find a way for Trump to be on the ballot because removing him, the presumptive Republican nominee from the ballot, would be seen as overreach. I think this is a very thorny case for the Supreme Court. There's no way they're

going to please everybody. Let's say there's a third of the country that thinks Trump is an insurrectionist. They'll be disappointed if he remains on the ballot. But in an alternate universe where the Supreme Court or, you know, we had a more liberal Supreme Court, took Trump off the ballot, in other words, affirmed what Colorado did, a third of the country would be furious. This case at the Supreme Court does not have an impact on Trump's other legal cases,

which will continue throughout the year. Regardless of how the court rules here, what do you think the history books will say about this moment and how unprecedented it feels? The advocacy groups that spearheaded this litigation and the voters they identified as plaintiffs probably had no regrets, even though the argument didn't go well for them today. probably had no regrets, even though the argument didn't go well for them today. From their perspective, they got people talking about January 6th and Trump's conduct, and they may fail to disqualify him from the ballot, but they've put him on defense, and they've gotten further in this litigation, I think, than many people expected. It seemed a bit far-fetched that the courts would take Trump off the ballot,

seeing as he's the presumptive Republican Party nominee. But the Colorado Supreme Court was willing to do that. The Secretary of State in Maine was willing to do that. So, you know, there are things that the plaintiffs can point to as victories along the way, even if they lose at the Supreme Court, as expected after today's argument. Thanks for listening. See you tomorrow. reporting in this episode by Jess Braven. Thanks for listening. See you tomorrow.