Trump's lawyer begins in a very bizarre place, that Ct can't decide this because 14th amendment allows an insurrectionist to hold office w/a two-thirds vote of Cong. Chief Justice all over him for this. And argument boomerangs--Trump's lawyer is highlighting how the 14a has a democratic solution--if Trump upset he can't run, he can go to Congress and try to get that 2/3 vote.
Justice Alito asks what precedent Colorado Supreme Ct would set -- would it mean Trump DQ'd in other states under the doctrine of collateral estoppel? Trump lawyer wisely says no, but then explains that this could lead to a 50 state disuniformity nightmare. Challengers to Trump need to hit this head on
I just love listening to Justice Kagan on the bench. She's so thoughtful, trying to really get to the essence of an argument, and she does it with humor and precision. She's getting Trump's lawyer to explain what his argument on "self executing" with specificity.
Trump's lawyer is doing exactly what he should (I know that's a rare sentence to write with Trump's other legal teams). He's answering the questions forthrightly with appropriate concessions. So far I don't see any Justices besides Sotomayor that are profoundly disagreeing w him
The lawyers for Trump's challengers will have to shore up their argument, especially on self-execution.
Justice Gorsuch appears skeptical of Trump's "the President is not an officer" argument. I've always thought self-execution was the ballgame, and so far that's where it appears the case is going at this moment. Trump's challengers should start their oral arg w/self execution.
Marty Lederman has some thoughts on this self-executing/preemption argument based on the Sea Clammers case and why it's wrong. The challengers will need to be making arguments like this. balkin.blogspot.com/2024/02/a-user…
Jason Murray, lawyer for the challengers now up. Begins by saying Trump fomented an insurrection.
Justice Thomas asks first question: did states ever DQ national candidates in 1860s. Lawyer says Gov. Christie (not THAT one) in 1860s was one. But election system difft then he says.
Chief Justice asks a meta-question: isn't the point of 14a to reduce state power, not give more of it? Shouldn't the framers have wanted to empower Congress more? Lawyer has an ok answer -- saying nothing in text of 14a was to restrict state power here. What he should be saying is 14a is all about ending civil war and aftermath, and absolutely States were empowered to get rid of insurrectionists.
Right now, we aren't hearing anything about the point of Section 3 of the 14th amendment and its history and what it is all about. It's getting technical and floppy.
At this point, Kagan and Barrett have both jumped in, following up on the Chief. They are all worried about one state being able to have such power. And we are not hearing any answer so far besides technical gobblegook.
And lawyer should be using Trump's first words against him. Trump lawyer said Congress can lift an insurrectionist finding by a 2/3 vote. That's the solution to a rogue state trying to undermine a candidate. It's the democratic solution. Trump's lawyer weirdly started there, challenger should be seizing on it
Chief Justice asks the question at the heart of this: if Colorado does this, every other state will against Dem or Republican candidates. Insurrection is a broad term. This is the moment for the challengers lawyer, he has to crush the answer and reassure the Court or game over
So far no answer...just that Trump is the first insurrectionist so it won't happen again.
Chief responds, no insurrection is a broad term and if CO does it here other states will.
And Justice Kavanugh piles on, saying one reason it hasn't happened in last 150+ years is because Congress hasn't made the 14th amendment executing.
Finally challenger lawyer says Ct could write an opinion with a strict insurrection standard, and that would prevent other sts from doing this. That's the start of an answer.
Court is now really frustrated with this lawyer for Trump challengers. Accused of changing the hypothetical (Gorsuch), accused of not answering the questions (Alito). It's not going well, and he still hasn't even answered Trump's lawyer's main argument about Griffin's case and Sea Clammers. I have heard near nothing reassuring Chief Justice/Kavanaugh/Barrett about how dangerous the CO Supreme Ct decision is. The Court is really concerned about the consequences of the CO Ct decision and as Justice Alito says, he's not getting help from the advocate on why it wouldn't be a nightmare.
We've heard nothing about the nightmare on the other side, about what it would mean for an insurrectionist to hold high office. How that would be something that would set the Founders' intent of the 14th amendment on fire, about how our Founders laced into the amendment a solution to an outlier state -- the 2/3 Cong solution.
Finally heard a good answer. Justice Kavanaugh asks if Trump denied due process. Lawyer for challengers forcefully says no, he had robust process, 5 day trial, opportunity for witnesses/depositions/etc. Unfortunately, far too little, and too late.
Now this lawyer for Trump challengers is ... losing Justice Jackson. She's getting frustrated with the lack of answers.
Telling question from Justice Jackson: if you lose here, is it done? Can you go back to court?
Lawyer says no more litigation, it would then be an issue for Congress.
This question is a good indicator of where the Court is.
Now lawyer for Colorado Secretary of State is up. It's also her first argument (like the challenger to Trump who just spoke) and she has a momentous task ahead of her given all of the Court's unanswered questions in the first two hours.
Court asking technical questions about Colorado election law more than anything. Not even bothering asking questions about the big questions about the 14th amendment. Seems like even they feel like it's over.
The lawyer isn't driving the conversation at all, there are awkward silences, and those silences should be filled by the lawyer returning to the big 14th amendment questions. Instead it is all about just waiting for the next query from the Court.
Justice Alito returns to the big question about whether 1 state can alter candidate eligibility in all 50 states. Lawyer for CO says there are often disputes from one state to another, that its a feature of our federalism.
Right now, if I'm Trump's lawyer, Jonathan Mitchell, I would waive my rebuttal. All he could do is mess up where he is.
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