SCOTUS hearing on 14th Amendment solutions to the return of Trump might not be as strange as knowing Ed Meese III is still alive.
3. Did Trump engage in an insurrection?
What Trump says: His actions don’t amount to engaging in insurrection. Trump’s brief notes that he has never been charged with that specific crime, even as he faces many criminal charges. It notes parts of Trump’s Jan. 6 comments that urged peacefulness.
It also contends that, even if you cite his failure to quickly quell the riot, “mere failure to act would not constitute ‘engagement’ in insurrection.” And it says the courts shouldn’t rely on the idea that Trump used coded language, comparing that argument to “claims that President Trump has powers of telepathy.”
What the other side says: Trump’s actions and words — explicit and implicit — make clear he intended for his supporters to storm the Capitol. He directed them to the Capitol after inflaming them with false claims of voter fraud, knowing that they were willing to engage in violence for him.
The Colorado petitioners
cite how Trump previewed the Jan. 6 protest as something that would “be wild.” They also note that the “most inflammatory parts of his speech were not in his prepared remarks.”
What the courts have said: The Colorado district court ruled that Trump did engage in insurrection. The judge said he “acted with the specific intent to disrupt the Electoral College certification of President Biden’s electoral victory through unlawful means; specifically, by using unlawful force and violence.” She said Trump “cultivated a culture that embraced political violence” and that his inaction showed he “intended for the crowd to engage in violence when he sent them to the Capitol ‘to fight like hell.’ ” She also said Trump’s Pence tweet directly “caused further violence at the Capitol.”
The Colorado Supreme Court agreed. It
said that Trump’s “actions constituted overt, voluntary, and direct participation in the insurrection.”
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The burden in the case that the Supreme Court takes up this week appears to lie with those who would remove Trump from the ballot. Trump could avoid this outcome even if he succeeds on only one of the several relevant questions. From there, a big question is what the ruling would mean for the 2024 election.
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Tomorrow, the Supreme Court will hear oral argument in Trump v. Anderson, the case challenging the Colorado Supreme Court’s ruling that disqualifies Trump from appearing on the 2024 presidential election primary ballot in that state. As we have discussed on multiple occasions, the case raises fraught political issues and multiple questions under both state and federal law, including, most prominently, the meaning of Section 3 of the 14th Amendment.
The provision disqualifies from certain offices those who, after taking an oath to support the Constitution in the process of ascending to any of a list of similar public offices, have since engaged in insurrection. In evaluating whether it bars Trump from the presidency, the Supreme Court will have to weigh a dizzying array of questions: Is Section 3 self-executing—that is, does it require an act of Congress or some other mechanism to enter it into force? Does it bar oath-breaking presidents from future office—as opposed to people who have held other public positions—and does it bar oath-breakers from the presidency? Was Jan. 6 an “insurrection,” and did Trump “engage” in it, within the meaning of Section 3?
The case has generated a tremendous amount of attention, including among non-parties professing to have a direct interest in the outcome. A total of 74 amicus briefs have been filed by individuals, organizations, current and former public officials, and academics. Of them, 32 are in support of the Petitioner, Donald J. Trump; 28 are in support of the Anderson Respondents; and 14 are in support of neither party.
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