LOS ANGELES.–Hearing oral arguments today in the Supreme Court over the Colorado Supreme Court removing former President Donald Trump from the 2024 ballot, nine justices expressed skepticism over arguments made by Colorado Solicitor General Jason Murry arguing that the Colorado Supreme Court had a right to use Section 3 of the 14 th Amendment tha prohibits an officer from holding “office” again who engaged in insurrection. During the two-hour arguments not one justice or attorney asked whether it was proven that Trump was in fact an insurrectionist, instead focusing on technical definitions of insurrectionist, or whether Section 3 applied to other office holders including the president. All justices and attorneys accepted the notion that Trump did, in fact, participate in the Jan. 6, 2021 insurrection. Special Counsel Jack Smith charged Trump Aug. 9, 2023 with election subversion
Justices asked questions about Section 3 of the 14th Amendment but not whether Trump had been proven in any court to have participated in insurrection, or, as Trump’s Attorney Jonathan Mitchell asked, whether the Jan. 6 riot qualified as an insurrection. Only Justice Sonia Sotomayor seemed to agree with the Colorado Supreme Court that said it found that Trump “engaged in insurrection.” What findings of fact could the Colorado Supreme Court have about Trump participating in the Jan. 6 insurrection when no court has found Trump guilty of participating in insurrection? “Why a single state should decide who gets to be president of the United States,” asked Associate Justice Elana Kagan. Murray argued that Trump incited the riot that tried to stop the Electoral College vote certification. Trump was, in fact, acquitted Feb. 13, 2021 of “incitement of insurrection” in the U.S. Senate.
Trump’s attorney argued that whatever happened Jan. 6, 2021 it was not an insurrection and that Trump did not participate. But before Mitchell made that argument, he should have told the justices that Trump hasn’t been convicted in any court of participating in the Jan. 6, 2021 insurrection. So, when the Colorado Supreme Court argues that Trump participated in insurrection, they have no factual basis to make the assertion. Lawyers for Republican and independent voters disqualifying Trump from the Colorado ballot argued said there is ample evidence that Trump participated in an the Jan. 6 insurrection, insisting that Section 3 of the 14th Amendment applied to all office holders including the president. Murray presented zero evidence or facts of how the High Court concluded, without a conviction, that Trump incited the Jan. 6 insurrection and participated in the riots.
Chief Justice John Roberts expressed reservations about future courts disqualifying other candidates under the 14th Amendment for federal office. Any affirmative ruling by the Supreme Court upholding Colorado’s High Court to disqualify Trump from the ballot would prematurely convict Trump of engaging in insurrection before the matter is tried in the District Court. Trump is also appealing disqualification from the Maine ballot by Secretary of State Shenna Bellows who followed the Colorado Supreme Court disqualification. In presenting oral arguments, Supreme Court justices seemed to debate whether Section 3 of the 14th Amendment actually applied to the president, something left vague enough in 1868 to be subject on interpretation. But the real issue avoided by all was the fact that Trump hasn’t been convicted in any court of participating in insurrection.
Murray assumed facts not in evidence to conclude, for the Colorado Supreme Court, that Trump was convicted of insurrection. Murray knows Trump was acquitted in the U.S. Senate Feb. 13, 2021 of “incitement of insurrection,” the second to two House Democrat impeachment trials. Murray argued that Trump acquittal on an impeachment charge does not mean he’s not criminally liable for participating in insurrection, whatever the definition. Because Democrats and the press tried-and-convicted Trump of insurrection for the last three years, doesn’t mean the matter was settled in court. How the Colorado Supreme Court could conclude that Trump participated in insurrection is anyone’s guess. No once Supreme Court Justice asked Murray how the Colorado Supreme Court reached its conclusions on Trump. No U.S. Supreme Court Justice can accept Democrats and press conjecture.
Based on oral arguments, it’s clear that the Colorado Supreme Court has not met its burden of proof for disqualifying Trump from the ballot. Whatever interpretations about Section 3 of the 14th Amendment, the Supreme Court only needs to remind the Colorado Supreme Court that they have no factual basis to conclude that Trump was an insurrectionist. Colorado’s Supreme Court cannot cite conclusions of the House Jan. 6 Select Committee or partisan bias in the Democrat-controlled press. Until a court of law rules that Trump participated in the Jan. 6 insurrection, no court, especially a state Supreme Court or Secretary of State can conclude that Trump is an insurrection under any Constitutional provision. Neither Mitchell nor Murray made compelling arguments one way other another. Justices look on common sense to overturn the Colorado Supreme Court ruling.
About the Author
John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He’s editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.
