My Quick Take On The Supreme Court Ruling On The Trump Eligibility Case

The Supreme Court has ruled on the Trump eligibility case generated by Colorado’s Supreme Court declaring Trump Constitutionally ineligible for having participated in an insurrection. You can read the decision HERE:

• The Supreme Court reverses the Colorado Supreme Court holding that states may NOT disqualify individuals for federal office. States may do so for state offices, but not federal offices. To disqualify federal candidates Congress must pass some sort of enabling legislation pursuant to Section 5 of the 14th Amendment.
• The distinction that states can disqualify individuals from state office is a significant one. This decision should be of no use to Couy Griffin, who was disqualified as a County Commissioner in New Mexico for his small role in participating in January 6th.
• The decision is “per curiam” meaning no specific author is identified. All nine justices agreed with the reversal of the Colorado decision. Four justices wrote concurring opinions arguing that the majority went too far in stating Congress must pass actual legislation to activate the Section 3 of the 14th Amendment bar.
• The decision did not address whether January 6 was an insurrection or whether Trump participated in it. The decision seemed to assume that he had, but that even so Colorado could not unilaterally bar him from the ballot without action from the federal Congress. It would be fair to say that the Supreme Court let stand the portion of the Colorado decision finding that it was an insurrection and that Trump participated in it.
• Look at pages 10 and 11 of the decision and the discussion of the federal criminal statute for insurrection at 18 U.S.C. § 2383. As you can see that statute bars anyone convicted under it from public office. The Supreme Court suggests § 2383 is an existing statute enabling disqualification under Section 3 of the 14th Amendment. Thus, Trump would be barred from office if convicted under this provision. Something for Jack Smith to think about.
• This reference to the insurrection statute might be a hint on how the court will rule on Trump’s separate claim that he is immune to prosecution for criminal acts while President. If an insurrectionist President is immune from prosecution what is the point in citing § 2383 as a remedy to bar him from future office?

This decision surprised no one who paid attention to the oral arguments before the Supreme Court. In my view the worst part of it is the Court’s failure to address the core question of whether it was an insurrection and whether Trump participated in it. I feel the American people are owed a definitive answer to that, and this court cravenly refused to provide it.

I have previously written that the counsel for Colorado took a fundamentally wrong approach to this, that they should have pursued a strategy aimed at compelling the court to address that issue head on.

I continue to stand by that analysis.