For the first time in U.S. history, the Supreme Court is about to consider whether a candidate for the presidency may be removed from the ballot for having “engaged in insurrection” against the Constitution.
On Feb. 8, the justices will hear arguments in Trump v. Anderson, a case in which the Colorado Supreme Court has already ruled that former president Donald Trump is disqualified from office under Section Three of the 14th Amendment because he incited and “engaged in insurrection on January 6, 2021, after swearing an oath as President to support the U.S. Constitution.”
Trump v. Anderson promises to be the most significant election case since 2000, when Bush v. Gore virtually decided the presidency. The issues are intricate, requiring novel determinations of both fact and law, with an implicit threat of disorder hanging over any outcome adverse to Trump.
The crucial complexities of the case can be well understood by considering the classic journalists’ questions: Who, what, when, where and how? (But not in that sequence.)
Some of the answers are straightforward, but others are far knottier. Here they are, in ascending order of difficulty:
First, the easiest question. What is the case about?
The litigation arises under Section Three of the 14th Amendment, passed in the aftermath of the Civil War, which imposes a broad disqualification from state or federal offices on anyone who, having previously sworn an oath of office, engaged in insurrection or rebellion. The Colorado Supreme Court held, by “clear and convincing evidence” that the events of Jan. 6 indeed “constituted” an insurrection, and that “President Trump ‘engaged in’ that insurrection through his personal actions.”
Trump, of course, denies both propositions and also raises the somewhat arcane argument that the “president is not an ‘officer of the United States’” subject to the disqualification clause.
Now it gets slightly harder. When does the clause apply?
Even if the presidency does fall under Section Three, Trump contends that disqualification does not kick in until after the election, given that the amendment’s specific language says only that “no person shall . . . hold any office,” with no mention of candidacy. That would make the Colorado Supreme Court’s decision “unripe,” in legal terms, qualifying him for the ballot even if he is later found ineligible for the presidency.
There is also a vexing ethics issue. Who decides?
There are nine justices on the Supreme Court, but one of them has a clear conflict of interest. The most important factual issues in the case are whether the Jan. 6 attack on the Capitol constituted an “insurrection,” and whether Trump instigated or participated in it.
Justice Clarence Thomas’s wife, Virginia, attended the rally immediately preceding the attack, at which Trump exhorted the crowd to “fight like hell.” In the weeks before the rally and attack, she traded dozens of texts with Mark Meadows, Trump’s chief of staff, calling on him to “release the Kraken” among other “unrelenting efforts to overturn the 2020 presidential election.”
In other words, Virginia Thomas is a potential witness to the very events at issue in the case. Under the Supreme Court’s recently adopted Code of Conduct, a justice is disqualified from any proceeding in which his or her spouse is likely to be a “material witness.” Nonetheless, Thomas appears to have voted in favor of accepting the case for review and has given every indication that he intends to participate in the decision on the merits.
Quite problematic in traditional legal terms is how the case will be resolved. Trump has raised both substantive and procedural objections to the Colorado Supreme Court ruling, some of which are discussed above.
Substantively, he claims that there was neither an insurrection, nor did he encourage one, and that the presidency is not covered by Section Three. Procedurally, he claims that the Colorado decision was premature. Trump also contends that Section Three is not “self-executing,” meaning that it can be enforced only by federal legislation — although there is currently no such law — rather than by state election officials.
Finally, and potentially most troubling, where will the ruling apply? Trump would be restored to the Colorado ballot if he wins on any of his various asserted claims. The consequences for other states, however, could be markedly different, depending on the nature of the court’s decision.
Trump v. Anderson formally involves only the Colorado case. It would therefore be possible for the Supreme Court to rule for Trump on a narrow ground — such as the sufficiency of the specific evidence before the Colorado court — while leaving the broader legal issues undecided. In that situation, other states could well issue inconsistent decisions, based on additional evidence, regarding Trump’s ultimate eligibility for the presidency.
Trump being Trump, yet more chaos would likely follow if he loses, with the Supreme Court keeping him off the Colorado ballot. A finding of Trump’s ineligibility, especially if it seems hedged or just slightly equivocal, would not automatically remove him from the ballot in the red states. That would require local compliance. Republicans, however, currently control the election machinery in 27 states.
Thus, it is entirely likely that Trump’s name would still appear on the election ballots in most or all of those states, no matter what the Supreme Court says, conceivably leading to a purported majority of electoral votes. Would Vice President Kamala Harris count such electoral votes, officially certified by their state governments, even if they’re contrary to a Supreme Court decision?
There are few easy answers to many of the thorniest questions confronting the justices, and journalistic parsing only gets us so far. Either way, the best result will come if the court can speak definitively, preferably with one voice. Otherwise, any decision is unlikely to spare the country from turmoil.
Steven Lubet is the Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law.