Were I they, I would not have made the revealing, fatuous, and politically and constitutionally cynical, concluding argument that the former president and his lawyers made to the Supreme Court in their Reply Brief today.
I would consider this argument tantamount to an acknowledgment that the former president and his lawyers have all but concluded that their arguments have become so weakened by the briefing of respondents and their supporting amici
that they believe the Supreme Court is likely to hold the former president is disqualified under the Fourteenth Amendment.
What else could possibly explain this eleventh-hour, Hail Mary argument that not even the Supreme Court of the United States can ever decide whether the former president is disqualified from the presidency. Not now. Not ever.
In hac verba from Petitioner’s Br. at 22-23: “Section 3 is a prohibition only on holding office, and Congress can waive this prohibition between now and the end of the next presidential term [in 2029]. . . .
So, no court or litigant can declare that President Trump is “presently” disqualified from holding office without assuming or predicting that Congress will refuse to lift any section 3 disability that might apply.
[N]either the Colorado Supreme Court nor this Court can declare a candidate ineligible for the presidency now based on a prediction of what Congress may or may not do in the future. Nor can a court deprive a presidential candidate of the opportunity to petition Congress
for a waiver — especially when Congress is mostly likely to grant a waiver after the candidate has been elected, as its members will face political pressures to respect the will of the voters and allow the president-elect to take office.”
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