Trump v. Anderson: Amici Curiae Briefs

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Part 1 of 2

No. 23-719

In the
Supreme Court of the United States

DONALD J. TRUMP,
Petitioner,
v.
NORMA ANDERSON, et al.,
Respondents.

On Writ of Certiorari to the Supreme Court of Colorado

BRIEF OF AMICI CURIAE J. MICHAEL LUTTIG, PETER KEISLER, LARRY THOMPSON, STUART GERSON, DONALD AYER, ET AL., IN SUPPORT OF THE ANDERSON RESPONDENTS

Matthew W. Edwards
1300 19th Street NW, Suite 300
Washington, DC 20036

Nancy A. Temple
Katten & Temple, LLP
209 S. LaSalle Street, Suite 950
Chicago, IL 60604

Richard D. Bernstein
Counsel of Record
1875 K Street NW, Suite 100
Washington, DC 20006
(301) 775-2064
rbernsteinlaw@gmail.com

Counsel for Amici Curiae

January 29, 2024

TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv
INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1
INTRODUCTION A ND SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. STATE COURTS AND THIS COURT HAVE THE JUDICIAL POWER TO DECIDE A PRESIDENTIAL DISQUALIFICATION DISPUTE. . . . . . . . . . . .
A. The Electors Clause Allocates This Power To The States, Subject To This Court’s Article III Judicial Review. . . . . . . . . . . . . . 3
B. No Amendment Repeals This Allocation Of Judicial Power. . . . . . . . . . . . . . . . . . . . . . . 8
1. Section 5 of the Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . 8
2. Section 3 of the Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . 10
3. The Twelfth Amendment . . . . . . . . . . . 13
4. The Twentieth Amendment . . . . . . . . . 15
C. The Political Question Doctrine Does Not Apply. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
D. Federalism And Separation Of Powers Support Traditional Court Adjudication Rather Than Sole, Unreviewable Congressional Power. . . . . . . . . . . . . . . . . . . 16
II. THE FAIR MEANING OF SECTION 3 DISQUALIFIES FORMER PRESIDENT TRUMP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
A. Section 3 Must Be Accorded Its Fair Meaning, Not A Narrow Construction . . . 19
B. The “President Of The United States” Is An “[O]fficer of the United States” . . . . 21
C. The January 6, 2021 Armed Attempt To Prevent The Peaceful Transfer Of Executive Power Was An “Insurrection . . . Against The” Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . 24
D. Mr. Trump “Engaged In” The Insurrection . . . . . . . . . . . . . . . . . . . . . . . . . 28
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
TABLE OF APPENDICES
APPENDIX A — LIST OF AMICI CURIAE . . . . . . . 1a
Amy Warwick (The Prize Cases), 67 U.S. 635 (1862) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ASARCO Inc. v. Kadish, 490 U.S. 605 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Barry v. United States ex rel. Cunningham, 279 U.S. 597 (1929) . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 15
Brandbenburg v. Ohio, 395 U.S. 444 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Bush v. Gore, 531 U.S. 98 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 16
Chiafalo v. Washington, 140 S. Ct. 2316 (2020) . . . . . . . . . . . . . . . . . 6, 11, 13, 26
Cooper v. Aaron, 358 U.S. 1 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
District of Columbia v. Heller, 554 U.S. 570 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Hassan v. Colorado, 495 F. App’x 947 (10th Cir. 2012) . . . . . . . . . . . . . . . . . 6
Cited Authorities
In re Canvass of Absentee and Mail-In Ballots of Nov. 3, 2020 Gen. Election, No. 31 EAP 2020, 241 A.3d 1058 (Pa. Nov. 23, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
In re Canvassing Observation, 241 A.3d 339 (Pa. Nov. 17, 2020) . . . . . . . . . . . . . . . . 30
In re Charge to Grand-Jury Treason, 30 F. Cas. 1047 (C.C.E.D. Pa. 1851) . . . . . . . . . . . . . . 29
In re Griffin, 11 F. Cas. 7 (Cir. Ct. D. Va. 1869) . . . . . . . . . . . . . . . . 9
Johnson v. Sec’y of State, 951 N.W.2d 310 (Mich. Dec. 9, 2020) . . . . . . . . . . . . . 29
Law v. Whitmer, No. 82178, 477 P.3d 1124 (Nev. Dec. 8, 2020) . . . . . . 30
McPherson v. Blacker, 146 U.S. 1 (1892) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
New York v. United States, 505 U.S. 144 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Northern Sec. Corp v. United States, 193 U.S. 197 (1904) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . 26
Shelby County v. Holder, 570 U.S. 529 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Texas v. Pennsylvania, 141 S. Ct. 1230 (Dec. 11, 2020) . . . . . . . . . . . . . . . . . . 29
Thomas v. Loney, 134 U.S. 372 (1890) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trump v. Biden, 951 N.W.2d 568 (Wis. Dec. 14, 2020) . . . . . . . . . . . . . 29
United States v. Burr, 25 F. Cas. 30 (C.C.D. Va. 1807) . . . . . . . . . . . . . . . . . 25
Ward v. Jackson, No. CV-20-0343, 2020 WL 8617817 (Ariz. Dec. 8, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Statutes 3 U.S.C. § 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
18 U.S.C. § 2383 . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 12, 16
28 U.S.C. § 453 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
U.S. Const. amend. XII . . . . . . . . . . . . . . . . . . . . . . . . 1, 13
U.S. Const. amend XIV, § 3 . . . . . . . . . . . 2, 6, 7, 10, 11, 19
U.S. Const. amend. XX . . . . . . . . . . . . . . . . . . . . . . . . 1, 15
U.S. Const. amend. XX, § 3 . . . . . . . . . . . . . . . . . . . . . . . 15
U.S. Const. art. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3
U.S. Const. art. I § 2, cl. 5 . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. Const. art. I § 3, cl. 6 . . . . . . . . . . . . . . . . . . . . . . . 4, 9
U.S. Const. art I, § 4 cl. 1 . . . . . . . . . . . . . . . . . . . . . . . . 10
U.S. Const. art I, § 5 . . . . . . . . . . . . . . . . 4, 5, 6, 10, 14, 15
U.S. Const. art I, § 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
U.S. Const. art I, § 8 cl. 17 . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. Const. art I, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. Const. art. II, § 1, cl. 1 . . . . . . . . . . . . . . . . 2, 6, 21, 24
U.S. Const. art. II, § 2, cl. 2 . . . . . . . . . . . . . . . . . . . 14, 18
U.S. Const. art. II, § 1, cl. 3 . . . . . . . . . . . . . . . . . . . . 14, 25
U.S. Const. art. III, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 11
U.S. Const. art. III, § 2, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Const. art. VI, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . 19
Other Sources
R. Bernstein, “Lots of People Are Disqualified from Becoming President,” Atlantic (Feb. 4, 2021) https://www.theatlantic.com/ideas/ archive/2021/02/trump-disqualificationpresident/617908/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Samuel Bray, “Officer of the United States” in Context, Reason (Jan. 22, 2024) https:// reason.com/volokh/2024/01/22/officer-of-theunited-states-in-context/. . . . . . . . . . . . . . . . . . . . . . . 23
Chronology of Events Leading to Secession Crisis, American Historical Association https://www. historians.org/teaching-and-learning/teachingresources-for-historians/sixteen-monthsto-sumter/chronology . . . . . . . . . . . . . . . . . . . . . . . . . 27
Cong. Globe, 39th Cong., 1st Sess. 2918 (May 31, 1866) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
John Eastman’s Second Memo on “January 6 Scenario,” Wash. Post (Oct. 29, 2021), https://www. washingtonpost.com/context/john-eastman-ssecond-memo-on-january-6-scenario/b3fd2b0af931-4e0c-8bac-c82f13c2dd6f/ . . . . . . . . . . . . . . . . . . 15
J. Elliot, The Debates in the Several State Conventions (J. Elliot ed., 2d ed. 1836) . . . . . . . . . . . 25
J. Heilpern & M. Worley, Evidence that the President Is an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment (Jan. 1, 2024) https://papers.ssrn.com/sol3/ Delivery.cfm/SSRN_ID4681108_code2677999. pdf?abstractid=4681108&mirid=1 . . . . . . . . . . . . . . 22
S. Johnson, A Dictionary of the English Language (4th ed. 1773) . . . . . . . . . . . . . . . . . . . . . . . 13
P. Keisler & R. Bernstein, Freedom of Speech Doesn’t Mean What Trump’s Lawyers Want It to Mean, Atlantic (Feb. 8, 2021) https://www.theatlantic. com/ideas/archive/2021/02/first-amendmentno-defense-against-impeachment/617962/ . . . . . . . . 32
J. Kent, Commentaries on American Law (11th ed. 1866) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
James Madison, Federalist No. 48 . . . . . . . . . . . . . . . . . 17
James Madison, Federalist No. 78 . . . . . . . . . . . . . . . . . 17
J. McPherson, Battle Cry of Freedom (1988) . . 20, 27, 28
Michael Pence, Vice President’s Letter to Congress (January 6, 2021), https://int. nyt.com/data/documenttools/pence-letteron-vp-and-counting-electoral-votes/ 9d6f117b6b98d66f/full.pdf . . . . . . . . . . . . . . . . . . . . . 23
R. Parloff, What Scalia Thought About Whether Presidents Are “Officers of the United States,” Lawfare (Jan. 24, 2024) https:// http://www.lawfaremedia.org/article/wha ... residents- are-officers-of-the-united-states . . . . . . . . . . . . . . . . 22
A. Scalia & B. Garner, Reading Law (2012) . . . . . . 19, 23
Ilya Somin, Insurrection, Rebellion, and January 6: Rejoinder to Steve Calabresi, Reason (Jan. 6, 2024) https://reason.com/ volokh/2024/01/06/insurrection-rebellionand-january-6-rejoinder-to-steve-calabresi/ ?itm_source=parsely-api . . . . . . . . . . . . . . . . . . . . . . 25
South Carolina convention, Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union https://www.learningforjustice. org/classroom-resources/texts/hard-history/ declaration-of-the-immediate-causes-whichinduce-and-justify-secession . . . . . . . . . . . . . . . . . . . 27
2 J. Story, Commentaries on the Constitution § 831 (1833) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
J. Story, Commentaries on the Constitution of the United States § 423 at 300 (2d ed. 1858) . . . . . . 19
St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, App. 200-205 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Reconstruction Acts, 12 Op. Att’y Gen. 141 (1867) . . . . . . . . . . . . . . . . . . . . 29
The Reconstruction Acts, 12 Op. Att’y Gen. 182 (1867) . . . . . . . . . . . . . . . . . . . . 29
Washington’s Farewell Address (1796) https:// http://www.govinfo.gov/content/pkg/GPO- ... sdoc21.pdf . . . . . . . 26

INTEREST OF AMICI CURIAE

The amici listed in Appendix A submit this brief. Amici include former officials who worked in the last six Republican administrations, senior officials in the White House and Department of Justice, and others who support a strong, elected Presidency.1 Reflecting their experience, amici have an interest in defending the peaceful transfer of power to a newly-elected President that is required by Article II and the Twelfth and Twentieth Amendments and is protected against insurrection by Section 3 of the Fourteenth Amendment. Amici speak only for themselves personally and not for any entity or other person.

INTRODUCTION AND SUMMARY OF ARGUMENT

This brief focuses on two textualist points. First, it would violate the rule of law and textualism for this Court to create an off-ramp to avoid adjudicating whether Mr. Trump is disqualified. The power to decide a dispute about a presidential candidate’s constitutional qualifications is a judicial power that has been vested by the Electors Clause initially in the States, and by Article III’s grant of appellate jurisdiction ultimately in this Court. Section 5 of the Fourteenth Amendment merely gives Congress power to legislate a judicial enforcement mechanism in addition to this pre-existing judicial power of the States and this Court.

Mr. Trump does not argue that the Constitution gives Congress judicial power over a presidential qualifications dispute. Section 5 of Article I gives Congress the power only to “be the Judge of the . . . Qualifications of its own Members.” In contrast, Section 3 of the Fourteenth Amendment merely checks the judicial power of the courts by giving Congress the power by two-thirds vote to remove, for any reason, disqualification under Section 3, even after it has been judicially adjudicated.

Second, the terms of Section 3 of the Fourteenth Amendment disqualify Mr. Trump. The Court should heed the warning of Justice Holmes that cases of “immediate overwhelming interest” often “make bad law.” Northern Sec. Corp. v. United States, 193 U.S. 197, 400-01 (1904) (Holmes, J., dissenting). Particularly because Section 3 emerged from the hallowed ground of the Civil War, this Court must accord Section 3 its fair meaning, not a narrow construction. Mr. Trump was “President of the United States.” U.S. Const. art. II, § 1, cl. 1. He never disputes that the President is an “officer.” It follows, as the Fourteenth Amendment generation understood, that the “President of the United States” is an “officer of the United States.” Mr. Trump incited, and therefore engaged in, an armed insurrection against the Constitution’s express and foundational mandates that require the peaceful transfer of executive power to a newly-elected President. In doing so, Mr. Trump disqualified himself under Section 3.

ARGUMENT

I. STATE COURTS AND THIS COURT HAVE THE JUDICIAL POWER TO DECIDE A PRESIDENTIAL DISQUALIFICATION DISPUTE.

Resolving individual disputes of a presidential candidate’s qualifications is an exercise of judicial power. Under federalism and separation of powers, state and federal courts exercise judicial power, except for Article I’s two grants of enumerated judicial powers to Congress. Neither of those grants even arguably applies here. And no constitutional amendment changes the allocation of judicial power here.

A. The Electors Clause Allocates This Power To The States, Subject To This Court’s Article III Judicial Review.

The Constitution limits Congress to the two judicial powers enumerated in Article I. The founding generation understood this. The oft-cited treatise of St. George Tucker explained that the Constitution vested

[t]he judicial powers (except in the cases particularly enumerated in the first article) in the courts; the word the, used in defining the powers of the executive, and of the judiciary, is, with these exceptions, co-extensive in its signification with the word all: . . . .

[Congress] is neither established as [a judicial court] by the constitution (except in respect to its own members,) nor has it been, nor can it be established by authority of congress; for all the courts of the United States must be composed of judges commissioned by the president of the United States, and holding their offices during good behaviour, and not by the unstable tenure of biennial elections.

St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, App. 200-205 (1803) (first and last emphasis added).

The constitutional provisions on impeachment provide one of only two “particularly enumerated” grants of judicial power to Congress. Article I, section 3, clause 6 states: “The Senate shall have the sole Power to try all Impeachments.” (Emphasis added). Clause 6 also refers to the person subject to impeachment being “convicted” by “the Concurrence of two thirds of the Members present.” And the next clause refers to “Judgment in Cases of Impeachment.” Article II, Section 4, in turn subjects to Impeachment “[t]he President, the Vice President, and all civil Officers of the United States.”

In contrast, in the second grant of an enumerated judicial power to Congress, the Constitution gives Congress no judicial power concerning the President, the Vice President, and all civil officers. This second grant is in Section 5 of Article I: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members[.]” (Emphasis added). Justice Story explained the reason that this judicial power concerning “Members” was given to Congress: “If lodged in any other, than the legislative body itself, its independence, its purity, and even its existence and action may be destroyed, or put into imminent danger.” 2 J. Story, Commentaries on the Constitution § 831 (1833).

As the text of Article I, Section 5 confirms, this rationale does not support any power of Congress to “be the Judge of the . . . Qualifications of” the President or any officer of the United States. The founding generation would have considered it unthinkable to give Congress an unreviewable power, by a bare majority, to disqualify a President or a cabinet member when the facts or legal principles are in dispute. As James Madison explained in Federalist No. 48: “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” Madison warned against “legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.” He thus stated that the Constitution did not make “[t]he judiciary and executive members . . . dependent on the legislative . . . for their continuance in” office. Id. (emphasis added). “An ELECTIVE DESPOTISM was not the government we fought for;” but rather the founding generation fought for a government with the “effectual[] check[s] and restraint[s]” of separation of powers. Id.

In Section 5 of Article I, however, the word “Judge” does reflect the founding generation’s understanding that it is an exercise of judicial power to decide disputed factual and legal questions about whether a particular person is qualified to hold office. Accordingly, Barry v. United States ex rel. Cunningham, 279 U.S. 597 (1929), holds that when a house of Congress exercises power over a dispute about “elections, returns, and qualifications” of that house’s members, that house “acts as a judicial tribunal.” Id. at 616. The power to decide such a dispute is “judicial in character,” and its exercise “necessarily involves the ascertainment of facts . . . to determine the facts and to apply the appropriate rules of law, and, finally, to render a judgment . . . .” Id. at 613. Before Barry, Thomas v. Loney, 134 U.S. 372 (1890), also had held that Section 5 of Article 1 gives each House “judicial power” and each House acts as a “judicial tribunal.” Id. at 374- 75. Although Barry and Loney involved elections, their rationale expressly applied to qualifications as well. As it must, because “Judge” in Article I, Section 5 applies to “Elections, Returns and Qualifications.”

In stark contrast to congressional qualifications, the Constitution confers the judicial power to adjudicate presidential qualifications first on the state officials and courts designated by state law, and ultimately on the Supreme Court. To start, the Electors Clause in Article II, Section 1 confers power on each State to “direct” the “Manner” of “appoint[ing]” presidential electors. Each state’s “far-reaching authority over presidential electors,” Chiafalo v. Washington, 140 S. Ct. 2316, 2324 (2020), includes the “power to impose conditions on the appointment of electors,” id. at 2324 n.6. Thus, "a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.” Hassan v. Colorado, 495 F. App’x 947, 948 (10th Cir. 2012) (Gorsuch, J.) (emphasis added). The Electors Clause also gives each state the power to authorize state officials and state courts “to oversee election disputes,” Bush v. Gore, 531 U.S. 98, 113-14 (2000) (Rehnquist, C.J., concurring). A dispute over a presidential candidate’s qualifications under federal law is certainly one very important kind of presidential election dispute.

Even without the Electors Clause, as a matter of federalism, generally state law may authorize state courts to interpret and apply “federal law,” even when Congress has not created a justiciable cause of action. ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989). The only exception is when the Constitution or a valid federal statute contains “a provision for exclusive federal jurisdiction.” Id.

Section 2 of Article III of the Constitution directly gives the Supreme Court appellate jurisdiction, “both as to law and fact,” of “all cases, in law and equity, arising under this Constitution, [and] the laws of the United States,” except in cases where this Court has original jurisdiction. The ubiquitous “all cases” include disputes in state court raising federal issues about a presidential candidate’s qualifications under the Constitution.2 As Bush v. Gore held, when disputes arise relating to a presidential election, after initial resolution by the state officials or state courts designated by state law, it is “our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.” 531 U.S. at 111 (per curiam) (emphasis added). After that resolution, the Constitution’s Supremacy Clause mandates that all state legislatures, officials, and courts abide by final Supreme Court rulings on issues of federal law. Cooper v. Aaron, 358 U.S. 1, 4, 18-20 (1958).

To summarize, under the Electors Clause and federalism, state courts and election officials initially have authority to adjudicate whether a candidate for President is disqualified by the Constitution. Next, under Article III’s authorization of appellate jurisdiction and 28 U.S.C. § 1257, this Court reviews such a ruling and makes the final judicial decision whether a presidential candidate is disqualified. Finally, under the Supremacy Clause, the Supreme Court’s ruling is binding in all 50 States. That refutes any suggestion that only Congress can prevent inconsistent rulings between courts in different states on whether a presidential candidate is disqualified.

B. No Amendment Repeals This Allocation Of Judicial Power.

Nothing in any constitutional amendment limits the pre-existing power of state courts and ultimately the Supreme Court to adjudicate a presidential qualifications dispute before the election. And Mr. Trump does not argue that any constitutional amendment confers a power on Congress to adjudicate this case of disputed presidential qualifications.

1. Section 5 of the Fourteenth Amendment: Section 5 states: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” (Emphasis added). Nothing in these fifteen words deprives the states of their pre-existing power, subject to this Court’s review, to adjudicate a presidential candidate’s constitutional qualifications. See Part I.A., supra. Section 5 says “power,” not “the power”—much less “exclusive” or “sole power.” Compare Art. I, § 2, cl. 5, and § 3, cl. 6. (“the sole Power”); Art. I, § 8, cl. 17 (“exclusive Legislation”). Nor does Section 5 state “No State shall” as Section 1 does. See also Art. I, § 10 (“No State shall” used for more than 15 prohibitions). Nor does one word in Section 5 permit any distinction between Congress’s power to enforce Section 3 versus Section 1. Rather, as to Section 3 and Section 1, Section 5 gives Congress “power” to legislate an additional enforcement mechanism, and does not negate the preexisting adjudicatory power of state courts, subject to Supreme Court review, to enforce the Constitution.

For similar reasons, Mr. Trump misplaces reliance on In re Griffin, 11 F. Cas. 7 (Cir. Ct. D. Va. 1869). Nothing in Griffin involved, addressed, or limited either a state court’s pre-existing power under the Electors Clause to decide a presidential qualifications dispute or this Court’s Article III appellate jurisdiction over such a state court decision.

Mr. Trump is also wrong that 18 U.S.C. § 2383 “is the exclusive means of enforcing section 3.” Pet’r’s Br. at 40. Like most criminal statutes, Section 2383 contains nothing like an exclusive jurisdiction provision. And it was originally adopted in the Second Confiscation Act of 1862, 12 Stat. 589, before the Fourteenth Amendment was enacted.

Moreover, exclusive federal court jurisdiction concerning who is eligible to be elected President would be in tension with the powers that the Electors Clause confers on States, but not Congress. The Electors Clause contrasts with the Elections Clause in Article I, Section 4, Clause 1. The Elections Clause gives Congress power to “make or alter . . . regulations” on the “Manner” of holding congressional elections, but the Electors Clause gives Congress no such power concerning presidential elections. Shelby County v. Holder, 570 U.S. 529 (2013), held that Congress’s power under Section 2 of the Fifteenth Amendment to enact “appropriate legislation” does not authorize legislation that violates federalism. Id. at 538, 543. For similar reasons, it would not be “appropriate legislation” under Section 5 of the Fourteenth Amendment for a statute to nullify a state court’s traditional power to decide a presidential qualification dispute, subject to Supreme Court review.

Finally, Mr. Trump does not argue that Section 5 confers any judicial power on Congress. “[L]egislation” is a product of legislative power, not judicial power. And, unlike an adjudication, the Constitution, in Article 1, Section 7, Clause 2, requires that all legislation be presented to the President for signature or veto.

2. Section 3 of the Fourteenth Amendment: The last sentence of Section 3 reads: “But Congress may by a vote of two-thirds of each House, remove such disability.” The words “[ b]ut” and “remove” connote that the disability existed before Congress votes.

Mr. Trump does not argue that the last sentence of Section 3 confers a power on Congress to adjudicate whether there was a disability before its removal. See Pet’r’s Br. at 41-42. Indeed, “vote” to “remove such disability” in Section 3 stands in stark contrast to “Judge” in Article I, Section 5 and “try,” “convicted,” and “Judgment” in Article I, Section 3, clauses 6 and 7. See supra, at pp. 4-6. Two-thirds of Congress may “vote” to remove a pre-existing disability for any reason, including that the disqualified person has reformed or for pure politics. And Congress need not hear evidence or otherwise satisfy procedural due process.

Mr. Trump instead argues that the combination in Section 3 of the phrase “hold any office” and Congress’s power by two-thirds “vote” to “remove such disability” nullifies a state court’s power to adjudicate (subject to this Court’s review) a Section 3 presidential qualification dispute before election day. Pet’r’s Br. at 41-46. This is wrong. To start, courts may adjudicate before election day three other presidential disqualifications that use “hold” or similar words. First, a criminal conviction under 18 U.S.C. § 2383 for insurrection renders a person “incapable of holding any office under the United States.” Neither Mr. Trump nor anyone else suggests that such a federal criminal case cannot be adjudicated before election day.

Second, the Twenty-Second Amendment states, “[n]o person shall be elected to the office of the President more than twice.” A President is “elected” under Article III, Section 1 and the Twelfth Amendment no earlier than when “[t]he Electors . . . vote by ballot for President” in mid-December. See Chiafalo, 140 S. Ct. at 2321, 2325 (the electors “do indeed elect a President”). Obviously, the Twenty-Second Amendment does not render a state court powerless before election day to prevent Barack Obama and George W. Bush from running on that state’s ballot for a third term.

Third, Article I, Section 3, Clause 7 gives the Senate power, after impeachment and conviction, to enter a judgment of “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” (Emphasis added.) Of course, a state may give its courts power to enforce this “disqualification to hold” by barring a disqualified person from running.

Equally unavailing is Mr. Trump’s reliance on the fanciful possibility that Congress by two-thirds vote might remove his disability. This does not deprive the courts of their traditional ability to adjudicate a disqualification before election day. In the other instances discussed above—the bars of 18 U.S.C. § 2383, the Twenty-Second Amendment, and disqualification by the Senate—the candidate could assert an equally unlikely fantasy that two-thirds of Congress might propose and the States might ratify a constitutional amendment that removes the disability.

Rather, the words “remove such disability” in the Fourteenth Amendment confirm that the candidate is currently disqualified and will remain disqualified, unless and until there is an affirmative vote by two-thirds of Congress to “remove” that disqualification. It makes no sense to put off the judicial determination of whether someone is qualified, and the potential subsequent removal of the disability by Congress, until after the election has been run. That would deprive voters of the ability to make a truly informed decision, because they could not know if they were voting for someone who cannot serve. And it would risk chaos as courts litigate whether a newly-inaugurated President is disqualified at the same time the country needs a President to be indisputably occupying the office and making enormously consequential decisions—including as commander-in-chief, appointer of cabinet members, leader of the executive branch, vetoer of bills, etc. It is difficult to believe that the framers of the Fourteenth Amendment added Section 3 intending that the new clause operate in a way that deprives both voters of the ability to make an informed decision and ultimately-eligible Presidents of the ability to govern effectively from the outset.

3. The Twelfth Amendment: Mr. Trump does not argue that the Twelfth Amendment deprives state courts or this Court of jurisdiction to decide this case or gives Congress power to do so. The Twelfth Amendment left the Electors Clause intact. See McPherson v. Blacker, 146 U.S. 1, 26 (1892). Under the Electors Clause, each state “exclusively,” id. at 27, makes the “apportionment of responsibility” as to which bodies “oversee [presidential] election disputes.” Bush v. Gore, 531 U.S. at 113-14 (Rehnquist, C.J., concurring). Here, the Colorado Supreme Court properly ruled that Colorado’s statutes apportioned the authority to decide this presidential disqualification dispute to Colorado’s Secretary of State and state courts, subject to this Court’s review.

The Twelfth Amendment vests no power in Congress to judge a dispute about a presidential candidate’s qualifications if, as here, (1) there are disputed facts or disputed legal questions and (2) state courts, subject to this Court’s review, have the power to adjudicate the dispute. The Twelfth Amendment repeats the words in the original Article II, Section 1, Clause 3, that after the certificates of electoral votes are opened, “the Votes shall then be counted.” The phrase “shall then be counted” refers to calculating. See S. Johnson, A Dictionary of the English Language (4th ed. 1773) (the verb “count” means “To number; to tell.”). “[S]hall then be counted” does not suggest a power of Congress to act as a court that substitutes for, or overrides, state courts or this Court.

The phrase “shall then be counted” contrasts sharply with the express power to “Judge” given by Article I, Section 5 to Congress but concerning only congressional elections and qualifications. “[S]hall then be counted” also contrasts with the broader word “determine” that Article II, Section 1, Clause 4 employed to give Congress other powers concerning a state’s conducting of a presidential election. Clause 4 provides: “The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes . . . .” Article II, Section 1, Clause 3, would not have used, and the Twelfth Amendment would not have repeated, the very different and narrower word “counted” to give Congress judicial powers to act as a substitute court for, or override, state courts or this Court concerning disputed presidential election results and qualifications.

The Court should ensure that nothing in its decision uses the Twelfth Amendment, or 3 U.S.C. § 15, to undermine the authority of each State, through its courts and election officials, to resolve disputes arising in connection with a presidential election, subject to review by this Court, rather than Congress. Only three years ago, Mr. Trump and his former counsel argued that the Twelfth Amendment conveys to the Vice President the ultimate power to override state court decisions and adjudicate who won a state’s electoral votes. See John Eastman’s Second Memo on “January 6 Scenario,” Wash. Post (Oct. 29, 2021) (linking to memo).3 Let’s not go anywhere near there again.

4. The Twentieth Amendment: Mr. Trump’s brief does not argue that the Twentieth Amendment has any bearing on this case. Section 3 of the Twentieth Amendment does not restrict the pre-existing power of state courts and the Supreme Court to adjudicate a presidential qualification dispute before election day. Nor does it assign any judicial power to Congress. Instead, it specifies that, on inauguration day, “if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.” The use of “shall have failed” connotes that the putative President has failed to qualify without Congress doing anything. Again, Congress is given no power to “try” and “Judge” or anything that suggests a power to adjudicate. Moreover, the Twentieth Amendment was passed by Congress in March 1932, only three years after Barry v. United States ex rel. Cunningham, supra. If the Twentieth Amendment’s framers had intended to expand Congress’s limited judicial power to “Judge” beyond the “Qualifications of its own Members,” U.S. Const. art. I, § 5, to also include judicial power to judge the disputed qualifications of the President and Vice President, surely the Twentieth Amendment would say so expressly.

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Part 2 of 2

C. The Political Question Doctrine Does Not Apply.

Mr. Trump correctly does not argue that his case presents a nonjusticiable political question. First, there is no textual commitment by the Constitution to Congress of the power to adjudicate a presidential candidate’s disputed qualifications. The constitutional text shows the exact opposite. Part I.A–B, supra.

Second, there are judicially manageable standards for “insurrection against the” Constitution. See Part II.C, infra. Applying that term has a much firmer grounding in text and history than did applying “equal protection” to vote counting in Bush v. Gore. See 531 U.S. at 109 (“The contest provision, as it was mandated by the State Supreme Court, is not well calculated to sustain the confidence that all citizens must have in the outcome of elections.”); id. at 106-07.

Moreover, if there were no judicially manageable standards here, that would render unconstitutional 18 U.S.C. § 2383—which applies to “insurrection against the authority of the United States or the laws thereof.” And that statute is what Mr. Trump (incorrectly) argues is the proper and “exclusive means of enforcing section 3.” Pet’r’s Br. at 40.

D. Federalism And Separation Of Powers Support Traditional Court Adjudication Rather Than Sole, Unreviewable Congressional Power.

Mr. Trump’s amici claim that if his conduct disqualifies him, then Section 3 of the Fourteenth Amendment would be weaponized against others by partisan state courts and state officials. Such an anti-textual, policy argument has no place in this Court’s constitutional jurisprudence. As this Court held in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), “we cannot allow our decisions to be affected by extraneous influences,” including how the public and politicians may react. Id. at 291-92.

Moreover, Mr. Trump’s amici have the weaponization risk upside down. First, the court process that the Constitution requires for adjudication of a presidential qualification dispute provides the safeguards and checks of the rule of law, federalism, and separation of powers. This includes evidence, procedural due process, recusals of adjudicators for bias, a ban on ex parte contacts, lower court review, the final judicial decision by the Supreme Court, and potential removal of a disqualification by a two-thirds vote of Congress.

Particularly important is the responsibility of every Supreme Court Justice to fulfill his or her solemn oath or affirmation to “faithfully and impartially discharge and perform all the duties incumbent upon me as Justice under the Constitution and the laws of the United States. So help me God.” 28 U.S.C. § 453 (emphasis added). As Alexander Hamilton explained in Federalist No. 78, Justices—unlike politicians—have life tenure so that they will fulfill that responsibility.

Second, in contrast, if Congress has unreviewable power over Section 3 disqualifications, as some advocate, see Cruz Amici Br. at 12-13; Meijer Amicus Br. at 4-15, that would lack all the safeguards and checks of the rule of law, federalism, and separation of powers. Congress consists of partisan politicians. There would be no requirements for evidence, procedural due process, recusals for bias, or bans on ex parte contacts. Nor any role for the states or another branch of the federal government.

As bad, any exclusive, unreviewable power of Congress to adjudicate non-member disqualifications would go both ways. A bare majority in both houses of Congress could ignore even the clearest of presidential disqualifications—a third presidential term—without any possibility of review by the courts.

Perhaps worse, a bare partisan majority, freed from any possible judicial scrutiny, also could improperly and expansively torture the meaning of “giv[ing] aid or comfort to the enemies [of the Constitution]” in Section 3 of the Fourteenth Amendment to disqualify many citizens from running for or serving in Congress or “any office, civil or military, under the United States, or under any State.” Among others, “Judges of the Supreme Court” are “officers of the United States.” U.S. Const. art. II, § 2, cl. 2. An unreviewable Congress could disqualify a President, cabinet member, Justice, or anyone holding another covered federal or state position—including long after assuming office. Congress would have no reason to use the impeachment process, with its now-pointless requirement of a two-thirds concurrence in the Senate to convict.

Nothing could be more contrary to federalism and separation of powers than giving a bare majority in Congress such partisan power with no possibility of veto or review by this Court. The Constitution “divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.” New York v. United States, 505 U.S. 144, 187 (1992). This is especially prudent in our divided era, where members of Congress routinely censure each other, vote against confirming Justices on partisan grounds, and vote on impeachment on party lines.

II. THE FAIR MEANING OF SECTION 3 DISQUALIFIES FORMER PRESIDENT TRUMP.

A. Section 3 Must Be Accorded Its Fair Meaning, Not A Narrow Construction

The “textualist’s touchstone” is to give every constitutional provision its “fair meaning.” A. Scalia & B. Garner, Reading Law 356 (2012) (“Reading Law”) (emphasis in original). A narrow construction to promote judicial restraint is just as bad as an “unreasonably . . . enlarged” construction. Id. at 355-56. Scalia and Garner approvingly quote Justice Story that it is forbidden to narrowly construe a constitutional provision “‘as if it were subversive of the great interests of society, or derogated from the inherent sovereignty of the people.’” Id. at 355 (quoting 1 J. Story, Commentaries on the Constitution of the United States § 423, at 300 (2d ed. 1858)). Every provision of the Constitution is part of “the supreme Law of the Land,” U.S. Const. art. VI, cl. 2, not the inferior law of the land.

The duty to use “fair meaning” is especially compelling for Section 3 of the Fourteenth Amendment for two reasons. First, Section 3 has life only because it applies fully to those who violate its terms and still retain or regain enough popularity potentially to be elected or be appointed by elected officials. Section 3 would be a dead letter if the Court refused to apply it because an insurrectionist had popularity with large numbers of voters. Just as “it is not the role of this Court to pronounce the Second Amendment extinct,” District of Columbia v. Heller, 554 U.S. 570, 636 (2008), it is not the role of this Court to render Section 3 extinct.

President Donald J. Trump won the Iowa caucuses with the largest margin ever for a non-incumbent and the New Hampshire primary with the most votes of any candidate from either party. He is the presumptive Republican nominee and the leading candidate for President of the United States. In our system of “government of the people, by the people, [and] for the people,”1 the American people—not courts or election officials— should choose the next President of the United States. As this Court has explained: “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Reynolds v. Sims, 377 U.S. 533, 555 (1964).

Yet at a time when the United States is threatening sanctions against the socialist dictatorship in Venezuela for excluding the leading opposition candidate for president from the ballot,2 respondent Anderson asks this Court to impose that same anti-democratic measure at home. To date, at least 60 state and federal courts throughout the country have refused to remove President Trump from the ballot. The Colorado Supreme Court is the lone outlier, and this Court should reverse, for the reasons below, and protect the rights of the tens of millions of Americans who wish to vote for President Trump.

-- 02/05/24: REPLY BRIEF FOR THE PETITIONER

In February of 1861, delegates from seceding states convened in Montgomery, Alabama, formed the Confederate States of America, and elected Jefferson Davis president. They drafted a constitution that, as the Confederacy’s vice president Alexander H. Stephens proclaimed, established that “subordination to the superior race” is the “natural and moral condition” of Africans and their descendants....

-- 01/29/24: BRIEF OF AMICI CURIAE AMERICAN HISTORIANS IN SUPPORT OF RESPONDENTS

The congressional debates over amnesty demonstrate that decision-makers in Congress regarded Section 3 as disqualifying insurrectionists like Jefferson Davis, who had previously sworn to support the U.S. Constitution, from running for President, among other federal offices. The fervently partisan, anti-Confederate Republicans who crafted, backed, and voted for Section 3 worried that if the Amnesty Act of 1872 included Jefferson Davis, the lifting of his Section 3 disqualification would enable him to run for President on the Democratic ticket. During debates over the Act, Republican Senator James Flanagan of Texas advocated for excluding Davis from amnesty on this ground. He said:

“Now, sir, be it remembered that Jefferson Davis is living. He is not numbered with the dead. I think I understand the spirit of the South. I think I comprehend to some extent (for the man does not live who does comprehend to the whole extent) the intention of the Democrats of the country. If the disabilities of Jefferson Davis were removed, the Democrats would not find it necessary to ask the Congress of the United States to incorporate an additional amendment in the fundamental law to enable them to go broadcast throughout the civilized world to find candidates for the Presidency and Vice Presidency. No, sir; they would go no further than Jefferson Davis.”

-- 01/26/24: BRIEF FOR PROFESSORS ORVILLE VERNON BURTON, ALLAN J. LICHTMAN, NELL IRWIN PAINTER, JAMES M. MCPHERSON, MANISHA SINHA, ET AL. AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

Second, the Civil War generation recognized that what started as an insurrection in a single state—the secession of South Carolina in December 1860—had metastasized into a Civil War. See The Brig Amy Warwick (The Prize Cases), 67 U.S. 635, 666 (1862) (“a civil war always begins by insurrection”). “More than 620,000 soldiers lost their lives in four years of conflict—360,000 Yankees and at least 260,000 rebels.” J. McPherson, Battle Cry of Freedom 854 (1988) (“Battle Cry”). Section 3 of the Fourteenth Amendment was the Civil War generation’s powerful deterrent to ensure that even an at-first localized insurrection would never again happen. See, e.g., Cong. Globe, 39th Cong., 1st Sess. 2918 (May 31, 1866) (Sen. Willey) (Section 3 “is a measure of self-defense. . . . [L]ooking to the future peace and security of the country.”). That deterrent worked for over 150 years. The task of interpreting that deterrent commands respect.

Finally, there are no special interpretive rules for the many constitutional provisions that render millions of citizens unable to be President, or to hold other federal offices. R. Bernstein, “Lots of People Are Disqualified from Becoming President,” Atlantic (Feb. 4, 2021).4 Section 3 and these other provisions are not improperly anti-democratic, but rather they set forth foundational rules of the Republic adopted by the People through ratification.

Indeed, the Electoral College is a similar foundational rule. The Electoral College has prevented the People’s first choice—the winner of the national popular vote— from being President five times (1824, 1876, 1888, 2000, and 2016).

Not much would remain of our Constitution if this Court narrowly enforced the Constitution’s provisions when they potentially frustrate large numbers of voters. The Electoral College, separation of powers, bicameralism, six-year rotating terms for Senators, judicial review, the First Amendment, the Second Amendment, and the many Amendments protecting criminal defendants—and much more—often lead to binding results that are contrary to the majority preferences of voters in many states and nationwide.

B. The “President Of The United States” Is An “[O]fficer of the United States.”

This brief will not repeat the overwhelming support that in 1868—the pertinent time—there was widespread understanding that “the President of the United States,” U.S. Const. art. II, § 1, cl. 1 (emphasis added), is an “officer of the United States.” See, e.g., Pet. App. at 70a-76a, ¶¶ 144- 160; J. Heilpern & M. Worley, Evidence that the President Is an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment (Jan. 1, 2024);5 1 J. Kent, Commentaries on American Law 334 (11th ed. 1866) (“The President is the great responsible officer for the faithful execution of the law . . . .” (emphasis added)).

Mr. Trump never disputes that the President is an “officer.” See Pet’r’s Br. at 24. Indeed, Mr. Trump concedes that the “Presidency is obviously an ‘office’” and the President is an “officeholder[].” Id. at 25-26, 28. His entire argument is “that the president is not an ‘officer of the United States.’” Id. at 20. But Article II does not define the President as merely “the president” full stop. The first sentence of Article II instead refers to the “President of the United States of America.” (Emphasis added).6 Given that there is no dispute that the President is an officer, the President must be an officer “of the United States of America.” Mr. Trump never suggests any other entity of which the President is an officer.

Mr. Trump’s brief, at 20-21, misplaces reliance on the use of “Officers of the United States” in three clauses of the Constitution as ratified in 1788. To start, others have demonstrated that these clauses support affirmance or are distinguishable. See, e.g., Anderson Br. at 39-43; R. Parloff, What Scalia Thought About Whether Presidents Are “Officers of the United States,” Lawfare (Jan. 24, 2024);7 Samuel Bray, “Officer of the United States” in Context, Reason (Jan. 22, 2024);8 Amar Amici Br. at 18- 21. Moreover, “context” means that “the same word or phrase” may have different interpretations in different documents. Reading Law, at 323.

Most important, Section 3 of the Fourteenth Amendment must be interpreted in light of “the understandings of those who ratified it.” N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 28 (2022). The understanding of Section 3’s terms around 1868 is dispositive because, as Reading Law recognizes, over time, words and phrases have “shifts in meaning.” Reading Law, at 419. This “historical development of word-senses” is why this seminal treatise has different listings for different groups of dictionaries for every 50-year period starting with “1750-1800” through “2001-present.” Id. at 419-25.

Ultimately, Mr. Trump is wrong, and former Vice President Pence was right. On January 6, 2021, when Vice President Pence refused to violate “my oath,” he wrote: “The President is the chief executive officer of the Federal Government under our Constitution.”9

C. The January 6, 2021 Armed Attempt To Prevent The Peaceful Transfer Of Executive Power Was An “Insurrection . . . Against The” Constitution.

Mr. Trump avoids addressing whether, on January 6, 2021, there was “an insurrection . . . against” “the Constitution of the United States.” There was. Mere political violence—such as violence connected with a KKK or BLM rally—is not, without more, “an insurrection . . . against” the Constitution. But here there was much more. The Colorado Supreme Court correctly held that there was an insurrection because there was a threatened and actual violent armed attempt by a large group of people “to preclude Congress from taking the actions necessary to accomplish a peaceful transfer of [executive] power.” Pet. App. at 86a-89a, ¶¶ 184-189.

The peaceful transfer of executive power is not merely a norm or tradition. It is the foundational mandate of Article II of the Constitution. Section 1, Clause 1 of Article II, often called the Executive Vesting Clause, provides:

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows.

(Emphases added.)

As Edmund Randolph explained to the Virginia Ratifying Convention, this Executive Vesting Clause meant that a sitting President “may [not] hold his office without being reelected. He cannot hold it over four years, unless he be reelected, any more than if he were prohibited” from running for reelection to a second term. 3 The Debates in the Several State Conventions 486 (J. Elliot ed., 2d ed. 1836). Randolph stated that a President who loses re-election is “displaced at the end of the four years” by the Executive Vesting Clause. Id. And both Article II, Section 1, Clause 3 and the Twelfth Amendment state that when the electoral votes are “open[ed]” in Congress “and the votes shall then be counted,” whichever candidate has “a majority of the whole number of Electors appointed,” that candidate “shall be the President.”

As Chief Justice Marshall put it, “the president is elected from the mass of the people and, on the expiration of the time for which he is elected, returns to the mass of the people again.” United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (Marshall, Circuit Judge) (emphasis added). The Twentieth Amendment reiterates the mandate that a President must peacefully relinquish power to his or her successor: “The terms of the President and Vice President shall end at noon on the 20th day of January . . . ; and the terms of their successors shall then begin.”

January 6, 2021 saw an insurrection against the Constitution because there was a threatened and actual use of armed force to thwart the counting of electoral votes that is mandated by the Twelfth Amendment, as part of the transfer of executive power that is required by the Executive Vesting Clause and the Twelfth and Twentieth Amendments. Accord Ilya Somin, Insurrection, Rebellion, and January 6: Rejoinder to Steve Calabresi, Reason (Jan. 6, 2024).10 First, the ultimate aim of the insurrection was to extend Mr. Trump’s time as President beyond the four-year termination required by those constitutional provisions. “To justify and check” the President’s “unique [authority] in our constitutional structure,” Article II “render[s] the President directly accountable to the people through regular elections.” Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2203 (2020). The transfer of executive power after an incumbent President loses ensures “that here, We the People rule.” Chiafalo, 140 S. Ct. at 2328. As George Washington’s Farewell Address stated, it would “destroy[]” our constitutional system if “cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government.” Washington’s Farewell Address, at 14 (1796).11

Second, the January 6, 2021 insurrection sought to prevent the vesting of the authority and functions of the Presidency in the newly-elected President. The Civil War generation certainly understood that the threat and use of force to prevent a newly-elected President from exercising executive power is an insurrection. Indeed, the activities of federal officials to prevent Lincoln’s inauguration were one basis for Section 3 of the Fourteenth Amendment. See Amar Amici Brief, at 6-16.

Moreover, “[t]he event that precipitated secession was the election of a president by a constitutional majority.” Battle Cry, at 248. On Nov. 10, four days after Lincoln won, South Carolina’s legislature called a convention to consider secession, and both of South Carolina’s U.S. Senators resigned.12 South Carolina seceded on December 20, 1860. That insurrection was 20 days before the next state seceded, see Battle Cry, at 235, and ten days before South Carolinians seized the federal arsenal at Charleston, see Chronology. The South Carolina convention’s Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union objected to:

the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery. He is to be entrusted with the administration of the common Government, because he has declared that that [sic] “Government cannot endure permanently half slave, half free,” and that the public mind must rest in the belief that slavery is in the course of ultimate extinction.13

(Emphasis added.)

As on January 6, 2021, the December 20, 1860 insurrection in South Carolina was against the forthcoming transfer of executive power to a newly-elected President. The basis of secession was not antipathy towards Congress. Republicans would not control either chamber of Congress until much later, in 1861 after secessionist Senators and representatives resigned. Before these resignations, one of the anti-secession arguments in the South was to negotiate because “it will be several years” before Republicans would control Congress. See Battle Cry, at 245-46 (quotations and citation omitted). And Chief Justice Roger Taney, a friend of slavery, still controlled the U.S. Supreme Court.

Of course, the cause of secessionists was uniquely odious—to protect slavery. But, in one geographical sense, Mr. Trump’s insurrection against the Executive Vesting Clause and the Twelfth and Twentieth Amendments was broader than the South Carolina insurrection that triggered the Civil War. Mr. Trump tried to prevent the newly-elected President Biden from governing anywhere in the United States. The South Carolina secession prevented the newly-elected President Lincoln from governing only in that State. The threat or use of armed force to prevent a newly-elected President from exercising executive power, whether on December 20, 1860 or January 6, 2021, is an insurrection against the Constitution.

D. Mr. Trump “Engaged In” The Insurrection.

Mr. Trump “engaged in” the insurrection because (1) inciting constitutes engaging in and (2) Mr. Trump incited the threat and use of violent force as his last opportunity to stop the peaceful transfer of executive power.

First, Attorney General Stanbery informed Congress that “inciting others to engage,” whether “by speech or by writing,” requires “disqualification.” The Reconstruction Acts, 12 Op. Att’y Gen. 182, 205 (1867); The Reconstruction Acts, 12 Op. Att’y Gen. 141, 164 (1867). This reflected well-known legal principles, applicable to treason among other crimes, that a person “is in law guilty of the forcible act” for “counselling” or “instigating others to perform” the violent act itself. In re Charge to Grand-Jury Treason, 30 F. Cas. 1047, 1048 (C.C.E.D. Pa. 1851). The Civil War generation surely understood that the insurrectionists included instigators of the seizing of federal forts or the firing on Fort Sumter, even if they let others do the fighting.

Second, even under de novo review and a clear-and-convincing evidence standard, Mr. Trump had the intent that the armed mob, at the very least, threaten physical force on January 6, 2021 in response to his speech on the Ellipse. Among other reasons this is clear and convincing is that Mr. Trump knew he had exhausted all his other options and yet still insisted he would remain President.

By December 14, 2020, (1) the electors certified by state officials had cast 306 electoral votes for Joe Biden; (2) this Court had refused to intervene, see Texas v. Pennsylvania, 141 S. Ct. 1230 (Dec. 11, 2020); and (3) the supreme courts in all six swing states had rejected Mr. Trump’s claims.14 On December 18, Mr. Trump was told by White House staff that his court challenges had failed. Ex. 78 (finding 171).15 The next day, Mr. Trump issued his first tweet summoning his supporters en masse to Washington on January 6, 2021: “Big protest in D.C. on January 6. Be there, will be wild.” Pet. App. at 93a, ¶ 202. He repeated this summons “at least twelve times.” Id. at 94a, ¶ 204.

Mr. Trump’s campaign to sway Republican officials to reverse his loss also had failed before his January 6 speech on the Ellipse. On December 26, 2020, Mr. Trump himself tweeted that “Mitch [McConnell] & the Republicans do NOTHING, just want to let it pass. NO FIGHT!” Id. ¶ 205. Mr. Trump’s efforts with state Republican governors, elected officials, and legislators, id. at 92a ¶ 198, had failed to produce anything. See Ex. 78 (findings 75, 121, 180, 196, 210). Mr. Trump’s own appointees at the Department of Justice had refused to support, and indeed contradicted, his false accusations of election fraud. Id. (finding 121).

Perhaps most important, before the speech on the Ellipse, Vice President Pence had told an angry Mr. Trump that morning that Pence would not stop the congressional certification of Joe Biden. Id. (finding 321). Mr. Trump’s response was to try to scare Vice President Pence with mob force. Mr. Trump primed the Ellipse crowd by warning that if Vice President Pence did not relent, “I’m going to be very disappointed in you. I will tell you right now. I’m not hearing good stories.” Pet. App. at 223a-226a, ¶ 135. Mr. Trump specifically instructed the crowd four times with respect to Joe Biden’s becoming President for “four more years. We’re just not going to let that happen.” Pet. App. at 227a-228a, ¶ 138.

After the speech, Mr. Trump continued his incitement, tweeting one hour and three minutes after being informed that the Capitol was under attack: “Mike Pence didn’t have the courage . . . .” Pet. App. at 98a, ¶ 215. This tweet by itself immediately caused more violence at the Capitol. Id. ¶ 216. Mr. Trump told his staff that perhaps Vice President Pence “deserved to be hanged.” Id. ¶ 218.

Ultimately, this case has a virtual confession. On December 3, 2022, Mr. Trump posted that his unfounded accusation of widespread election fraud “allows for the termination of all rules, regulations, and articles, even those found in the Constitution.” J.A. 1332 (emphasis added). He had said much the same in his January 6, 2021 speech on the Ellipse: “When you catch somebody in a fraud, you’re allowed to go by very different rules.” Pet. App. at 97a, ¶ 213. Mr. Trump deliberately tried to break the Constitution—to incite threatened and actual armed force to prevent the peaceful transfer of executive power mandated by the Executive Vesting Clause and the Twelfth and Twentieth Amendments. That constituted engaging in an insurrection against the Constitution.16

CONCLUSION

This Court should affirm.

January 29, 2024

Respectfully submitted, 

Matthew W. Edwards
1300 19th Street NW, Suite 300
Washington, DC 20036

Nancy A. Temple
Katten & Temple, LLP
209 S. LaSalle Street, Suite 950
Chicago, IL 60604

Richard D. Bernstein
Counsel of Record
1875 K Street NW, Suite 100
Washington, DC 20006
(301) 775-2064
rbernsteinlaw@gmail.com

Counsel for Amici Curiae

APPENDIX

TABLE OF APPENDICES

APPENDIX A — LIST OF AMICI CURIAE . . . . . . 1a

APPENDIX A — LIST OF AMICI CURIAE* [The views expressed are solely those of the individual amici and not any organization or employer. For each amicus, reference to prior and current position is solely for identification purposes.]

Charles Stevenson Abbot, Admiral, United States Navy (Retired), Deputy Commander, United States European Command, 1998-2000; Deputy Homeland Security Advisor, 2001-2003.

Donald Ayer, Deputy Attorney General, 1989-1990; Principal Deputy Solicitor General, 1986-88; United States Attorney, Eastern District of California, 1982-1986; Assistant United States Attorney, Northern District of California, 1977-1979.

Louis E. Caldera, United States Secretary of the Army, 1998-2001; Director of the White House Military Office, 2009; President, University of New Mexico, 2003- 2006; California State Assembly member, 1992-1997; United States Army officer, 1978-1983; currently Senior Lecturer of Business Administration, Harvard Business School.

George Conway, Board President, Society for the Rule of Law; argued Morrison v. National Australian Bank, Ltd., 561 U.S. 247 (2010).

Eric Edelman, Under Secretary of Defense for Policy, 2005-2009; Principal Deputy Assistant to the Vice President for National Security Affairs, 2001-2003.

Mickey Edwards, Representative of the Fifth Congressional District of Virginia, United States House of Representatives, 1977-1993; founding trustee of the Heritage Foundation and former national chairman of both the American Conservative Union and the Conservative Political Action Conference.

Stuart M. Gerson, Acting Attorney General, 1993; Assistant Attorney General for the Civil Division, 1989–1993; Assistant United States Attorney for the District of Columbia, 1972–1975.

John Giraudo, Attorney Advisor, Office of Legal Counsel, 1986-1988; Associate Deputy Secretary of Labor, December 1986-1988.

Peter Keisler, Acting Attorney General, 2007; Assistant Attorney General for the Civil Division, 2003- 2007; Principal Deputy Associate Attorney General and Acting Associate Attorney General, 2002-2003; Assistant and Associate Counsel to the President, The White House, 1986-1988.

J. Michael Luttig, Circuit Judge, United States Court of Appeals, 1991-2006; Assistant Attorney General, Office of Legal Counsel and Counselor to the Attorney General, 1990-1991; Assistant Counsel to the President, The White House, 1980-1981.

John M. Mitnick, General Counsel, United States Department of Homeland Security, 2018-2019; Associate Counsel to the President, The White House, 2005-2007; Deputy Counsel, Homeland Security Council, The White House, 2004-2005; Associate General Counsel for Science and Technology, United States Department of Homeland Security, 2003-2004; and Counsel to the Assistant Attorney General (Antitrust), United States Department of Justice, 2001-2002.

Jonathan C. Rose, Assistant Attorney General, Office of Legal Policy, 1981-1984; Deputy Assistant Attorney General, Antitrust Division, 1975-1977; Associate Deputy Attorney General and Director, Office of Justice Policy and Planning, 1974-1975; General Counsel, Council on International Economic Policy, 1972-1974; Special Assistant to the President, 1971-1972; White House Staff Assistant, 1969-1971.

Paul Rosenzweig, Deputy Assistant Secretary for Policy, Department of Homeland Security, 2005-2009; Office of Independent Counsel, 1998-1999; United States Department of Justice, 1986-1991; currently Professorial Lecturer in Law, The George Washington University Law School.

Nicholas Rostow, General Counsel and Senior Policy Adviser to the U.S. Permanent Representative to the United Nations, New York, 2001-2005; Special Assistant to the President for National Security Affairs and Legal Adviser to the National Security Council, 1987-1993; Special Assistant to the Legal Adviser, U.S. Department of State, 1985-1987; currently, Senior Research Scholar at Yale Law School.

Robert Shanks, Deputy Assistant Attorney General, Office of Legal Counsel, 1981-1984.

Christopher Shays, Representative of the Fourth Congressional District of Connecticut in the United States House of Representatives, 1987- 2009

Larry Thompson, Deputy Attorney General, 2001- 2003; Independent Counsel to the Department of Justice, 1995-1998; United States Attorney for the Northern District of Georgia, 1982-1986; currently, John A. Sibley Chair of Corporate and Business Law at University of Georgia Law School.

Stanley Twardy, United States Attorney for the District of Connecticut, 1985–1991.

Wendell Willkie, II, Associate Counsel to the President, 1984-1985; Acting Deputy Secretary, U.S. Department of Commerce, 1992-1993; General Counsel, U.S. Department of Commerce, 1989-1993; General Counsel, U.S. Department of Education, 1985-1988; currently, adjunct Professor of Law at New York University and adjunct fellow at the American Enterprise Institute.

Richard Bernstein, Appointed by the United States Supreme Court to argue in Carmell v. Texas, 529 U.S. 513, 515 (2000); Montgomery v. Louisiana, 136 S. Ct. 718, 725 (2016).
_______________

Notes:

1. Amici state that no counsel for any party authored this brief  in whole or in part, and that no entity, other than amici and their  counsel, made any monetary contribution toward the preparation  or submission of this brief.

2. Congress has the power to make “Exceptions” and  “Regulations” to this Court’s appellate jurisdiction. U.S. Const. art.  III, § 2, cl. 2. Congress has not done either concerning presidential  disqualifications. See 28 U.S.C. § 1257.

3. Available at https://www.washingtonpost.com/context/ ... 2b0a-f931-  4e0c-8bac-c82f13c2dd6f/ (last visited Jan. 15, 2024).

4. Available at https://www.theatlantic.com/ideas/  archive/2021/02/ trump-disqualification-president/617908/ (last  visited Jan. 13, 2024).

5. Available at https://papers.ssrn.com/sol3/ Delivery.cfm/  SSRN_ID4681108_code2677999.pdf?abstractid=4681108&mirid=1.

6. Art, I, § 3, cl. 4 likewise refers to “[t]he Vice President of  the United States.”

7. Available at https://www.lawfaremedia.org/article/wh ... ted-states.

8. Available at https://reason.com/volokh/2024/01/22/of ... n-context/.

9. Available at https://int.nyt.com/data/documenttools/ ... 8d66f/full. pdf.

10. 1Available at https://reason.com/volokh/2024/01/06/  insurrection-rebellion-and-january-6-rejoinder-to-stevecalabresi/?itm_source=parsely-api.

11. 11. Available at https://www.govinfo.gov/content/pkg/GPO ... sdoc21.pdf.

12. Chronology of Events Leading to Secession Crisis,  American Historical Association, https://www.historians.org/  teaching-and-learning/teaching-resources-for-historians/sixteenmonths-to-sumter/ chronology (“Chronology”) (last visited Jan. 12,  2024).

13. Available at https://www.learningforjustice.org/clas ... -secession (last visited Jan. 12, 2024).

14. See, e.g., Trump v. Biden, 951 N.W.2d 568, 571-72 (Wis. Dec.  14, 2020) (rejecting challenge concerning indefinitely confined voters  as “wholly without merit”); Trump v. Raffensperger, No. S21M0561  (Ga. Sup. Ct. Dec. 12, 2020) (rejecting writ of certiorari); Johnson  v. Sec’y of State, 951 N.W.2d 310 (Mich. Dec. 9, 2020) (“[T]he Court is not persuaded that it can or should grant the requested relief.”);  Ward v. Jackson, No. CV-20-0343, 2020 WL 8617817, at *2 (Ariz.  Dec. 8, 2020) (unanimously rejecting claims of “misconduct,” “illegal  votes,” and “fraud”); Law v. Whitmer, No. 82178, 477 P.3d 1124 (Nev.  Dec. 8, 2020) (unanimously affirming detailed trial court rejection of  election contest); In re Canvassing Observation, 241 A.3d 339, 350  (Pa. Nov. 17, 2020) (rejecting statutory claims because “[i]t would be  improper for this Court to judicially rewrite the statute by imposing  [observer] distance requirements where the legislature has, in the  exercise of its policy judgment, seen fit not to do so”); In re Canvass  of Absentee and Mail-In Ballots of Nov. 3, 2020 Gen. Election, No.  31 EAP 2020, 241 A.3d 1058 (Pa. Nov. 23, 2020) (rejecting statutory  claims seeking to disqualify signed mail-in or absentee ballots timely  received by November 3, 2020).

15. Ex. 78 contains findings from the Final Report of the House  Select Committee to Investigate the January 6th Attacks that the  trial court admitted into evidence.

16. Mr. Trump has no First Amendment defense. First, the  imminent violence and his intent satisfy Brandbenburg v. Ohio,  395 U.S. 444 (1969). Second, and independently, Brandenburg does  not limit the express constitutional provisions that govern who may  hold office, including the impeachment provisions and Section 3. See  P. Keisler & R. Bernstein, Freedom of Speech Doesn’t Mean What  Trump’s Lawyers Want It to Mean, Atlantic (Feb. 8, 2021), https://  www.theatlantic.com/ideas/archive/2021/02/first-amendment-nodefense-against-impeachment/617962/ (last visited Jan. 12, 2024).

[admin]

https://www.supremecourt.gov/DocketPDF/ ... Merits.pdf

No. 23-719
In the Supreme Court of the United States
_____________

DONALD J. TRUMP, PETITIONER
v.
NORMA ANDERSON, ET AL., RESPONDENTS
_____________

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF COLORADO
____________

REPLY BRIEF FOR THE PETITIONER
_____________

DAVID A. WARRINGTON
JONATHAN M. SHAW
GARY M. LAWKOWSKI
Dhillon Law Group Inc.
2121 Eisenhower Avenue
Suite 608
Alexandria, VA 22314
(703) 574-1206
dwarrington@dhillonlaw.com
jshaw@dhillonlaw.com
glawkowski@dhillonlaw.com

HARMEET DHILLON
Dhillon Law Group Inc.
177 Post Street, Suite 700
San Francisco, CA 94108
(415) 433-1700
harmeet@dhillonlaw.com

JONATHAN F. MITCHELL
Counsel of Record
Mitchell Law PLLC
111 Congress Avenue
Suite 400
Austin, Texas 78701
(512) 686-3940
jonathan@mitchell.law

SCOTT E. GESSLER
Gessler Blue LLC
7350 East Progress Place
Suite 100
Greenwood Village, CO 80111
(720) 839-6637
sgessler@gesslerblue.com

Counsel for the Petitioner

TABLE OF CONTENTS

Table of contents ................................................................... i
Table of authorities .............................................................. ii
I. The president is not an “officer of the United States” ........................................................... 2
II. President Trump did not “engage in insurrection” ............................................................ 14
III. Section 3 should be enforced only through Congress’s chosen methods of enforcement ........ 19
IV. Section 3 cannot be used to deny President Trump access to the ballot ..................................... 20
V. The Colorado Supreme Court violated the Electors Clause and the Colorado Election Code .......................................................................... 24
Conclusion ............................................................................ 25
TABLE OF AUTHORITIES
Brandenburg v. Ohio, 395 U.S. 444 (1969) ....................... 17
Chiafalo v. Washington, 140 S. Ct. 2316 (2020) ............... 23
City of Boerne v. Flores, 521 U.S. 507 (1997) .................... 6
City of Houston v. Hill, 482 U.S. 451 (1987) .................... 18
Franklin v. Massachusetts, 505 U.S. 788 (1992) ............. 14
Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010) ....... 8
Hassan v. Colorado, 495 F. App’x 947 (10th Cir. 2012) .................................................................................. 21
Hess v. Indiana, 414 U.S. 105 (1973) ................................ 15
Maine Community Health Options v. United States, 140 S. Ct. 1308 (2020) ........................................... 7
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ......... 7
Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1 (1981) ....................... 19
Million Youth March, Inc. v. Safir, 63 F. Supp. 2d 381 (S.D.N.Y. 1999) ......................................................... 16
Morrison v. Olson, 487 U.S. 654 (1988) .............................. 4
Murphy v. Smith, 583 U.S. 220 (2018) ................................ 7
National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) ........................................... 5
Reynolds v. Sims, 377 U.S. 533 (1964) ................................ 2
Russello v. United States, 464 U.S. 16 (1983) .................... 5
Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006) ................................................................... 21
U.S. Bank National Ass’n ex rel. CWCapital Asset Management LLC v. Village at Lakeridge, LLC, 583 U.S. 387 (2018) .......................................................... 18
United States v. Arthrex, Inc., 141 S. Ct. 1970 (2021) ................................................................................... 4
United States v. Mouat, 124 U.S. 303 (1888) ................... 12
United States v. Smith, 124 U.S. 525 (1888) .................... 12
United States v. Texas, 599 U.S. 670 (2023) ..................... 16
Watts v. United States, 394 U.S. 705 (1969) ..................... 15
Statutes
2 U.S.C. § 25 ........................................................................... 5
2 U.S.C. § 287a ..................................................................... 10
3 U.S.C. § 19 ........................................................................... 3
18 U.S.C. § 2383 ................................................................... 20
1 Stat. 23 ............................................................................... 11
Colo. Rev. Stat. § 1-4-1203(2)(a) ......................................... 24
Md. Code, Election Law Code § LAW 8-505 ..................... 5
Constitutional Provisions
U.S. Const. amend. XVII ..................................................... 8
U.S. Const. amend. XXII ..................................................... 8
U.S. Const. art. I, § 2, cl. 2 ............................................. 8, 21
U.S. Const. art. I, § 2, cl. 5 ............................................. 3, 10
U.S. Const. art. I, § 3, cl. 2 ................................................. 21
U.S. Const. art. I, § 3, cl. 5 ................................................... 3
U.S. Const. art. I, § 6, cl. 2 ......................................... 8, 9, 13
U.S. Const. art. II, § 1, cl. 1 .................................................. 8
U.S. Const. art. II, § 1, cl. 6 .............................................. 3, 8
U.S. Const. art. II, § 1, cl. 7 .................................................. 8
U.S. Const. art. II, § 2, cl. 2 ............................................ 8, 10
U.S. Const. art. II, § 2, cl. 3 ................................................ 10
U.S. Const. art. II, § 3 ........................................................... 3
U.S. Const. art. II, § 3 ........................................................... 7
U.S. Const. art. II, § 4 ........................................................... 3
U.S. Const. art. VI, cl. 3 .................................................. 5, 11
Rules
8 Colo. Code Regs. § 1505-1-24 ............................................ 5
Other Authorities
Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 Stan. L. Rev. 113 (1995) ............................................... 3
Black’s Law Dictionary (11th ed. 2019) ............................ 17
Regina Garcia Cano, US Government Pulls Some of Venezuela’s Sanctions Relief After Court Blocks Opposition Candidate, Associated Press (Jan. 29, 2024) .................................................................... 2
Karine Jean-Pierre, Press Secretary, Press Briefing at The White House (Jan. 29, 2024) ................ 2
Abraham Lincoln, Gettysburg Address (Nov. 19, 1863) .................................................................................... 1
Michael W. McConnell, Is Donald Trump Disqualified from the Presidency? A Response to Matthew J. Franck, Public Discourse (Jan. 18, 2024), http://bit.ly/49i9spw ............................................. 15

In the Supreme Court of the United States
_____________

No. 23-719

DONALD J. TRUMP, PETITIONER
v.
NORMA ANDERSON, ET AL., RESPONDENTS
_____________

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF COLORADO
_____________

REPLY BRIEF FOR THE PETITIONER
____________

President Donald J. Trump won the Iowa caucuses with the largest margin ever for a non-incumbent and the New Hampshire primary with the most votes of any candidate from either party. He is the presumptive Republican nominee and the leading candidate for President of the United States. In our system of “government of the people, by the people, [and] for the people,”1 the American people—not courts or election officials— should choose the next President of the United States. As this Court has explained: “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Reynolds v. Sims, 377 U.S. 533, 555 (1964).

Yet at a time when the United States is threatening sanctions against the socialist dictatorship in Venezuela for excluding the leading opposition candidate for president from the ballot,2 respondent Anderson asks this Court to impose that same anti-democratic measure at home. To date, at least 60 state and federal courts throughout the country have refused to remove President Trump from the ballot. The Colorado Supreme Court is the lone outlier, and this Court should reverse, for the reasons below, and protect the rights of the tens of millions of Americans who wish to vote for President Trump.

I. THE PRESIDENT IS NOT AN “OFFICER OF THE UNITED STATES”

Section 3 contains two reticulated lists of officers and offices, neither of which expressly mentions the president. Anderson would have us believe that the presidency is tacitly subsumed within generic catch-all phrases such as “officer of the United States” and “office … under the United States.” But she cannot overcome the overwhelming textual and structural evidence that “officer of the United States,” as used throughout the Constitution, refers only to appointed and not elected officials. And her arguments that the presidency qualifies as an “office … under the United States” also fail to persuade.

1. Anderson insists that every person who holds a “federal office” is an “officer of the United States.” See Anderson Br. 35 (“[T]he holder of a federal office is an “officer of the United States.”); id. at 36–37 (citing opinions of Attorney General Stanberry). That is wrong because the Speaker of the House and President Pro Tempore of the Senate are “officers” and hold “federal offices,” 3 yet they cannot be “officers of the United States” because they are not subject to impeachment4 and are not commissioned by the president.5 Unless Anderson is prepared to jettison Blount’s Case and subject the Speaker and President Pro Tempore to impeachment, she must concede that “officers of the United States” refers only to a subset of federal officeholders. And the only sensible construction of this phrase—in light of the Appointments Clause, the Commissions Clause, and the Impeachment Clause—is that “officers of the United States” refers to appointed federal officials and excludes elected individuals such as the Speaker, the President Pro Tempore, and the President and Vice President.6

Anderson reiterates her claim that section 3 establishes “symmetry in pairing barred offices with excluded individuals.” Anderson Br. 35. That is wrong because: (1) “Member of Congress” sweeps more broadly than “Senator or Representative in Congress”;7 (2) Section 3 prohibits disqualified individuals from serving in the Electoral College, without disqualifying former electors who engaged in insurrection;8 and (3) The canons of construction counsel against giving equivalent meanings to differently phrased provisions, especially when Congress could have used identical wording in the lists of offices and officers.9 Anderson does not deny any of this, but she tries to get around these admitted asymmetries by observing that electors and non-voting “members” of Congress are not constitutionally required to swear or affirm their support of the Constitution. See U.S. Const. art. VI cl. 3; Anderson Br. 36 & n.10. But nonvoting delegates and resident commissioners have always sworn such an oath10 and many presidential electors do,11 even though Article VI does not require it. And section 3 turns on whether the oath was previously taken, not on whether it was constitutionally compelled. So Anderson cannot establish the “symmetry” that she insists upon, and she has no basis for demanding correspondence between the “officers of the United States” and those who hold an “office … under the United States.”

Anderson tries to get traction from nonconstitutional sources that describe the president as an “officer” in the colloquial sense of the word. See Anderson Br. 37–39. But none of this purports to interpret the meaning of “officer of the United States” in the Constitution.12 And none of it can alter or affect the constitutional meaning of this phrase. President Johnson cannot make the President into a constitutional “officer of the United States” by issuing a proclamation describing himself that way, any more than Congress can change the meaning of the Fourteenth Amendment by enacting a statute that purports to define its substantive reach. See City of Boerne v. Flores, 521 U.S. 507, 519–20 (1997). And no proclamation, floor statement, or court opinion can overcome the fact that elected officials—including the President, Vice President, and members of Congress—cannot be characterized as “officers of the United States” because: (1) They are not commissioned by the President; (2) They are not “appointed” pursuant to Article II; and (3) They are excluded from the “civil officers of the United States” described in the Impeachment Clause.

Anderson eventually gets around to addressing the Commissions Clause, the Appointments Clause, and the Impeachment Clause. See Anderson Br. 40–43. She claims that the Commissions Clause “means only that the President alone has the power to grant commissions,” 13 but that stance cannot be squared with the constitutional language. The Commissions Clause does not say: “[T]he President alone may Commission the Officers of the United States.” It says that the president “shall Commission all the Officers of the United States.” U.S. Const. art. II, § 3 (emphasis added). “Shall” means must,14 and “all” means every one.15 And when the Constitution requires every “officer of the United States” to be commissioned by the president, the contrapositive follows as a matter of logic: Anyone who is not constitutionally required to be commissioned by the President cannot be an “officer of the United States.” See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 157, 162 (1803) (holding that the issuance of a presidential commission is a legal prerequisite to a valid appointment).

Anderson tries to get around the Appointments Clause by observing that it requires the president and Senate to appoint only those officers “whose Appointments are not herein otherwise provided for.” Anderson Br. 40 (quoting U.S. Const. art. II, § 2). Then she insists that this caveat refers to the “appointments” of the President, Vice President, Speaker of the House, and President Pro Tempore of the Senate—which would make each of them into an “officer of the United States.” Id. This is wrong for many reasons.

First. The president is not “appointed” by the Electoral College; he is elected.16 And only an appointed and not an elected official can be an “officer of the United States.” See Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477, 497–98 (2010) (“The people do not vote for the ‘Officers of the United States.’ ” (quoting U.S. Const. art. II, § 2, cl. 2)). House and Senate members, for example, are elected rather than “appointed,”17 so they cannot qualify as “officers of the United States” under the “otherwise provided for” caveat.18 The Constitution consistently describes the President as elected and not appointed,19 and he cannot be regarded as an “officer of the United States” for the same reason.

Anderson’s stance also has implications for the Sinecure Clause, which says that “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States … [if] the Emoluments whereof shall have been encreased during such time.” U.S. Const. art. I, § 6, cl. 2 (emphasis added). If this Court holds that presidents and vice presidents are “appointed,” then any Senator who became president or vice president before the expiration of his six-year term will have served in violation of the Constitution if the president or vice president’s salary had increased during that Senate term but before his “appointment” to office. It would also empower Congress to strategically disqualify sitting Senators from the presidency by voting to increase the president’s salary by a small amount.

Second. Even if the President could somehow be described as an “appointed” rather than elected official, he still cannot be characterized as an “officer of the United States” under the “otherwise provided for” caveat because: (1) He does not receive a presidential commission; and (2) He is listed separately from “civil officers of the United States” in the Impeachment Clause. The Speaker of the House and the President Pro Tempore of the Senate likewise cannot be squeezed into the “otherwise provided for” caveat—even if one considers them “appointed” officials—because they are not commissioned by the president and cannot be impeached.20

Third. Anderson is wrong to claim that our interpretation leaves the “otherwise provided for” caveat without any work to do. See Anderson Br. 40. The Constitution “otherwise provide[s]” for the appointments of inferior officers21 and recess appointees,22 and this caveat refers (at the very least) to the appointments of these “officers of the United States,” who need not receive a presidential appointment with the Senate’s advice and consent. It could also refer to the appointment of legislative “officers” such as the House parliamentarian, who is unilaterally appointed by the Speaker pursuant to 2 U.S.C. § 287a and U.S. Const. art. I, § 2, cl. 5, although these officials cannot qualify as “officers of the United States” unless they are subject to impeachment and required to be commissioned by the President.

Anderson claims that the Impeachment Clause lists the president and vice president separately from “all civil Officers of the United States” to avoid confusion that might arise from the president’s role as both a “civil” and “military” officer. See Anderson Br. 41. But this does not explain why the Impeachment Clause omits the word “other” before “civil Officers of the United States,” and it cannot explain the separate enumeration of the vice president, who has no military responsibilities. The only plausible inference is the one drawn by Justice Story: That the president and vice president are listed separately from “all civil Officers of the United States” because they are not “officers of the United States.” Pet. Br. 21–22. And if Anderson wants to argue that the Impeachment Clause lists the president separately to “avoid . . . uncertainty” while simultaneously insisting that the president falls within the “civil Officers of the United States,” then she must explain why section 3 fails to explicitly mention the President as a covered officer given the many difficulties with characterizing the president as an “officer of the United States.”

Anderson observes that President Trump’s interpretation of “officers of the United States” will exempt the vice president from the oath requirement of Article VI. See Anderson Br. 41; U.S. Const. art. VI, cl. 3. But the first Congress enacted legislation requiring the vice president to swear the same oath as everyone else listed in Article VI. See 1 Stat. 23. And a statutory oath requirement can reach beyond those mentioned in Article VI. See 5 U.S.C. § 3331. So the absence of an explicit constitutional oath requirement for the vice president is no reason for concern, and is certainly no reason to force the president into the category of “officers of the United States.”

It is also hard to accept Anderson’s construction of “officer of the United States” when section 3 covers only those who swear an oath to “support” the Constitution. Anderson says that the presidential oath to “preserve, protect, and defend” is just another way of promising to “support” the Constitution. See Anderson Br. 43–44. But then she needs to explain why the drafters of section 3 would create this ambiguity by using the word “support”— and excluding any reference to the presidential oath—if the president were understood to be included as a covered officer.

Anderson is also wrong to say that President Trump’s interpretation of section 3 “def[ies] common sense.” See Anderson Br. 44–45. It was entirely sensible for section 3 to exclude the president as a covered “officer” because: (1) No ex-president supported the confederacy except John Tyler, who died in 1862;23 (2) Each of our 46 presidents, except George Washington and Donald Trump, would be covered by section 3 because they held a previous job listed in the amendment; and (3) Former presidents rarely seek election or appointment to office, and the overwhelming majority retire from public service. Indeed, Anderson’s construction of section 3 will allow the courts to eject a sitting president from office, apart from the impeachment process, if a court independently determines that he “engaged in insurrection” against the Constitution, even if Congress refuses to impeach and convict on that ground.

Finally, Anderson does not even mention United States v. Smith, 124 U.S. 525 (1888), or United States v. Mouat, 124 U.S. 303 (1888), which make clear that the president is not an “officer of the United States”—either under the Appointments Clause or under any federal statute using this phrase.24 A ruling that adopts Anderson’s construction of “officers of the United States” will overrule the interpretations adopted in Smith and Mouat.

2. Anderson describes the presidency as an “office” (which it undoubtedly is)25 and insists that “office … under the United States” encompasses every federal “office.” See Anderson Br. 34 (“ ‘[U]nder the United States’ … distinguish[es] federal offices from offices ‘under any State.’ ”). Anderson’s construction of “office … under the United States” is wrong. The Speaker of the House and President Pro Tempore of the Senate are “officers”26 who hold federal “offices.” But neither holds an “office … under the United States” because the Incompatibility Clause bars House and Senate members from “holding” such an office. See U.S. Const. art. I, § 6, cl. 2 (“[N]o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”).

Anderson says it is “clear” that “office … under the United States” includes the presidency,27 but the evidence is far from “clear.” See Amicus Br. of Professor Kurt T. Lash. The most troublesome evidence for Anderson is that section 3 does not mention the presidency or the vice presidency as covered “offices”—even though it specifically enumerates senators, representatives, and electors for president and vice president. And a draft of section 3 introduced by Representative Samuel McKee explicitly listed the presidency and vice presidency as “offices” closed to confederate rebels,28 yet this was rejected in favor of the enacted language, which omits any mention of the presidency and instead disqualifies individuals from serving as electors.

The Colorado Supreme Court tried to explain this by observing that senators, representatives, and electors do not hold “offices … under the United States” and therefore needed to be separately enumerated. Pet. App. 63a– 64a. But it was at least debatable whether that phrase would encompass the presidency,29 especially when the cognate phrase “officers of the United States” excludes the president every time it appears in the Constitution. Pet. Br. 20–33. So one would expect the text of section 3 to specifically mention the presidency in the list of enumerated offices rather than leave this matter to a contestable inference. Cf. Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992) (clear statement needed for statutory language to encompass the president).

II. PRESIDENT TRUMP DID NOT “ENGAGE IN INSURRECTION”

Anderson claims that the events at the U.S. Capitol were an “insurrection” and that President Trump “engaged” in it by supposedly “inciting” the crowd. See Anderson Br. 15–33. This is wrong on every count. There was no “insurrection,” President Trump did not “incite” anything, and President Trump did not “engage in” anything that constitutes “insurrection.”

First. The events of January 6 were not an “insurrection,” as they did not involve an organized attempt to overthrow or resist the U.S. Government. See Amicus Br. of Indiana et al. 8–17; Michael W. McConnell, Is Donald Trump Disqualified from the Presidency? A Response to Matthew J. Franck, Public Discourse (Jan. 18, 2024), http://bit.ly/49i9spw (events of January 6 were not “insurrection” because they “lasted only about three hours, most of the participants acted on the spur of the moment, few [if any] … carried firearms, and their objectives were narrow: to pressure Congress and the vice president to correct what they … thought were fraudulent election returns.”).

Second. President Trump did not “incite” violence by telling his supporters to “fight,” “fight like hell,” march to the Capitol, and “take back our country.” Anderson Br. 32 (claiming that these statements “explicitly” incited violence). Even the district court acknowledged that language of this sort is “prevalen[t] … in the political arena,” 30 and President Trump’s statements are far less provocative than language that falls short of “incitement” under Brandenburg. See Hess v. Indiana, 414 U.S. 105, 107 (1973) (“We’ll take the f—ing street again”); Watts v. United States, 394 U.S. 705, 706 (1969) (“[T]he first man I want to get in my sights is L.B.J.”); Million Youth March, Inc. v. Safir, 63 F. Supp. 2d 381, 391 (S.D.N.Y. 1999) (“hateful, racist, and offensive” remarks and open “call[s] for violence” did not constitute incitement). Anderson touts President Trump’s 2:24 P.M. tweet, but that tweet did not call for any action whatsoever. It was also sent over an hour after disorder broke out at the Capitol and could not have “incited” events that were long underway.31

So the district court had to rely on Professor Simi’s opinion that President Trump communicates in “coded language with his violent supporters”32 to push President Trump’s speech into the “incitement” category. Anderson now tries to downplay the role of Simi’s testimony,33 but she has nothing apart from Simi that can convert President Trump’s statements—which would be constitutionally protected speech if uttered by any person other than President Trump—into criminally proscribable “incitement.”

Third. Even if there had been “incitement” and “insurrection,” President Trump still did not “engage in” it. “Incitement” (which did not occur here) is not “engagement” in “insurrection,” because a person who “incites” seeks only to bring about “imminent lawless action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). Not all lawlessness rises to the level of “insurrection.” And the district court found only that President Trump’s speeches and tweets “incited imminent lawless violence”34—not that they incited anything that might be characterized as “insurrection.”

Even “incitement” of insurrection would not be enough to constitute “engagement in” insurrection, because incitement turns on whether a person’s speech or conduct is “directed” toward and “likely to … produce” the relevant act of lawlessness. See Brandenburg, 395 U.S. at 447. “Engagement,” by contrast, requires active participation in insurrection. See Black’s Law Dictionary (11th ed. 2019) (defining “engage” as “employ or involve oneself; to take part in; to embark on.”).

President Trump is not arguing that “engagement in insurrection” requires an individual to “personally commit[] violent acts.” See Anderson Br. 29. President Trump is arguing that none of his actions—including his speeches and social-media posts—can qualify as “engagement in insurrection.” None of the authorities cited by Anderson that include “incitement” as “engagement in insurrection” involved speech or conduct of the sort that President Trump engaged in. See Anderson Br. 29– 31.

Finally, the Court should not apply the clearly erroneous standard to constitutional facts or mixed questions of fact and law, such as whether President Trump “incited” violence or “engaged in” insurrection (which he did not as is clear from his speech and social-media posts). See U.S. Bank National Ass’n ex rel. CWCapital Asset Management LLC v. Village at Lakeridge, LLC, 583 U.S. 387, 396 n.4 (2018) (citing authorities). Clearlyerroneous review is appropriate for “basic” or “historical” facts—such as who said what, or when and where it was said—but the blanket deference demanded by Anderson is unwarranted. See id. at 394; Anderson Br. 18– 19. The district court’s findings involving President Trump’s mens rea should also be reviewed independently, as no witness claimed to have firsthand knowledge of President Trump’s intent or thought process. The trial court is in no better position than this Court to evaluate President Trump’s state of mind based on the evidence presented. See City of Houston v. Hill, 482 U.S. 451, 458 n.6 (1987) (“An independent review of the record is appropriate where the activity in question is arguably protected by the Constitution.”).

III. SECTION 3 SHOULD BE ENFORCED ONLY THROUGH CONGRESS’S CHOSEN METHODS OF ENFORCEMENT

President Trump is not arguing that section 3 is “non-self-executing.” His claim is that section 3 may be enforced only through the congressionally enacted methods of enforcement.

Anderson does not deny that congressional implementing legislation can implicitly preclude other means of enforcing section 3, see Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 20 (1981), yet she presents no argument for why the Sea Clammers principle should not apply here. Instead, Anderson attacks the rationale of Griffin’s Case and the Colorado Republican Party’s claim that section 3 is “not self-executing.” See Anderson Br. 52–56. But regardless of what litigants and commentators now think about Griffin’s Case, the fact remains that it was the only judicial decision in place when Congress enacted (and later modified) its statutory regime to enforce section 3. Congress legislated on the understanding that its implementing legislation would be exclusive, so rejecting Griffin’s Case now would not only undermine stare decisis principles but also repudiate the premise of the statutory enforcement regime that Congress has enacted.

Anderson notes that the Insurrection Act—the only surviving piece of congressional enforcement legislation— was enacted before the Fourteenth Amendment and sweeps more broadly than the constitutional disqualification. See Anderson Br. 53 n.19. But none of that undermines its exclusivity under Sea Clammers. When Congress repealed the quo warranto provisions that it enacted in response to Griffin’s Case, it knew that the Insurrection Act was the only means of enforcement left, and that the Insurrection Act would be the exclusive means of enforcing section 3 given the precedent of Griffin’s Case. It defies belief that Congress, having abolished the quo warranto regime while leaving criminal prosecution under 18 U.S.C. § 2383 as the sole means of removing insurrectionist office-holders, would have wanted to allow state courts to enforce section 3 on their own by blocking candidates from the ballot.

Finally, Anderson’s “self-execution” arguments and interpretation of section 3 would mean that President Trump could not constitutionally serve as president after January 6, 2021. This will open the door for litigants to challenge the validity of every executive action that President Trump and his administration took during his last two weeks in office.

IV. SECTION 3 CANNOT BE USED TO DENY PRESIDENT TRUMP ACCESS TO THE BALLOT

Anderson concedes that the states are constitutionally forbidden to add to or alter the Constitution’s qualifications to the presidency. See Anderson Br. 49 (“[A] state has no power to add qualifications for the office of the Presidency”); Griswold Br. 28 (“It is beyond dispute that states cannot add or modify qualifications for the presidency.”). And she acknowledges that Congress may “remove” a section 3 disability “at any time and for any reason.” Anderson Br. 2. Yet Anderson argues that the Constitution allows Colorado to exclude President Trump from the ballot if this Court concludes that he is “presently” disqualified under section 3—even though Congress can lift that disability before the inauguration. See Anderson Br. 45–52.
Anderson’s argument is foreclosed by U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), as she is demanding that President Trump qualify under section 3 not only on the dates that he holds office, but also on the dates of the primary and general elections and on any date that a court might rule on his ballot eligibility. Anderson’s stance is indistinguishable from laws requiring congressional candidates to “inhabit” their state prior to Election Day, when the Constitution requires only that they inhabit the state “when elected.”35 Pet. Br. 44–45 (citing Texas Democratic Party v. Benkiser, 459 F.3d 582, 589–90 (5th Cir. 2006), and other authorities); Amicus Br. of Senator Daines 5–20. Yet Anderson ignores the cases that disapprove attempts to alter the timing of Article I’s congressional-residency requirements, and she makes no attempt to reconcile her argument with the holdings of those cases.

Anderson tries to analogize the Colorado Supreme Court’s ruling to Hassan v. Colorado, 495 F. App’x 947 (10th Cir. 2012), and rulings that uphold ballot exclusions of naturalized citizens, 27-year-olds, and candidates who are categorically disqualified from the presidency. See Anderson Br. 47–48. But excluding those types of candidates from the ballot does not in any way alter the Constitution’s eligibility rules. None of these rulings allow states to deny ballot access to candidates whose qualifications are contingent upon future action (or inaction), and a state cannot use its ballot-access rules to accelerate the deadline for satisfying a constitutional qualification for office.36

Anderson is also wrong to say that President Trump is “presently” disqualified from holding office. See Anderson Br. 48 (“Section 3 imposes a present disqualification”). 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. 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. Anderson may believe or hope that Congress will not waive section 3 between now and January 20, 2029. But neither 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. Anderson’s position would also allow a state to block a 34-year-old from the presidential ballot, even if that candidate will turn 35 before Inauguration Day, on the ground that he is “presently disqualified” from holding office. See Anderson Br. 50.

Anderson and Griswold suggest that states can bar President Trump from the ballot to protect voters from potentially “wasting” their ballots on someone who may eventually be found ineligible for office. See Anderson Br. 47, 51; Griswold Br. 26. But it is for the individual voters to decide for themselves how to weigh this possibility when casting ballots, and a state cannot invoke this paternalism to prevent voters from supporting a candidate who may be eligible by Inauguration Day.

Finally, Anderson invokes the Electors Clause and Chiafalo v. Washington, 140 S. Ct. 2316 (2020),37 but neither does anything to support the Colorado Supreme Court’s ruling. Anderson acknowledges that states are constitutionally forbidden to alter qualifications for the presidency,38 so a state cannot bar its electors from voting for candidates who fail to satisfy an extraneous state-imposed qualification. Chiafalo is no help because there is no “long settled and established practice” of requiring electors to comply with state-imposed eligibility criteria. See Chiafalo, 140 S. Ct. at 2326. And the Electors Clause empowers only a state legislature—not its judiciary— to direct the manner of choosing presidential electors. There is no legislative enactment that requires or even allows Colorado’s Secretary of State to exclude supposed “insurrectionists” from the presidential primary ballot, and Anderson has yet to identify such a statute. See Anderson Br. 58–60; Pet. Br. 46–50.

V. THE COLORADO SUPREME COURT VIOLATED THE ELECTORS CLAUSE AND THE COLORADO ELECTION CODE

The Colorado Supreme Court adopted an atextual interpretation of Colo. Rev. Stat. § 1-4-1203(2)(a), which requires only that a political party that participates in Colorado’s presidential primary election have at least one “qualified candidate.” Anderson makes no attempt to reconcile the language of this statute with the Colorado Supreme Court’s interpretation of it. This defeats any attempt to invoke Article II’s Electors Clause or Chiafalo, because “the legislature” has not directed President Trump’s exclusion from the ballot. See Anderson Br. 46.

CONCLUSION

The judgment of the Colorado Supreme Court should be reversed.

Respectfully submitted.
 
DAVID A. WARRINGTON
JONATHAN M. SHAW
GARY M. LAWKOWSKI
Dhillon Law Group Inc.
2121 Eisenhower Avenue
Suite 608
Alexandria, VA 22314
(703) 574-1206
dwarrington@dhillonlaw.com
jshaw@dhillonlaw.com
glawkowski@dhillonlaw.com

HARMEET DHILLON
Dhillon Law Group Inc.
177 Post Street, Suite 700
San Francisco, CA 94108
(415) 433-1700
harmeet@dhillonlaw.com

JONATHAN F. MITCHELL
Counsel of Record
Mitchell Law PLLC
111 Congress Avenue
Suite 400
Austin, Texas 78701
(512) 686-3940
jonathan@mitchell.law

SCOTT E. GESSLER
Gessler Blue LLC
7350 East Progress Place
Suite 100
Greenwood Village, CO 80111
(720) 839-6637
sgessler@gesslerblue.com

February 5, 2024

_______________

Notes:

1. Abraham Lincoln, Gettysburg Address (Nov. 19, 1863), (transcript  available from the Library of Congress,  http://bit.ly/3SoPVgm).

2. Regina Garcia Cano, US Government Pulls Some of Venezuela’s  Sanctions Relief After Court Blocks Opposition Candidate,  Associated Press (Jan. 29, 2024), http://bit.ly/3uqodaU; Karine  Jean-Pierre, Press Secretary, Press Briefing at The White  House (Jan. 29, 2024), http://bit.ly/3UrHi7j.

3. U.S. Const. art. I, § 2, cl. 5 (“The House of Representatives shall  chuse their Speaker and other Officers”); U.S. Const. art. I, § 3,  cl. 5 (“The Senate shall chuse their other Officers”). If the  Speaker and President Pro Tempore are not “officers” within  the meaning of the Constitution, then the Presidential Succession  Law is unconstitutional. See 3 U.S.C. § 19; U.S. Const. art.  II, § 1, cl. 6 (allowing only “officers” to act as president when the  presidency and vice presidency are vacant); Akhil Reed Amar &  Vikram David Amar, Is the Presidential Succession Law Constitutional?,  48 Stan. L. Rev. 113 (1995).
 
4. Pet. Br. 24 & n.27 (discussing Blount’s Case); U.S. Const. art.  II, § 4 (subjecting “all civil Officers of the United States” to impeachment).
 
5. U.S. Const. art. II, § 3 (“[The President] … shall Commission all  the Officers of the United States.”).

6. Anderson falsely claims that our interpretation limits “officers  of the United States” to “presidential appointees.” Anderson Br.  39, 41. “Officers of the United States” include inferior officers  appointed by courts or heads of department. See Morrison v.  Olson, 487 U.S. 654, 670–71 (1988).  Anderson also quotes Chief Justice Marshall and suggests  that every federal employee is an “officer of the United States,”  but the Court has emphatically rejected that stance. Compare  Anderson Br. 35 (“ ‘If employed on the part of the United States,  he is an officer of the United States.’ ” (quoting United States v.  Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823)), with United  States v. Arthrex, Inc., 141 S. Ct. 1970, 1980 (2021) (distinguishing  “officers” from “ ‘lesser functionaries’ such as employees or  contractors”).
 
7. Pet. Br. 29 & nn.39–40.
 
8. Pet. Br. 30.

9. Pet. Br. 30–31 (citing National Federation of Independent  Business v. Sebelius, 567 U.S. 519, 544 (2012); Russello v. United  States, 464 U.S. 16, 23 (1983)).
 
10. 2 U.S.C. § 25.
 
11. 8 Colo. Code Regs. § 1505-1-24 (requiring presidential electors  to swear or affirm that they will support the Constitution of the  United States); Md. Code, Election Law Code § LAW 8-505  (same).

12. None of the judicial opinions cited by Anderson consider or address  whether the president is an “officer of the United States”  as that phrase is used in the Constitution. See Anderson Br. 38–  39.
 
13. Anderson Br. 42.

14. See Maine Community Health Options v. United States, 140 S.  Ct. 1308, 1320 (2020) (“Unlike the word ‘may,’ which implies discretion,  the word ‘shall’ usually connotes a requirement.”);  Murphy v. Smith, 583 U.S. 220, 223 (2018) (“[T]he word ‘shall’  usually creates a mandate, not a liberty”).
 
15. All, Merriam-Webster, https://bit.ly/42uzBPy (“every member  or individual component of”); All, The Britannica Dictionary,  https://bit.ly/492JiY0 (“every member or part of”).

16. U.S. Const. art. II, § 1, cl. 1 (“The … President … shall …, together  with the Vice President, … be elected, as follows” (emphasis  added)); U.S. Const. art. II, § 1, cl. 6 (“until … a President  shall be elected.” (emphasis added)); U.S. Const. art. II, § 1,  cl. 7 (prohibiting changes to the president’s salary “during the  Period for which he shall have been elected” (emphasis added));  U.S. Const. amend. XXII (“No person shall be elected to the office  of the President more than twice” (emphasis added)).
 
17. U.S. Const. art. I, § 2, cl. 2 (“No Person shall be a Representative  … who shall not, when elected, be an Inhabitant of that  State” (emphasis added)); U.S. Const. art. I, § 6, cl. 2 (“No Senator  or Representative shall, during the Time for which he was  elected …” (emphasis added)); U.S. Const. amend. XVII (“The  Senate of the United States shall be composed of two Senators  from each State, elected by the people” (emphasis added)).
 
18. Pet. Br. 24 n.27 (describing Blount’s Case, which established  that Senators and Representatives are not subject to impeachment  as “civil officers of the United States.”).
 
19. See supra note 16.

20. See supra note 18.

21. U.S. Const. art. II, § 2, cl. 2 (“[B]ut the Congress may by Law  vest the Appointment of such inferior Officers, as they think  proper, in the President alone, in the Courts of Law, or in the  Heads of Departments.”).
 
22. U.S. Const. art. II, § 2, cl. 3 (“The President shall have Power to  fill up all Vacancies that may happen during the Recess of the  Senate, by granting Commissions which shall expire at the End  of their next Session.”).

23. Pet. Br. 32 & n.42.

24. In a footnote, Anderson falsely suggests that these cases involve  only the president’s authority to appoint “other officers.” Anderson  Br. 40 n.13.
 
25. Pet. Br. 25–26 & nn.34–35.
 
26. See note 3 and accompanying text.
 
27. Anderson Br. 34.

28. Cong. Globe, 39th Cong., 1st Sess., at 919 (1866).
 
29. Amicus Br. of Professor Kurt T. Lash.

30. Pet. App. 276a (¶ 297).

31. Similar deficiencies afflict Anderson’s reliance on President  Trump’s statements before January 6, 2021, which are core political  speech. See Anderson Br. 20–21. And Anderson’s attempts  to invoke President Trump’s post-speech actions and alleged  failures to deploy federal resources to stop the disorder  fare even worse. See id. at 23–24, 26–27. Those are judicially unreviewable  exercises of the President’s law-enforcement discretion,  see United States v. Texas, 599 U.S. 670, 678 (2023), and  they could not have “incited” already-past events.
 
32. Pet. App. 228a (¶ 142).  

33. Anderson Br. 28 (“Simi’s testimony was … just one facet of the  overwhelming and largely undisputed evidence presented at trial”).

34. Pet. App. 229a (¶ 144) (“Trump’s Ellipse speech incited imminent  lawless violence.”); id. at 235a (¶ 172) (“Trump’s 2:24 P.M.  tweet further encouraged imminent lawless violence”); id. at  269a (¶ 282) (falsely claiming that Anderson could prove that  President Trump “engaged in insurrection through incitement”  if “his speech was intended to produce imminent lawless action  and was likely to do so.”).

35. U.S. Const. art. I, § 2, cl. 2 (“No Person shall be a Representative  … who shall not, when elected, be an Inhabitant of that  State in which he shall be chosen” (emphasis added)); U.S.  Const. art. I, § 3, cl. 2 (same rule for senators).

36. Griswold falsely claims that our argument would forbid states to  exclude foreign-born citizens from the presidential ballot on the  off chance that the Constitution might be amended to allow  them to serve before Inauguration Day. See Griswold Br. 30  n.10. Whether a state law alters the qualifications established by  the Constitution obviously must be assessed under the Constitution  as it currently exists.

37. Anderson Br. 46–47.
 
38. Anderson Br. 49.

[admin]

https://www.supremecourt.gov/DocketPDF/ ... derson.pdf

No. 23-719

IN THE
Supreme Court of the United States

DONALD J. TRUMP,
Petitioner,
v.
NORMA ANDERSON, ET AL.,
Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF COLORADO

AMICUS CURIAE BRIEF OF AKHIL REED AMAR AND VIKRAM DAVID AMAR IN SUPPORT OF NEITHER PARTY

Vikram David Amar*
University of California at Davis School of Law**
King Hall, 400 Mrak Hall Drive
Davis, CA 95616
vdamar@ucdavis.edu
(925) 858-8855
Counsel for Amici Curiae
*Counsel of Record
**University affiliation provided for identification purposes only

Dated: January 18, 2024

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... ii
INTEREST OF AMICI CURIAE ................................ 1
SUMMARY OF ARGUMENT ..................................... 1
ARGUMENT ............................................................... 6
I. The Story and Significance of the First Insurrection of the 1860s ............. 6
A. The Story ..................................... 6
B. The Significance ........................ 14
II. Twenty Questions ................................ 17
CONCLUSION .......................................................... 31
TABLE OF AUTHORITIES
CASES
Brandenburg v. Ohio, 395 U.S. 444 (1969) ............................................... 24
Hassan v. Colorado, 495 F. App’x 487 (10th Cir. 2012) ................... 24, 27
In re Griffin, 11 F. Cas. 7 (C.C.D. Va. 1869) .............................. 14
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ................................. 19
McDonald v. City of Chicago, 561 U.S. 742 (2010) ............................................... 31
Missouri v. Jenkins, 515 U.S. 70 (1995) ................................................. 22
Moore v. Harper, 600 U.S. 1 (2023) ................................... 5, 20, 27, 28
Powell v. McCormack, 395 U.S. 486 (1969) ............................................... 31
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) ............................................... 20
United States v. Davis, 7 F. Cas. 63 (C.C.D. Va. 1869) .............................. 22
United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812) ........................... 22, 26
CONSTITUTIONAL AND STATUTORY AUTHORITIES:
Act of July 2, 1862, ch. 128, 12 Stat. 502 ........... 11, 18
Act of Mar. 2, 1867, ch. 153, 14 Stat. 428, 429 ........ 14
Act of June 25, 1868, ch. 70, 15 Stat. 73, 74 ............ 14
Act of July 11, 1868, ch. 139, 15 Stat. 85 ................. 11
Act of Feb. 15, 1871, ch. 53, 16 Stat. 412 ................. 11
Joint Resolution of Feb. 8, 1865, 13 Stat. 567 ......... 28
U.S. CONST. Art. II, § 3.............................................. 18
U.S. CONST. Amend. IV ............................................... 2
U.S. CONST. Amend. XIV ....... 1, 2, 3, 4, 5, 6, 9, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 26, 28, 29, 30, 31
OTHER AUTHORITIES:
1 ULYSSES S. GRANT, PERSONAL MEMOIRS OF U.S. GRANT (1885) ............................................. 8
2 ULYSSES S. GRANT, PERSONAL MEMOIRS OF U.S. GRANT (1885) ....................................... 9, 13
Akhil Reed Amar, Presidents, Vice Presidents, and Death: Closing the Constitution’s Succession Gap, 48 ARK. L. REV. 215 (1995) .............................................................. 28
AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY (2005) ........................................ 28
AKHIL REED AMAR, AMERICA’S UNWRITTEN CONSTITUTION (2012) ...................................... 19
AKHIL REED AMAR, THE WORDS THAT MADE US: AMERICA’S CONSTITUTIONAL CONVERSATION, 1760–1840 (2021) ................. 25
AKHIL REED AMAR, BORN EQUAL: AMERICA’S CONSTITUTIONAL CONVERSATION, 1840–1920 (forthcoming 2025) ................................... 6
Brief of Amici Curiae Professors Akhil Reed Amar, Vikram David Amar and Steven Gow Calabresi in Support of Respondents, Moore v. Harper, 600 U.S. 1 (2023) (No. 21-1271) .................................... 29
William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. PA. L. REV. (forthcoming 2024) ..... 22-23
BURLINGTON FREE PRESS, Feb. 1, 1861 ...................... 7
BURLINGTON FREE PRESS, February 15, 1861 ............ 8
RON CHERNOW, GRANT (2017) ..................................... 9
CONG. GLOBE, 36th Cong., 2d Sess. (1861) ........... 7, 10
CONG. GLOBE, 37th Cong., 1st Sess. (1861) ........ 10, 16
CONG. GLOBE, 37th Cong., 2d Sess. (1862) ............... 12
CONG. GLOBE, 39th Cong., 1st Sess. (1866) ........ 12, 17
CONG. GLOBE, 40th Cong., 2d Sess. (1868) ..... 4, 12, 21
CONG. GLOBE, 41st Cong., 2d Sess. (1870) ......... 13, 14
C. Ellen Connally, The Use of the Fourteenth Amendment by Salmon P. Chase in the Trial of Jefferson Davis, 42 AKRON L. REV. 1165 (2009) ............................................. 22
Brief for Senator Steve Daines et al., Trump v. Anderson, Nos. 23-696 & 23-719 (2024) ........ 24
DAILY INTELLIGENCER, Feb. 7, 1861 ........................... 7
HAROLD M. HYMAN, ERA OF THE OATH: NORTHERN LOYALTY TESTS DURING THE CIVIL WAR AND RECONSTRUCTION (1954) ....... 11
Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 CONST. COMMENT 87 (2021)............................ 22
Gerard Magliocca, Opinion, What the Supreme Court Should Not Do in Trump’s Disqualification Case, N.Y. TIMES (Jan. 5, 2024) ............................................................ 30
CYNTHIA NICOLETTI, SECESSION ON TRIAL: THE TREASON PROSECUTION OF JEFFERSON DAVIS (2017) .................................................... 22
JOHN B. NIVEN, SALMON P. CHASE: A BIOGRAPHY (1995) ........................................... 23
Official Orders, DAILY MORNING CHRON., Sept. 17, 1869 ........................................................... 13
PHILA. INQUIRER, Oct. 5, 1869 ................................... 13
JEFFREY S. SUTTON, 51 IMPERFECT SOLUTIONS: STATES AND THE MAKING OF AMERICAN CONSTITUTIONAL LAW (2018) .......................... 30
The Great Conspiracy, What Are Its Plans and Purposes?, N.Y. TIMES, Feb. 5, 1861 ................ 7
The Great Robbery, BENNINGTON BANNER, Feb. 21, 1861 ..................................................... 7
The Indictment of Floyd, EVENING POST, Jan. 26, 1861 ............................................................. 7
The Secretary of War, N.Y. TIMES, Dec. 29, 1860 ................................................................... 7
Transcript of Oral Argument, SEC v. Jarkesy, No. 22-859 (Nov. 29, 2023) (Kagan, J.) .......... 19
Ted Widmer, Opinion, The Capitol Takeover That Wasn’t, N.Y. TIMES (Jan. 8, 2021) ......... 11

INTEREST OF AMICI CURIAE1

Akhil Reed Amar and Vikram David Amar are constitutional scholars and historians who seek to aid this Court in its efforts to practice principled constitutional decision-making and faithful originalism.

SUMMARY OF ARGUMENT

At the heart of this case—perhaps one of the most important cases in American history—is the Oath, specifically the Oath of constitutional fidelity highlighted by Section Three of the Fourteenth Amendment. Each of Your Honors has taken such an Oath, publicly and solemnly. It is an Oath to follow the Constitution as the supreme law of the land.

It is not an Oath to vindicate some vague and free-floating theory of “democracy.” In any event, “democracy” is on both sides of this case. For some, excluding an immensely popular political figure from the ballot is profoundly undemocratic. But, for others, what is truly undemocratic is empowering a uniquely dangerous demagogue who has already disobeyed his solemn Oath and is a genuine threat to recidivate and perhaps end the constitutional republic that now exists. The tension between these two clashing visions can be resolved only by attending to the Constitution’s own specific implementation of “democracy,” which itself was the product of a great democratic process after a series of insurrectionary and democracy-imperiling events in the 1860s.

Over the centuries, America’s best constitutional interpreters, both on and off the bench, have generally excelled when they first spotted and then heeded the key historical episode—the event, the evil, the mischief—that prompted a given patch of constitutional text. For example, the Constitution forbids those under age thirty-five from the presidency. Why? Because of a concern about dynasties—young favorite sons of famous fathers, such as William Pitt the Younger, the British prime minister in 1787, who took office at age 24. The Constitution’s requirement that a president be “natural born” had nothing to do with C-section babies or Shakespeare’s Macbeth, and everything to do with the Founders’ anxieties about European noblemen who might seek political power in America. Article I’s rules for congressional membership were crafted with Englishman John Wilkes in mind, as were the later rules of the Fourth Amendment. The first sentence of the Fourteenth Amendment repudiated specific language in Dred Scott. The equality commands of Section One of the Fourteenth Amendment aimed especially at ending Black Codes in the Deep South. In affirming fundamental rights from state and local abridgment, Section One had centrally in mind—among other things—the urgent need to protect freedom of speech, freedom of worship, and the right to keep guns for personal protection.

Underlying Section Three of the Fourteenth Amendment, there resides a similar key episode, an episode known to virtually all Americans in the 1860s and, alas, forgotten by most Americans today, even the learned. The episode has gone almost unmentioned in all previous scholarship on Section Three and in all previous briefing in this case. We believe that this episode is a key that can unlock many of the issues presented by today’s case.

In Part One of what follows, we briefly tell the story of the First Insurrection of the 1860s—the insurrection before the Second Insurrection of the 1860s, typically known today as the Civil War. In that First Insurrection, high-level executive officials in Washington, DC, violated their solemn constitutional oaths as part of a concerted plan not just to hand over southern forts to rebels, but also to prevent the lawful inauguration of the duly elected Abraham Lincoln. The parallels between this insurrection in late December 1860 and January 1861 and the more recent Trump-fueled insurrection of late December 2020 and January 2021 are deeply and decisively relevant to today’s case. (Throughout this brief, we accept the factual findings of the trial court regarding these events.)

If one thinks—as do many journalists and noisemakers lacking historical expertise—that Section Three was only about “insurrections” akin to the Civil War, then the Trump-fueled insurrection of 2020–21 pales in comparison. The invocation of Section Three looks rather cutesy, a gimmick of clever lawyers and law professors. But if one understands—as did all the men who drafted and ratified Section Three—that before the giant insurrection that began in mid-April 1861 there was a smaller one that was also of central concern, then the matter looks entirely different.

Today’s facts are remarkably similar to those of the First Insurrection of the 1860s. In a crucial mid-Feb. 1868 Senate discussion about a particular cabinet officer under President James Buchanan, Senator Jacob Howard passionately explained that this ex-officer should never sit in the Senate precisely because—long before Fort Sumter fell—this powerful oath-breaker, one of the nation’s “principal public functionaries,” had been part of a cabal “endeavoring to . . . beleaguer the city of Washington with the design of seizing it, and, at all events, preventing the inauguration of President Lincoln in the succeeding March.”2 Later in this key debate, which revolved around a test-oath law closely analogous to Section Three (then a few months shy of official ratification), Senator Oliver Morton likewise blasted several of Buchanan’s cabinet members. These oath-breakers, Morton thundered, had abandoned their posts while publicly proclaiming

that secession was right and that southern States ought to be allowed to break up this Union and form a new government without opposition. Those things went on until the 4th of March, 1861, when there was scarcely anything left of this Government, as we all know . . . to protect the inauguration of President Lincoln.3

Of course, the precise actions, inactions, plots, intentions, and mens rea of Donald Trump in the insurrection of 2020–21 need to be properly evaluated before he is deemed ineligible under Section Three. As we explain in Part Two, the Constitution’s structure enables a fifty-state solution in which different states may properly have different procedures and protocols for implementing Section Three. Some states may carefully police ballot access even in primary elections; others will focus more on the general ballot. Still others may wait until vote tabulation begins; and yet another cluster of states may defer to Congress as the last actor when electoral-college ballots are unsealed. Different states may permissibly have different standards and modes of proof, both for presidential elections and state judicial elections (also covered by Section Three) and myriad elections in between.

States can have even stricter standards than Section Three provides, so long as such standards meet global federal constitutional principles (free speech, due process, racial equality, etc.) as construed by this Court, and state constitutional requirements as understood by the states’ supreme courts. See Moore v. Harper, 600 U.S. 1 (2023). There is no federal constitutional requirement that any state even hold a popular presidential election. Each state’s greater power to not hold a binding election subsumes a lesser power to structure its presidential election in its own way, within a broad range.

This Brandeisian fifty-state solution means that this Court should recognize Colorado’s power to act, and should opine that the facts as found permit Colorado’s action under Section Three. Were this Court (wrongly) to hold that Donald Trump is categorically eligible and that states cannot invoke Section Three with regard to the events of 2020–21, Your Honors should understand that this Court cannot in the nature of things be the sole and last word. Individual voters may think that Trump is ineligible and cast their votes accordingly. Individual Congress members may think the same thing, and Congress has a crucial role to play when opening the electoral ballots in joint session—a role it has played in many past elections.4 And, to repeat, states could keep Trump off the ballot wherever their constitutions allow them to adopt stricter eligibility rules than those in the U.S. Constitution.

In Part Two, we shall canvass a wide range of issues raised by this case and explain why many of them are easy. Of course the president is an “officer” covered by Section Three. Of course a detailed congressional statute is not necessary to implement Section Three. Of course an ineligible person is ineligible unless and until amnestied. Of course a person can engage in an insurrection with words as well as deeds. Of course an insurrection can begin locally. And so on.

In the end, this momentous case is easier than it may at first seem, once one understands the historical events that triggered Section Three.

ARGUMENT

I. The Story and Significance of the First Insurrection of the 1860s

A. The Story

Almost every American schoolchild today knows the name Benedict Arnold, but how many have heard of John B. Floyd?5

Everyone knew his name in the 1860s. Loyal unionists labeled him the new Benedict Arnold, and many did so entirely in reference to his actions in the First Insurrection of the 1860s, prior to Lincoln’s inauguration.6 Like Arnold, Floyd held the keys to America’s national security and then tried to hand those keys to the enemy.

Floyd, an unapologetic Virginia slaveholder, served as President James Buchanan’s secretary of war from 1857 to December 29, 1860, when he resigned in protest after Buchanan declined to abandon Fort Sumter. Most crucially for today’s case: In the weeks after Lincoln’s election in early November 1860, Floyd used the great powers of his office, through a devious combination of affirmative acts and strategic failures to act, to try to thwart a proper transition of power.

One bright thread of this storyline involved southern forts—a thread that would eventually become the fuse of April 1861 in Charleston Harbor. South Carolina purported to secede on December 20, 1860. A week later, rebels seized Fort Moultrie and Castle Pinckney in Charleston Harbor and raised the Palmetto flag over these federal outposts. In the days that followed, rebels captured many other strategically positioned fortresses, including Forts Morgan and Gaines guarding the mouth of Mobile Bay; Forts Pulaski and James Jackson, the gateways to Savannah; Pensacola Bay’s Forts McRee and Barrancas; and Forts Jackson and Saint Philip, which together shielded New Orleans. By early February, the only major installations in the Lower South over which the Union flag still flew were Charleston’s own Fort Sumter, Pensacola’s Fort Pickens, and Key West’s Fort Taylor. On February 7, 1861, Representative Henry Winter Davis of Maryland exclaimed: “Even cabinet ministers have violated their oaths, by organizing insurrection.”7

Looking back on the 1860–61 interregnum, ex-President Ulysses S. Grant in his famous memoirs denounced Floyd for having “scattered the army so that much of it could be captured when hostilities should commence, and distributed the cannon and small arms from Northern arsenals throughout the South so as to be on hand when treason wanted them.”8

A furtive insurrectionist in late 1860, Floyd soon became an avowed one in mid-1861, as a Confederate brigadier general openly warring against the very Constitution that he had sworn a solemn Oath to support—as head of the War Department, no less. In early 1862, Grant met Floyd on the battlefield, almost face to face. Floyd commanded Tennessee’s Fort Donelson, which fell to Grant in mid-February shortly after Floyd fled the battle scene.

This Union triumph, its first decisive victory of the Civil War, began Grant’s rise to glory as Lincoln’s heir—first as the Lincoln-appointed commanding general of the U.S. Army (1864–69), then as acting secretary of war (1867–68), and finally as a two-term president of the United States (1869–77). Grant surely understood, as did much of America, that his own life and Floyd’s had fatefully intertwined.

In telling the story of Fort Donelson, Grant, echoing Henry Winter Davis, emphasized that Floyd was not merely an insurrectionist but also an oath-breaker—the precise toxic combination at the bullseye of Section Three. When Section Three of the Fourteenth Amendment was being drafted and proposed in the mid-1860s, Grant had warmly supported this Amendment9—as Salmon P. Chase had not. In his memoirs, Grant acidly commented that Floyd was “unfitted for command, for the reason that his conscience must have troubled him and made him afraid. As secretary of war he had taken a solemn oath to maintain the Constitution of the United States and to uphold the same against all its enemies. He had betrayed that trust.”10

The insurrectionary betrayals perpetrated by Floyd and other top officials in the lame-duck Buchanan Administration went far beyond the abandonment of southern forts. They also involved, through both actions and inactions of Floyd and his allies, efforts to prevent President-elect Lincoln from lawfully assuming power at his inauguration.

Even before the inauguration, alarms rang out in Congress about the First Insurrection already underway. On February 1, 1861, Pennsylvania’s Representative John W. Killinger declared on the House floor that “preparations are actually threatened to take possession of this Capitol, and prevent the inauguration of the President elect. So far has the conspiracy progressed, that it . . . holds within its grasp the sworn officers of the Government. . . . Before Mr. Lincoln is inaugurated, this District will be the theater of commotion, and it may be, of violence.”11 Later that month, Killinger’s fellow Pennsylvanian James Hepburn Campbell echoed this point about oath-breaking insurrectionists: “[T]his treasonable conspiracy, to resist the inauguration by force of arms, . . . has drawn within its fatal vortex chiefs of the Cabinet.”12 And on February 18, 1861, Floyd’s successor in the War Department—Joseph Holt, himself true to his oath—confirmed that oath-breaking insurrectionists such as Floyd had indeed aimed to prevent the inauguration:

[i][M]en occupying the highest positions in the public service, . . . who, with the responsibilities of an oath to support the Constitution still resting upon their consciences,[/i] did not hesitate secretly to plan, and openly to labor for, the dismemberment of the Republic . . . . [M]en in high political positions here . . . were known to have intimate affiliations with the revolution—if indeed they did not hold its reins in their hands—to the effect that Mr. Lincoln would not, or should not, be inaugurated at Washington.13

Though the Capitol did not fall in 1861, it was a close-run thing. On February 13—the key day that Congress was set to unseal electoral votes and certify Lincoln’s victory—a knot of anti-Lincoln men congregated near the Capitol. But, appropriately fortified by General Winfield Scott, the Capitol held.14

In the years that followed, Lincoln men retained vivid memories of this first attempted insurrection in Secession Winter, pre-Sumter. Both in Congress and in public discourse everywhere, Floyd’s name became a byword for the toxic combination of oath-breaking and insurrectionism. He was as infamous as was Benedict Arnold at the Founding.

Between 1861 and 1871, a series of federal Oath policies and laws emerged.15 Eventually, these policies and laws ripened into what became Section Three of the Fourteenth Amendment. In countless conversations before, during, and after the drafting and ratification of Section Three, Floyd came to epitomize those who should not be allowed back in power (absent amnesty).16 For most of this period Floyd himself was dead, having perished in 1863. He had become a meme, an archetype.

An early and widely publicized version of Section Three, drafted in the spring of 1866, was quite draconian, envisioning the disenfranchisement of millions of insurrectionists: “Sec. 3. Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States.”17 Section Three’s final version was much softer but more focused on Floyd-like high betrayal, mandating the mere disqualification of a few thousand insurrectionists who were also oath-breakers, and also providing for congressional amnesty.

But in one obvious and high-profile respect, Section Three as enacted went far beyond the early draft. It referred to all insurrections, past and future, and not merely to “the late insurrection” of the 1860s. It laid down a rule for the benefit of generations yet unborn—for us today, if only we are wise enough and faithful enough to follow its words as written and intended.

Soon after the Fourteenth Amendment formally came into effect in mid-1868, America elected Grant president. Grant placed Brevet Major General Edward Canby in charge of Virginia’s Reconstruction. As Grant later explained in his memoirs, Canby was an officer “of great merit”—“naturally studious and inclined to the law.” Few, if any, army officers, wrote Grant, “took as much interest in reading and digesting every act of Congress. . . . His character was as pure as his talent and learning were great.”18

Shortly after the Fourteenth Amendment’s formal promulgation, Canby properly concluded that Section Three was self-executing. Any disqualified candidates in the Virginia elections, Canby announced, would not “be allowed to enter upon the duties of the offices to which they may have been chosen, unless their disabilities have been removed by Congress.”19 He kept at least two disqualified candidates-elect out of the legislature.20

When word of Canby’s constitutional decisions reached Congress, John Bingham, a chief architect of the Fourteenth Amendment, cheered. “[T]hat veteran officer,” Bingham said, “faithful to his duty, excluded from the Legislature of Virginia in its organization every man who could not swear he was not disqualified by the provisions of the fourteenth article of the amendments of the Constitution.”21

Canby acted on his own initiative. No congressional statute had specifically provided for “proceedings, evidence, decisions, and enforcements of decisions”—contrary to Chief Justice Chase’s claim on circuit that these “are indispensable.” In re Griffin, 11 F. Cas. 7, 26 (C.C.D. Va. 1869).22 Like other military governors under President Grant,23 Canby took the Constitution at its word.

B. The Significance

In certain respects, the insurrection of 2020–21 posed an even more egregious invasion of our democracy than the First Insurrection of 1860–61. The Capitol did not fall in 1861. The First Insurrection of the 1860s largely failed in DC. But in 2021 the Capitol did in fact briefly fall, in an insurrectionist effort to impede the lawful counting of presidential ballots and the inauguration of President Biden. On January 6, 2021, the Confederate flag made its way into America’s citadel, as it had not on February 13, 1861—all because of what Donald Trump did do and did not do, over the course of many weeks, as recounted by the trial court in this case.

Given that Section Three was drafted with both the First Insurrection of the 1860s (aka Secession Winter) and the Second Insurrection of the 1860s (aka the Civil War) exactly in mind, faithful interpreters today must admit that the events of 2020–21 fall squarely within the heartland of Section Three—in much the same way that, say, 1950s Jim Crow laws violated the core commitments of Section One and early-twenty-first-century laws prohibiting guns in homes violated other core commitments of Section One.

Section Three does not require that an oath-breaker actually use his powers of office in connection with his insurrectionary acts. But Floyd had done just that. In this way, he was worse than Jefferson Davis and Robert E. Lee. Davis in 1860 was a former secretary of war and a current member of Congress. In neither official capacity could he thwart Lincoln’s inauguration or betray federal forts. Lee in 1860 was a mid-level federal military man. Like Davis, Lee in 1861 was an insurrectionist and a former officer, but he had not been an insurrectionist officer—an insurrectionist while in office using the powers of the office to engage in insurrection and give aid to other insurrectionists. But Floyd did in fact bend his office to betray his oath.

And so did Donald Trump, according to the facts as found by the court below in this case. Trump’s case is thus the easy case—a paradigmatic case—for application of Section Three.

Floyd’s misconduct also reminds us that engaging in insurrection, and giving aid or comfort to insurrection and insurrectionists, often involves a complex combination of devious actions and inactions. Certain inactions loom especially large when a current officer, with special obligations to affirmatively thwart other insurrectionists—indeed, other insurrectionists who have been egged on by that very officer—instead sits on his hands, smiling, as chaos erupts around him. This is precisely the case of Donald Trump.

War Secretary Joseph Holt put the point well in February 1861, expressing a sentiment very widely shared by the Lincoln men who later crafted Section Three: “[T]he highest and most solemn responsibility resting upon a President withdrawing from the Government [is] to secure to his successor a peaceful inauguration.”24

No congressional statute specifying enforcement procedures is necessary to implement Section Three. This was the view of Lincoln’s truest heir, Ulysses S. Grant. Grant had supported Section Three when it was pending and faithfully enforced it thereafter, via Canby and others.

Salmon P. Chase, another Lincoln man, had not supported Section Three when it was pending and failed to faithfully enforce it thereafter. Chase harbored presidential ambitions in the late 1860s, and many scholars have suggested that these ambitions warped his judicial judgments in Section Three cases. Whatever his motivation, his Section Three rulings were poorly reasoned and internally inconsistent.25

If this Court must ultimately choose between Grant and Chase, it should choose Grant, as did the American people themselves, when in the fall of 1868—almost immediately after the ratification of Section Three—they voted to put Grant and not Chase in the sacred office where Lincoln once sat.

II. Twenty Questions

1. Is the president an officer within the meaning of Section Three?

Undoubtedly. It would have made no sense whatsoever in 1866–68 to say that Floyd (were he alive) could not oversee the Army as secretary of war but could command all armed forces as commander in chief. No scholar has identified even a single person who clearly said anything like the following in Congress or in state-legislative ratification debates in 1866–68: “The president is not an officer within the meaning of Section Three.” At one point in the drafting process, Senator Reverdy Johnson asked on the floor why the presidency was not mentioned explicitly. Senator Lot Morrill immediately replied that Section Three’s generic “office” language covered the presidency. Johnson pronounced himself entirely satisfied. He now had “no doubt” that the presidency was covered.26 Thereafter, myriad politicians and publishers expressly declared that Section Three would bar oath-breaking insurrectionists such as Jefferson Davis from the presidency, absent amnesty. Indeed, this was a central aim of the Section.

Article II provides that the president shall “hold his Office” for a four-year term, prescribes an oath for “the Office of President of the United States,” and further provides that the president “shall be removed from Office on Impeachment . . . and Conviction” (emphasis added). Elephants do not hide in mouseholes. If Section Three exempted presidents, we should expect to see many discussions of why Section Three included such an egregious loophole. No such discussions exist.

When Civil War lawmakers aimed to exempt the president, they did so expressly. The Ironclad Oath Act of 1862 applied to “every person elected or appointed to any office of honor or profit under the government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States.”27 This language—in a landmark Oath-law predecessor to Section Three itself—proves that Congress and the public plainly understood that “the President of the United States” was emphatically a person who held an “office . . . under the government of the United States.”

2. Doesn’t every officer need a commission?

The Constitution says that the president “shall Commission all the Officers of the United States.”28 The president ordinarily does not commission himself. So does the Constitution mean that the president is thus not an officer?

This makes a hash of the Constitution as a whole. It makes far more sense to say that the president is not the kind of officer who needs a president-issued commission. Nor is the vice president. The reason for this is simple, when the Constitution is read holistically: A commission is a piece of paper identifying who is an officer and when his/her status as an officer commenced. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 156–57 (1803). But for presidents and vice presidents, the Constitution itself provides a separate mechanism for answering these questions. As we explained more than a decade ago, Congress in certifying the electoral votes issues a “commission-equivalent,” identifying who the new president and vice president will be. And the Constitution itself specifies when the office commences: precisely every four years, at noon on Inauguration Day.29

This congressional commission-equivalent process is of enormous constitutional significance. It is, formally, what makes a president president. It was the very process that the insurrection of 2020–21 aimed to disrupt. Donald Trump’s current efforts in this Court to exempt himself from the Constitution’s plain letter and spirit—based on the Commission Clause, of all things!—give new meaning to the word chutzpah.30

3. What about the Impeachment Clause?

This clause refers to “the President, Vice President, and all civil officers of the United States.” If the president is an officer, why doesn’t the text say “all other civil Officers of the United States”? Aha!, exclaims Professor Mousehole, triumphantly.

One obvious answer to the fictional Professor Mousehole is that the president is not purely a civil officer but also a military one, as commander-in-chief. The vice president is second in military command, should the commander fall. Or so a draftsman might have thought. Today, America’s soldiers salute the president and vice president, but not, say, a typical senator or cabinet secretary or justice.

4. What about Justice Story’s Commentaries?

Justice Story basically asked Questions 2 and 3, to which we have offered our short answers. Of course, Story did not live to see Section Three, so he cannot be strongly relevant on what its drafters and ratifiers meant. Great as he was, Story was hardly infallible, as this Court recognized in Moore v. Harper, 600 U.S. at 34, which sidestepped Story’s hasty embrace of ISL theory. See also U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 856 (1995) (Thomas, J., dissenting) (critiquing Story similarly).

5. Isn’t a presidential Oath to “preserve, protect, and defend the Constitution” different than an Oath “to support the Constitution” within the meaning of Section Three?

If anything, the presidential oath is more demanding. A president must affirmatively protect the Constitution. Certain intentional inactions—smiling and sitting on his hands amidst an insurrection—are more constitutionally culpable. Such conduct is “giv[ing] aid or comfort” by inaction precisely because the presidential Oath creates a more explicit and emphatic duty of action. To repeat Holt’s famous language that rang in the ears of Section Three’s drafters: “[T]he highest and most solemn responsibility resting upon a President withdrawing from the Government [is] to secure to his successor a peaceful inauguration.”31

It is silly to say that the president’s Oath is not covered by the sweeping and generic language of Section Three. This is like saying that the Fifth Amendment prohibits double but not triple jeopardy.

6. Is a detailed congressional statute necessary to implement Section Three?

No. Neither President Grant nor Congressman Bingham thought so. They were right. While the proposed Fourteenth Amendment was pending in the states, senators of both parties—men who were on opposite sides of the proposed amendment—simply took for granted, in debating companion Reconstruction legislation, that Section Three would kick in, and thus kick out any existing ineligible officers, the very “moment” the amendment was duly ratified.32

No detailed statute is necessary to implement any other part of the Fourteenth Amendment or its cognate amendments, the Thirteenth, Fifteenth, and Nineteenth. For example, no statute was needed when this Court desegregated public schools, mandated appointed counsel for indigent criminal defendants, incorporated the Bill of Rights against states, and ended malapportionment. A congressional statute is indeed necessary for federal criminal sanctions to operate. See United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812). A congressional statute may be necessary for funds to be expended in various situations. See Missouri v. Jenkins, 515 U.S. 70 (1995). But much of Section Three is self-executing, as Grant and his men understood. Thus, Section Three can be properly executed by state officials of all sorts as part of a fifty-state solution.

7. What about Griffin’s Case?

This 1869 ruling by Circuit Justice Chase, claiming that Section Three cannot be operationalized absent specific implementing legislation from Congress, clashes with an earlier Chase ruling involving Jefferson Davis. There, Chase treated Section Three as emphatically self-executing. United States v. Davis, 7 F. Cas. 63, 102 (C.C.D. Va. 1869). Davis was itself deeply flawed in other ways. (The notion that Section Three somehow effectively barred criminal prosecution of actual traitors—and the worst traitors at that, oath-breaking traitors, including Jefferson Davis!—borders on the preposterous.) Chief Justice Chase was a giant, but these Section Three cases were not his finest hour. Nor do they bind this Court.33 Also, they conflict with the contemporaneous actions of the Grant Administration. Chase expressed doubts about Section Three prior to its ratification, so he was likely not its best exponent. By contrast, Bingham and Grant both backed the Fourteenth Amendment at every stage. Bingham was himself a great constitutional lawyer. Though not law-trained, Grant was a gifted reader and writer of the English language, a champion of honest plain meaning.

8. Is a criminal conviction necessary to trigger Section Three?

No. Section Three says nothing of the sort, and it could have easily done so had its drafters aimed to enact such a requirement. Grant did not require convictions for those deemed ineligible under Section Three in 1869 Virginia and elsewhere.

9. Does Section Three apply beyond the two main insurrections of the 1860s?

Emphatically. The early public draft expressly referred only to “the late insurrection” and expressly sunsetted after 1870. Congress shifted gears dramatically when it revised Section Three to apply to all future insurrections, but to do so modestly—with a lesser penalty (disqualification, not disfranchisement), for a vastly smaller group of malefactors (only oath-breaking insurrectionists), and an express provision for congressional amnesty.

10. Could Trump be amnestied at some future point?

Yes. But until that happens, he can be deemed disqualified and kept off the ballot. The theoretical possibility of a future change of law or fact does not change the law or facts at present. States may legitimately keep persons off the ballot who will not be eligible to serve absent some utterly speculative future development. More than a decade ago, the Tenth Circuit, per then-Judge Gorsuch, rightly affirmed Colorado’s authority to keep a non-natural-born citizen off the presidential ballot, even though the Constitution at some later time prior to inauguration could have been amended to eliminate the Natural-Born Clause. Hassan v. Colorado, 495 F. App’x 487 (10th Cir. 2012). Thus, Senator Daines’s too-clever-by-half distinction between “categorical” and other ineligibility rules will not wash.34 To rule that Section Three cannot be applied before Inauguration Day is either to read Section Three out of the Constitution or to create a crisis on Inauguration Day.

11. Can mere words suffice to trigger Section Three?

Definitely. Conspiracies—agreements—are paradigmatically effectuated with words. So are incitements. In 1860, John Floyd used words galore, both publicly and privately, to incite and encourage others to take up arms against the Constitution. In 2020–21, so did Donald Trump, according to the well-supported factual findings of the trial court.

The super-strict free-speech doctrines applicable in criminal prosecutions, see, e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969), do not automatically carry over to mere issues of ballot eligibility. One takes an Oath of constitutional fidelity by speaking, and one may refuse to take an Oath by speaking—for example, by saying “no.” A refuser cannot be criminally punished but surely can be barred from office. The Constitution itself says so in Article VI. Likewise, Oath-violators can be kept from office, even if these violations occur via pure speech.

12. Can inactions ever count as giving “aid or comfort”?

Yes, see question 5, supra. In Trump’s case—as with the paradigm case of Floyd—there exists a complex web of spidery actions and inactions, as the trial court below made clear in its findings of fact. Especially because some of Trump’s own actions of plotting and incitement prompted actual violent insurrection by others, he was under a stronger duty to take affirmative steps to arrest that insurrection once it erupted into a deadly assault on the Capitol. It was perfectly sensible for the trial court to consider Trump’s entire course of conduct, including his inactions, as a whole.

13. Can a local event ever be a true insurrection?

Yes. Kittens can become cats. Chickens can hatch from eggs. Small insurrections can swell into giant insurrections. In American history, notable insurrections have included Shays’ Rebellion in the 1780s, the Whiskey Rebellion in the 1790s, and the Nullification Crisis of the 1830s.35 Orchestrated and large-scale political violence in the national capital and assaults on the national Capitol are especially apt to be per se insurrectionary, particularly when they aim, on a quite specific and supremely important day of America’s constitutional calendar, to prevent the lawful certification of a duly elected president-elect (February 13 in 1861, January 6 in 2021). This “local” scenario was squarely in the minds of those who framed and ratified Section Three, focused as these Lincoln men were on villains such as John Floyd and his cabal.

14. Who decides and how?

In many respects, our Constitution is decentralized and departmentalist. Many interpreters properly play a role.

For example, in federal criminal law, each of six distinct entities can thwart criminal punishment if that entity alone has strong constitutional scruples. The House may refuse to vote for a criminal law it deems unconstitutional, regardless of what this Court thinks. Ditto for the Senate. In these scenarios, the naysaying legislative chamber plainly prevails, because no federal common law of crimes is allowed. Hudson & Goodwin, 11 U.S. at 32–33. A president may veto a criminal bill, or pardon all potential defendants, even before trial, and may do so on constitutional grounds that this Court rejects—much as President Thomas Jefferson effectively nullified judicial rulings on behalf of the Sedition Act of 1798. A grand jury may refuse to indict and may not be mandamused. A trial jury may refuse to convict, and judges may “strike down” a criminal law on its face or as applied. In general, this system is asymmetric. The entity with the stronger constitutional doubts/objections often prevails.

So too in presidential elections on the issue of eligibility. Entities with higher constitutional standards often prevail. Even were this Court to reverse the Colorado Supreme Court, Colorado could seek to reinstate its ruling against Trump on independent state-law grounds—say, on the theory that even behavior short of insurrection should disqualify a given candidate from America’s post of highest honor and power. States have long had sore-loser laws, which prohibit the loser of a primary election from running in the general election. A state tomorrow may amend its existing laws to encompass the conduct of Donald Trump in 2020–21. If he does not epitomize a sore loser, it is hard to think who does. Of course, states may not pass ex post facto criminal laws, but mere ballot ineligibility is different from traditional criminal punishment.

This Court is thus not the only decisionmaker in a complex electoral-college system. States have wide discretion in structuring their systems, both procedurally and substantively. See Hassan v. Colorado, 495 F. App’x 487 (10th Cir. 2012) (Gorsuch, J.) (“[A] state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office”). In many ways, state courts, and not this Court, are the main backstops. See Moore v. Harper, 600 U.S. at 34–37.

15. What about Congress?

Congress on Judgment Day can refuse to count electoral votes that it alone deems improper. Congress has in fact done so in past elections. For example, in 1873 Congress refused to count actual electoral votes that had been cast for Horace Greeley, who had recently died and would be unable to assume the presidency.36 In 1865, it refused to count electoral votes from at least two states, Louisiana and Tennessee, then claiming to be states in good standing.37

16. What if other states react to Colorado by playing tit for tat, removing other candidates from the ballot, perhaps pretextually, and setting off an interstate electoral-arms race?

Other states can do this even now, with or without honest enforcement of Section Three. So far as the U.S. Constitution is concerned, the Florida legislature can itself choose presidential electors. But in doing so, it must follow its own state constitution as construed by its state supreme court. Thanks to this Court’s sound decision in Moore v. Harper, a ruling upholding the Colorado court will not create chaos, contrary to the fevered imaginations of some commentators.

17. What if Section Three were used in some future case to disqualify prominent supporters of, say, the George Floyd protestors?

If these supporters truly meet the standards of Section Three, then so be it. But Section Three by careful design applies only to a handful of oath-takers, not all Americans. It requires genuine “engage[men]t” or “giv[ing] aid or comfort.” And it requires a genuine insurrection, not a mere tumult. Deadly assaults on the Capitol on the day Congress meets to count electoral-college votes and certify/commission a new president should not be conflated with barroom brawls in Peoria. Abstract statements of solidarity by legislators are very different from actions undertaken by executive officers with operational power and control. Any law can be applied mindlessly far beyond its proper scope. That cannot be an excuse to refuse to apply the law at its core. The core of Section Three is a situation akin to the John Floyd scenario of 1860, not the George Floyd scenarios of recent years.

18. Is it relevant that Section Three also applies to purely state offices?

Yes. State legislatures, for example, are squarely covered. Ballot rules for state legislators fall in the heartland of state law as overseen by state courts. Constitutionally, presidential elections also fall in this state-law heartland: The electoral-college system involves fifty separate and simultaneous state elections, not one undifferentiated national election. Given this reality, this Court should tread lightly in overseeing the state court below. Otherwise, various states may face great difficulty creating unitary election systems integrating state and federal elections.38

19. Which ruling would best comport with judicial minimalism?

A fifty-state solution along the lines we advocate.39 A contrary ruling would, by contrast, impose this Court’s views on all fifty states—and would do so without proper warrant in the Constitution’s text, history, and structure.

20. Which ruling would be the most democratic?

Our democracy allows We the People to democratically protect Ourselves, and the most obvious way We do this is through the Constitution. In the 1860s, We the People carefully considered recent, vivid, and existential threats to democracy itself, and Our answer was Section Three. We the People today can unmake Section Three, should We choose, via constitutional amendment. But until that happens, this Court must honestly enforce Section Three in the name of constitutional democracy. The questions presented by Section Three’s enforcement through state electoral systems are discrete and judicially manageable—typically supervised by democratically accountable state judges. And of course, that Section expressly authorizes additional relief—amnesty—via a two-thirds vote of the Constitution’s most democratic branch, Congress.40

Section Three is hardly the only limit on presidential eligibility. We the People over the years have insisted that a president be at least thirty-five and a natural-born citizen. He or she must fulfill residency requirements. He or she cannot serve more than two and a half terms. He or she may not be a member of Congress. Many of these provisions have democratic justifications even as they also limit democracy in certain respects. Ditto for Section Three.

CONCLUSION

On notable occasions, some of this Court’s greatest rulings have highlighted and heeded key historical episodes that prompted the relevant constitutional text at issue. See, e.g., Powell v. McCormack, 395 U.S. 486, 527–31 (1969) (emphasizing the story of John Wilkes in construing Article I); McDonald v. City of Chicago, 561 U.S. 742, 779 (2010) (discussing the Black Codes in connection with Section One of the Fourteenth Amendment). The Court should extend this grand interpretive tradition today, this time by highlighting and heeding the lessons of John Floyd and the First Insurrection of the 1860s to do justice to Section Three of the Fourteenth Amendment.

Respectfully submitted,

Vikram David Amar*
University of California at Davis School of Law**
King Hall, 400 Mrak Hall Drive
Davis, CA 95616
vdamar@ucdavis.edu
(925) 858-8855
Counsel for Amici Curiae
*Counsel of Record
**University affiliation provided for identification purposes only

Dated: January 18, 2024

_______________

Notes:

1 No party or party’s counsel authored or financially supported any of this brief.  

2 CONG. GLOBE, 40th Cong., 2d Sess. 1170 (Feb. 14, 1868) (emphasis added).  

3 Id. at 1209 (Feb. 17, 1868) (emphasis added).  

4 Constitutional text, history, structure, tradition, and precedent give the presiding vice president a merely ministerial and ceremonial role at this event.  

5 What follows borrows from AKHIL REED AMAR, BORN EQUAL: AMERICA’S CONSTITUTIONAL CONVERSATION, 1840–1920 (forthcoming 2025).  

6 See, e.g., CONG. GLOBE, 36th Cong. 2d Sess. 1370 (Mar. 2, 1861) (statement of Sen. Chandler) (“Floyd, who, like Benedict Arnold, surrendered your forts and your arms—a man who goes down to everlasting infamy, with Judas Iscariot, Benedict Arnold, and all the traitors who have gone before him.”); The Secretary of War, N.Y. TIMES, Dec. 29, 1860, at 4; The Indictment of Floyd, EVENING POST, Jan. 26, 1861, at 2; BURLINGTON FREE PRESS, Feb. 1, 1861, at 1; The Great Conspiracy, What Are Its Plans and Purposes?, N.Y. TIMES, Feb. 5, 1861, at 4 (reprinted in DAILY INTELLIGENCER, Feb. 7, 1861, at 1); The Great Robbery, BENNINGTON BANNER, Feb. 21, 1861, at 2.  

7 BURLINGTON FREE PRESS, February 15, 1861, at 1.  

8 1 ULYSSES S. GRANT, PERSONAL MEMOIRS OF U.S. GRANT 226 (1885).  

9 RON CHERNOW, GRANT 583–84 (2017).  

10 2 GRANT, supra note 8, at 308–09.  

11 CONG. GLOBE, 36th Cong., 2d Sess. 695–96 (Feb. 1, 1861) (emphasis added).  

12 Id. at 909 (Feb. 14, 1861) (emphasis added).  

13 CONG. GLOBE, 37th Cong., 1st Sess. 457–58 (Aug. 6, 1861) (emphasis added).  

14 Ted Widmer, Opinion, The Capitol Takeover That Wasn’t, N.Y. TIMES (Jan. 8, 2021).  

15 See generally HAROLD M. HYMAN, ERA OF THE OATH: NORTHERN LOYALTY TESTS DURING THE CIVIL WAR AND RECONSTRUCTION (1954). In 1861, the Lincoln Administration, and later Congress, had all federal civil officers and employees take an oath to support the Constitution. Id. at 1–2. One year later, Congress passed the more demanding “Ironclad Oath,” requiring civil and military officers (expressly excepting the president) to swear they had not “voluntarily borne arms against the United States,” “voluntarily given . . . aid, countenance, counsel, or encouragement” to the Confederacy, nor performed any of the “functions of any [Confederate] office.” Act of July 2, 1862, ch. 128, 12 Stat. 502. In 1868 and 1871, Congress added further refinements. Act of July 11, 1868, ch. 139, 15 Stat. 85; Act of Feb. 15, 1871, ch. 53, 16 Stat. 412.  

16 See, e.g., CONG. GLOBE, 37th Cong., 2d Sess. 970 (Feb. 18, 1862) (statement of Sen. Trumbull) (“[If] a traitor in arms against the Government, Floyd, of Virginia, for instance, were appointed . . . does the Senator hold that we should be bound to receive him as a member . . . ?”); id. at 970 (Feb. 26, 1862) (statement of Sen. Sherman); CONG. GLOBE, 39th Cong., 1st Sess. 145 (Jan. 8, 1866) (statement of Rep. Shellabarger); CONG. GLOBE, 40th Cong., 2d Sess. 970 (Feb. 18, 1868) (statement of Rep. Cook) (discussing Section Three and proclaiming that “persons who had, like . . . Floyd, . . . held high office in the Government and betrayed and well-nigh ruined the Government, whose Constitution they had solemnly sworn to support, should not again be [e]ntrusted with power over loyal men . . . .”); cf. CONG. GLOBE, 39th Cong., 1st Sess. 3146 (June 13, 1866) (statement of Rep. Finck) (assuming that disloyal cabinet members fell within the ambit of any version of Section Three under consideration).  

17 CONG. GLOBE, 39th Cong., 1st Sess. 2542 (May 10, 1866).  

18 2 GRANT, supra note 8, at 372.  

19 Official Orders, DAILY MORNING CHRON., Sept. 17, 1869, at 1.  

20 CONG. GLOBE, 41st Cong., 2nd Sess. 382, 417 (Jan. 12–13, 1870) (statements of Sens. Stewart and Thurman); PHILA. INQUIRER, Oct. 5, 1869, at 4 (discussing Canby’s exclusion of over a dozen candidates).  

21 CONG. GLOBE, 41st Cong., 2nd Sess. 495 (statement of Rep. Bingham).  

22 A pair of Reconstruction statutes did authorize military enforcement of Section Three but provided no specific guidance. Act of Mar. 2, 1867, ch. 153, 14 Stat. 428, 429; Act of June 25, 1868, ch. 70, 15 Stat. 73, 74. The purpose of this generic statutory language was to authorize enforcement of Section Three’s rules in military districts even prior to the formal ratification of the Fourteenth Amendment.  

23 For example, President Grant, via General William T. Sherman, ordered Alfred H. Terry, military governor of Georgia, Florida, and Alabama, to “[e]xercise [his] own discretion” in investigating whether disqualified Georgians could take office. CONG. GLOBE, 41st Cong., 2nd Sess. 713 (Jan. 24, 1870).  

24 CONG. GLOBE, 37th Cong., 1st Sess. 457–58 (Aug. 6, 1861) (emphasis added).  

25 See infra note 33 and accompanying text.  

26 CONG. GLOBE, 39th Cong., 1st Sess. 2899 (May 30, 1866).  

27 Act of July 2, 1862, ch. 128, 12 Stat. 502 (emphasis added).  

28 U.S. CONST. Art. II, § 3.  

29 See AKHIL REED AMAR, AMERICA’S UNWRITTEN CONSTITUTION 575–76 n.14 (2012).  

30 Cf. Transcript of Oral Argument at 111, SEC v. Jarkesy, No. 22-859 (Nov. 29, 2023) (Kagan, J.).  

31 See supra note 24.  

32 CONG. GLOBE, 40th Cong., 2nd Sess. 3008–10 (June 10, 1868) (statements of Sens. Morton, Williams, and Hendricks).  

33 For Chase’s jurisprudence on circuit, see C. Ellen Connally, The Use of the Fourteenth Amendment by Salmon P. Chase in the Trial of Jefferson Davis, 42 AKRON L. REV. 1165 (2009); CYNTHIA NICOLETTI, SECESSION ON TRIAL: THE TREASON PROSECUTION OF JEFFERSON DAVIS 293–300 (2017); Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 CONST. COMMENT. 87, 105–08 (2021); and William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. PA. L. REV. (forthcoming 2024) (manuscript at 35–49). For Chase’s pre-ratification qualms about Section Three, see JOHN B. NIVEN, SALMON P. CHASE: A BIOGRAPHY 409 (1995).  

34 Brief for Senator Steve Daines et al. at 16, Trump v. Anderson, Nos. 23-696 & 23-719 (2024).  

35 For detailed analysis of each of these three episodes, see AKHIL REED AMAR, THE WORDS THAT MADE US: AMERICA’S CONSTITUTIONAL CONVERSATION, 1760–1840 (2021), 299–302, 382–87, 598–604.  

36 See Akhil Reed Amar, Presidents, Vice Presidents, and Death: Closing the Constitution’s Succession Gap, 48 ARK. L. REV. 215, 218–19, 226–30 (1995).  

37 See AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 378 (2005); Joint Resolution of Feb. 8, 1865, 13 Stat. 567. On the vice president’s role, see supra note 4.  

38 Cf. Brief of Amici Curiae Professors Akhil Reed Amar, Vikram David Amar and Steven Gow Calabresi in Support of Respondents at 26–28, Moore v. Harper, 600 U.S. 1 (2023) (No. 21-1271).  

39 Cf. JEFFREY S. SUTTON, 51 IMPERFECT SOLUTIONS: STATES AND THE MAKING OF AMERICAN CONSTITUTIONAL LAW (2018).  

40 Gerard Magliocca, Opinion, What the Supreme Court Should Not Do in Trump’s Disqualification Case, N.Y. TIMES (Jan. 5, 2024).  

[admin]

Part 1 of 12

Supreme Court puts details over democracy; appears poised to keep Trump on presidential ballot
by Glenn Kirschner
Feb 8, 2024

During the Supreme Court argument on whether Donald Trump is disqualified from holding office under the 14th Amendment for engaging in insurrection, the Supreme Court justices put details over democracy.

This video reviews the arguments in Donald Trump v. Norma Anderson - the case in which the Colorado Supreme Court disqualified Trump from the Colorado state ballot - and discusses how the justices got bogged down in the details and seemed to lose sight of the big picture: that the plain language of the Constitution disqualifies Trump from holding office.



Transcript

so friends given how today's oral
arguments played out in the Supreme
Court on the issue of whether somebody
who engaged in Insurrection should be
allowed to hold office again in the
future given how those arguments
unfolded today was a rough
day it was a rough day for the rule of
law it was a rough day for the sanctity
of our
vote it was a rough day for
justice let's talk about it because
Justice
[Music]
matters hey all Glen kersner here well
friends I listen to the live stream of
today's Supreme Court arguments on the
issue of whether Donald Trump should get
to be president again whether he's
disqualified under the 14th Amendment
which disqualifies insurrectionists from
holding office whether he should be
disqualified as a Colorado trial court
judge found
ruled after a trial on the merits and as
the Colorado State Supreme Court
affirmed that yes Donald Trump engaged
in Insurrection and is therefore
disqualified under the very terms of the
Constitution today's oral argument was
all about whether the Supreme Court
Justices agreed with that with the
Colorado courts and with the express
language of the Constitution and today
listening to that oral
argument today was not a good day
not a good day for
justice because as you listened to all
of the
justices POS questions of the attorneys
the parties it was clear the justices
were putting details over
democracy the justices focused on things
like
semantics what are the differences
between words like
office and officer and office
holder the justices focused on their
concern that keeping Donald Trump off
the ballot would potentially
disenfranchise
voters but they expressed no concern
whatsoever that the crimes Donald Trump
committed were designed and intended to
disenfranchise 80 million
voters they expressed concern that if
the states were allowed to run their own
elections and qualify or
disqualify potential
candidates if they were allowed to run
their own elections precisely as the
Constitution gives them the power and
authority and responsibility to do
States run their own
elections including elections for
federal office that's why we have 50
different batches of laws and
regulations each state promulgating its
own that's the Constitutional construct
and the justic has expressed concern
that well if the states were allowed to
run their own elections and qualify and
disqualify candidates there would be all
these
inconsistencies
inconsistencies I think one Justice said
maybe inconsistencies bordering on
chaos and yet what did the Supreme Court
do a little over a year
ago when they revoked women's
constitutional privacy rights over their
own reproductive Health decisions and
sent all of that back to the States what
do we now see
inconsistencies dramatic
inconsistencies inconsistencies ordering
on deadly chaos like in states such as
Texas but that didn't seem to be a
concern when they were revoking women's
constitutional privacy rights but today
many of the justices were so
concerned with the inconsistencies that
would result if the states got to do
what the
Constitution gives them the right to do
which is run their own elections
including qualifying and disqualify
qualifying
candidates but friends do you know what
my main concern my main complaint my
main beef is with what unfolded in that
courtroom
today nobody pushed back on the fact on
the
reality that Donald Trump engaged in
Insurrection nobody seemed to quibble
with that nobody seemed to dispute the
Colorado trial court finding that Donald
Trump engaged in Insurrection or the
Colorado Supreme Court affirmation of
that finding that Donald Trump engaged
in Insurrection no surprise right we saw
much of it with our own eyes allow me a
very brief
recap Donald Trump recruited the foot
soldiers of the
Insurrection hey proud boys stand by he
set the date for the capital attack come
to DC on January 6th will be wild he
ginned the crowd up into an angry
frenzy if you don't fight like hell you
won't have a country
anymore he was informed by security that
there were people in the crowd his crowd
that were armed with
firearms and he said I don't care
they're not here to hurt me take down
the effing mags the metal detectors let
them in and then we can all March to the
capital together so he knew that this
would be not just an attack on the US
capital and on the electoral vote count
on the transfer of Presidential Power it
would be an armed
attack and then he told them all to
March to the capital and stop the
certification he said stop the steel and
they did they marched to the capital and
violently stopped the certification and
while the assault on the capital was in
progress Donald Trump refused to call it
off for hours people streamed into the
dining room just off the Oval Office
begging and pleading with him including
family members to call it off call off
the attack and he wouldn't instead he
instead he sent out an incredibly
incendiary tweet Mike Pence didn't have
the courage to do what he needed to do
in other words to keep me in power the
message was sent get him get
him and get him they tried to do with
chance of hang Mike Pence breaking out
at the end of it all he pledged love and
pardons to the
insurrectionists and he is continuing to
deny the elections results to this day I
would argue he's still engaging in
Insurrection of course Donald Trump
engaged in Insurrection and running
through today's argument was the
acknowledgment that everybody seemed to
agree that Donald Trump engaged in
Insurrection so what does that mean
what are the
consequences under our
constitution of somebody who engaged in
Insurrection it can be found in
14.3 no person shall hold any office
under the United States who having
previously taken an oath to support the
Constitution of the United States shall
have engaged in
Insurrection Donald Trump is
disqualified by the Plain language of
the Constitution he is
disqualified but
today the
justices lost sight of the big picture
of the
Constitutional
picture and instead
they put details over
democracy and that is a damn
shame because
Justice
matters but
friends we fight
on as always please stay safe please
stay tuned and I look forward to talking
with you all again tomorrow

2,831 Comments

@jackwalsh4998
1 hour ago
Really BAD I am not an attorney, but I know trump should never be in the white house EVER!
653
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12 replies

@marierose6792
37 minutes ago
My abject hatred goes to Mitch Mc Connell. History will look back at his legacy as the most destructive figure of our time, just after the horror show of Donald Trump.
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6 replies

@MrJscazz
1 hour ago
Very well put. Very sad day for our country. The integrity of the US Supreme Court is shattered...period.
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1 reply

@susanm2087
34 minutes ago
I am sick to my stomach. What happened to our beautiful United States of America?
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4 replies

@shaneryan9040
35 minutes ago
As an Australian,I am horrified and truly saddened to see America throwing away its most valuable asset.democracy.come November they will be a failed state and the millions who died for the once greatest nation on earth will have died in vain.
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3 replies

@danieljohnstone6805
1 hour ago
Thank You Shane Pray For Us, I,m Prepared To Move To Australia If The Orange Monster is Pu t Back In The White House
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@rosegann8339
1 hour ago
Thank you Shane. Those of us that still care about our country appreciate your comment. We do need your prayers that's for sure
22
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@spongebarb451
1 hour ago
Thank you for your support. Don’t give up on us just yet, however. Roevember is coming.
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@lindahanchett8994
1 hour ago
You got that right! thank you.
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@peterg5383
1 hour ago
That's not right; they didn't die in vain. They died to protect it in their time. We had ~250 years. If it fails in the end, that doesn't negate the time we did have.
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@nomad634
1 hour ago
Take back your Rupert
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@belladonnatook8851
1 hour ago
@danieljohnstone6805 If they'll have you, you mean. These countries are not extensions of the US. They are sovereign countries & you must ask to be permitted to come. There will be no waltzing in because, well, the world was your oyster. (Emphasis on: "was".)
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@phylis3917
1 hour ago
Love ya. Spread the word.
1
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@eroscreatives
1 hour ago
Another Australian who agrees 100% with this sentiment.
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@woodstockg346
27 minutes ago
That’s what you get when you have two suspected rapist on that bench, making a judgement against another rapist. America is screwed.
74
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@ritafuentes4150
1 hour ago
The fact that Thomas didn't recuse himself was a crime in itself!
879
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21 replies

@alicejones33
1 hour ago
The Roberts Supreme Court lost its remaining shred of respect
124
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2 replies

@younken24films
59 minutes ago
Today, any shred of sanity from SCOTUS has left the room.
49
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@billcarr54
41 minutes ago
Arrest Donald Trump !
62
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1 reply

@A.B.-zs8ir
44 minutes ago
Garland should go home and put someone in as AG who wants to hold tRump accountable to the rule of law!!
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1 reply

@Rat-Salad
31 minutes ago
Trumps judges doing him a favour? Shock.
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@DanielJimenez-mi5zm
1 hour ago
The US Supreme Court really needs to be held accountable if they put Donald Trump on the ballot.
373
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13 replies

@theresa3
1 hour ago
Glenn for the SUPREME COURT
70
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1 reply

@raymondbohn2852
1 hour ago
SCOTUS had their last chance to retire their reputation. They blew it. How do we deal with a valueless court?
71
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3 replies

@pamyuhnke8143
56 minutes ago
I only lasted 90 mins. When the CO lawyer started being interrupted non-stop, I quit out of disgust.
39
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2 replies

@TheOfficialZombieWhisperer
1 hour ago
I want to understand why people like MTG, Gym Jordan and other Maga-ts in Congress aren't getting the boot
45
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@dwaynejones1555
43 minutes ago
Hypocrisy Supreme Court!
29
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@jeniferwatton7994
1 hour ago
Trump needs to be stopped.
232
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11 replies

@stephenmorey8830
1 hour ago
The chief justice has taken the oath of office, and is required by their oath not to violate the 14th Amendment of the Constitution.
47
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@taracarreon5642
2 minutes ago
We want you, Glenn, to be our general-in-command when, this time around, it will be the Union that revolts. That's us -- the Union. I think it's time to get going with our revolution against the Confederacy, because this situation is now truly, truly bad. War has been declared. What else can you say? They are going to take away our right to vote? They are going to allow any President to throw over our Constitution? They're going to allow someone very, very bad to get in the White House, and then do whatever he wants? A man who will have the license straight from the Confederate Supreme Court to make everything Bad? This is truly America changing! The Supreme Court is letting loose the dogs of war! They're begging us to fight! (So much, Glenn for your idea that the Supreme Court would never do this, because that would mean they give up their ultimate power.) -- Are they getting revenge on us for winning the war? For forcing them to agree with the 14th Amendment before they could be made part of the new Union? I really don't like the way this looks. It's like a huge Fook-You!!! to the Constitution.. I'm thinking of a great story I once read from Diego Rivera"s biography. He was in Germany when Hitler was giving a speech just outside his 2nd story window before a huge crowd. Diego was with some artist literary friends of high quality, and he became more and more worried as Hitler continued "speaking," although he usually yelled. So worried did Diego become that he picked up a rifle that happened to be nearby -- come on, they were Communists. There was a lot of good about the communist movement in those days. Artists from all over came to take up arms against Franco. They weren't afraid of arms because they were in a Just war. Diego aimed it at Hitler and said to his friends that he was going to take him out.. His friends, of course, tried to stop him, and I think they actually had to tussle with him. Diego loves drama. Because they didn't believe Hitler would amount to anything. They won the fight with Diego but they eventually lost their lives, every artist but Diego. Guess what happened to them? Hitler happened to them. Let's not make the same mistake. I predict that Trump will one day be as famous as Hitler. At least, that's the way I see it, and I am a very long time student of Hitler, having studied him intensely for almost 25 years. Trump will go down in history. What? As being the man who defeated America?
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@cartermorganayres5263
1 hour ago
The supreme court's propensity to ignore both legal precedent and the clear wording of the U.S. Constitution truly frightens me.
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@drnancysjohnson3844
1 hour ago
I am sick at heart at what I have heard today. The Supreme Court today is such a disappointment in its unwillingness to stand up for our Constitution & our country & our citizens. The Supreme Court used to stand up for the finest values of our country, for what it meant to be an American & what American meant!
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2 replies

@crafty-lady6853
1 hour ago
For the first time in my lifetime I have lost all respect for the Supreme Court, especially the Sinister 6. I am 72 years old and this court is the worst I have ever seen.
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3 replies

@Mellyn1151
1 hour ago
Those Constitutionalist judges sure missed the mark today....sad and very disheartening.
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1 reply

@sandym8787
1 hour ago
COWARDS - not worthy of being on the High Court .....
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1 reply

@lizlee8686
1 hour ago
We as Americans have a right to protest!!
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@hansombrother1
1 hour ago
They were making the argument that the president of the country is not an officer of the country. Only a corrupt Supreme Court could engage in such semantics .
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@grannygigglesyouwilltoo
1 hour ago
These spineless amoral justices should be BANNED-I AM SO OUTRAGED!
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2 replies

@greatpix
1 hour ago
What the Supreme Court needs to do is find Trump guilty of encouraging and giving aid to an insurrection and willfully trying to change the results of the election in his favor.
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@bbbowen89
1 hour ago
The Supreme Court disappointed us all again!
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1 reply

@maryswanson9982
55 minutes ago
I just want to cry. Our Democracy is lost. We’ll have to vote him out again and again until he gets the point or passes away. Then there will be another one just like him. Our Constitution has been trashed and devalued by our very Supreme Court.
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@johnlionarons9484
1 hour ago
Glenn, you are SO articulate. I am heartsick and repulsed by our "Supreme" Court and its having abandoned any vestige of integrity.
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2 replies

@user-ey1ln8xv1p
1 hour ago
Shameful, just shameful.
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@lindahanchett8994
1 hour ago
Thank you, Glenn! The Imperial Supreme Court is following their king.
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@kathymchugh2786
55 minutes ago
I’m so Disappointed and discouraged with the Supreme Court and afraid of the future of America.
13
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@EricTemple
1 hour ago
One should never underestimate this Supreme Court.
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1 reply

@FoodieVacations
47 minutes ago
Thank you Supreme Court for doing absolutely nothing, defining close to nothing and clearing up absolutely nothing! My first time listening to you all and I wasn’t impressed. That’s 2 hours I will never get back.
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@adk9215
1 hour ago
Supreme? Court is an embarrassment!!!
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@mik67890
34 minutes ago
Justice Thomas can't be confronted about his wife. Being an involved in the insurrection the court system is the total joke.
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@mizsevenoneeight685
1 hour ago
Why would we expect anything else after Trump was allowed to personally stack the SCOTUS during his tenure???
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@nancyliner5374
54 minutes ago
Putting details over democracy is insane. What on earth is the Supreme Court thinking? How DISCOURAGING - insane
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@stevenjones2673
3 hours ago
Maybe it is time for President Biden to add four more judges to the court!
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@willdavis2018
56 minutes ago
The Supreme Court needs to be updated for the 21st century
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@creisda
1 hour ago
It was a rough day for Joe, didn’t deserve that disrespect, Justice will return, keep the faith Glenn, keep moving forward informing us
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@mariabautista2178
50 minutes ago
What a disappointment from the Supreme Court. Trump must be put in jail
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@MarkDeChambeau-lo1rt
1 hour ago
As an addendum, this no longer feels like my country. I am a proud veteran but this is NOT the country I grew up in and NOT the country I helped defend. I don't know who we are anymore.
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@Susan-ql1wb
1 hour ago
What else can Colorado do to keep him from getting back in office. VOTE BLUE IN 2024
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@trudyspringer3356
3 hours ago
You didn’t have to be clairvoyant to predict that these MAGA judges will find in favor of Trump.
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@catherinelincoln9830
1 hour ago
Glenn, thanks for that powerful commentary. A sad day for our country. Please continue to fight for justice.
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@dimicdragan5922
1 hour ago
Supreme cowards, not supreme justices. They cowardly avoided the whole point of the case. They found a way around the hot topic. And by doing so, they did the most political thing they could...
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@cathywilson5378
1 hour ago
A very bad day for our country.
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@dhulbert855
14 minutes ago
All remaining respect for this SCOTUS is totally in the toilet now.
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@paulabibb1116
1 hour ago
They were childish, avoidant of the real issues, unfocussed, and ludicrous. How do we get them to retire?
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@lindahanchett8994
1 hour ago
!!!!!
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@larryyoder4861
9 minutes ago
WEAK and SAD day for our country
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@rogerthornton4068
3 hours ago
We need another Supreme Court that's not corrupted by gifts and money.
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@dandoan6756
46 minutes ago
Hello from Texas! I escaped my birth country on a small boat about 40 years ago to America to be free! ! I do not have the strength to move again if America loses democracy! Thank you for speaking up for us!
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@gretchenhill7366
19 minutes ago
Almost 70 years old, and I cried after listening to today's Supreme Court Session. The focus was all wrong.
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@user-hh2te8zu7l
50 minutes ago
This Supreme Court is disgusting.
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@kitchipepper6605
1 hour ago
I’m from Canada. I have been watching what’s going on over there and my heart goes out to all of you that are suffering from all this BS. I’m feeling pretty upset. I can’t imagine how hard it would be for all the decent, hard-working rational-minded citizens of the United States of America.
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@randyleggett5021
54 minutes ago
Supreme obfuscation and gaslighting of the whole country...
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@juliehentz
1 hour ago
So many excellent points, Glen. I was so frustrated with all of the justices. I miss Ruth Bader Ginsburg!!
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@marcuswatt9727
3 hours ago
Sadly, Trump will not be disqualified now. Up to us voters.
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@Sitting8ull
1 hour ago
It really gets my gall when they say, "let the voters decide." The voters already decided, in 2020, and they would not accept THAT. That's why we're here now.
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@lulubelleking4578
49 minutes ago
Many of us share your frustrations, Glenn. We must vote for Democracy!
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@vickisouthall7551
1 hour ago
This is a slap in the faces of those who died
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@RichardVac
1 hour ago (edited)
I agree with Glenn. Hearing the Supreme Court judges makes me want to throw up! We have a big problem in this country if the judicial branch does not defend the constitution. The purpose of having three different branches of power is to stop the abuse of overpowering other branches of government and also to be a country that is ruled by its laws.
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@chuckmiller3401
1 hour ago
Paving the way for a dictator
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@charliefreeman842
3 hours ago
Trump for prison 2024
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@willjames2688
49 minutes ago
If this goes unchecked it's time to stack the Supreme Court for a true democratic and non-political court
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@davidd1395
1 hour ago
Law and order folks knew this Court wouldn’t do anything according to law if it disqualified their master
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@rosehansen5841
1 hour ago
What is so hard??? He did it in everyone’s face!
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@SilverDog-zl9wm
59 minutes ago
Time to expand the Supreme Court!
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@user-gj3zi2py9d
1 hour ago
I’m really bummed! Hoping they will quit being afraid and see the error of their ways enough to stand up to the bully Trump!
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@PukaHeadMan
8 minutes ago
I have absolutely no faith in the supreme court. Now I truly believe there should be term limits on all these justices.
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@judewheeler5368
15 minutes ago (edited)
Trump planned that court and we NEED to appoint more judges ASAP to even the scales of justice.
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@raldyjimenez3319
30 minutes ago
It’s so disgusting and shameful how these justices behaved and acted
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@FrancoisDaniels
30 minutes ago
Glen you are a voice of reason in this insanity. God bless America.
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@michaelblankenau6598
1 hour ago
How are we supposed to continue fighting when we don’t have the support of the strongest court in the land . What a joke .
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@marjorieholler8282
1 hour ago
As always, you stay safe, we’ll stay tuned, and please keep reporting and analyzing — because we need you, and Justice matters.
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@joymoody2372
59 minutes ago
They seem to have lost sight of the most important issue of insurrection. Very concerning
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@vickisouthall7551
1 hour ago
He will do it again if he’s not stopped !!
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@colleenbishop7387
19 minutes ago
I felt right off the bat watching these Supreme Court judges that you could feel the political weight of the Republican Party was sitting on the bench. Very sad! The US should be very concerned what just took place today.
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@deborahcobb
1 hour ago
I'm ashamed of the supreme court.
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@BillySBC
3 hours ago
Who would have ever thought that the United States Supreme Court would become the greatest threat the American citizen has to their way of life.
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@davidlaing7684
1 hour ago
How can you expect Americans to respect the rule of law when we have a Supreme Court that wants to run around the constitutional law to avoid the issue ignoring the major facts for nitpicking.
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@jackietoorenaar2333
1 hour ago
Absolutely outrageous. SCOTUS has gone round the bend
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@sandrafarrington8717
16 minutes ago
The Justices did not lose sight. They just do not care! Vote blue!
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@amartin8994
52 minutes ago
Glenn, you’re absolutely right! WTF are they thinking! Good luck America you’ll going to need it!
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@crash-symbols
1 hour ago
The states can apply the age, citizenship, residency requirements and even the two term limit, but not the insurrection clause?? SCOTUS was very disappointing today.
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@rebeccaashton5390
2 hours ago
Apparently our Constitution doesn't mean much to the Supreme Court. Vote blue. ️ ️ ️ ️ ️
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@billycairns9395
18 minutes ago
I feel your pain Glen, there's no justice for tRump, the justice's let America and Americans down. So tragic!
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@EagleCondor3456
1 hour ago
The Supreme Court no longer speaks for we the people. We need them to serve 10 years and out. We need prosecutable ethics laws for the Supreme Court. These clowns need to go now!
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@mtngrammy6953
15 minutes ago
Shame on the Supreme Court! Nuff said. This just makes me very angry.
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@riccaguicla1042
50 minutes ago
How i wish Glenn is the one who stands before the justices. You are the Man!!! Thanks Glenn!
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@Emilypost70
1 hour ago
What a spineless bunch of people ! Very sad for the rule of law and the country !
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@vanessarayey1277
2 hours ago
I have lost all respect for the Supreme Court. Supreme is the last description I would use in reference to the judges. They are supporting an insurrectionist.
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@exist7309
38 minutes ago
Glenn, I feel your pain. It was such a distressing day for justice and democracy.
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@kpophalmeoni5429
1 hour ago
When I saw your statue laying on it's side, my heart dropped.
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@stevedv629
1 hour ago
This is so basic it’s ridiculous, if they accept he participated in an insurrection, then it should be plain as day
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@lisajelle714
23 minutes ago
Thank you Glenn for articulating the Supreme madness of details over Democracy. The highest Court in the land should see the big picture, but they have abjectly failed to do so. You expressed it perfectly, which helps us to focus on exactly why we are so frustrated with this Court’s actions today.
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@dankelly4747
26 minutes ago
Didn't surprise me, BOUGHT & SOLD Supreme Court!!
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@josephdan2850
3 hours ago
Michigan, Colorado, Pennsylvania, and all blue states should keep Donald Trump off the ballot if Supreme Court says to keep Donald Trump on ballot. Michigan, Pennsylvania, and all blue states should just ignore supreme court’s ruling to keep Donald Trump on ballot just like Texas and 25 Republican governors ignored Supreme Court ruling to remove razor barb wire.
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@Backsplash67
1 hour ago
Thank you Glenn. A tragedy. The founding fathers roll in their graves.
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@markrowley8073
41 minutes ago
I too listened to the court today and had a heart ache as I started realizing they were leaning towards Trump We must vote in a strong block for Democracy it’s the only way
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@lennicunningham1845
14 minutes ago
Why the hell do they play into his hand. This country is failing in a big way.
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@ritamulloy3522
1 hour ago
I agree Glenn. I couldn’t believe my ears. They were soft on what happened on that Jan 6 day! No outrage at all Like it’s to be expected!! I have no faith in the Supreme Court. Not one drop!!
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@brianbrett5955
35 minutes ago
The Supreme Court shouldn't even hear the case.
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@redsoles174
45 minutes ago
We're just going to have to accept that democracy no longer matters and this awful excuse of a man will, once again, not be held responsible for his actions just as it has always been. I'm sorry, Mr. Kirschner, but while justice does matter, it doesn't always apply to everybody as we are clearly seeing right now.
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@b.g.fractals2275
20 minutes ago
They didn't like that a state supreme court decision went over their head. Yet that democracy and criminality are not the issues that were being discussed is weird
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@paulam5864
1 hour ago
Democrats stand by
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@midnightreader84
41 minutes ago
Semantics was quibbling over "riot" as opposed to "insurrection." This was a sad day for justice.
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@amydavid1111
7 minutes ago
Are we really surprised? This court needs to be reassessed. No more life appointments.
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@contemplatingwithamaster
1 hour ago
Thanks for your love of country!
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@mikehughesoutdoors2774
4 minutes ago
SCOTUS credibility died with the talking points they addressed today!
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@helenareed8277
30 minutes ago
Please VOTE BLUE
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@TheRaferaf
59 minutes ago (edited)
If America is indeed a country of laws the case is laid out plain and clear.
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@sandrasharpe2111
3 minutes ago
0MG America just get rid of this man from your political system.He has poisoned it.From Aussie.
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@kamo7434
3 hours ago
First it was Roe, and now this crap. I've lost any respect I had for the SC. Absolutely pathetic.
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@jamierosezappolo319
1 hour ago
The entire World is upside down I’m so happy I’ve had a good and meaningful life; I weep for my children and my grandchildren
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@lilliangail6959
1 hour ago
You are per cent right . Very sad . Remember Trump said he never saw so much love in the air. Involved in an insurrection, people died. police Officer died, other Officers were injured.
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@lucyndastram4289
1 hour ago
This absolutely sickens me!
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@spongebarb451
1 hour ago
Imagine how our status as a country has slipped even further in the world’s eyes. #SupremelyCorruptCourt.
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@marlou169
30 minutes ago
Justice should matter
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@MrIggyPoop
1 hour ago (edited)
I certainly won't dispute that this corrupted Supreme Court is a body unwilling & unable to preserve our democratic Republic, but having listened attentively to the arguments today, I have to say the PISS POOR quality of Colorado's lawyers was utterly gob-smacking.
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@jeannerivet9603
46 minutes ago
After I listened to the justices, I was left with confusion. I knew something wasn't right about it. You cleared it up for me. The justices are disrespecting Colorado's decision. I'm very disappointed in them.
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@charlesspesock5069
1 hour ago
Why can't the American people take the decision out of the supreme courts hand and take a vote nation wide to decide if trump can run?
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@Yve55
1 hour ago
As a Coloradan my family, friends and I are voting for President Biden & VP Harris. WE look forward to seeing donald trump LOSE for the 3rd charm. No worries. #VoteBlue2024 MASSIVELY
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@dipenadhikari292
1 hour ago
Let’s fight for Justice until we die! It is because Justice matters.
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@Justice4all2023
3 hours ago
Billionaires and millionaires have probably told SCOTUS judges remember who you work for
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@nancydouglas8772
1 hour ago
I totally agree. Scotus doesn't care about putting an insurrectionist on the ballot, totally disgraceful. It's no wonder that the people don't have faith in scotus anymore.
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@Mary-us8jb
1 hour ago
He's spent his life not abiding by the rules and at this moment it seems as if it's going to continue. Equal justice I don't think so.
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@yvonnewilburne7263
18 minutes ago
Criminal Supreme Court
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@robrobbey
1 hour ago
The state of our judicial system is in trouble, we the people need to vote against Trump and his cult followers.
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@ruthtaylor1450
1 hour ago
What can be expected of such a corrupt group?
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@user-xw2hz9fp9q
3 hours ago
Essentially E Jean Carroll is the only person who will hold trump accountable ever, and Garland wasted 2 years.
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@rochelleperkins1637
31 minutes ago
This angers me big time! It seems like they don't care about what the Constitution says or the people that Donald Trump has hurt and continues to hurt! I'm fed up with what is happening in this country and my husband and I are considering on moving to another country. One where my son lives, that's under Democratic rule and there are a few good ones that are better than what we have! Most people don't have that option!
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@djstarrjunkie
42 minutes ago
So, Glen should all of us write an eloquent letter of disgust/disdain to the higher courts? All of my family who'd served for this country are rolling in their graves right now, and I mean that in no disrespect to them. They would be so extremely disgusted, and the lack of cojones of these "grown ups" pussyfooting around with our Democracy!!!
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@robertward2107
31 minutes ago
We need to get those Supreme Court Justice that accepted bribes and payoffs and get them out of office. It gets somebody in there who's wanting to do the right thing
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@learning2no
40 minutes ago
Ok Glen, so what do the American people do to fix this mess? We the people have NO leadership now!
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@ElectroCurmudgeon
1 hour ago
Yeah im with you glen. it sounds like they did not respect the constitution today.
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@mec4703
2 hours ago
Who cares what SCOTUS says, just like Texas. VOTE BLUE!!!
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@doctormock1
19 minutes ago
I didn't expect to win this one. I'm hoping that Justice will eventually prevail. I find it hard to believe that they will overturn the appellate court decision and grant him absolute immunity.
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@nancykoeppen8784
45 minutes ago (edited)
Hopefully since SCOTUS did not push back, then SCOTUS will agree that Trump did instigate insurrection.
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@birdiefortruth3196
14 minutes ago
He should have been disqualified in 2016! Let’s go Alvin Bragg!
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@shaz4532
5 minutes ago
IMO SCOTUS did not “lose sight” of justice! They are simply corrupt! IMO!
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@denisefelhauer3725
1 hour ago
I agree. Lincoln would be so disappointed.
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@sandradavis4359
2 hours ago
The three Trump appointees should have recused themselves, as well as Clarence Thomas, for conflict of interest.
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@grandeprairietourism3931
57 minutes ago
A sad day for America. I am shocked at the position of SCOTUS: the real question of whether one state disqualifies a candidate affecting the other states… but isn’t that part of the Constitution? I am puzzled at the inconsistency in their decision making. Thank you for your video, I have been watching your videos every day. Keep going Glenn.
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@swisscourthustle
1 hour ago
It’s pretty surreal to be watching the slow and painful downfall of the USA in real time. Another Trump term would ultimately be the last nail in the coffin.
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@keithgrillo8096
1 hour ago
The gang of 9 are a disgrace. Do any of them have any guts.
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@moonstoneway2694
48 minutes ago
Yes, that seems to have been missed by most of them. Gaslighting from the Supreme Court. Thank you.
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@SanandaIAM
22 minutes ago
Supreme Court is not worth a damn. They get a zero.
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@valentinolaquey8154
2 hours ago
This a damn shame. Vote for Joe Biden and Kamala Harris!
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@user-j9t7f8-cf9p
1 hour ago
The ship of democracy, which has weathered all storms, may sink through the mutiny of those on board. - Former President Grover Cleveland
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@melsockman9615
1 hour ago
I had a feeling that Dump would be permitted to run. I don't trust the Supreme Court, at all!! Too too many unethical on the border of criminal activity going on in the Supreme Court!! This is wrong to the core!!! We as Americans, should be capable of deciding who can be on the High Court and unethical activity should be reason to be removed!!!!
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@janetmoquin7828
33 minutes ago
As usual, that court doesnt rule by the law, they rule as long as it helps trump. So sad
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@jim0311
44 minutes ago
Biden can add 4 judges and this ends now
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@gw2315
38 minutes ago
This is why the Supreme Court is obsolete
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@terrysilcox4080
3 hours ago
I've said all along Biden should have expanded the Supreme Court !
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@patrickvankeuren9082
52 minutes ago (edited)
Roberts seems he couldn't care less whether or not an insurrectionist can run for the highest office. Saying disqualifying Trump could cause future retaliation toward a Democrat or Republican running for president is absolutely ridiculous. He is opening the gates to our democracy to anyone who wants to upend our Constitutional Republic!
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@sbl2051
40 minutes ago
Just remember to vote. The GOP has worked for years to take advantage of voter indifference and now we have to take our country back and diligently protect our democracy!
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@moonlitwomyn3419
1 hour ago
Nothing surprises me anymore...Its unfortunate that justice simply doesn't matter to those in power...very sad.
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@shimmer1372
8 minutes ago
Right ON!!! Every word you say....correct.
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@williamking8033
1 hour ago
Vote. Just vote. It's up to us. We are those who care about our freedoms, and can think for ourselves.
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@loulew07
1 hour ago
I listened today and was glad my dad was not alive to hear it. A kind decent man who was considerate to all. A 22yr Navy vet served in WW2. Glenn heart felt and as always you as my dad would say " Tell it like it is " Thanks for your time to share with us . The world watches this mess . Sure hope all who have served and serve today do so for our freedom. And it was not in vain .
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@artweeks6986
35 minutes ago
I am angry with the SCOTUS and inconsistency they have displayed starting with Citizens United, DC vs. Heller, and most recently Roe vs. Wade. Today’s hearing was a sham and I can only hope that the line of questioning does not reflect forthcoming rulings and opinions once the Justices read the Amicus Briefs. The words in the Constitution have no meaning if Trump is not disqualified.
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@roxannhanrahan7639
1 hour ago
Shame on them!
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@user-yt1bw3ty4m
52 minutes ago
This is unbelievable, the Idiocracy was an entertaining movie. Watching it happen in real real time is deeply concerning
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@rhondajones4007
1 hour ago
It’s sickening!!!
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@insertnamelol2315
1 hour ago
Thank you for giving us the real news. We will look forward to listening to you every day. Please keep up the good work.
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@leslieread556
43 minutes ago
Tell it Glenn…I completely agree. We are treading on VERY scary ground as this felt like purely skipping around the real issue at hand.
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@todderwin4234
1 hour ago
What a bunch of cowards.
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@TairnKA
51 minutes ago
That's a BAD sign, Lincoln laying on his side.
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@altpotus6913
1 hour ago
The Supreme Court...pay for play.
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@michaelalevinify
3 hours ago
Sad day for Democracy and Justice.
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@BlueLineGroovy
1 hour ago
Eugene Goodman…. You rock, Sir !!
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@crystaldragon4116
40 minutes ago
I know it is a bad Justice Day. When Glenn Kirshcer's Lincoln figure is laying on it's side in the back ground. The decision should be a easy one. Hold Trump accountable.
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@doubleshottrazorsedgecanti8437
48 minutes ago
Sad day for America!
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@HairynosedWombat163
1 hour ago
The writing is now on the wall America. If you want to restore your country, democracy and it's reputation as a beacon of hope, you will get your chance in November, so do the right thing, for the world's sake as well
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@maryloulopez8486
1 hour ago
I watched the supreme court arguments also, I am enraged at the out come of this day, wth is wrong with our supreme court?????...I am still enraged!!
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@normanduke8855
1 hour ago
They're all afraid to man up. There are no great minds or people of rock sound character on the Bench. I feel your pain, brother.
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@paulward1586
36 minutes ago
Incisive and courageous analysis.
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@evacerna-pacas7354
1 hour ago
I am not a lawyer but the more I listened to the oral arguments the more discouraged I felt, as you said not a good day
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@mikebishop4430
1 hour ago
As a Canadian and as many people from other countries ; I am very disappointed and saddened that a country that was always such an example of justice has turned its back on justice and its rule of law. Such a shame that this has happened and that a criminal may be leading this once great country that lead by example .
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@Mark-fl3kx
1 hour ago
Seems that justice does not matter to some judges. Disgusting.
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@user-oy7nf5ko9h
3 hours ago
Half of the Supreme Court shouldn't be allowed to be sitting Judges, let alone hear cases as to Trump.
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@rosehansen5841
1 hour ago
It is so hard to have respect for the Supreme Court. I heard it said “let the voters decide.” The reply was, “ they did, and Trump lost!” 2020.
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@DJ33
28 minutes ago
While I understand some of the arguments from the conservative Judges, I feel like some of the points like no history of this and why should a state be allowed were so vague and that an counter argument could have been made….to just fall on deaf ears. This is just one thought about today’s political Justices not US justices.
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@sarahwilliams9310
1 hour ago
i am totally discouraged ! thanks !
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@Redbuzzcut
1 hour ago
God I wish you had been the attorney making the argument for the people of Colorado. We were all screaming out loud at how this case was presented.
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@adamfisher3981
1 hour ago
You could not put it any more plain and simple for all ! Maybe they are blinded by fear of a man?!
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@dwightstone6569
3 hours ago
they want a Tyrant to get a second chance at ending Democracy.
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@yabadou69
1 hour ago
I wasn’t expecting much from the US Supreme Court today, especially given recent revelations of corruption among some of its members. Shockingly, even Ginni Thomas’ involvement in the January 6 events failed to prompt Justice Thomas to recuse himself. Today, I heard feeble excuses and witnessed the dismissal of the rule of law in the face of serious and democracy-threatening acts by a former president. It was a sad spectacle indeed, I feel your pain Mr Kirschner. You are a true patriot and defender of the law, and I much appreciate your teachings. /A concerned foreigner from the north
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@reichie907
1 hour ago
From Australia Glenn,you always nail it !
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@allobject
1 hour ago
Where do you want to go when the supreme court looses its principles?
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@ONEJOURNEYONESTORY
27 minutes ago
I can feel your frustration, disbelief and anger. I heard you loud and clear, and I agree with you. However, There are many things that are not in our control. Let it play out, that’s all I can say. Defeat him in the election 2024. Should he win, so be it. Life moves on. Please stay healthy. Watch your blood pressure. Thanks for all you do.
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@ducebiggs007
1 hour ago
America going down in flames
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@joehackney1376
2 hours ago
Time to Defund the Supreme Court.
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@louisreniers9887
19 minutes ago
Thanks Glenn keep the faith
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@user-xx4nm3mz4p
1 hour ago
I had no doubt they would give him a win. Listening to the oral arguments that I was privy to hear, Colorado should’ve hammered the Constitution over and over when given the opportunity to do so.
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@jillmanning8989
34 minutes ago
The SC is unjust!
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@williambradfordbaldwin4386
29 minutes ago
Thank you Glenn
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@sydney13ism
51 minutes ago
Did we really expect anything more from the Supreme Corruption?
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@gregs2466
3 hours ago
the Supreme Court Justices need to be impeached. our Country is no longer a good country.. I am fed up with this
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@fairyprincess911
1 hour ago
I’m not going to quibble over this even though Clarence sitting in infuriates my sense of justice owing to his wife’s involvement in the insurrection.
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@peteranderson5903
1 hour ago
What about the Supreme Court that strictly interprets the Constitution ?
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@coletowncoleslaw1712
1 hour ago
SCOTUS is so pathetic and disappointing-I wish you could have argued this case against trump
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@danielschaeffer1294
3 minutes ago
Let’s face it. Nobody had any realistic expectation of any other result. This is the most corrupt court it is possible to have.
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@HandsOfLight805
1 hour ago
truly frightening
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@cathyruiz73
3 hours ago
I'm so very disgusted with the Supreme Court! Why is Robert's even allowed to be on the bench?
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@senghtan

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1 hour ago
The Supreme Court does not need to open a pandora box --- it could make an executive decision. It is pulling the wool over our eyes by stating that Congress must supersede the state (e.g., Colorado) on this matter: it just needs to interpret Amendment 14, period.
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@robertb7275
9 minutes ago
Thank you Mr. Kirschner for your profound clarity and insight. I believe if you break the law, you have to accept and pay for the consequences of your actions. It disturbs me that so many people, including members of the judiciary, keep bending over to assist such a heinous individual las if they don't see the forest through the trees. It is reassuring to know that man of your character, with your education and experience, shares my concerns. I hope you have better news for me tomorrow.
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@marionramsey3248
1 hour ago
Yes vote orange menace needs to go.
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@MichealHallowell
1 hour ago
Is it possible for the Supreme Court to rule that States can’t disqualify people and also rule that Trump is an Insurrectionist and cannot be on the ballot, by their authority?
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@samuelamoia9782
1 hour ago
I expected nothing less from the non-supreme court, which is a joke!!!
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@chings5051
3 hours ago
I cannot understand why SCOTUS was so hung up on the consequences. That is what the US Constitution calls for engaging, aiding and abetting an insurrection! Running to become the US President should be an honor and reserved for the best people for the job.
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@michaelparker2016
32 minutes ago
Thanks Glen!! Unfortunately, scotus is made up of TOTAL WEENIES!!! VOTE BLUE IN 2024
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@HarkoretoDaBone-nf7ff
13 minutes ago
he can't be stopped.. amazing..
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@CiaRose5858
34 minutes ago
This is ridiculous!!!
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@carolsims3736
49 minutes ago
I sincerely hope that the Supremes are listening to you!
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@ricksizemore9953
1 hour ago
What do you expect out of a bunch of liars.
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@arthurlevin
2 hours ago
The Trump Supreme Court puppet show makes me sick
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@mariaangelova8275
12 minutes ago
I couldn't agree with you more on this, Glenn!
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@markharrington2823
1 hour ago
Well explained, well said, Mr. Kirschner.
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@charliesmith4479
1 hour ago
SCOTUS NEEDS MANY JUSTICES NEED RETIREMENT. NOT LIFE BEING PAID BY PEOPLE THEY DO NOT SERVE. DISCUSTING.
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@moarmy6779
1 hour ago
Everybody, don't give up. If this doesn't go our way (that includes the upcoming trials), we can only show up this November and Vote Blue!
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@naturalingredients
1 hour ago
It is a shame the people got a slap in the face.. only look at their own personal beliefs..
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@ileanafigueroa8685
2 hours ago
Definitely JUSTICE MATTERS but not to the SUPREME COURT.
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@willloftus8075
1 hour ago
Your perspective here is just what I needed to put my thoughts into words today. Thank you.
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@larrybooth2530
1 hour ago
Thank you Glenn for having a great mind! This is hard for me to understand and how to comprehend this reality.
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@donavern12
26 minutes ago
So depressing
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@toddstein74
1 hour ago
With all due respect. We know the story of the insurrection. We've heard it. I watched it. What's anyone gonna do about it ?
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@DIANA-dj5rx
57 minutes ago
This UNGODLY NIGHTMARE..WON'T END....WHAT NEXT?
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@danm3532
2 hours ago
The SCOTUS did a better job of arguing for Trump than what Trump's attorney did!
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@bambiclark8861
38 minutes ago
There were 130 Federalist Society (republican) judges and lawyers that found Donnie caused an insurrection but 9 Supreme Court justices, originalist and texturalists of the Constitution that can't figure this much out. This was the last ray of hope that the Supreme court could actually do their job / responsibility ... the last shred of hope to prove they weren't worthless.
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@LarryKach
45 minutes ago
Glenn rose to the occasion and produced one of his best commentaries.
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@sylviacentanni7439
1 minute ago
I was very disappointed in the justices on the Supreme Court. They asked "what do you want us to do?". Are you kidding!
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@jbarson6671
1 hour ago
Glenn - their job is to protect the Trump. I don’t think anyone expected different.
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@mik67890
41 minutes ago
Absolute joke
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@Dustandfuzz
3 hours ago
So frustrating and I’m not even. Canada is too close for comfort if Trump is elected President. Please vote blue. Please, please, please.
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@user-fh5gw6cm7i
1 hour ago (edited)
Love your channel Glenn - it is frank and honest and on point, you are very well spoken and make it easy for us to understand the legality in lawyer speak - thanks so much for keeping us up to date
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@MrArmase
36 minutes ago
You are right it is so sad the Supreme Court’s interpretation and inconsistencies in their mandates. You are right on the criteria for insurrection. It is stupid to negate this attack to their favor. Even trump admits was an insurrection blaming Mrs. Pelosy. Shame on the Supreme Court
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@chachaman4980
34 minutes ago
VOTE! It’s as easy as that.
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@michaelwesterland1853
1 hour ago
Glenn, what struck me most about what I listened to this morning was the way Alito, Gorsuch and Kavanaugh went for one semantic abstraction after another during argument, and the word "sophistry" came to mind when I searched for a word to describe what I heard from them. Also, I noted that Clarence Thomas woke up (probably to check his tip jar) and asked a question written for him by one of his clerks, and then went back to sleep -- probably to dream of bigger motor homes and more exotic vacations. Twenty minutes was all of it I could stand. Thank you for all of your articles and updates, Mr. Kirschner, they help a lot.
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@TheDragLover
44 minutes ago
It's now up to we the people.
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@pineconejeff
3 hours ago
Frustrating to hear how timid the SCOTUS is on this. Let's hope that they refuse to hear the immunity issue.
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@CarlynLei
1 hour ago (edited)
I listened to the whole thing (oral arguments) and yes what Glenn says here is true.
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@beepeesoup
1 hour ago
Oh shit, Lincoln almost fell out of his chair
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@kpf546
1 hour ago
Big shocker...when will everyone realize he will never be held accountable.
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@marcroy2705
1 hour ago
Keep him on the ballot. After Judges Engoron and Kaplan are done with him, Trump will be a lot lighter in the pocketbook.
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@BearMeat4Dinner
16 minutes ago
Glenn I’m starting to look for a place in Canada!! All this scared me away!! What a joke!!!!
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@MrJasciotto
3 hours ago
They should never be called Supreme again
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@RhondaHawkes
1 hour ago
I listened to the live stream, too and was struck by how much Thomas spoke - normally very quiet. Most likely they will not do the right thing, but that's ok - it will be more effective to VOTE and show the orange clown how many Americans know the truth!
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@Rich1Rodriguez
32 minutes ago
I still miss the Ukrainian flag
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@Backcountryhiker
1 minute ago
Very, very poor lawyer for Colorado! What a shame.
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@leslee7059
1 hour ago
A pity, Glenn. Thanks for being our beacon of light. Leslie
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@RuckFussia
1 hour ago
Is anyone really surprised? I knew there was no chance.
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@adilechavush6284
1 hour ago
Shameless and corrupt people with no integrity.
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@eileenreilly9481
1 hour ago
My last hope is that this decision will be 6-3. I just don't think I can handle any of the three women justices finding to reverse Colorado's Supreme Court.
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@COMPFUNK2
1 hour ago
Justice doesn’t matter when Justice Thomas is there at all, let alone giving the opening question.
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@frankbement6482
50 minutes ago
Our supreme courts is full of cowards
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@herbparker3091
1 hour ago (edited)
Rule of law sadly died another death today. It was oral arguments not in support of the constitution but a loop hole visceral deconstruct of the 14th by several in-Justice's.
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@KingzRansom
1 hour ago
So disheartening
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@paulabibb1116
1 hour ago
Speaking truth to power .We need more like you. They are embarrassing aren't they. They wouldn't convince a high school debate team...
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@wolphin732
1 hour ago
as someone from Canada... my opinion, for every second he is not locked up in jail is another second the US in my opinion is lawless. that he is allowed to attempt to get an elected position... shows the US is not a free country, but one where lawlessness is allowed to be there. I feel I would not be safe, so will not enter the US.
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@fairyprincess911
1 hour ago (edited)
My only question is: once he is found guilty of January 6 charges, is he then disqualified or will he continue to be able to on my shoe ?
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@u9Nails
1 hour ago
I'm a bit melancholy after the kind of Judicial performance that I heard today. After the Legislative chaos that we've had this term. I don't feel that those who should are taking the seriousness of their duty to it's full ramifications.
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@margoclayton6400
37 minutes ago
I am so in the wrong parallel universe this is the one where America ends. Mad mad mad mad world
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@starling5188
3 hours ago
If the SC doesn't want to call it an "insurrection," then they should call it a "person trying to stop the peaceful transfer of power." Whatever you want to call it, it was illegal.
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@Vulcanerd
44 minutes ago
Trump getting his money’s worth with the three judges he got to appoint.
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@roxannaweaver2155
54 minutes ago (edited)
The thing is there would NOT be any disenfranchisement of voters if Trump is removed from being on the ballots because we always have the ability to do a write-in candidate on our ballot. I believe that this supreme court is running scared of Trump also when they have no reason to be scared since they are appointed for life.
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@deborahsevigny4763
10 minutes ago
So freaking sad.
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@cloo6984
10 minutes ago
Uh oh..cannot listen to this at bedtime. Saving for my morning coffee.
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@JamesWilliams-dg9jw
1 hour ago
This is so very BAD!!!
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@cookiedog611
2 hours ago
Man, this can't be happening! I sit here fighting tears. I am not being dramatic, but I'm wholeheartedly heartbroken! I have no faith left in the supreme court, our government etc. I'm crushed!
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@danwolfe8954
1 hour ago (edited)
Nice touch with the statue, Glenn.
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@jkarnes45
1 hour ago
Unfortunately, once again it's going to come down to us to prevent the tragedy of a Trump dictatorship. If we fail we're not going to get another chance.
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@donnamoore246
43 minutes ago
SHAME ON THE US GOVERNMENT!!!
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@Rwlante
1 hour ago
Oh Donald, your presidency and your conduct thereafter will be remembered for generations, as will those who supported him. There will be classroom discussions, movies and even more books about you. I hope you are proud of your legacy.
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@lawrenceboarerpitchford5732
1 hour ago
You’re 100% correct!
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@user-lw1dl5pq6x
2 hours ago
Democrats need to add more judges, at least four or five to Supreme court. These Judges acted like criminal' s defense lawyers.
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@suthrnmd
36 minutes ago
I listened to all of the arguments today... almost seemed like they were making an argument against the 14th amendment because they were afraid of what each state would/could do in the future to other presidential candidates. It made me mad.
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@Detrumpificator4377
1 hour ago
I warned people way back in 2015 when the GOP wouldn't confirm Garland and again when RGB wouldn't retire that the pain they felt about those things would be dim in comparison to what will be on the docket in the future, Now all I have is bitterness and spite for the apathy and always playing by the rules
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@leeworthington5302
43 minutes ago
Knew it was coming and I'm still disappointed
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@rocknouveau8507
1 hour ago
Brilliant perspective!
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@paulferrara9079
49 minutes ago
I agree with you on this day.
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@donaldsperring5055
3 hours ago
There has to be something that can be done with this corrupt court. It’s an outrage Clarence Thomas did not recuse. The evidence is overwhelming and to see things otherwise is just plain nonsense.
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@Tuscanyflower68
1 hour ago
The SC lost credibility since it became the former guy’s puppets.
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@sleepingsealproductions
1 hour ago (edited)
It broke my heart listening to the live stream. They say they are about states’ rights, but then clearly reject that idea when it goes against their policy and political stances, i.e., Bush v Gore and now this.
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@gingermcintosh6545
31 minutes ago
It was so disturbing to listen to, I had to turn it off. They were totally unconcerned about preserving Democracy, even the liberals. It was so disappointing.
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@timmackenzie8145
1 hour ago
I had a feeling it was going to go this way. And you’re 100% correct on the whole comparison to the abortion situation. It’s ridiculous how bought and paid for they are. How they call them “justices” I sometimes just can’t figure out.
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@user-fn6pn9xl4d
1 hour ago
Fire the Supreme Court
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@sylvainesteve5222
1 hour ago
At the same time, Suprême court does not have to (can not) discuss the discoveries in an appeal , so … let’s wait
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@genomic_
42 minutes ago (edited)
Isn't it frustrating how often important issues get turned into partisan battles? It's time we start prioritizing progress over politics. After all, it shouldn't have to be a partisan issue to do what's best for the people. Also, it seems like SCJs don't give a damn that they might be inconsequential if 45 becomes 47.
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@billmillar7234
1 hour ago
Well said,Glen...... very disappointed
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@albertcassler8763
1 hour ago
Maybe the supreme court justices will come to their senses and rule in favor of the constitution as stated in the 14th amendment
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@nancyemery618
20 minutes ago
Beyond sad
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@studennison1
3 hours ago (edited)
So section 3 under the 14th Amendment means absolutely nothing!
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@xlxfjh
43 minutes ago
If our Constitution and system of government is the greatest in the world, why haven't other wealthy nations adopted it for themselves?
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@joancooney7724
2 minutes ago
It’s hard to believe that Trump can stay on any ballot
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@ashanddad
1 hour ago
I feel your pain
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@finitedesigns8430
1 hour ago
This lawyer should argue for Colorado!
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@cheryldirks6495
32 minutes ago
Do we not have some laws against criminals holding office???
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@sweett2185
2 hours ago
trump is history. He can remain on the ballot and we will beat him AGAIN on Nov 5, 2024. VOTE BLUE JUSTICE MATTERS!
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@Tedisntakidanymore
56 minutes ago
I listened to the entire live feed too, Glenn, and it left me livid! There seemed to be an unspoken agreement that the orange conman was an insurrectionist, but then they reverted to their semantics game. The "How many angels can dance on the head of a pin"-type discussion. Seems obvious to me if he committed the act -- and he did -- then there are consequences spelled out in the 14th Amend. Maggots on the court were looking for a way to ignore the Constitution and help their boy. they're such pos.
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@jeeplvr2000
1 hour ago
Stacking the courts has it's perks.
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@stevekoch4540
45 minutes ago
We the people must band together and vote the wanna be dictator out forever! Nov. 5th 2024 is our day!
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@dennyworden9391
1 hour ago
This is absolutely nuts..
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@janetguggenheim
52 minutes ago
Can we sue the Supreme Court?????
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@ReadingRulesDallas
1 hour ago
I see that Lincoln has fallen on his side. I think we know how he feels. Where is Justice hiding? Please come back, Friend.
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@janbush5408
1 hour ago
Reason they delt with semantics was not to have to deal with the actual issue!
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@marydoan6831
37 minutes ago
I'm sad.
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@barbtwining7650
1 hour ago
Since Texas has ignored a Supreme Court ruling maybe Colorado should also.
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@pamelathompson7494
44 minutes ago
So the Constitution means nothing to the Supreme Court judges
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@timothyshiu2263
38 seconds ago
No matter what happen, money definitely pays lawyer’s bill.
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@Pilot_engineer_19
1 hour ago
Well, now we know! In the supreme court we have the best judges that money can buy!
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@sandramichaels4738
37 minutes ago
This SCOTUS is a joke.
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@mattjacobson5774
1 hour ago (edited)
It shouldn't be a surprise. The disqualification was barely affirmed by the Colorado courts. Why expect it to fare better with SCOTUS?
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@jerrilynhenson9024
45 minutes ago
The Supreme Court needs revamped. They are all under his thumb.
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@LeslieAnthony-dj1iv
1 hour ago
Love you Glenn!
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@brianloerzel1936
43 minutes ago
Hey Glen, let’s see if Canada will take us as political refugees!!!!!
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@BMM3
11 minutes ago
How much money did Trump pay the Supreme Court justices to rule this way !!??
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@lizbutterfield5445
41 minutes ago
If he isn't an insurrectionist then he sure as hell committed rebellion.
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@lorindapullen7364
23 minutes ago
Thank you
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@harold1901
2 hours ago
I lost all faith in the Supreme Court once they started hammering attorneys.
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@victoriawhitworth9400
51 minutes ago
Wow! Go Glenn!
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@dream2be611
44 minutes ago
Maybe we need to march on the capital. Let the DOJ, know we the people, not the billionairs and millionaires who have lost touch with reality makes the world turn. Insanity, one day they can clean up their own toilets.
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@sfviris5582
3 minutes ago
Am I crazy for thinking it might still turn out ok? ️
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@ThomasEWalker
18 minutes ago
Worse, the direction of some justices was wrong on the details, very plainly. Example: Gorsuch asked if military commanders would have to obey a presidential order after said president had sought to overturn an election through insurrection and he muddied those waters by suggesting that such a judgment has to be reached officially somewhere before the military personnel could refuse an order. That is WRONG and the only proper answer is NO. That is clear military doctrine: An illegal order not only ought to be disobeyed on moral grounds, military personnel are required to disobey unlawful orders given at any time. There is no option whatsoever, and each member of the military has to use their best judgment to do so based on the evidence before them. This does not wait for a tribunal, and the president, being a military officer, is held to that standard. PERIOD.
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@hilariapdx
59 minutes ago
We fight on
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@mableleach5633
2 hours ago
I am with you 100%. Using the word justice should not be used in the same sentence with Supreme Court. After all, one member was a part of that insurrection. And, yes, Trump is disqualified to run.
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@Cookster4959
1 hour ago
My heart is so heavy, feel like I, we are drowning and there are no lifelines, no hands to pull us back from this abyss, from this moment from where there is no return.
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@57RickH
20 minutes ago (edited)
As disappointing as today's Scotus hearing was, perhaps they're giving him a "win" on this issue but the immunity case will be a different ruling (if they take it at all) and the insurrection trial can proceed. So, this today will ultimately turn out to be a minor and temporary setback for democracy.
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@patrickdewilde940
6 minutes ago
What a shame, not even an iota of courage!
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@jolliff5902
1 hour ago
Best passion yet as you presented the toughest action yet.
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@melindathemm8014
36 minutes ago
Thank you.
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@trailimagesphotography6635
3 hours ago
Anyone who thinks our justice system is going to protect us from 45 is kidding themselves. The plan is simple. The justice system will leave 45 on the ballot so they don't have to deal with backlash from the 45-MAGA-Cabal.
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@alephnull7007
56 minutes ago
Listening to the arguments today was like listening to medieval scholars debating the number of angels who could dance on the head of a pin. The justice who disappointed me most today was Kagan. There's no bar so low that the conservatives on the bench won't stoop to go under it, but I expected better of her.
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@elwood_diggler
59 minutes ago
I'm now questioning Judge Luttig's influence with scotus wtf
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@ddrose06
1 hour ago
Thanks Glenn.
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@doj8763
1 hour ago
The hitchhikers guide to the galaxy already spoke to this, like 30-40 years ago
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@danielcunningham2394
51 minutes ago
And any questions about how crooked the justice system is?
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@rebeccagerringer6648
2 hours ago
The obvious trump supporting judges kept interrupting the Colorado lawyer. They were dismissive, rude, and made a mockery of justice.
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@user-gi8hg3bk4j
23 minutes ago
Thank you for bring up the what the supreme court did with womens rights. They ruled it was a constitutional right made it a 52 year old law. And in 3 weeks ruled it it was not and ruled that it was an individual state problem that lead to chaos, i said they would try and make to trumps advantage.They have proved they can not be trusted to pass a fair judgement.
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@reason43poole37
34 minutes ago
Again I have to say Glen nailed it the insurrection was not mentioned it's OK that's no consideration of ours.
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@TomCrockett-ip5rf
47 minutes ago
Popular Vote! Down with the Electoral College.
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@user-mr7qg2xf3x
1 hour ago
Dear god don’t tell me he’s not going to be charged with insurrection
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@BearMeat4Dinner
13 minutes ago
I’ll come back when America is better.. outta here soon nightmare on elm street!!!
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@SEOshogun
3 hours ago
That will set a sad precedent! If Trump isn't removed for Insurrection then it doesn't apply to anyone
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@lisadawson2652
1 hour ago
I pray this was just for show and they all will fall inline with the constitution and uphold what the Colorado Supreme Court has made very clear that Trump is disqualified and will not appear on the ballot
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@oneworld9071
27 minutes ago
SCOTUS is tantamount to the legislative body of the US House of Republicans. Compensated all along, done spent it, and can't afford to lose their rich uncle's reciprocity.
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@sabrinamondy9033
1 hour ago
Did you expect anything but corrupt judges I didn't
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@leslien1969
41 minutes ago
To avoid chaos they may rule that states should not bar but put such candidates on notice that they will be barred from taking oath of office.
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@ricrhoades8372
1 hour ago
Right you are Glen
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@crocketmeow
2 hours ago
I knew the illegitimate supreme court would get this 100% wrong.
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@terrencemitchell3024
4 minutes ago
Glenn the Supreme Court Court in my opinion dropped the ball they focused on somatic and not what brought us to this point in the first place
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@ReignCloudz
1 hour ago
My question would be for such an important Supreme Court decision why didn't Colorado bring in a Lawyer that is experienced seasoned enough to challenge the court?
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@mauricemarcucci1738
1 hour ago
We will have to wait for the final verdict and folks don't speculate.
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@chrislferrell
1 hour ago (edited)
I'm disappointed by the Supreme Court's demonstrated focus, and apparent leanings toward a likely unfavorable decision (for my part), but I'm not surprised. I agree with your characterization and description, Glenn.
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@phillipgoodyear4196
38 minutes ago
They will soon rue the non decision they avoided in the future...blatant kneeling.
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@frankstrelich535
36 seconds ago
It's a shame and disgusting that our highest court is so corrupt and I hope one day soon they lose their jobs.
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@fullofnonsense-dn5ni
3 hours ago
I always comfort myself with something Glen said earlier. If Trump gets reelected, the first thing he will do as a dictator is get rid of SCOTUS.
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@donadams8345
30 minutes ago
It's a shame that the United States has to contend with poor presidential candidates like Trump. The republican party itself should bar him from running under their banner. You would think that the Supreme Court would have some standards for one of the highest offices in the country, but then again some of them were put on the bench by the very person the candidate they are looking at who has now transgressed so many laws and norms of behavior. The country needs a better way to select Supreme Court justices.
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@bendono
1 hour ago
There is no need for the Supreme Court to be worried about a single state disenfranchising the people of all other states of their candidate because the authors of the 14th amendment have already addressed this issue: approval of two-thirds of the House and Senate--the voice of the people--can remove any such restriction if deemed valid.
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@malhotraroger9106
1 hour ago
It looks like Harlan Crow is winning.
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@elizabethalexander6528
52 minutes ago
It is a rough day Glenn
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@hagancs
3 hours ago
Justice matters, just not to the Supreme Court.
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@abberepair8288
16 minutes ago
What you’re saying Glen is the less than Supreme Court is giving aid and comfort to insurrectionists!
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@andreamontoya3974
1 hour ago (edited)
There should no longer be lifetime positions for the US Supreme Court. If and I say if he were ever to be president, he would do away having a Supreme Court so he could rule as king.
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@liamtran3792
59 minutes ago
Sad day for all
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@patrickjames1159
56 minutes ago
Monday is the big day and I'm not counting on it being a good one either
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@nemesisguy
1 hour ago
Which just proves once and for all that your so called 'judicial system' is totally fucked.
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@Piano-Love
2 hours ago
He is still engaging in insurection. Our Supreme Court can no longer lead.
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@grantgamble7859
34 minutes ago (edited)
How many of the Judges recused themselves, I bet $1 that none of them did. Judge Clarence Thomas should have.
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@w5cdt
1 hour ago
Glenn I wish you had argued your points before SCOTUS today. I think Colorado’s attorney was weak.
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@grahammewburn
1 hour ago
Perhaps they should put global safety and security alongside American democracy.
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@sandramkettner3506
9 minutes ago
I find it incredible that these justices seem to be more concerned about the chaos that would ensue if each state was allowed to make its own decision. However the same concern for chaos and Injustice was not present when they took away the protections that women had to make decisions about their own bodies. Anybody surprised??
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@iansampson7663
1 hour ago
The trouble with the 14th amendment is that it was written in plain english.
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@judgegixxer
39 minutes ago
I knew it. If anyone thinks Walmart Clarence, I Like Beer Brett & Handmaids Tale Amy would EVER do anything to hurt Trump, they're fools.
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@brunodiesberger1206
45 minutes ago
Wow, this is like some sci fi marvel movie. Even more unbelievable. The dumpster obviously has something on the SCROTUM, I mean SCOTUS brothers
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@mattdonlan7745
1 hour ago
The SCOTUS is too weak to be useful anymore. Time to go.
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@davidwilhelm7466
53 seconds ago
The Supreme Court job is to protect the constitution. Since they are unable to do their jobs. Can they be recalled? If you can't do your basic job. Their needs to be a way of recalling you.
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@randybungo2941
1 hour ago
Did anybody notice glens bookend it about to fall out oh his chair? Nice touch sir! I Get it ! Some of those corrupt judges need to fall out of their seats permanently!
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@neilfleming2787
3 hours ago
I'd love to say that there is justice available within the US, but when your supreme court has been bought and paid for by one person how would you ever have proper justice
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@Borsia
1 hour ago
I listened to some, but not all, of the live feed and it became clear that what we have in the highest court are 9 court jesters and not 9 respectable judges. This issue couldn't be clearer and all they did was avoid their obligations and duties to follow the Constitution. This is why presidents shouldn't be appointing judges when you look at what we get as judges throughout the Federal justice system this is so obvious !!
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@bigbill2me
1 hour ago
They act like Trump’s got the goods on them, don’t they? They themselves are on trial and they worry.
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@carlhunter3844
55 minutes ago
Not detail! It was BS! And good will still prevail!
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@sharonanne9491
9 minutes ago
Why isn't Clarence Thomas recusing himself? Didn't Ginni organize and fund raise for the January 6th Insurrection?
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@sammyobryant4099
15 minutes ago
Thank you.
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@mikepelelo5657
22 minutes ago (edited)
I appreciate your thoughts Glenn but let's do things the old fashioned way: Vote Trump Out!
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@angeline12345
6 minutes ago
I am afraid that around the world thinks America is a joke you can thank Donald Trump for that and you’re supreme Court if they don’t adhere to the constitution either
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@johnnyfowora124
18 minutes ago
He was never charged, son. HA-HAAA!!!
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@PRND21
12 minutes ago
I wish the 14th amendment was written as simply as your graphic. Commander in Chief- a head of state or officer in supreme command of a country's armed forces.
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@larrymaxwell8565
1 hour ago
I wish you were there soeaking for us glen
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@billladuke6208
2 hours ago
The Supreme Court must be blind,shameful!
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@frankbement6482
55 minutes ago
Is there any chance that be found guilty of a federal crime but still never spend a day in jail. Or even put off the sentence until after the election. How fast or slow the sentence be made to start?
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@tylerbuell4223
1 hour ago
Glenn looked close to tears. I have such profound respect for him. To me, he represents all of the qualities we look for in a person of good character. Honesty, integrity, fairness, judiciousness, and mercifulness. You could see that the SCOTUS clearly partisan findings today were not just an affront to his education and experience, but a deeply painful result that is an affront to everything he believes in. It hurt me to see it. We are in dangerous waters here folks. This is possibly the most shocking thing I have seen since the January 6th insurrection. These people (the gqp, maga, right-wing idealogues) are clearly and overtly attempting what Bill Maher calls a "slow-moving coup". We CANNOT allow them to win ANYTHING! Not the House, Congress, and certainly not the Executive. When we gain control of all three in this next election there MUST be substantive and fundamental changes. An expansion of SCOTUS to at least 12 chairs would be a good place to start. I am so grateful to have people like Glenn on our side.
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@marciawilliams1892
1 hour ago
Agree with you- but let pray they make the right decision
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@sammsi1527
1 hour ago
The late , Bob Dole , a lawyer, senate majority leader, presidential candidate, said “ Before you commit a crime, make sure you have a very good lawyer, and plenty of $$$$$$$$$$ .
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@fairyprincess911
1 hour ago
I hold all justices to be corrupt now
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@BB-nu3vd
2 hours ago
How disappointing and unsurprising. This country is becoming more of a worldwide joke every day.
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@jimmythetout109
58 minutes ago
I listened today , for all 2 hours .....and what an eye opener . The very idea ....that the highest court in the land , supposedly non partisan , is too busy parsing words ...rather than dealing with the facts ....namely an insurrectionist looking to hold office again ........because , to any person with common sense , that's what this is about .
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@Argyll9846
1 hour ago (edited)
This is a very sad day for American democracy. Justice matters except where Donald Trump is concerned - he seems to have a free pass with the Supreme Court and judge Cannon. Clearly the Supreme Court does not see an insurrection as being a particularly important issue. Clearly the side putting forward the argument to keep Trump off the ballot were not up to the task and the judges weren't really interested.
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@user-lb6md5hp4q
18 minutes ago
We are F'ED for 2024
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@kennethkilat1269
56 minutes ago
I do believe that SC will not allow Colorado disqualification to prevent national chaos, and may define sedition, and disqualifies Trump for Office. (Am not a lawyer though)
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@lennicunningham1845
8 minutes ago
What would it take to impeach them all?
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@rokrok60
2 hours ago
Brazil definitely had gotten it right when it came to dealing with Bolsonaro’s attempted coup. It seems like the United States doesn’t have the courage to do what’s right and just. Sad.
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@DanPainter-xr6ct
22 minutes ago
It was a great day for Trump surging in Polls and loving the left’s meltdown
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@cohoanglervancouverwa6755
7 minutes ago
All those folks who have high regard and utmost respect for the SCOTUS learned a lesson today. The notion of textualism and originalism as practiced by the SCOTUS is nothing more than a means to an end. The justices decide the outcome they want, and then select the legal theory that fits their conclusion. But when textualism and originalism doesn't fit the outcome they seek, they abandon it. Quickly. That's what happened today. Their judicial philosophy doesn't fit their pre-determined outcome so they pick something else.
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@kathydavis-cd2go
42 minutes ago
I knew this would happen.
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@user-bk1kk9tl9b
1 hour ago
When T-rump loses again in November we can all sit back and watch the re-run of Jan.6th!
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@marionramsey3248
1 hour ago
Yes it was he will be on the ballot. We all know it. It just sucks.
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@youngkimaro8451
1 hour ago
If the justices focused so much on the semantics of the constitution while they all seem to agree that there was an insurrection, then could the reason be that the justices want to make the wordings so crystal clear to leave no room for "alternative" interpretations in the future?
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@sigurdurmarolafsson4183
1 hour ago (edited)
At 10.01 we could hear how it was going to ( likely ) end. And the lawyer for CREW sounded way out of their depth.
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@susancoddington6393
1 hour ago
I still don't understand why Jack Smith didn't charge trump with insurrection
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@jenniferkesler1832
1 hour ago
We the people need to hire Glenn to Represent us in the People against DJ Trump for Insurrection against the USA!
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@bruceleeroix1613
11 minutes ago
ShoNuff!!!
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@dekgmail2102
3 hours ago
“They kept saying about what I said right after the insurrection,” he said outside Mar-a-Lago after arguments concluded in Washington, D.C. “I think it was an insurrection caused by Nancy Pelosi. Word for word By trump!!!!!!!
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@3goldfinger
1 hour ago
I hope Biden will repay with "what goes around, comes around.
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@drnancysjohnson3844
1 hour ago
Now for me the music makes me feel like I’m in a mega-battle story movie but w/out Dr. Wagner’s picture at the bottom of the screen I’m overwhelmed by the battle between toe nail & the swollen flesh. I don’t know how this person could walk. When I saw the big toe nail it made me cringe!
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@vickisouthall7551
1 hour ago
Can “ we the people “ appeal this decision???
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@gregblair5139
24 minutes ago
If he doesn't concede that he lost, he can't run again because of term limits (he can't be elected more than twice)!
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@sammsi1527
1 hour ago
To Mr, Jack Smith ; Mr. Smith , Stop . Your mission impossible is over . No matter what the courts decisions are, Trump will appeal to the Supreme Court . By now , you should know their decision.
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@bethanderson397
57 minutes ago (edited)
I knew the moment C Thomas asked the first question to the Colorado lawyer - that it was going south - even before he answered the question. Something in thomases voice was different than when he questioned the trump lawyer. Quite notable to me it was. Just my opinion.
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@davevanderwall7644
36 minutes ago
Hate to say this Glen but you of all people know it all comes down to the details.
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@user-tq9im9fs6r
42 minutes ago
Seams like self prevention to me.
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@khicks72
36 minutes ago
As far as I'm aware, SCOTUS has not issued a decision on this, right? Glenn makes it sound like they have already ruled. Why not wait until there is a ruling, and then analyze it?
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@Evernia6181
1 hour ago
RESIST
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@caryhill570
3 hours ago
It's time to change the Supreme Court
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@Soylntgrnisppl
1 hour ago (edited)
The fact that it was Justice Jackson who questioned why the Founding Founders did not include language specifically mentioning The President as an Officer, is disturbing. She asked the question: "But then why didn't they put the word president in the very enumerated list in Section 3? The thing that really is troubling to me is, I totally understand your argument, but they were listing people that were barred, and President is not there?" Even among the Liberal SC Justices, their obvious desperation to find an off-ramp, any off-ramp, demonstrates breathtaking cowardice.
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@josephjemello479
1 hour ago
Also, your programs and your indulgences did nothing to stop our fall from democracy. I can only hope that voters do their job. None of any major networks to include MSNBC ever provided any impetus to stop the massive fall of grace from our once beautiful country.
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@leonardfischbach9217
30 minutes ago
The SC sophistry is no surprise to me. Is it to you?
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@13soulz
36 minutes ago (edited)
Justice Ketanji Brown Jackson discussed the insurrection directly involving Trump during today’s arguments. Credit deserved for her. I realize they didn’t discuss that through the entire process but sometimes details do matter for in the future these details are already settled I would think. As with the planning by Donald Trump , those were details that will help with his criminal conviction. Take care bro always enjoying and respecting your views, thank you
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@georgelabottum7448
5 minutes ago
The Supreme Court of the United States has been sick for a while now. Today, we found out it is full of cancer , and it’s terminal.
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@sharonneal8643
3 hours ago
Thanks, Glenn, for this video. We still have our vote, so vote blue, you all, and Trump 20-24 years in prison !!!!!!
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@patriciascarangello8777
25 minutes ago
It seems the cart has been put before the horse. This decision should not take place prior to the DC trial. Once there is the conviction in DC trial the Colorado case would be mute.
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@debh5780
1 hour ago (edited)
To the Supreme Court history is watching !!! We will pray on their ability to focus on the fourteenth amendment section 3.3 put before you as that is the only question !!! No person having sworn allegiance to the constitution shall participate in an insurrection or rebellion as they shall not be able to hold office !!!
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@JohnDough-yr2zt
1 hour ago
What a bunch of crap.
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@Werewolf0216
1 hour ago (edited)
Well hopefully the justices were covering the semantics just to ultimately quash anyone who took issue with the semantics. Hopefully playing devil’s advocate just to ultimately have unquestionable clarification.
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@bear6383
49 minutes ago
What are the peoples options when SCOTUS lets trump run?
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@markbriggs2336
2 hours ago
When Sen M McConnell denied Pres. Obama's nominee for SCOTUS, M Garland, I knew there would come a day America regretted it. Todays that day, today affirmed that SCOTUS has been politicized by the GOP. Chief Justice Roberts has to go, he doesn't have the balls to hold that job.
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@josephinebennington7247
30 minutes ago
Glenn…again from the UK… if a State legally and successfully bans an insurrectionist from their State ballot, but somehow that candidate wins the National ballot for the Office of President via States that didn’t ban him/her…. 1. can that original State take the position that he is NOT their president, and cannot physically enter the State? 2. Or, must that State reluctantly accept that unwanted individual as their President, or 3. can they/would,they then secede from The Union?
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@LukeMingst
1 hour ago
Aiding and abetting an insurrection, after having taken an oath to support it, disqualifies one from holding offices in any level of government. An argument can be made that any Supreme Court Justice that votes to support Trump in this case qualifies for that and would automatically forfeit their spot on SCOTUS.
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@billcleland1709
19 minutes ago
Ok,..Supreme court hasnt decided yet..if they dont uphold the constitution, then who does ?
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@Babarudra
1 hour ago
Glenn, as always, thank you for your summation of the day's sh!tshow, how do we make this a nationwide thing, so that it's not just "one state deciding for all 50" looking to throw him off the ballot but a majority?
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@user-rh2nn3tl9m
58 minutes ago
Is there any one else that can hold The supreme court accountable? This justice matters doesn't seem to be going very far with these nine Lunatics
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@JovanHuttonPullmyfinger
3 hours ago
Scotus is gutless.
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@harryschaefer8563
50 minutes ago
Glenn, why didn't one of Colorado's lawyers say "let's go to the video" showing Trump riling up his crazies, telling them to "fight like hell"? We all saw that and know Ginni Thomas was involved in it up to her eyeballs. Why didn't Roberts make Thomas recuse himself?
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@Ozworldz
38 minutes ago
Transcribe this Glenn, and send it to someone, send it to them all. You laid it out perfectly. I'm disgusted, they will debate the meaning of the word "the" until the cows come home. Meanwhile, Trump is taking over, calling the shots already and dominating our space every day. He sure has done a great job of dismantling the system, and he hasn't even begun.
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@delorferral2221
59 minutes ago
Guess they aren't as smart as I had hoped. Giving trump a pass will put their jobs in jeopardy
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@marydegenkolb9603
55 minutes ago
I listened in on NPR today when the oral arguments were being discussed. I am no legal eagle, but I do understand enough legalize to get physically sick when Trump's attorney was argumenting over semantics in regard to whether Jan 6 was a riot or insurrection. The way he described the differences made me angry. Because we all know that riot turned insurrection was Trump's desire. He called for it and they answered.
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@onweekendpass
15 minutes ago
It sure seems like the entire system is a joke!!!!! talk about arbitrary!!!! blind justice!!!!! what a joke!!!!!
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@daisypagan4359
2 hours ago
Makes me disgusted Trump appointed 3 Supreme Court justices and overturned Roe v Wade and played semantics today
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@morissagleichenhaus2520
12 minutes ago
The attorney for Colorado wasn't prepared today. There were a number of questions that weren't adequately answered. 1) if article 14 automatically disqualifies the actor from his position, what should others have done on Jan 6 (immediately after the act of insurrection was evident)? - the attorney hmmed and hawed about following legal protocol ... No, immediately upon the act, it was clear that citizen (previously President) Trump disqualified himself from the office, and other officers should have immediately disregarded his authority and deferred to the next in command. Military officers know this when given an unlawful order, you don't follow it... the offending officer doesn't get to keep command until the legal authorities can weigh in. I hope you consider this and discuss it with the audience. One of the worst things we all see about the situation we are in is that we keep placating and showing Trump respect. He doesn't deserve it.
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@franklindsey8071
32 minutes ago
The Supreme Court, inclusive of both liberal and conservative justices, seems to be hesitant to to embrace the idea of having a single state Supreme Court determine the eligibility of a candidate for national office. One should not forget that this is not just about Donald Trump, but rather, potentially establishing a precedent that would apply to all candidates for national office. But I wonder how this might work in practise. Who would have legal standing to make the allegation and where exactly would the allegation be argued?
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@jesse-gz1ri
1 hour ago
I saw this coming, let's hear it for the supremely CORRUPT court, PATHETIC!
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@theodoreroberts3407
44 minutes ago (edited)
Already figured the supreme court wouldn't follow the Constitution. All the more reason for citizens to do their job at the ballot box and make sure Trump doesn't get near the Whitehouse. That also means the supreme court isn't going to keep their oath of office.anymore than Trump did. Do what's right and sane, up and down the ballot, vote blue, your country has to depend on you to continue. End the circus and clown show.
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@chuckw1021
1 hour ago
We're F#%ked
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@KelSmith-kv6uh
2 hours ago
My heart goes out to all you honest, intelligent thinking and hard working Americans, I find it hard to comprehend the nonsense that confronts you on a daily judicial and democracy level. You sadly seem to have a lot unAmerican traitors throughout your society now.
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